ML20151N595

Joint Opposition of New England Coalition on Nuclear Pollution & Commonwealth of Ma to Licensee Motion for Leave to File Response to Interventors Joint Reply.* Certificate of Svc Encl

ML20151N595
Person / Time
Site:	Vermont Yankee
Issue date:	08/02/1988
From:	Ferster A HARMON & WEISS, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#388-6857 OLA, NUDOCS 8808090044
Download: ML20151N595 (5)

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o f FJf 7 C'OLKE T E0 August 2, 1988 UNITEO STATES OF AMERICA .es Am -4 PS :28 NUCLEAR REGULATORY COMMISSION BEFORE THE A'IOMIC SAFETY AND LICENSING BOARD fC . S ': U ' '

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In the Matter of )

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Vermont Yankee Nuclear )

Power Corporation ) Docket No. 50-271-OLA

) (Spent Fuel Pool)

(Vermont Yankee Nuclear )

Power Station) )

)

JOINT OPPOSITION OF NEW ENGLAND COALITION ON NUCLEAR POLLUTION AND THE COMMONWEALTH OF MASSACHUSETTS TO THE LICENSEE'S MOTION EOR LEAVE TO FILE RESPONSE TO INTERVENORS' JOINT REPLY Intervenors New England Coalition on Nuclear Pollution 1 oppose the

("NECNP") and the Commonwealth of Massachusetts Licensee's "Motion for Leave to Fil.e Response to "Joint Reply of the Commonwealth of Massachusetts and NECNP to Applicants and the Staff's Response to Stay Motion," dated July 28, 1988. The Licensee is now seeking leave to file a supererogatory reply to Intervenors' Joint Reply to Applicants and the Staff's Response to Stay Motion, dated July 15, 1988,2 and simultaneously filed its Response to Intervenors' Joint Reply prior to receiving the leave sought in its motion. The Licensee's July 28, 1988,

! motion, filed nearly two weeks after receiving Intervenors' Joint Reply, is barred by the equitable doctrine of laches and must be rejected.

8808090044 880002 PDR ADOCK 05000271 0 PDR l

1 Hereinafter referred to as "Intervenors."

2 Hereinafter referred to as "Intervenors' Joint Reply."

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e First,-there is no right under the NRC rules of practice to file a reply brief. Rather, permission must be sought from the Licensing Board to file a reply brief. Moreover, it is well-established rule that the reply brief should not be attached to a motion for permission to file a reply brief; rather "the reply brief ... should only be submitted after permission to file is granted." Public Service Co. of Oklahoma Associated Electric Coooerative. Inc. (Black Fox Station, Units 1 and 2), LBP-76-38, 4 NRC 435, 441 (1976). Here, the Licensee filed its Reply to Intervenors' Joint Reply simultaneously with motion for leave to

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file a response. The Licensee has not even attempted to explain or justify its failure to first seek permission to file its reply.

Certainly, no excuse for this tardiness is apparent from the facts. First, Intervenors' Joint Reply to the Licensee's and the Staff's responses to Intervenors' Joint Stay Motion was filed on July 15, 1988, nearly two weeks ago. The Licensee was well aware of Intervenors' intention to file a Joint Reply, and assented to that filing, including the date which the Reply was to be filed.3 Indeed, Intervenors' Joint Reply was sent, by overnight mail, ,

the Licensee, at the Licensee's request. Yet the Licensee waited nearly two weeks after receiving Intervenors' Joint Reply before requesting permission to file its reply. Thus, the facts clearly 3 "Joint Motion of NECNP and the Commonwealth of Massachusetts for Leave to File Reply to Applicants' Response to Stay Motion," dated July 8, 1988.

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show that the Licensee has slumbered upon any claim to file a reply brief. Its dilatory tactics should not be rewarded.

Second, no reply is needed or justified in this instance.

At the prehearing conference held on June 28, 1988, counsel for the Licensee replied at great length in opposition to Inter-venors' Joint Motion, presenting numerous arguments why Inter- .

vencrs' Joint Motion, and Intervenors' oral motion for an emer-gency stay, should be denied by this Licensing Board. The Licensee then filed, on July 7, 1988, a written response to Intervenors' Joint Motion. Certainly, the Licensee had more than adequate time to prepare its first written response, since Inter-venors assented to, and the Licensing Board granted, the Licensee's request for a one week extension of time to file this response. Clearly, the Licensee is not entitled to, and does not require, any additional opportunity to respond.

Finally, granting this response would cause prejudice to Intervenors. It is critical that Intervenors' Joint Stay Motion be acted upon expeditiously, since every delay allows the work to proceed on installing additional high-density racks in the Ver-mont Yankee spent fuel pool, thereby increasing, on a daily basis, the prejudice to the NEPA cost-benefit analysis of an increase in the spent fuel pool storage capacity. Indeed, the inexcusable tardiness of the Licensee's Motion for Leave to File a Reply to Intervenors' Joint Response would even lead to the suspicion that this is nothing more than another attempt to delay the decision on Intervenors' Joint Stay Motion, so as to further prejudice the consideration of alternatives under NEPA.

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Accordingly, we respectfully request that the Board deny Licensee's motion for leave to reply to the Intervenors Joint Reply.

Respectfully submitted, f' / f' Andrea Ferster HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 CERTIFICATE OF SERVICE I certify that on August 2, 1988, copies of the foregoing pleading were served by first-class mail on all parties listed below.

Charles Bechhoefer, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. James H. Carpenter Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary of the Commission j Attn: Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Christine N. Kohl, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l George Dean, Esq.

Assistant Attorney General

( Commonwealth of Massachusetts l

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Department of the Attorney General One Ashburton Place Boston, MA 02108 David J. Mullett, Esq.

Vermont Department of Public Service 120 State Street Montpelier, VT 05602 Ann Hodgdon, Esq.

Office of the General Counsel Bethesda U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Diana Sidebotham R.F.D. #2 Putney, Vermont 05346 Thomas G. Dignan, Esq.

Ropes & Gray 225 Franklin Street Boston, MA 02110 Gary J. Edles Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Howard A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Geoffrey M. Huntington, Esq.

Office of the Attorney General Environmental Protection Agency State House Annex 25 Capitol Street Concord, NH 03301-6397 l Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Branch .

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U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4 Andrea Ferster l

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