ML20236M451

State of UT Motion for Reconsideration of Board Ruling on State of UT Physical Security Plan Contentions.* W/Certificate of Svc

ML20236M451
Person / Time
Site:	07200022
Issue date:	07/10/1998
From:	Chancellor D UTAH, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19309 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9807140086
Download: ML20236M451 (13)

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/907 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

% JUL 13 P3 :11 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

OFFiCr T Siru a, g,

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ADJUtM.4, fk <iAFF In the Matter of:

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Docket No. 72-22-ISFSI

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l PRIVATE FUEL STORAGE, LLC

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ASLB? l'lo. 97-732-02-ISFSI l

(Independent Spent Fuel

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Storage Installation)

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July 10,1998 l

STATE OF UTAH'S MOTION FOR RECONSIDERATION OF THE BOARD'S RULING ON STATE OF UTAH PHYSICAL SECURITY PLAN CONTENTIONS l

The State of Utah files its Motion for Reconsideration pursuant to the Board's l

June 29,1998, Memorandum and Order (Ruling cn State of Utah Physical Security l

Plan Contentions). The June 29 Order was issued with the notation " Handle as safeguards information pending review." Then on July 7,1998, the Board ruled that the decision on the admissibility of physical security plan contentions be made publicly available. In light of the Board's July 7 Order, and the fact that no safeguards-protected information will be discussed in this motion, the State of Utah files its Motion for Reconsideration as a non-safeguards protected pleading.

DISCUSSION During oral argument at the Safeguard pre-hearing conference held on June 17, 1998, counsel for the Applicant presented a document titled " COOPERATIVE LAW ENFORCEMENT AGREEMENT BETWEEN TOOELE COUNTY THE i

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BUREAU OF INDIAN AFFAIRS AND THE SKULL VALLEY BAND OF GOSHUTE INDIANS." For the Board's convenience the cooperative agreement is attached hereto as Exhibit 1. This was the first time the State had seen the cooperative agreement. At the prehearing conference, the Board gave the State time to review the agreement with the expectation that the State could address arguments raised by the Applicant during the safeguards prehearing conference based on the agreement.

The "Now, Therefore" clause on page 1 of the Cooperative Agreement states that Tooele County is entering into the agreement pursuant to Utah Code Ann. $ 11-l l

13-5.5 Section 11-13-5 (Agreement for joint or cooperative action - Resolutions by governing bodies required), which is attached hereto as Exhibit 2, states:

Any two or more public agencies may enter into agreements with one l

another for joint or co-operative action pursuant to this act. ' Adoption of appropriate resolutions by the governing bodies of the participating public agencies are necessary before any such agreement may enter into

-force.

After ascertaining from the Tooele County Clerk's Office that the Tooele County Commission has not passed a resolution with respect to the Cooperative Agreement, Tooele County Corporation Contract #97-06-02, the State asserts that Tooele County Commission has not adopted the appropriate resolution for the cooperative agreement to be in force. See Affidavit ofJean Braxton, attached as Exhibit 3.

2 The Agreement actually cites Section 11-13-5, Utah Code Annotated 1953.

-However, counsel for the Applicant advised the Board during the course of the June 17 prehearing conference that the correction citation is Section 11-13-5.

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~ In the Board's ruling on Utah Contention Security-C, the Board stated that a cooperative law enforcement agreement has been shown to exist and that the State has not adequately supported a legal or factual challenge to the agreement. Order at 16.

The Board also stated "nothing on the face of the cooperative agreement gives us cause to question its validity...." Order at 16, n. 9.

Given that the cooperative agreement was thrust upon the State during the prehearing conference without any prior review, it was unreasonable to expect the State to " adequately support a legal or factual challenge" to the agreement. However, given the fact that the Tooele County Commission has not complied with the statutory requirement of Utah Code Ann. $ 11-13-5, which authority the County relies on to enter into the cooperative agreement, the State now shows that the cooperative agreement is not valid. Therefore, the State requests the Board aconsider and find admissible that portion of Security-C rejected by the Board, specifically, bases (3).

which alleges "[1]ack of jurisdiction and law enforcement authority by the LLEA on the Skull Valley Band's reservation." Order at 16. The State has shown that the cooperative agreement among the Band, the Bureau of Indian Affairs (BIA) and Tooele County is not in force and thus Tooele County is not authorized under the cooperative agreement presented to the Board to conduct law enforcement activities on the Skull Valley Goshute reservation. Therefore, the arguments presented to the

' Board in Security-C contention and reply show that basis 3 of Security-C is admissible.

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a The State also requests the Board find Security-A and Security-B admissible to the extent that the Board rejected any and all of the bases for those two contentions based on the perceived existence of a valid law enforcement agreement among the Band, the BIA and the County.

DATED this 10th day of July,1998.

Respectfully submitted, IA & !

Denise Chancellor, Assis' tant 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 l

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00CKETED USNRC CERTIFICATE OF SERVICE I hereby certify that copies of STATE OF UTAH'S MOTION FOR '98 JUL 13 P3 :11 RECONSIDERATION OF THE BOARD'S RULING ON STATE OF LEAH:

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PHYSICAL SECURITY PLAN CONTENTIONS were served on the persbObhd "

below by electronic mail (unless otherwise noted) with conforming copies by United States mail first class (unless otherwise noted), this loth day of July,1998:

Attn: Docketing & Services Branch Dr. Peter S. Lam Secretary of the Commission Administrative Judge U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: 016G15 U. S. Nuclear Regulatory Commission 11555 Rockville Pike, One White Flint Washington, DC 20555 North E-Mail: psl@nrc. gov Rockville, MD 20852-2738 E-mail: secy@nrc. gov Sherwin E. Turk, Esq.

(originaland two copies)

Catherine L. Marco, Esq.

Office of the General Counsel G. Paul Bollwerk, III, Chairman Mail Stop 15 B18 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U. S. Nuclear Regulatory Commission E-Mail: pfscase@nrc. gov Washington, DC 20555 E Mail: set @nrc. gov E-Mail: gpb@nrc. gov Jay Silberg Dr. Jerry R. Kline Ernest L. Blake,Jr.

Administrative Judge Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Board 2300 N Street, N. W.

U. S. Nuclear Regulatory Commission Washington, DC 20037-8007 l-Washington, DC 20555 E-Mail: Jay _Silberg@shawpittman.com E-Mail: jrk2@nrc. gov E-Mail: ernest _blake@shawpittman.com 5

Clayton J. Parr, Esq.

Martin S. Kaufman, Esq.

~ Parr, Waddoups, Brown, Gee &

Atlantic Legal Foundation Loveless 205 E. 42nd Street 185 South State Street, Suite 1300 New York, New York 10017 P. O. Box 11019 E-mail: atlanticlaw@earthlink. net Salt Lake City, Utah 84147-0019 E-Mail: karenj@pwlaw.com Richard Wilson Depanment of Physics John Paul Kennedy, Sr., Esq.

Harvard University 1385 Yale Avenue Cambridge, Massachusetts ' 02138 Salt Lake City, Utah 84105 E-mail: wilson @huhepl. harvard.edu

.E-Mail: john @kennedys.org

- James M. Cutchin Richard E. Condit, Esq.

Atomic Safety and Licensing Board Land and Water Fund of the Rockies Panel 2260 Baseline Road, Suite 200 U.S. Nuclear Regulatory Commission Boulder, Colorado 80302 Washington, D.C. 20555-0001

- E-Mail: rcondit@lawfund.org E Mail: jmc3@nrc. gov (electronic copy only)

Joro Walker, Esq.

Land and Water Fund of the Rockies Office of the Commission Appellate 165 South Main, Suite 1

_ Adjudication i

Salt Lake City, Utah 84111 Mail Stop: 16-G-15 OWFN -

E-Mail: joro61@inconnect.com U. S. Nuclear Regulatory Commission Washington, DC 20555 Da^nny Quintana, Esq.

(United States mail,first class only)

Danny Quintana & Associates, P.C.

- 50 West Broadway, Fourth Floor Salt Lake City, Utah 84101 E-Mail: quintan'a@xmission.com 1

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Dedise ChancelIor Assistant Attorney General State of Utah 1

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'i COOPERATIVE. LAW ENFORCEMENT AGREEMENT BETWEEN TOOELE COUNTY THE BUREAU OFINDIAN AFFAIRS AND THE SKULL VALLEY

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BAND OF GOSEUTE DtDIANS I

RECEVED Juli 13 337 l

THIS AGREEMENT made and executsd the 3## day ofbM,in be aflisctive on the 1" day of Assil,1997, by and between TOOE12 COUhW, (hmen** caued the " County"), the BUREAU OF INDTAN AFFAIRS, (heremater caued the "Burseu"), and the SKULL VALLEY BAND OF OOSHUTE INDIANS,(hereina8er cded tbs Skd VaBey send").

WITNESSETH:

WHEREAS, the Skull VaBey Band does not have d of the required ressuress and fadities to provide adequate law sufbreemmt ihr the protsetion of the rendents of the Skut Vaucy Reservation, Utah and its resources, and l

WHEREAS, The Bureau and the Skd VaDoy Band desire ao atuime the Toosle Coussy l

Sheriffs department to provide hw enfomuneut and detarnion for the Skun Vaney L. A l

Utah pwsuas to Tsh 25, Code of Federwel Regulations, Part U; and WREREAS, the County is wiDing to provide the necessary services under certain sarns and aaadW==

. NOW, THEREFORE, pursuant to Section U.13 5, Utah Code Annotated 1953, and in oorJt2ftstioS ofun8541 promises contained herein, and for other good and valuable E- "-

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the County, the Skd Vaney Band and the Burana, pursuant to its authority to provide for the vnmi *== orisw enfornemsat servious in oa;.n consuy, hereby agree as sbnown:

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1. The County wiB provide an necesesry (talified personnel for law enforonment and detentkm servies: oovered in eds agreement. no county ricossimos that many non Indians work j

or travel through ths Skun VaDey Indian Reservation requiring inw enfosternes patrols.

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2. The County is duisassed m ihe puty to admininar des assonomat by and through $m l

Toosie county SherE i

3. The County wm provide an equipment, materink and inankies required for conductims Page -1

l the enforcement and deteration services ast Ibrth in this agreemsut, and a' the evers of the tenninsdon of tids agreement for any canss, aB equipment, materials and inedities shad rummin in the possessen and ownenhly of the County.

4. The County wlB be responsible to investigate, charge and ' oercerats persons charged m

with or aBeged to be in vicistaon of an otheses, whether saunarmed under 18 U.S.C. or the SkuR Vaney Band of Goshuts Indians Tribal Cods, ooannitted within the bondaries of tbs Skun Va Indian Reserveion, Utah, as enablished by Emcudw Order 1465, dated January 17,1912 Bezutive Onler 2699, deed S.A. 7,1917, and Execudve Order 2809 dated Februsry 15, 1918, and such other lands without mash P c,='- boundarios as may hereater be added thereto undse egy law of the United States, except as otherwiss provided by law.

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5. The County win petrvide a minimum of three (3) teguhr patroh per week on the idske.i passing through the SlaaD VsDay Indian Reservation and into the ViBase on the Reasrvation as part of reguhr petrols. The County will also include areas of putral as rwW by tbs SkuB VsDsy Tribal Government.

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6. The County wiu immediately nodfy the CrkninalInvestigaror ofthe Uintah and Ouray Agency, Fort Duchesne, Utah, and the Federal Bureau oflavestigsions of an Federal ofresses Cat occur wahm the boundanas of the SknB Vaary huhen Reservadon as set forth in paragraph 4 l

above. The County shat amist Federal law enforcement ofHeials m' the irWiaa ofFederal i

otheses.

7. The Cennsy wDl provide the bDowing reports and seenrds to assst the Buromu and Skull Valley Band in propering the Bureau's quarterly ad annual natistiral report:

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a. fd stvestigation repoits of an misdemeanors and Alonies occumag on the i

RascevationinvolvingIndisms;

b. a booking log of mR arnets made on the Reservation indicating (1) dass of birth (2) age, (3) abarges, and (4) disposition int cash Indian osmuir, and

c. a report on each incidses napomled to by tbs Coasy on the Reservation.

8. The County shaR be notified by telephens on at hw enibitemnot sistters, including sWisa.

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9. Mm Bureau wilipqy f.ve thousand Sve hundnd doDurs (S$,500) for the County's services to be rendared Apru 1,1997, tirough March 31,1 ppg Shmud this agreemens extend to additional years, the Bureau shaR pay b Apri of each year the base sum of 5ve thousand the j

naadred donars (35,500), plus an annonnt equal to any perscreage imenmes over the previous year in the Wasutch Front Cost of Living ladox as pin =f by Firs Securky Bank, but not to cuneed I

five percent (5%) in any gives year. Tbs Buromu wDI also pay the County thirty Svs dollars Page -

(335.00) per day, or any portion thereof; per person er the incartemtion ofpmms as die coa detantioniscDity pursuant in th' agreamssa. De Bureau wS1 dse pay suchpda medical n

cons. De County shall bit the 'Burusu for such costs with an kamians hvoise listing of the Proomsrs armi days they spend a the County detention incility, and any medical costs incumd.

10. The Bmeu agrees to commission the Tooele Cousy Sheriff and designated deputy shortifs as Buromu of!ndian Afbs Feder:1 Law E.t-OfBoers br the popose of providing the services contained barsin. De SknB Vancy Band and the County agros to aBow the County to asB oso the Reservation such backup personns19pm other law saintsmmet associos as is messesary to arry out the tenas of this agreement.

11. The Bween and/or Trial Attorney wS! provide technical assistasoe to the County in matters dealing with Tribal Govspsmos, ReservnionWW Feder:1WWMand ruhtest saetters.

12. The County, the Bursso and the SkuR VaDey Band wm aview this agreement annually on or befbre Aprillaofeach year for purposes of evahasting the services sad effustivuosas of tbs agreement.

13. Any pasty to this agreement may canoni or terminae this agreamsar upon thirty (30) days written notice to ths other partisa.

14. De tem of this agmcment ihan be be one (1) year commencing Aptil 1,1997. It shaB renew auto =wically theruster kr one year insaznsats until such ties as it is terminated pursuant to perssruph 13.

15. The County meognisse that the simil Valley indian Rassavation is a aspeste sovereign politwal satity independast of the State of Utah.

16. His contrast is onestngent upon the approprisdan ofBasis by Congttas.

BUREAU OFINDIAN AFFADts:

COUNTY OF TOOFM,UTAR l

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G05HUTE INDIAMS n

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TROM Tn1ml Attorary Iocele Ccunty Appnad as to form this 8" day A E -

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'h FRANK SCHARMANN Tooele Cougy Sharf l

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Copr. (C) West 1998 No Claim to Orig. U.S. Govt. Works L UT ST's 11-13-5 U.C.A.1953 s Il-13-5 TEXT-

. UTAH CODE,1953 TITLE 11. CITIES, COUNTIES, AND LOCAL TAXING UNITS

. CHAPTER 13. INTERLOCAL COOPERATION ACT Copyright (C) 1953 1997 by Michia, u division of Reed Elsevier Inc. and Reed Elsevier Properties Inc. All rights reserved.

Current through End of 19971st Sp. Sess.

Il-13-5 Agreements forjoint or cooperative action -- Resolutions by governing bodies required.

Any two or more public agencies may enter into agreements with one another forjoint or co-operative action pursuant to this act. Adoption of appropriate resolutions by the governing bodies of the participating public agencies are necessary before any such agreement may enter into force.

CREDIT

' History: L.1965, ch.14, s 2; 1977, ch. 47, s 2.

< General Materials (GM) - References, Annotations, or Tables >

NOTES, REFERENCES, AND ANNOTATIONS NOTES, REFERENCES, AND ANNOTATIONS Meanin'g of'this act'. -- See note under s 11-13-1.

U.C.A.1953 s Il-13-5 UT ST s Il-13-5 END OF DOCUMENT

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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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

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

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Storage Installation)

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July 10,1998 AFFIDAVIT OF JEAN BRAXTON STATE OF UTAH

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COUNTY OF SALT LAKE

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JEAN BRAXTON deposes on oath and says:

1.

I have a Legal Assistant Certificate.

2.

I am a legal assistant for the Utah Attorney General's Office, Environmental Division, and have worked for the Attorney General's Office since October of 1991.

3.

On July 8,1998, I spoke to Marilyn Gillette with the Tooele County Clerk's Office. Marilyn told me that her office is responsible for keeping track of all resolutions adopted by the Tooele County Commission. I asked her to locate the resolution adopted by the Tooele County Commission which authorizes the County to enter into the Cooperative Law Enforcement Agreement with the Bureau of Indian Af6 irs and the Skull Valley Band of Goshute Indians, dated June 3,1997, contract

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l number 97-06-02.

4.

On July 9,1998, Marilyn Gillette told me that she conducted a computer search of the Clerk's Office's records and could not locate any resolution adopted by the Tooele County Commission authorizing the Cooperative Law Enforcement Agreement referred to in 13 above.

5.

I attest to the truth and accuracy of these reports of my conversations with Ms. Gillette to the best of my ability.

FURTHER AFFIANT SAYETH NOT.

DATED this loth day of July,1998.

Jm JEg4 ~BRAXTEfN O

The foregoing Affidavit was voluntarily signed and sworn to before me this

/8 day of July,1998, by the signer, whose identity is personally known to me or was proven to me on satisfactory eviden d4stfA NOTARY PUBLIC Residing at:

$ 66 7/[

My commission expires:

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NOTARY PUBLIC Karma L Pathakla

' 9 I satt t.ake City. Utah Mile l

2 100 East 300 South Sth Fir.

My commissen f. spires

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May 15.2001 STATE OF UTAH

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