ML20203G684

Memorandum & Order (Denying Motion to Amend Security Contentions).* for Reasons stated,981217 Motion of State of Utah to Amend State Security Contentions Denied. with Certificate of Svc.Served on 990218

ML20203G684
Person / Time
Site:	07200022
Issue date:	02/18/1999
From:	Bollwerk G, Lam P Atomic Safety and Licensing Board Panel
To:	UTAH, STATE OF
References
CON-#199-19999 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, LBP-99-07, LBP-99-7, NUDOCS 9902220023
Download: ML20203G684 (12)

Text

L.)qqq9 UNITED STATES OF AMERICA LBSc99E7{t!

NUCLEAR REGULATORY COMMISSION  :; 'li",

ATOMIC SAFETY AND LICENSING BOARD 59 FEB 16 g;28 Before Administrative Judges:

G. Paul Bollwerk, III, Chairman C Dr. Jerry R. Kline D

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Dr. Peter S. Lam ADJ WRVED RB 16 f999 In the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel February 18, 1999 Storage Installation)

MEMORANDUM AND ORDER (Denying Motion to Amend Security Contentions)

As part of its challenge to the pending application of Private Fuel Storage, L.L.C., (PFS) for authorization to construct and operate a 10 C.F.R. Part 70 independent spent fuel storage installation (ISFSI) on the Utah reservation of the Skull Valley Band of Goshute Indians (Skull Valley Band), intervenor State of Utah (State) previously sought and gained admission of several contentions regarding the adequacy of the physical security arrangements for the PFS facility. Sge LBP-98-17, 48 NRC 69, .arantina reconsideration of LBP-98-13, 47 NRC 360 (1998). In particular, the Board admitted portions of contentions Security-A, Security-B, and Security-C on the issue whether a June 1997 cooperative law enforcement agreement 9902220023 990218 ~V PDR c ADOCK 07200022 roR yph

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[(CLEA)) that-permits the Tooele County sheriff's-office to exercise law i enforcementLauthority on the Skull l Valley. Band reservation has been- i properly adopted by Tooele' County,  !

thereby allowing the county sheriff's i office to fulfill its role as the i designated (local law enforcement agency (LLEA)).for the PFS facility. j o

LBP-98-17, 48 NRC at 71. The State now seeks to amend these l l

admitted contentions to permit litigation of a new question l l

regarding the participation of the Tooele County sheriff's' l

'i office in responding to. incidents at the.PFS facility, a  :

request both PFS and the NRC staff oppose. 1 For the reasons that follow, we deny the State's ,

security contentions amendment request.

t I. BACKGROUND l

l-The State's motion, which was submitted to the Board on December 17, 1998, is footed on a December 2, 1998' letter from'the Tooele County Attorney that is attached to the State's pleading. Egg [ State] Motion to Amend Security Contentions (Dec. 17, 1998) exh. 3 [ hereinafter State Motion). Responding to an October 14, 1998 written inquiry I from the Executive Director of the State's Department of I

Environment Quality about the extent of the assistance F Tooele. County will render for. law enforcement on the Skull

! Valley Band reservation, ggg id. exh. 2, in that letter the I

Tooele County-Attorney stated:

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I do not believe Tooele County is l obligated to provide law enforcement l protection to (PFS] and their proposed i storage site. Tooele County patrols 1 areas as requested by Skull Valley Tribal government. If they desire to include the (PFS] site we will have to revise the CLEA and negotiate to provide this service. At the time the CLEA was signed there was no discussion or i contemplation that (PFS) would be part  !

of the agreement. Moreover, the county has not yet entered into any agreement that has any bearing on locating the PFS storage facility on the reservation. l l

Id. exh. 3, at 1.

According to the State, this statement by the Tooele County Attorney, who approved the existing CLEA as to form, establishes that PFS cannot satisfy the requirements of 10 C.F.R. S 73.51(d) (6) and 10 C.F.R. Part 73, App. C, i S 3.d, which respectively require that an ISFSI applicant  :

1 must (1) show a documented liaison with a designed LLEA to permit timely response to unauthorized penetration activities; and (2) provide a listing of available LLEAs, as well as a description of their response capabilities and criteria and a discussion of working arrangements or agreements for communication with such LLEAs. Because the December 2 letter shows that Tooele County will not provide law enforcement protection to the PFS facility under the existing CLEA, the State asserted it has (a) raised an additional admissible legal challenge; (b) added substance to the already admitted basis for contention Security-C

regarding LLEA response time; and (c) provided support for broadening the bases of admitted contentions Security-A and Security-B concerning security force staffing, equipment,  ;

and training. Egg State Motion at 5-6. Finally, the State I asserted that in connection with its proposed amendment of j contentions Security-A, Security-B, and Security-C, it l 4

fulfills the five late-filing criteria of 10 C.F.R.

S 2.714 (a) (1) .  !

l Both PFS and the staff opposed the PFS motion in pleadings filed December 29, 1998. PFS declared the State's i motion should be rejected because (1) it failed to establish a balancing of the section 2.714 (a) (1) standards support late-filed admission of its new assertions; and (2) the i

State's amended contentions would advocate stricter  ;

i requirements than those imposed by the agency's regulations. l

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l Sag Applicant's Answer to [ State] Motion to Amend Security Contentions (Dec. 29, 1998) at 1 [ hereinafter PFS Response].  ;

i On the second point, PFS maintained that section 73.51(d) (6) l requires only that the LLEA be able to respond to unauthorized activities at the PFS site, not patrol or  !

provide preventative protection. Because assistance of the latter type is the subject of the Tooele County Attorney's i

December 2 letter, PFS argued that the State is seeking  ;

impermissibly to amend the existing contentions on a basis that goes beyond the requirements of the existing

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regulations. Sgg.id.-at 8-10. - For its.part, the staff j i

challenged the State's request, arguing it (1) had not met J

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its burden under the section 2.714(a)(1) late-filing i criteria; and-(2) failed'to' provide authoritative support j for~its new challenge to the facial validity of the existing j J

CLEA as it' vests the Tooele' County sheriff's office with l

jurisdiction to undertake law enforcement activities on the Skull Valley Band reservation. Egg NRC Staff's Response to j

(State] Motion to Amend Security Contentions (Dec. 29, 1998) at 3-11 [ hereinafter Staff Response].

II. ANALYSIS  :

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Because the State once again is seeking to interpose new matters into this proceeding, it must meet the l l

five-factor balancing test found in 10 C.F.R. S 2.714 (a) (1) .

l l And as.-before, we look first to the important factor of good 1 '

cause for late filing. In this instance, the bone of contention posited by PFS and the staff is not the amount of time the State took to lodge its motion after receiving the l

Tooele County Attorney's letter, which was less than two weeks, or even the nearly two months it apparently took

Tooele County officials to answer the State's information inquiry. At issue instead is the amount of time the State I I- I took to request the information in the first instance. The i

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State'seletter, dated October 14, 1998, was posted some four 4

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months-after the CLEA was first provided by PFS at a June 17, 1998 prehearing conference, agg Tr. at S-15 to S-16, and more than two months after this Board admitted the CLEA-related issue on reconsideration.

The precipitating event for a late-filed contention often is a subject of some dispute. For present purposes we will assume the State had no reasonable basis for looking further into the CLEA until we granted its reconsideration request in our August 5, 1998 issuance. Even in this posture, however, we are unable to find the State's unexplained two-month delay in directing questions to county officials has any legitimate justification that would provide good cause for its late filing. Having received a copy of the CLEA, t'he State was under an obligation, particularly once we indicated that agreement had some relevance to this proceeding, to act promptly to uncover any additional problems with that pact. In this instance, which apparently did not involve any complex scientific or  ;

technical analysis, we find the more than two-month period the State took to inquire too long for it to claim that good cause existed for its late filing.

With this failure to demonstrate good cause for late-filing comes the requirement that the State make a

" compelling showing" regarding the other four late-filing i

factors. Egg LBP-99-6, 49 NRC , (slip op. at 8)

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i (Feb. 17,11999).- As to factors two and four --' availability [

_of other means to protect' the petitioner's interests and t

extent of representation of those' interests h,v other. l l

partiesf-- we find,.as the staff suggests, ggg Staff' l

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. i Response at 5-6, that'they weigh in the State's favor. They

• I are, however,. accorded less-weight'in the balance'than the l

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other two criteria. Id. j j

Looking to factor three -- assistance in developing a j sound record -- because legal issues are a focal point of the State's motion, the need for an extensive showing regarding witnesses and testimony may be less compelling.

Egg LBP-98-29, 48 NRC 286, 301 n.18 (199 8 ) '. At the same time,.the State seeks to use this matter as a vehicle to 1

gain further consideration of previously rejected factual i

L contentions regarding the adequacy of security force

staffing and equipment, albeit without the' requisite evidentiary proffer regarding these elements, thereby i

diluting somewhat the support factor three provides on the l admission side of the balance. l

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Finally, factor five -- broadening the issues / delaying j the proceeding -- clearly does not support the State's  ;

( request to amend its security contentions. Litigation i- regarding the Tooele County sheriff office's legal i

obligations under the CLEA is likely significantly to broaden and delay this proceeding, raising as it does a 1 1

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substantive challenge to the agreement, as opposed to the i essentially procedural challenge to its adoption protocols that is now before the Board, as well as the possibility of awaiting-the outcome of legal actions in other judicial forums.

In sum, even with the modest support afforded by i factors two, three, and four, the compelling showing needed to overcome the lack of good cause under factor one is I lacking. The State's request to amend several of its  ;

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security contentions therefore must be denied.* +

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Having found that under a balancing of the section 2.714 (a) (1) late-filing factors the State's amendment request should not be entertained, we need not reach the question of its admissibility. Nonetheless, we note that even if it had met those criteria, we would not be inclined to permit the amendment given (1) the import of section 73.51(d) (6) 's reference to LLEA " response"; and (2) the failure of the statements in Tooele County Attorney's letter to call into question our previous pronouncement that "nothing on the face of the cooperative agresment gives us cause to question its validity as it provides [ law enforcement] jurisdiction on the Skull Valley Band's

. reservation for the designated LLEA." LBP-98-13, 47 NRC at 370 n.9.

Nevertheless, with the CLEA's provisions regarding yearly review and termination, see State Motion, exh. 1, at 3, the potential exists for further developments that may call into question the substance of LLEA jurisdiction, geg

' Staff Response at 10. Nothing in our ruling today precludes party requests for the admission of appropriate issues if future events warrant.

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III. CONCLUSION In' seeking to amend its security contentions to j introduce questions regarding the validity of the CLEA as it j l

provides that Tooele' County will. afford law enforcement j services on the Skull Valley Band's reservation, intervenor i

State of Utah has failed to demonstrate that the five factors governing late-admission of contentions under 10 C.F.R. S 2.714(a)(1) support entertaining those l

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I-revisions. We thus reject the State's motion to amend its security contentions.

For the foregoing reasons, it is this eighteenth day of February 1999, ORDERED, that the December 17, 1998 motion of I

the State to amend its security contentions is denied.

THE ATOMIC SAFETY AND LICENSING BOARD 2 G.

h.Pm Paul lhtL~c.

Bollwerk, TII cr ADMINISTRATIVE JUDGE n

\ M Peter S. Lam ADMINISTRATIVE JUDGE j l

Rockville, Maryland February 18, 1999  !

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Copies of this memorandum and order were sent this  ;

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

Judge Kline was unavailable to participate in final ocliberations regarding, or to sign, this memorandum and order.  !

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UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION I

In the Matter of PRIVATE FUEL STORAGE, LLC' Docket No.(s) 72-22-ISFSI ]

(Independent Spent Fuel Storage-Installation)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMO E ORDER (LBP-99-7) 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 Boilwork, III, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop 3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge

! Jerry R. Kline Peter S. Lam 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 Commission Washington, DC 20555- Washington, DC 20555 i

Sherwin E. Turk, Esq.

Catherine L.-Marco, Esq. Diano 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 l

Martin S. Kaufman, Esq. Joro Walker, Esq.

l 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  !

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. 2,..-. ., ,-- ..

Docket No.(s)72-22-ISFSI LB MEMO & ORDER (LBP-99-7)

Denise Chancellor, Esq.

Assistant Attorney 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, Esq.

Confederated Tribes of the Goshute Land and Water Fund of the Rockies  !

Reservation and David Pete 2260 Baseline Road, Suite 200 1385 Yale Avenue Boulder, CO 80302 i Salt Lake City, UT 84105 l l

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Clayton J. Parr, Esq. Danny Quintana, Esq. I Castle Rock, et al. Skull Valley Band of Goshute Indians Parr, Waddoups, Brown, Gee & Loveless Danny Quintans & Assocs., P.C.

185 South State Street, Suite 1300 50 West Broadway, Fourth Floor Salt Lake .. y, UT 84111 Salt Lake City, UT 84101 Richard Wilson

- Department of Physics Harvard University Cambridge, MA 02138 Dated at Rockville, Md. this 18 day of Februar3 1999

/'ht44 wJ l DTfice of the Secref/ary of theJCommission 1

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