ML20248J349

Memorandum & Order (Requesting Addl Scheduling Info).* Requests That Staff Provide Listed Info as Part of Previously Requested 980615 Status Rept on Preparation Schedules.W/Certificate of Svc.Served on 980605

ML20248J349
Person / Time
Site:	07200022
Issue date:	06/05/1998
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#298-19164 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9806090086
Download: ML20248J349 (8)

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/7/Sk UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC ATOMIC SAFETY AND LICENSING BOARD g g q l

Before Administrative Judges:

OFFICE Or 30 4 . #h l G. Paul Bollwerk, III, Chairman RULE!,%ml)50 ~;sD Dr. Jerry R. Kline ADJUD'CATNi MAFF Dr. Peter S. Lam S E R V E D I D r 5'1998 In the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel June 5, 1998 Storage Installation)

I MEMORANDUM AND ORDER (Requesting Additional Scheduling Information)

In attempting to establish schedules for this proceeding that are both fair and efficient, we must consider two factors over which we lack direct control. One is applicant Private Fuel Storage, L.L.C.'s (PFS) proposed schedule for facility construction and operation. Assuming it is based on a realistic assessment of the period needed to complete the regulatory process, the applicant's schedule provides a general time frame within which an agency ,

determination, whether negative or positive, should be l rendered regarding the adequacy of its facility licensing request. In addition, as we recognized early in this proceeding, in setting litigation schedules we must pay heed to a pair of ongoing NRC staff activities: the staff's preparation and issuance of its Safety Evaluation Report 9906090086 990605 PDR- ADOCK 07200022

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(SER) and its draft and final environmental impact

- statements (DEIS and FEIS). Egg Licensing Board Memorandum 1 and' Order'(Initial Prehearing Order) (Sept. 23, 1997) at 2.

Agencyfadjudicatory proceedings generally are not the appropriate forum for litigating the timing of these staff review processes. _

Egg Offshore Power Systems (Floating Nuclear. Power Plants), ALAB-489, 8 NRC 194, 201-09 (1978).

Nonetheless, the staff's role in assessing objectively the application's adequacy relative to safety _ matters and in preparing the DEIS/FEIS make these staff safety and environmental findings of material significance to this litigation. Therefore, in connection with any' hearing on the merits of admitted contentions, fairness and efficiency considerations dictate timely disclosure of the staff's position on any contested safety and environmental issues as formulated in conjunction with its SER and DEIS/FEIS preparation processes.

It thus is not surprising that in discussing future scheduling for this proceeding with the parties at the 1

recent May 19, 1998 prehearing videoconfe'rence, the focus of j the Board's inquiry was the status of the applicant's proposed construction / operation schedule and the staff's SER

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.and DEIS/FEIS preparation. activities. Tr. at 842-56. From theLinformation we were'given early on in this proceeding,  !

it appeared these two schedules are not in " sync." The )

i rapplicant projected ar construction start date.of January 1,

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! 2000, while the staff estimates that its SER and DEIS/FEIS processes likely would extend as much as nine months into the year 2000. Comoare [PFS], Environmental Report for Private Fuel Storage Facility 5 1.3 (rev. O June 1997) with NRC Staff's Status Report and Response to Requests for Hearing and Petitions to Intervene Filed by (1) the State of Utah, (2) Skull Valley Band of Goshute Indians, (3) Ohngo Gaudadeh Devia, and (4) Castle Rock Land and Livestock, L.C., et al. (Oct. 1, 1997) at 5. Based on the discussions at the May 19 prehearing conference, this disparity still seems to exist. See Tr. at 850-52.

In fulfilling a commitment to give the Board a proposed discovery schedule after its ruling on the admission of parties and contentions, on May 15, 1998, the parties outlined only a period for informal discovery. Egg Letter from Ernest L. Blake, Counsel for PFS, to Licensing Board-(Ma) 15, 1998) [hereinaf ter Blake Letter) . As a consequence, at the prehearing conference we requested they provide-us with a fuller proposal that included a discovery cutoff date. See Licensing Board Memorandum and Order (Memorializing Prehearing Conference Rulings) (May 20, 1998) at 1 [ hereinafter Licensing Board Order].

In response, the parties submitted a May 27, 1998 filing that suggests breaking the proceeding into two phases. See Letter from Ernest L. Blake, Counsel for PFS,

-to Licensing Board (May 20, 1998). The first would consist

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of eight SER-related safety issues for which discovery would close~on March 1, 1999. The second would include the l

l balance of the safety issues, which are not likely to be i done in time for phase one because of SER preparation considerations, and all environmental issues. Discovery on this_ phase also would close on March 1, except for discovery against the staff on any outstanding safety or environmental issues. Discovery on the remaining safety issues would close on June 30, 1999. For the environmental issues, PFS suggests a discovery cutoff against the staff that is tied ,

i to issuance of the DEIS, while the staff and the S:: ate of l

Utah (State) support an end date that is tied to issuance of the FEIS.

After reviewing these two submissions, the first of which included as an attachment the schedule for applicant responses to the staff's April 1, 1998 requests for additional information (RAI) regarding the PFS licerise application and Safety Analysis Report (SAR), it now appears to us that a three-phase proceeding may be the j 1

efficient approach. The first phase wo id envelope the eight " Group I" safety issues, the second would include the remaining " Group I" safety issues,.and the third would involve the parties' environmental contentions. Hearings on the first eight safety issues would begin late this year or  !

early next year, with hearings on the other issues to follow at appropriate intervals thereafter.

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,r 5-To.this end, we need additional'information from the.

staff relative to the eight " Group I" safety issues:

Utah B;-Utah C; Utah F/ Utah P; Utah G; Utah K/ Castle

. Rock 6/ Confederated Tribee B; Utah M;-Utah N; and Utah R.

Certain questions in the staff's April RAI, to which PFS already has responded or will soon respond, appear to be relevant to some of.these contentions (e.g., Utah C and RAI 8-8), while other contentions seemingly were not implicated'in any of the staff's inquiries (e.g., Utah'-G).

In this light, we would like to know whether the staff will be prepared on or before. Friday, August 14, 1998, to take a position on any or all of these contentions such that discovery on any or all of these issues could be closed on or before Thursday, October 1, 1998. If the staff is not ,

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prepared to take a position on one or more of these contentions by August 14, we would like to have a specific explanation detailed the. reasons why not and the staff's best. estimate of the date or dates on which it would be prepared to take a position on each of those contentions.

. In addition, we'would appreciate receiving more specific l

information-on when the staff will ready to take a position ,

on.the five remaining safety issues: Utah E/ Castle L

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- Rock 7/ Confederated Tribes F; Utah H; Utah L; Utah S/ Castle

- Rock 7; and Utah GG.

The' staff should provide us with this information as  !

h part'of'thefpreviously requested June 15, 1998' status report

on the preparation schedules for the PFS SER and DEIS/FEIS and.the Holtec cask SER. Sea Licensing Board Order at 1-2.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

• O- $,l G. Paul Bollwerk, III ADMINISTRATIVE JUDGE Rockville, Maryland June 5, 1998 l

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• Copies of this memorandum and order were sent this date to counsel for the applicant P7S, and to counsel for petitioners skull Valley Band of Goshute Indians,~Ohngo Gaudadeh Devia, Confederated Tribes of the Goshute Reservation and David Pete, Castle Rock Land and Livestock, I L.C., et al., and the State by Internet e-mail transmission; and to counsel for the NRC staff by e-mail through the agency's wide area network system.

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'S e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of PRIVATE FUEL STORAGE, LLC Docket No.(s) 72-22-ISFSI (Independent Spent Fuel Storage Installation) l CERTIFICATE OF SFRYTCE l

I hereby certify that copies of the foregoing LB M&O--REQ. ADD'L SCHED'G...

- have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Office of Commission Appellate G. Paul Bo11werk, III, Chairman -

Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 1 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge .

Jerry R. Kline Peter S. Las Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq.

Catherine L. Marco, Esq. Diane Curran, Esq.

Office of the General Counsel Harmon, Curran, Spielberg & Eisenberg Mail Stop 15 B18 2001 S Street, N.W., Suite 430  ;

U.S. Nuclear Regulatory Commission Washington,.DC 20009 Washington, DC 20555 Martin S'. Kaufman, Esq. Joro Walker, Esq.

Atlantic Legal Foundation Land and Water Fund of the Rockies 205 E. 42nd St. 165 South Main, suite 1 New York, NY 10017 Salt Lake City, UT 84111

Docket'No.(s)72-22-ISFSI L8 M&O--REQ. ADD'L SCHED'6...

Denise chancellor, Esq.

Assistant Attorney General Jay E. Silberg, Esq.

Utah Attorney General's Office Shaw, Pittman, Potts and Trowbridge 160 East 300 South, 5th Floor 2300 N Street, NW P.O.' Box 140873 Washington, DC -20037 Salt Lake city, UT 84114 John Paul Kennedy, Esq. Clayton J. Parr, Esq.

Confederated Tribes of the Goshute Castle Rock, et al.

Reservation and David Pete Parr, Waddoups, Brown, Gee & Loveless 1385 Yale Avenue 185 South State Street, Suite 1300 Salt Lake City, UT 84105 Salt Lake City, UT 84111 Danny Quintana, Esq. Richard Wilson Skull Valley Band of Goshute Indians Department of Physics Danny Quintana & Assocs., P.C. Harvard University 50 West Broadway, Fourth Floor- Cambridge, MA 02138 Salt Lake city, UT 84101 Dated at.Rockville, Md. this j 5 day of June 1998 Office of the Secretary of the.Cdhuission j

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