ML20216D119

Answer of Yankee Atomic Electric Co to Necnp & CAN Motions.* Necnp Motion Should Be Denied in Entirety.Yankee Takes No Position on CAN Motion for Separate Decision on Standing. W/Certificate of Svc

ML20216D119
Person / Time
Site:	Yankee Rowe
Issue date:	05/12/1998
From:	Gad R ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#298-19092 98-736-01-LA, 98-736-1-LA, LA, NUDOCS 9805200159
Download: ML20216D119 (4)

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'/%9v DOCKETED United States of America USNRC Nuclear Regulatory Commission before the Atomic Safety and Ucensing Board 98 MY 18 P6 :20 OFiici 9 r ' un In the Matter of RUW 7 YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. 98-736-01-LA (Yankee Nuclear Power Station)

ANSWER OF YANKEE ATOMIC ELECTRIC COMPANY TO NECNP AND CAN MOTIONS Under date of May 7,1998, NECNP has filed a motion the purport of which appears to be that this Board should enter a prepared form of order that would:

a. " Strike" or " dismiss" certain motions to strike previously filed by Yankee; and

b. Impose a confusing procedure to be used in the future with respect to

" additional motions."

Under date of May 11,1998, CAN joined in all the foregoing and added a request that the Board issue a separate decision on " standing" before requiring the submission of proposed contentions.

Pursuant to 10 C.F.R. $ 2.730(c), Yankee responds to these motions herein.

1.

Yankee's Prior Motions to Strike. Yankee's motions to strike were properly filed, in the sense that they were (and are) a permissible pleading by which to raise the issue to be raised, namely that the parties in question had filed an unauthorized pleading. Yankee's motions, therefore, should not be " stricken" or " dismissed" (NECNP S/7/98 Pleading, Ex. B (Proposed Order) at 2, T 1), but rather either " allowed" or " denied."

8It may be observed that NECNP's argument with respect to the necessity of accompanying a motion with an affidavit is flawed. (NECNP 5/7/98 Pleading at 2-3.) Under 10 C.F.R. $ 2.730(b), as under Fed. R. Civ. P. 43(e), from which it is derived, an affidavit is required if the motion is dependent 9805200159 980512 gDR ADOCK0500g9 03

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~ 2. " Additional Motions." As Yankee cannot comprehend the relief that is sought, it cannot respond. As a general matter, since a " motion" is "[a]n application to the court for an order" other than final judgment,2 the impropriety of a general a priori prohibition on filing motions would seem obvious.

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3. Separate Stay Decision. ' Yankee stands indifferent on whether the Board elects to render a separate decision on standing to intervene, as CAN has requested.)

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i l upon facts de hors the record. The only i sperative of $ 2.730(b) is that, if the movant relies upon an affidavit (or other factual evidence), ther. ei affidavit (or evidence) must be supplied accompanying the motiom "a motion . . . shall be accompams . '7 any affidavit . . . relied upon." (Emphasis added.) An affidavit that establishes nothing of evidentiaf ..yiificance (such as the " declaration" that accompanies NECNP's motion) is meaningless, and, in general, interpretations of regulations that would result in meaningless requirements are to be avoidec. Yankee's motions to strike were based solely on matters appearing of record (i.e., the filing of a wply and the lack of any prior authorization therefor), and they did not rely upon any affidavits cc evidence.

. Equally flawed is NECNI's ar[;ument, obliquely presented, to the apparent effect that NECNP was allowed to " reply" to Yanker's response (Yankee's only response) to its amended petition for leave to intervene, without the need of leave sought and granted, perforce 10 C.F.R. $ 2.705 and 2.706.

, (NECNP 5/7/98 Pleading at 3.) Sections 2.705 and 2.706 have no application to the present situation.

! - Section 2.705 refers to an answer to a notice of hearing, to which $ 2.706 affords a right of reply.

Yankee's responses to the amended petitions were not $ 2.705 answers to a notice of hearing, and $ 2.706 therefore is not applicable. Answers to petitions for leave to intervene, rather, are governed by $ 2.714, which does not confer a right of reply upon the petitioner.

2 Fed. R. Civ. P. 7.

'Since the foregoing was drafted, the Planning Board has filed a joinder in NECNP's motion. That pleading, however, adds nothing to NECNP's arguments and therefore requires no separate or additional response.

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Conclusion NECNP's motion should be denied in its entirety. Yankee takes no position on CAN's motion for a separate decision on standing.

Respe fully submitted,

,. / x hhomas G. Dig n, r.

R. K. Gad m Ropes & Gray One International Place Boston, Massachusetts 02110 (617) 951-7000 Dated: May 12,1998.

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l 00CKETED USNRC l  %

,> , CCasinickTs;or ssvicp -

py ,6 :20 I, Robert K. Gad 111, one of the attu neys for Yankee' Atomic Electric Company, do i hereby certify that on May 12,1998, I served the within pleading in this matt Unites l States Mail (and also where~ indicated by an asterisk, by facsimile transmission llswhy,,ff (iyIf mU j

The Hon. James P. Gleason, Chairman The Hon. Thomas D. Murp mig sfAFF Administrative Judge Administrative judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel j 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. Thomai S. Elleman Administrative Judge

! 704 Davidson Street l Raleigh, North Caralina 27609 FAX: 919-782-797'.

Jonathan M. Block, Esquire Mr. Adam Laipson, Chairman Main Street Franklin Regional Planning Board Post Office Box 566 425 Main Street l

Putney, Vermont 05346 Greenfield, Massachusetts 01301 l

l FAX: 802-387 2667 FAX: 413-774-1195 Attorneyfor NECNP l

Ms. Deborah B. Katz Anne B. Hodgdon, Esquire I Citizens Awareness Network,Inc. Office of the General Counsel Post Office Box 3023 U. S. Nuclear Regulatory Commission Charlemont, MA 01339 Washington, D.C. 20555 FAX: 413-339-8768 FAX: 301-415-3725 On Behalfof CAN l

Office of Commission Appellate Adjudica- Office of the Secretary l tion U. S. . Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Waship ton, D C. 20555

Washington, D.C. 20555 gAX

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