ML20236R918

NRC Staff Response to State of UT Motion for Reconsideration of Board Ruling on State of UT Physical Security Plan Contentions.* State Motion Should Be Granted as Described. W/Certificate of Svc

ML20236R918
Person / Time
Site:	07200022
Issue date:	07/22/1998
From:	Marco C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19339 ISFSI, NUDOCS 9807240013
Download: ML20236R918 (15)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  % J1. 22 P4 :55 BEFORE THE ATOMIC SAFETY AND LICENSING BdMtD _ ,

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l ADJUD!Ct il E STAFF In the Matter of )

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l PRIVATE FUEL STORAGE, LLC ) Docket No. 72-22-ISFSI

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Fuel Storage Installation) )

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

INTRODUCTION Pursuant to the Atomic Safety and Licensing Board's June 29,1998," Memorandum and j .< t ,, ,

Order (Ruling on State of Utah Physical Security Plan Contentions)" (Board Order), the staff of the Nuclear Regulatory Commission (Staff { hereby files its response to the July 10,1998, " State of l Utah's Motion for Reconsideration of the Board's Rulit:g on State of Utah Physical Security Plan Contentions"(Motion). For the reasons set fonh below, the State of Utah's Motion should be granted to the extent set fonh below.'

BACKGROUND l

On January 3,1998, the State of Utah filed " State of Utah's Contentions Security-A Through Security-1 Based on Applicant's Confidential Safeguards Security Plan." The Staff and Applicant filed responses to the State's nine sec$rity plan contentions on January 20,1998. See NRC Staff's

' The Staff's instant response to the State's Motion conGihs no safeguards protected information and is being served to all panies.

9907240013 990722 0 1 PDR ADOCK 07200022 C PDR L1

6 Response to State of Utah's Security Plan Contentions, dated' January 20,1998; Applicant's Answer to the State of Utah's Contentions Security-A Through Security-I Based on Applicant's Confidential Safeguards Security Plan, dated January 20,1998. The State of Utah filed a reply to the Staff and Applicant on February 11,1998. See State of Utah's Reply to NRC Staff and Applicant's R*=-s to Utah's Security Plan Contentions Security-A Through Sxurity-I, dated February ll,1998.

Following an in-camera prehearmg conference on June 17,1998, the Board issued its June 29,1998 Order. The Board, in its Order, admitted one contention, Security-C, in part, and rejected the remaining eight contentions. Order at 15-17. The Board ruled that Security-C is inadmissible relative to, among other things, its basis (3) which alleges "(1]ack ofjurisdiction and law enforcement authority by the IlEA on the Skull Valley Band's reservation." Order at 16. On July 10,1998, the State filed the instant Motion in which it requests that the Board find basis 3 of Security-C admissible. Motion at 4. The Stite A so l requested that the Board f'md 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 existe ce of a valid law enforcement agreement among the Band, the blA and the County." Motion at 4. For the reasons set forth herein, the State's request should be granted in part.

DISCUSSION A motion for reconsideration is appropriate to point out errors or deficiencies in the prior decision, and may elaborate upon or refine arguments previously advanced; it may not rely upon an entirely new thesis or include new argu5nents, unless they relate to a Board concern that could not reasonably have been anticipated. Central Elec. Power Cooperative, Inc. (Virgil C. Summer Nuclear Station, Unit No.1), CLI-81-26,14 NRC 787,790 (1981); Tennesseg Valley Authoriry (Hartsville

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Nuclear Plant, Units l A,2A,1B and 2B), ALAB-418,6 NRC.1,2 (1977); Texas Utilities Elec. Co.

(Comanche Peak Steam Elec. Station, Units 1 and 2), LBP-84-10,19 NRC 509,517-18 (1984).

l At the same time, a motion which constitutes nothing more than a repetition of arguments 1

previously presented does not present a basis for reconsideration. Nuclear Engineering Co. I I

(Sheffield, Illinois I.ow-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1,5-6 (1980).

Rather, the motion should show that there is some decision or some principle oflaw that would have I

a controlling effect and that has been overlooked, or that there has been a misapprehension or overlooking of the facts. Georgia Power Co. (Vogtle Elec. Generating Plant, Units 1 and 2),

LBP-94-31,40 NRC 137,140 (1994). Cf. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 and 2), LBP-83-25,17 NRC 681,686 n.5,687 (1983) (a motion for reconsideration should cast new light on information which has been previoulsy presented, or point out facts that were l l '. . .

j overlooked or misunderstood). : ,

The State in its Motion contends that the cooperative agreement among the Skull Valley I

Band, the Bureau of Indian Affairs and Tooele County is not valid and, therefore, Tooele County is not authorized under the cooperative agreement to conduct law enforcement activities on the Skull Valley Goshute reservation. Motion at 3-4. The State asserts that the cooperative agreement, which the Applicant presented for the first time at the prehearing conference, and on which the Board relies

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in its ruling to find basis 3 of Security-C inadmissible, recites that it had been entered into pursuant to Utah Code Ann. f 11-13-5.2 That statute provides that "[a]doption of appropriate resolutiom by the goveming bodies of the participating public agencies are necessary before any such agreement l

may enter into force." Motion at 2. The State attested that it has contacted the Tooele County 2

The agreement actually cites to secdon 11-13-5, bt t it appe s to be a typographical error.

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Clerk's Office, the office responsible for keeping track of all resolutions adopted by the Tooele

Count Commission, and that the Clerk's Office could not locate on its computer any resolution l_

g4 opted by the Tooele County Commission authorizing the coef-.iive law enforcement agreement.

Moton at 2-3; " Affidavit of Jean Braxton," at H 3,4. On that basis the State argues that Tooele County is not authorized to conduct law enforcement activities on the Skull Valley Goshute reservation. Motion at 3-4.

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, In its Order, the Board ruled that the contention was inadmissible regarding the issue pertaining :o the lack ofjurisdiction and law enforcement authority. Order at 16. The Board based l its ruling on the existence of a cooperative law enforcement agreement that had been shown to exist i i

l between the LLEA, the BIA, and the Skull Valley Band. The Board found that the agreement had not been subjected to an adequate factual or legal challenge by the State. Order at 16. Funher, the i?

Board declared, "nothing on the face of.the' cooperative agreement gives us cause to question its validity as it provides such jurisdiction on the Skull Valley Band's reservation for the designated s

LLEA." Order at 16 n.9. -

The Commission's . regulations require that an ISFSI licensee establish and maintain a physical protection system which provides, among other things, that " documented liaison" with a LLEA or designated response force "be established to permit timely response to unauthorized penetration or activities." 10 C.F.R. I 73.51(d)(6). The cooperative agreement appears to satisfy the underlying issue regarding Tooele County' jurisdiction on the Skull Valley reservation. It was executed on June 3,1997 between Toble County, the BIA, and the Skull Valley Band of Goshutes and contains provisions for patrols, detention, and investigation, among other things. Moreover, a 1991 resolution is on file with the Tooele County Clerk's office approving a coeg..iive agreement

. l between Tooele County, the State of Utah, and the BIA "for the purpose of providing an adequate law enforcement program for the protection of the residents of the Skull Valley Reservation."

See Resolution No. 91-2, attached hereto. The resolution approves a 1991 cooperative agreement, which became effective April 1,1991, and contained a provision for annual review. It is in many l respects similar to the 1997 agreement.

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The Staff does not have enough information to determine whether the 1991 resolution applies to the 1997 agreement. It may be that the 1997 agreement is a different agreement and would require a separate resolution. Even if so, the bsue is further complicated by the fact that the 1991 agreement runs for fifty years unless canceled. Thus, even if the 1997 agreement is not valid, the 1991 agreement may be in effect-provided it has not been canceled. Further, there may be other State and

county laws and ordinances that shed light on the effect of the 1991 resolution as applied to the 1997 l ' if .

agreement. Finally, the Staffis unaware of whether a resolution is pending or will be proposed in the future.

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The Staff b:lieves that the State has s'hown that a material dispute exists with PFS regarding the limited issue of whether the 1997 agreement is valid and thus sufficient to satisfy the l Commission's requirements of 10 C.F.R. 73.51(d)(6). PFS has offered the 1997 agreement to show that Tooele County does have law enforcementjurisdiction at Skull Valley, and the State has raised a material dispute regarding the sufficiency of this document to demonstrate jurisdiction. Therefore,

! the State, in its Motion, has provided an adequate basis for the Board to admit basis 3 of Security-C i ,: I as an issue in this proceeding to the eftent that it is limited to whether the 1997 agreement is valid.'

8 The Staff opposes the State's Motion as it relates to Security-A and Security-B. The Board rejected these two contentions primarily on other grounds, which tl-4 State did not challenge in its Motion. See Board Order at 12-14.

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CONCLUSION l

For the reasons set forth above, the State's Motion should be granted as described herein.

Respectfully submitted,

$W Cs:herine Marco Counsel for NRC Staff I Dated at Rockville, Maryland this 22nd day of July 1998 i

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RESOLUTION NO. 91-2 i

A RESOLUTION BY THE 'h00' ELE COUNTY BOARD OF COMMISSIONERS, TOOELE COUNTY, STATE OF UTAH, APPROVING A COOPERATIVE AGREEKENT WITH THE BUREAU OP INDIAN AFFAIRS FOR THE PURPOSE OF PROVIDING AN ADEQUATE LAW ENFORCEhiENT PROGRAM FOR THE PROTECTION OF THE RESIDENTS OF THE SEUI.L VALLEY RESERVATION, TOOELE COUNTY, STATE OF UTAH, AND AUTHORIZING THE CHAIRMAN OF THE TOOELE COUNTY COMMISSION TO EEECUTE SAID COOPERATIVE AGREEMENT WHEREAS, the, Bureau of Indian Affairs is in need of a law enforcement program for the protection of the residents of the Skull VeMey Reservation, located in Tooele County, State of Utah; and i 1

i9 WHEREAS, the Bureau of Indian Affairs has aquested the aid of the Tooele County Sheriff's Department to p' rovide law enforcement services for the Skull i

Valley Reservation; and WHEREAS, Tooele County is willing' to provide the necessary service pursuant to the terms and conditions outlined in a Cooperative Agreement proposed by the Bureau of Indian Affairs.

NOW, THEREFORE, BE IT RESOLVED by the Tooals County Board of Commissioners, Tooele County, State of Utah, that the Cooperative Agreement between Tooele County , State of Utah, and the Bureau of Indian Affairs to provide a law enforcement program for the residents of the Skull Valley Reservation, Utah, which is attached hereto na Exhibit "A", is hereby approved and the Chairma.n of

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. i the Tooele County Commisalon is hemby authorised to execute the same for and1 behalf of Tooele County.

• i APPROVED AND ADOPTED by'the Board of County Comadssioners of Tooela

, County, State of Utah, this da'yof March,1991.

BOARD OF COUNTY cottMTSSIONERB

! ATTES : OF TOOELE COUNTY:

ufi B u j DENtSTS'D.~ EWING, Clett l

IKLAND J. HpAN,phairman Of TO '

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Commissioner Hogan voted  !

Commissioner Hunsaker voted Commissioner St. Clair voted

! l APPROVED AS TO FORMr '

AA11f/ M ROFALD .i. ELTOV  :

Tonele County Attorney .

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COOPERATIVE AGREEMENT BETNEEN COUNTY OF TOOBLE, UTAE -

AMD TEE ^

BDREAU OF INDIAN AFFAIRS dddrekis agreement made and executed the _ /9 day of

, 1991 to be effective on the /sh day of

. /J a r.L , 1991, by and between the County of Tooele, Utah, l

haveinafter called the COUNTY, the Bureau of Indian Affairs, hereinafter called the BUREAU and the Skull Valley Band of Goshute Indians, hereinafter called the SEULL VALLEY TRIBE.

WITNESSETE WHEREAS, the Skull Valley Band of Goshute Indians do not have all of the required resources and facilities to provide an adequate Law Enforcement Program for the protection of the l

residents resources, and, of the Skull Valley Reservation, Utah, and its WHEREAS, the Bureau of Indian Affairs and the Skull Valley Band of Goshute Indians desires t.o utilize the service of the Tooele County Sheriff's Department to provide Law Enforcement and Detention for the Skull Valley Reservation, Utah, pursuant to Title 25, code of Federal Regulations, Part II, and,

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l WHEREAS, the COUNTY,iE Wllling to provide the necessary services under certain terms and conditions.

NOW, THEREFORE, the pDREAU, pursuant to its authority to i

l - provide for the maintenance.of Law Enforcement Services in Indian Country and the COUNTY pursuant to Section 11-13-5 Utah Code Annotated 1953 and in consideration of attua? promises contained l

herein, agree asand for other good and valuable considerations, hereby follows:

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1. The COUNTY hereby agrees to provide all necessary

• qualified personnel for Law Enforcement and Detention Services covered in this agreement. (

The COUNTY recognizas'that many non-Indians work or travel through the Skul requiring police patrol.1s.Valley Indian Reservation l

2. The COUNTY is designated as the pa'rty to administer i this agreement by and through the Tooele County

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Sheriff.  ?

3. The COUNTY will provide all equipment, materials and facilities required for the conduct.of the enforcement and Detention Services, set forth in this agreement and be responsible for the repair, and maintenance of the {

.same, and in the event of the termination of this

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agreement for any cause, all equiprent, materials and facilities shall remain in the possessio,n and ownership of the COUNTY.

4. The COUNTY will be responsible for enforcement and incarceration of persons sentenced for all offenses l

enumerated under Title 2.5, Code of Federal Regulations,

! and related SKULL VALLEY TRIBE ordinances, if any, l committed within the ~ exterior boundaries of the Skull Valley Indian Reservation, Utah, as established by Executive Order.1465, dated January 17, 1912; Executive l

Order 2699, dated September 7, 1917; and Executive Order 2809, dated February 15, 1918, and such other lands without such Reservation boundaries as may hereafter be added there to under any law of the United States, except as otherwise*provided by law.

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The COUNTY or its Deputy will immediately notify L5e Criminal Investigator of the Uintah and Ouray Ager.cy, l

Fort Duchesne, Utah, of all Federal Offenses that occur within the exterior boundaries of the skull Valley Indian Reservation as set forth in item 4 above and i

assist FederalofLaw investigation Enforcement Federal Offenses.officials in the

6. The COUNTY will provide the following reports and records to assist the BUREAU and SKULL VALLEY TRIBE in i

the preparation' 6f"-its quarterly and annual statistical report.

A. Full investigation reports of all misdemeanors B.

occurring on the Reservation involving Indians.

l A Booking Log of all arrests made on the Reservation indicating (1) Date of Birth, (2) Age, (3) Charges, 'and (4) Disposition for each Indian offender.

C. A report on each incident responded to by the County Sheriff's Department of the RESERVATION.

7. The COUNTY and the SKULL VALLEY TRIBE agree that the

• County shall be notified by telephone on all matters including emergencies. ,

8. The SKULL VALLEY TRIBE agrees to pay the COUNTY, the sum of 530.00 per day per SKULL VALLEY TRIBAL MEMBER

) for any Detention services as utilised for the period l of March 1991 until termination by mutual agreement between the SKULL VALLEY TRIBE and the COUNTY. The Tribe also aghees to pay the sum of $5,000.00. These funds shall be paid.as followss. 52,500.00 upon the signing of the Agreement and $2,500.00 at the and of The BUREAU agrees to commission any full the year,.

time COUNTY Deputy Sheriff as a Federal Law Enforcement Officer for the purpose of providing the services

. contained herein. The SKULL VALLEY TRIBE and the 4

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COUNTY agree to allow the COUNTY to call onto the Reservation such backup personnel from 0,ther Law Enforcement agencies as is necessary to carry out the terms of this Agreement. .

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l The BUREAU agrees to make training opportunities 1

available to the COUNTY'.S Sheriff Department through the Indian Police Academy, Marana, Arizona. The COUNTY agrees to bear the cost of transportation of its employees to and from the Indian Police Academy and subsistence, training.*

if any, of its employees while in

10. The BUREAU and/or Tribal Attorney will provide technical assistance to the COUNTY in matters dealing with Tribal Government, Reservation Jurisdiction, i Federal Jurisdiction and related matters.

11. The COUNTY, the BUREAU and the SKULL VALLEY TRIBE will review this agreement annually on or before April 1, or each year.for purposes of evaluating the services and effectiveness of the agreement.

. 12. It is further agreed that either party to this agreement thirty (30) may cancel or terminate this agreement upon l

the agreement.,days written notice to the other party to p 13. The term of this ' greement shall commence on

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.1991) and continue for fifty years or until cancelled or terminated by either party.

14.

The COUNTY will provide regular patrols on the highway passing through the skull Valley Indian Reservation and 1

into the Village on the Reservation as part of their regular patrols.

The COUNTY will also include areas of patrol as requested by the SKULL VALLEY TRIBAL GOVERNMENT. .

15. The COUNTY recognizes that the Skull Valley Indian Reservation is a separate sovereign political entityt independent of the St'te a of Utah.

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ATTEST:

COUNTY OF TOOELE, UTAH pn f

U-c $?% l qqphty caerk l

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ctrairman, cou gy cpkffnission

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O Y BAND OF GOSHUTE BUREAU OF INDIAN AFFAIRS M

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Tribal Chairman Superintendent Approved as to form this j E day of g //t't # 1991.

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l Tribal vice-Chairman Approved as to form.this day of

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s Attorney General l

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Approved this day of , 1991 Field Solicitor

, Department of the Interior Approved as to form this dky of Hareh 1991.

l us/$$ FAT R0hALD L. EL'VN ' ~ ~ ~ '

Tooele'Chunty Attorney 4 -

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UNITED STATES OF AMERICA

' NUCLEAR REGULATORY COMMISSION 00CKETED

USHRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

% JUL 22 P4 :55 I In the Matter of )

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-,m PRIVATE FUEL STORAGE L.L.C. ) Docket No. 72-2248ESI J 7. Jfj .l

) ADJUD N , JAFF (Independent Spent )

Fuel Storage Installation) )

CERTIFICN/E OF SERVICE I hereby certify that copies of "NRC ST AFF'S RESPONSE TO STATE OF UTAH'S MOTION FOR RECONSIDERATION OF THE BOARD'S RULING ON STATE OF UTAH PHYSICAL SECURITY PLAN CONTENTIONS" in the above captioned proceeding have been served on the fo Llowing by E-mail transmission or by hand delivery as indicated by and asterisk, with copies by deposit in the United States mail, first class, this 22nd day of July,1998 :

G. Paul Bollwerk, III, Chairman Atomic Safety and Licensing Board Administrative Judge Panel

• Atomic Safety and Licensing Board. U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissions,. , l- Washington, DC 20555 Washington, DC 20555 l (E-mail *o GPB@NRC. GOV) Office of the Secretary

• s ATTN: Rul=*ings and Adjudications Dr. Jerry R. Kline Staff Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of the Commission Appellate (E-mail JRK2@NRC. GOV) - Adjudication

• Mail Stop: I6-G-15 OWFN Dr. Peter S. Lam U.S. Nuclear Regulatory Commission l Administrative Judge Washington, DC 20555

! Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission James M. Cutchin, V -

Washington, DC 20555 ,. Atomic Safety and Licensing Board (E-mail PSL@NRC. GOV) r U.S. Nuclear Regulatory Commission Washington, DC 20555 (by E-mail to JMC3@NRC. GOV) 4

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Jay E. Silberg, Esq. Danny Qu.intana, Esq.  !

Ernest Blake, Esq. .

Danny Quintana & Associates, P.C.

Paul A. Gaukler, Esq. 50 West Broadway SHAW, PITTMAN, POTTS & Fourth Floor TROWBRIDGE Salt Lake City, UT 84101 2300 N Street, N.W (E-mail to quintana Washington, DC 20037-8007 OXmission.com)

(E-mail to jay,_silberg

@shawpittman.com)

Denise Chancellor, Esq. Clayton J. Parr, Esq.

Fred G. Nelson, Esq. PARR, WADDOUPS, BROWN, GEE Utah Attorney General's Office &lhVELESS 160 East 300 South,5th Floor 185 S. State St., Suite 1300 P.O. Box 140873 P.O. Box 11019 Salt lake City, UT 84114 4 873 Salt Iake City, UT 84147-0019 (E-mail to dchancel@ State.UT.US) (E-mail to karegi@pwlaw.com)

Connie Nakahara, Esq. John Paul Kennedy, Sr., Esq. )

Utah Dep't of Environmental Quality 1385 Yale Ave.

168 North 1950 West ,

Salt Lake City, UT 84105 P. O. Box 144810 *

{ y ,, (E-mail to john @kennedys.org)

Salt Lake City, UT 84114-4810 '-

(E-mail to cnakahar@ state.UT.US) Professor Richard Wilson Department of Physics Diane Curran, Esq. I Harvard University Harmon, Curran, Spielberg & Eisenberg Cambridge, MA 02138 2001 S Street, N.W., Suite 430 (E-mail to Washington, D.C. 20009 wilson @huhept. harvard.edu)

(E-mail to DCurran.HCSE@zzapp.org) Martin S. Kaufman, Esq.

Atlantic legal Foundarion Joro Walker, Esq. 205 E. 42nd Street, Land and Water Fund of the Rockies / New York, NY 10017 165 South Main St., Suite 1 (E-mail to Salt Lake City, UT 84111 mskaufman@ yahoo.com)

(E-mail to joro61@inconnect.com) l' I

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Richard E. Condit. Esq. '

Land and Water Fund of the Rockies

-2260 Baseline Road, Suite 200 Boulder, CO 80302 (E-mail to rcondit@lawfund.org)

De Catherine L. Marco Counsel for NRC Staff

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