ML20212J625
| ML20212J625 | |
| Person / Time | |
|---|---|
| Site: | Yankee Rowe |
| Issue date: | 06/29/1999 |
| From: | Gad R ROPES & GRAY, YANKEE ATOMIC ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#399-20614 LA-R, NUDOCS 9907060080 | |
| Download: ML20212J625 (4) | |
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United States of America Nuclear Regulatory Commission
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before the
'99 JUL -2 P2 :40 i
Atomic Safety and Licensing Board y,
p In the Matter of YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)
MOTION FOR LEAVE TO REPLY (INTERVENORS' JUNE 23,1999, AND JUNE 24,1999, FILINGS)
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Pursuant to 10 C.F.R. $ 2.730(c), Yankee Atomic Electric Company (" Yankee")
I moves for leave to submit the within short reply to the pleadings filed by the Consolidated Intervenors under dates of June 23,1999, and June 24,1999:
1.
In the pleading filed by NECNP, it is asserted that Yankee has " state [d] that it may disobey orders of this Panel if it does not agree with them." fune 24 Filing at 2 n.1. It would appear that the Intervenors do not comprehend that conditions imposed on allowance of a motion to terminate a proceeding without prejudice are conditions, not orders. Under the structure of Fro. R. CIV. P. 41, which structure was the apparent basis for 10 C.F.R. $ 2.107, "[i]f the conditions are too onerous, the plaintiff need not accept the dismissal on those terms." 9 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE $ 2366, at 303, and authorities previously cited in Yankee's filing of June 14,1999, at 5 n.5. Concluding that a condition that one is not obliged to accept is t.nacceptable is not an act of disobedience.'
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'It is, rather, the making of an election under an option given to you by the rules. What the Intervenors seem yet to understand is that, under the Federal Rules, once conditions have been dictated j
on any dismissal without prejudice, it is up to the plaintiff to decide whether he wants to accept the conditions (and get the dismissal) or reject the conditions (and continue trying to stave off defeat). The plaintiff will only accept the conditions if he concludes that they are less onerous than continuing the litigation.
j This model has no application here because, unlike the plaintiff in civillitigation, Yankee has no interest in whether the proceeding is terminated or continues (without Yankee's participation), since the j
former LTP is no longer the plan that Yankee envisions for license termination and disapproval of that y
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The Intervenors appear to be of the view that this proceeding is, or was, about "public knowledge of actual site conditions (which knowledge this Board has
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l found to be appropriate in its ruling on the admissibility of contentions and setting of
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a discovery schedule)." fune 23 Filing at fourth unnumbered page. What Intervenors refer to, of course, is the results of implementation of the Final Status Survey, which this Board not only did not "[ find] to be appropriate" for this proceeding, but rather expressly and correctly found to be dehors the scope of this proceeding, which was limited to the methodology of the Final Status Survey. Intervenors cannot be prejudiced in any sense by their failure to obtain via the proceeding something that was never within its scope.
3.
It should be obvious that, whatever other action it may take, this Board has no jurisdiction or authority: (i) to prejudge the question of standing in any future proceeding, (ii) to prejudge the admissibility of contentions in any future proceeding; (iii) to dictate to the Commission that it may not make amendments to the substantive or procedural regulations that may be applicable to any future proceeding; or (iv) to order Yankee to file an LTP prior to the time an LTP is required to be filed by the Commission's regulations, all of which are suggested in the fune 23 Filing.
4.
Both of the Intervenors' filings include a number of speculations that the Intervenors ask this Board to accept as fact. While the disputes are not material, Yankee represents to this Board as follows:
a.
No schedule for the submission of another LTP has been set, and there-fore, it is categorically false to assert that Yankee "will" file within any given time or not before the elapse of any given time.
E.g., June 24 Filing at 3-4. The decision about filing a new LTP simply requires too l
many issues that have not even yet started to be assessed for anyone (including Yankee) to make such a prediction.
b.
It most certainly is not true that Yankee "had considerable advance knowledge" that the MARSSIM conversion would be made (/une 23 Fil-l plan would be a nugatory act. As a consequence, there is no set of conditions that are less onerous than the alternative and, therefore, acceptable.
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ing at third unnumbered page), or that the conversion was made to avoid having to answer interrogatories about site survey implementation data of which, per the Intervenors' speculation, Yankee feared publica-tion. In point of fact, the decision to convert to MARSSIM was made the day before the first of the Board Notifications was sent (on May 13, 1999), and Yankee felt itself obliged to advise the Board and parties of this decision promptly,2 which it did. But prescinding from everything else, the Intervenors' syllogism is fatally flawed by the fact that this Board has previously (and properly) ruled " implementation" results to I
be dehors the record. Yankee had concluded that it would respond to those interrogatories and document requests (or parts thereof) that sought implementation results with a simple objection-long before any MARSSIM decision was made.
Conclusion For the reasons previously submitted, the Board should enter an order terminating this proceeding, without prejudice and without conditions, ctfully submitted, Thomas G.
'gnan, Jr.
- K R. K. Gad m Ropes & Gray One International Place Boston, Massachusetts 02110 (617) 951-7000 Attorneysfor Yankee Atomic Electric Company Dated: June 29,1999.
2See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143,6 AEC 623, 625-26 (1973). In particular, Yankee was concerned that no one continue expending any effort on a matter that had become moot.
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- (csaviricusWelsRvicsi I, Robert K. Gad m, one of the attorneys for Yankee Atomic Electric CosMn[do iedby T
certify that on June 29,1999, I served the within pleading in this matter by UniteM$tMUfail (and also where indicated by an asterisk, by facsimile transmission) as follows:
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l$5Eheg Bonni. W The Hon. Charles Bechhoefer The Hon. Thomas D. Murphy Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S.N.R.C.
U.S.N.R.C.
Washington, D.C. 20555 Washington, D.C. 20555 FAX: 301-415-5599 FAX: 301-415-5599 The Hon. Dr. Thomas S. Elleman Administrative Judge 704 Davidson Street Raleigh, North Carolina 27609 FAX: 919-782-7975 Partier Jonathan M. Block, Esquire Ms. Deborah B. Katz Post Office Box 566 Citizens Awareness Network,Inc.
Putney, VT 05346 Post Office Box 3023 Fax: 802-387-2667 Charlemont, MA 01339 AttorneyforNECNP Fax: 413-339-8768 On BehalfofCAN Ann P. Hodgdon, Esquire Mr. Samuel H. Iovejoy Marian L Zobler, Esqd.re e/o Franklin Regional Council of Governments Office of the General Counsel 425 Main Street U. S. Nuclear Regulatory Commission Greenfield, MA 01301 Washington, D.C. 20555 Fax: 413-774-3169 FAX: 301-415-3725 On BehalfofERCOG Attomeysfor the NRCStaff Oderr,
Office of Commission Appellate Adjudication Office of the Secretary U. S. Nuclear Regulatory Commission r Regulatory mmission Washington, D.C. 20555 Washington, Qs~
FAX: 30, 54 ' -
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R. K. Gad m
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