ML20205A917

Memorandum & Order (Granting Motion for Addl Limited Discovery on Group 2 & 3 Contentions).* Filings Should Be Received by Midnight on Day of Filing.With Certificate of Svc.Served on 980329

ML20205A917
Person / Time
Site:	07200022
Issue date:	03/29/1999
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#199-20158 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9903310096
Download: ML20205A917 (10)

Text

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. i 00CXETED l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION USHRC l

ATOMIC SAFETY AND LICENSING BOARTs 99 MAR 29 A10:25 Before Administrative Judges: i G.~ Paul'Bollwerk, III, Chairman RUil i+ ..'

Dr. Jerry R. Kline DM '

TAFF Dr. Peter S. Lam In th.' Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel March 29, 1999 Storage Installation)

SERVED NAR 2 91999 MEMORANDUM AND ORDER (Granting Motion for Additional Limited Discovery on Group II l and Group III Contentions)

( On March 23, 1999, the Licensing Board conducted a f

teleconference'with the parties regarding the status of l formal discovery in this proceeding. During the teleconference, intervenor State of Utah (State) proposed revising the existing discovery schedule relative to the safety and environmental contentions that are in Groups II and III. The Board and the parties discussed the State's suggestion and, in response to a Board recommendation, on March 24, 1999, the State filed a motion for a limited discovery window closer to the time those two issue groups are to be tried.

For the reasons set forth below, we adopt the State's suggestion in principal and revise the schedule for Group II 9903310096 990329 PDR ADOCK 07200022 C PDR ')J

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issues,.with the caveat that. interrogatory use during that

. period will_be circumscribed as outlined below. Any revisions for the Group III issue'will. await a forthcoming NRC staff status report on scheduling for the ongoing  !

environmental impact' statement.(EIS) preparation process.

A. As it presently stands, formal discovery against all parties, other'than the NRC staff, regarding contentions in Groups'I, II, and'III is to close on May 28, 1999, with l discovery closing dates regarding the st aff staggered on a i

schedule intended to mirror the coalescence of staff  !

positions on the issues in Groups I through III. The State i now suggests that for Groups II and III, which respectively contain the balance of the safety issues not found in Group I and the environmental issues, we establish a limited discovery " window" that would allow a period for focused discovery on the issues in these groups at_a time closer to the actual hearing dates for those issues. The State also indicated its understanding that although these limited windows for Groups II and III would be during a time when it would have other responsibilities under the present schedule (i.e., the preparation of proposed findings _and conclusions following' hearings on the Group I and Group II contentions),

it-was not asking for a delay of any of'the other scheduled filing _or hearing dates. Based on our discussions with the partics during the prehearing conference and the e

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% 3 representations in the State's March 24 motion, there appears to be no objection to this general concept.

For Group II contentions, which presently are to be heard beginning at the end o'f July 2000, the State proposed a discovery window from January 1 to February 29, 2000. For Group III issue 3, which presently are to be heard beginning in April 2001, the State suggested a discovery window of September 1 to November 1, 2000. In connection with the latter revision, however, the staff indicated during the prehearing conference that, as a consequence of the recent application amendment by Private Fuel Storage, L.L.C., (PFS) proposing a more westerly route for a rail spur to bring storage cask shipments into the PFS facility, within the next several weeks it will be providing the Board and the parties with updated status information regarding the EIS preparation process. According to the staff, this report likely will reflect a delay of from two to four months in the preparation of the draft and final EIS documents. The staff suggested, therefore, that the Board delay making any further revisions to the discovery schedule until it has issued its revised status information. Because the State did not want to await this staff information, however, it has asked for Board approval of the Group II changes with the understanding that it (and the other parties) will have an opportunity to comment on any potential changes to the

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Group III schedule once'the staff's provides its additional EIS status information.

B. The State's proposal, the general terms of which are unopposed, appears reasonable under the circumstances.

Although the existing schedule generally was based on the parties' suggestions vis a vis discovery closing dates, see Licensing Board Memorandum and Order (General Schedule for Proceeding and Associated Guidance) (June 29, 1998) at 5 (unpublished) [ hereinafter June 29 Issuance), providing a limited discovery opportunity closer to the hearing may well be a.useful tool to provide a timely, focused inquiry. The Board thus is willing to endorse this general concept and implement it with respect to the' Group II and Group III contentions, with the understanding that the other j 1

established filing or hearing dates will not be affected.

Applicant PFS does, however, raise one. issue regarding the implementation of this concept that deserves mention.

F .As it was expressed during the prehearing conference and is noted'in a footnote to the State's March 24 pleading, PFS suggests that to ensure that this window does not, in fact, encompass the sule discovery effort of a lead party relative to a;particular issue, that during the window for each

)' contention a party be allowed to use only five of the total of tenLinterrogatories per contention it has been allotted i

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J by the Board. Egg LBP-38-7, 47 NRC 142, 245, aff'd on other r

arounds, CLI-98-13, 48 NRC 26 (1998).

We share the apparent PFS concern that the respective

" windows" not become the sole discovery period for contentions in Groups II and III, particularly if a significant number of the allotted ten interrogatories are posed in the late stages of the window period. On the other hand, at least to this point, the parties apparently have been conducting the discovery process in a manner that reflects an understanding it should be used as a tool for >

gaining information to focus and crystalize the issues to be tried rather than as a weapon in a war of attrition. In the course of informal discovery, the various parties have made available more than fifty thousand documents and have conducted a number of interviews with potential witnesses and others.

As a consequence, we are inclined to provide the parties some latitude relative to the use of allotted interrogatories.1 We will not impose a requirement that any specific number of the allotted ten interrogatories per contention be utilized before the " window" period. What we will do, however, is provide a sliding scale under which the 1

In doing so, however, we no' that reserving for the

" window" period all or a significant number of interrogatories for a contention likely would be a factor ,

weighing against a party's request for additional  ;

interrogatories relative to that contention. l i

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. failure to' utilize the allotted interrogatories in an expeditious manner will result in them.becoming unavailable, absent some Board directive to the contrary. Thus, in the case of the. Group II contentions, although'a party may carry all. ten interrogatories for a particular contention into the l window period, a failure to utilize at least three of the ten within the first two weeks of the period will cause any lof those three unused interrogatories'to be lost.

Thereafter, failure to utilize an additional three of the 1

seven remaining interrogatories will cause any of those j three unused interrogatories-to expire.2 This would leave no more than four interrogatories for use during the final ,

four-week period of the Group II window. Such a system i

j provides flexibility to the parties while ensuring that 1

these inquiries are not "left to the last minute" so as to '

put undue pressure on the responding party.'

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2 On the other hand, if, for example, a party enters the window period with only five interrogatories remaining for a particular contention, then it has only one interrogatory that it must "use or lose" within the first i

four weeks of-the window.

3 As we noted previously, any interrogaties must be

. posed within a time frame that will allow a timely response

(. before the close of the discovery period. Egg June 29 Issuance at 7. As also was noted during the prehearing '

conference, a duty timely to supplement responses is imposed by agency rules. See-10 C.F.R. S 2.740(e).

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, l C. Accordingly, consistent with the discussion anove, the general schedule for the Group II contentions is revised as follows:

1. Additional formal discovery regarding any of the Group II contentions may be conducted during the period Monday, January 1, 2000, throuah Tuesday, February 29, 2000.

2. For each contention in Group II, of the ten interrogatories initially allotted for each of those contentions, absent leave of the Board: (1) no more than seven can be utilized af ter Fridav, January 14, 2000; and (2) no more than four can be utilized after Fridav, Januarv 28, 2000.

Further, with regard to the Group III contentions, within seven davs of the issuance of the staff status update on EIS-related scheduling, the parties shall have an opportunity to comment on revisions to the Group III schedule relative to an additional 'tscovery " window" or any other relevant matter. Party responses to any other party's I comments shall be filed within Leven davs of the filing of those comments. Thereafter, the Board will issue any  !

further' schedule changes as appropriate.'  ;

The filings permitted under this memorandum and order  !

should be served on the Board, the Office of the_ Secretary,

' The Board will issue a new general schedule matrix at the time-it makes revisions relative to the Group III contentions.

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and counsel for the other participants by facsimile transmission, e-mail, or other means that will ensure receipt by midnight Eastern Time (ET) on the day of filing.

Egg Licensing Board Memorandum and Order (Initial Prehearing Order) (Sept. 23, 1997) at 5-6 (unpublished); Licensing Board Memorandum and Order (Additional Guidance on Service Procedures) (Nov. 19, 1997) sergubl.shed); Licensing Board Memorandum and Order (Schedule for Telephone Conference and Directives Regarding Expedited Service) (Sept. 2, 1998) at 2-3 (unpublished).

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD 5 I - ~ {

/2_D'3 d sk( d i G. Paul Bollwerk, III ,

ADMINISTRATIVE JUDGE I Rockville, Maryland l

March 29, 1999 5

Copies of this memorandum and order were sent this

, date by Internet e-mail transmission to counsel for (1) the l applicant PFS; (2) intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes of the Goshute Reservation, Southern Utah Wilderness Alliance, and the State; and (3) the staff.

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• 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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l In the Matter of PRIVATE FUEL STORAGE, LLC Docket No.(s) 72-22-ISFSI (Independent Spent Fuel Storage l Installation) j CERTIFICATE OF SERVICE I hereby certify that ecpies of the foregoing M&O--GRANT'G MOTION.. CONTENT'S 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 Comission Appellate G. Paul Bollwerk, III, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 l Washington, DC 20555 U.S. Nuclear Regulatory Comission  !

Washington, DC 20555 Administrative Judge Administrative Judge Jerry R. Kline Peter S. Lam Atomic Safety and Licensing Board Psnel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Comission 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 Mail Stop 15 B18 & Eisenberg, L.L.P.

U.S. Nuclear Regulatory Commission 1726 M Street, N.W., Suite 600 Washington, DC 20555 Washington, DC 20036 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 l

Docket No.(s)72-22-ISFSI

'M&O--GRANT'G MOTION.. CONTENT'S Denise _ Chancellor, Esq.

Assistant Attorhey General Jay E. Silberg, Esq.

Utah Attorney General's Office Shaw, Pittman, Potts & 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. Richard E. Condit, Dq.

Confederated Tribes of the Goshute L nd and Water Fund of the Rockies Reservation and David Pete 2260 Baseline Road, Suite F00 1385 Yale Avenue Boulder, CO 80302 Salt Lake City, UT 84105 Clayton J. Parr, Esq. Danny . Quintana, Esq.

Castle Rock, et al. .

Skull Valley Band of Goshute Indians Parr, Waddoups, Brown, Gee & Loveless Danny Quintana & Assocs., P.C.

185 South State Street, Suite 1300 50 West Broadway, Fourth Floor '

Salt Lake City, UT 84111 Salt Lake City, UT 84101 1

Richard ~ Wilson Department of Physics Harvard University Cambridge, MA 02138 Dated at Rockville, Md. this 29 day of March 1999 Office of the Secret &fy of theXommission i

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