ML20210H858

State of UT Response to NRC Staff Response to Applicant Motion for Summary Disposition of Contention UT B.* Summary Disposition of UT Contention B Should Be Rejected by Board.With Certificate of Svc

ML20210H858
Person / Time
Site:	07200022
Issue date:	07/26/1999
From:	Chancellor D UTAH, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#399-20697 97-732-02-ISFSI, ISFSI, NUDOCS 9908040116
Download: ML20210H858 (6)

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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION oo g 2 P3 :16 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD v,

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In the Matter of:

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Docket No. 72-22-ISFSI

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PRIVATE FUEL STORAGE, LLC )

ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel

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Storage Installation)

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July 26,1999 STATE OF UTAH'S RESPONSE TO NRC STAFF'S RESPONSE TO APPLICANT'S MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION UTAH B The Applicant filed a Motion for Summary Disposition of Contention Utah B

(" Applicant's Motion") on June 11,1999 to which both the Staff and the State fUed responses on July 16,1999. The Rate now submits a brief reply to the Staff's Response.

The Staff takes the position that no factualissues remain to be resolved concerning Utah Contention B. Staff Response at 11-12. To support this proposition, l

the Staff relies,in part, on the Applicant's February 10,1999 response to the Staff's December 10,1998 Requests for Additional Information ("RAls"). The Staff relies on the Applicant's RAI response as to how PFS plans to operate the intermodal transfer l

l facility ("ITF"), and also as to the emergency response and physical protection to be provided at the ITF. The Staff also maintains that the Applicant's operation at the l

ITF will fall within the established regulatory regime governing transportation of 9900040116 990726 PDR ADOCK 07200022 C

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a spent fuel, and, thus all legalissues concerning Utah Contention B are resolved. Staff Reply at 13. Moreover, in the Staff's Statement ofits Position concerning Contention Utah B, (" Staff's Position") filed on June 15,1999, the Staff asserts that if " unforeseen circumstances arose" with respect to uultiple casks present at the ITF, NRC could condition " utility route approvals to requirement permission from PFS to begin shipment... and require that armed guards be posted when multiple casks are present at the [ITF]..." Staff Position, Attachment, at 3.

The State strongly disputes the Staff's position. Nowhere in the Staff's Reply or in the Staff's Position, does NRC Staff discuss the regulation of the gantry crane.

As the State pointed out in its July 16,1999, Response to the Applicant's Motion, the gantry crane, used to maneuver the casks from railcar to truck bed, will not be regulated under Part 71. Furthermore, to the extent that the Staffis relying on promises make by the Applicant in its February 10,1999 RAI response, with respect to security measures and emergency response procedures to ensure that all necessary regulatory protections are in place at the ITF, those promises are unenforceable by the NRC.

The Atomic Safety and licensing Appeal Board In the Matter of Wrangler l

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' Laboratories. et. al (General License Authority of 10 CFR S 40.22), ALAB-051,33 NP C 505 (1991), addressed the scope of " requirements" (i.e. "a legally binding requirement such as a statute, regulation, license condition, technical specification, or 2

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order") that may be imposed on a licensee under the Commission's enforcement policy. 33 NRC at 519. The Board could not find that specific license or guidance requirements had been imposed on the licensee by prior order or some other legally binding requirement. Id. Furthermore, the Staff cannot impose requirements on a licensee by orders that have a retroactive application. Oncolocv Services Corp (Order Suspending Byproduct Material License No. 37-28540 01), ASLBP No. 93-684-02-EA, 39 NRC 11,21 (1994). Thus, NRC cannot rely on the Applicant's RAI responses or impose an order if " unforeseen circumstances arose" to ensure that PFS's operation of the ITF is fully covered by enfoiceable regulations. Furthermore, the regulatory scheme the Staff plans to use does not cover an important piece of safety equipment, the gantry crane.

The State has raised a number of factual and legal disputes with the Applicant's and Staff's position to show that PFS will not operate the ITF in accordance with an established transportation regulatory regime. Accordingly, the Applicant's Motion l

j for Summary Disposition of Utah Contention B should be rejected in toto by the l

Board.

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U0 DATED this 26'6 day of July,1999.

Res tf ly submitted, Denise Chancellor, Assistant Attorney General Fred G Nelson, Assistant Attorney General Diane Curran, Special Assistant Attorney General Connie Nakahara, Special Assistant Attorney General Attorneys for State of Utah Utah Attorney General's Office 160 East 300 South,5th Floor, P.O. Box 140873 Salt Lake City, UT 84114-0873 Telephone: (801) 366-0286, Fax: (801) 366-0292 i

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DOCXETED l

USNRC CERTIFICATE OF SERVICE I hereby certify that a copy of STATE OF UTAH'S RESPONSE b hTC-2 P 3 :16 STAFF'S RESPONSE TO APPLICANT'S MOTION FOR SUMMAR,,

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~ f-DISPOSITION OF CONTENTION UTAH B was served on the persons listed below by electronic mail (unless otherwise noted) with conforming copies by United 6

States mail first class, this 26 day of July,1999:

Rulemaking & Adjudication Staff Sherwin E. Turk, Esq.

Secretary of the Commission Catherine L. Marco, Esq.

U. S. Nuclear Regulatory Commission Office of the General Counsel Washington D.C. 20555 Mail Stop 15 B18 E-mail: hearingdocket@nrc. gov U.S. Nuclear Regulatory Commission (originalandtwo copies)

Washington, DC 20555 E-Mail: set @nrc. gov G. Paul Bollwerk, III, Chairman E-Mail: clm@nrc. gov Administrative Judge E-Mail: pfscase@nrc. gov Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Jay E. Silberg, Esq.

- Washington, DC 20555 Ernest L. Blake,Jr.

E-Mail: gpb@nrc. gov Shaw, Pittman, Potts & Trowbridge 2300 N Street, N. W.

l Dr. Jerry R. Kline Washington, DC 20037-8007 Administrative Judge E-Mail: Jay _Silberg@shawpittman.com Atomic Safety and Licensing Board E-Mail: ernest _blake@shawpittman.com U. S. Nuclear Regulatory Commission E-Mail: paul _gaukler@shawpittman.com Washington, DC 20555 E-Mail: jrk2@nrc. gov John Paul Kennedy, Sr., Esq.

E Mail: kjerry@erols.com 1385 Yale Avenue Salt Lake City, Utah 84105 Dr. Peter S. Lam E-Maih john @kennedys.org Administrative Judge l

. Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, DC 20555 E-Mail: psl@nrc. gov 5

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Richard E. Condit, Esq.

James M. Cutchin l

. Land and Water Fund of the Rockies Atomic Safety and Licensing Board 2260 Baseline Road, Suite 200 Panel Boulder, Colorado 80302 U.S. Nuclear Regulatory Commission l

E-Mail: rcondit@lawfund.org Washington, D.C. 20555-0001 l

E-Mail: jmc3@nrc. gov l

Joro Walker, Esq.

(electronic copy only)

L Land and Water Fund of the Rockies 2056 East 3300 South Street, Suite 1 Office of the Commission Appellate Salt Lake City, Utah 84109 Adjudication l

E-Mail: joro61@inconnect.com Mail Stop: 16-G-15 OWFN l

U. S. Nuclear Regulatory Commission i

Danny Quintana, Esq.

Washington, DC 20555 Danny Quintana & Associates, P.C.

(United States mailonly) 68 South M:dn Street, Suite 600 Salt Lake City, Utah 84101 E Mail: quintana @xmission.com

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Denish dhancellor Assistant Attorney General State of Utah I

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