ML20237A489

State of UT Comments on Board 980629 Scheduling Order in Light of CLI-98-12.* State Believes That Approach Taken by Board Likely to Encourage More Meaningful Hearing than Approach Suggested by Commission.W/Certificate of Svc

ML20237A489
Person / Time
Site:	07200022
Issue date:	08/10/1998
From:	Chancellor D UTAH, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19417 97-732-02-ISFSI, 97-732-2-ISFSI, CLI-98-12, ISFSI, NUDOCS 9808140121
Download: ML20237A489 (5)

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-4 UNITED STATES OF AMERICA US "

NUCLEAR REGULATORY COMMISSION 93 AUG 13 P4 :32 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFF -

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ADet.

In the Matter of:

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Docket No. 72-22-ISFSI j

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PRIVATE FUEL STORAGE, LLC

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ASLBP No. 97-732-02-ISFSI i

(Independent Spent Fuel

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l Storage Installation)

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August 10,1998 l

STATE OF UTAH'S COMMENTS ON BOARD'S JUNE 29,1998 SCHEDULING ORDER IN LIGHT OF CLI 9812 The State of Utah her-by fi. its comments in response to the Licensing Board's July 31,1998, Memorandum and Order (Opportunity for Comments on Commission Policy Statement on Conduct of Adjudicatory Proceedings). The Board's order invites the parties to comment on the Board's June 29,1998, scheduling order in light of the Commission's policy statement in CLI-98-12, Statement of Policy on Conduct of Adjudicatory Proceedings (July 29,1998).

In general, the Licensing Board's scheduling order appears to be consistent with the directives of CLI-98-12. There are some exceptions, however. The Commission discourages the use of summary disposition. CLI-98-12 at 4. It also states that:

2ny evidentiary hearing should not commence before completion of the staff's Safety Evaluation Report (SER) or Final Environmental Statement (FES) regarding an application, unless the presiding officer finds that beginning earlier, e.g., by starting the hearing with respect to safety issues prior to issuance of the SER, will indeed expedite the proceeding, taking into account the effect of going forward on the staff's t

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s ability to complete its evaluation in a timely manner.

l Id. at 6. The schedule for this case, where the Board focuses on the date of the completion of the Staff's review rather than the issuance of the SER, may not expedite the proceeding, given the potential effect of going forward on the Staff's ability to complete its technical review.

The Commission states that only a single round of discovery should be allowed against the Staff. CLI-98-12. The State believes that, given the complexity ofissues in this case, a single round of discovery against the Staff is likely to be insufficient to allow thorough exploration of the basis for the Staff's conclusions regarding the 1

adequacy of the application and its compliance with NEPA. The Staff is a major party to the case, whose views on the PFS license application will be entered in the record and weighed with the other evidence. It would violate the Interveners' right to a meaningful hearing and be inconsistent with the Federal Rules of Civil Procedure if the Staff were permitted to present evidence which Interveners had not had an adequate opportunity to uncover in the discovery process. Moreover, the Commission's guidance is to " ensure a prompt yet fair resolution of contested issues in adjudicatory proceedings." CLI-98-12 at 4. Only one round of discovery against the Staff relating to the voluminous and complex final EIS and SER that will be developed in this case will not meet the foregoing objectives.

Another troubling aspect of the Commission's guidance is that, except for j

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t establishment of the case file, Licensing Boards generally should " suspend discovery against the staff until the staff issues its review documents regarding the application."

CLI 98-12 at 9. Whether or not it has reached a conclusion regarding the application, the Staffis likely to have important documents and information, in addition to the case file, that should be disclosed to the other panies as early in discovery as possible. The informal discovery process established by this Licensing Board allows such discovery without putting an onerous burden on the Staff. The State believes that in this panicular case the approach taken by the Board is more expeditious and is likely to encourage a more meaningful hearing than the general approach suggested by the Commission.

DATED this 10th day of August,1998.

Respectfully submitted, JM Y

Den se 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 i

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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,o USNRC CERTIFICATE OF SERVICE I hereby certify that copies of STATE OF UTAH'S COMMENTS dit AUG 13 P 4 :32 BOARD'SJUNE 29,1998 SCHEDULING ORDER IN LIGHT OF CL(N8-12 were Fr -

to RUL n,

a served on the persons listed below by electronic mail (unless otherwise nohehith inFF conforming copies by United States mail first class (unless otherwise noted),'this 10th day of August,1998:

l 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 Washington, DC 20555 E-Mail: Jay _Silberg@shawpittman.com E-Mail: jrk2@nrc. gov E-Mail: ernest _blake@shawpittman.com I

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D Clayton J. Parr, Esq.

Danny Quintana, Esq.

Parr, Waddoups, Brown, Gee &

Danny Quintana & Associates, P.C.

Loveless 50 West Broadway, Fourth Floor

- 185 South State Street, Suite 1300 Salt Lake City, Utah 84101

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P. O. Box 11019 E-Mail: quintana @xmission.com Salt Lake City, Utah 84147-0019 E Mail: karenj@pwlaw.com James M. Cutchin Atomic Safety and Licensing Board John Paul Kennedy, Sr., Esq.

Panel 1385 Yale Avenue U.S. Nuclear Regulatory Commission Salt Lake City, Utah 84105 Washington, D.C. 20555-0001 E Mail: john @kennedys.org E-Mail: jmc3@nrc. gov (electroniccopy only)

~ Richard E. Condit, Esq.

Land and Water Fund of the Rockies Office of the Commission Appellate 2260 Baseline Road, Suite 200 Adjudication Boulder, Colorado 80302 Mail Stop: 16-G-15 OWFN E-Mail: rcondit@lawfund.org U. S. Nuclear Regulatory Commission Washington, DC 20555 Joro Walker, Esq.

(United States mail,first class only)

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

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Salt Lake City, Utah 84111 E Mail: joro61@inconnect.com i

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De'nise Chancellor Assistant Attorney General State of Utah 5

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