ML20217R224

Motion of Yankee Atomic Electric Co for Leave to Reply to New Planning Board Evidence.* Petition of Planning Board to Intervene Should Be Denied as Untimely & for Lack of Standing.W/Certificate of Svc

ML20217R224
Person / Time
Site:	Yankee Rowe
Issue date:	05/05/1998
From:	Dignan T ROPES & GRAY, YANKEE ATOMIC ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#298-19056 98-736-01-LA, 98-736-1-LA, LA, NUDOCS 9805140207
Download: ML20217R224 (4)

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/9656 DOCKETED USNRC United States of America Nuclear Regulatory Commission before the

% NW 11 P3 :02 Atomic Safety and Licensing Board OFf L Or spr m ;y n In the Matter of nUL w a w ADJUDUAT '.V 3d. F YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. 98-73641-LA (Yankee Nuclear Power Station)

MOTION OF YANKEE ATOMIC ELECTRIC COMPANY FOR LEAVE TO REPLY TO NEW PLANNING BOARD EVIDENCE Under date of May 2,1998, and the guise of doing something else, the Planning Board seeks to bolster its standing to seek " interested state" status by offering whar. is not only new evidence but, indeed, an entirely new fact that did not exist when its petition was originally filed. Yankee moves forleave to submit the within short reply:

Insofar as the Planning Board seeks to intervene as a party, it is a firm rule that a party seeking to intervene in an NRC contested proceeding must have standing at the time its petition is submitted. See Washington Public Power Supply System (WPPSS Nuclear Project No.1), LBP-83-16,17 N.R.C. 479,483 (1983).' The Planning Board "Nor does the Caldwell affidavit, executed by someone who became a member after the due date for filing a timely petition, satisfy the timeliness requirements for filing without leave of the Board.

Petitioner's argument that 10 CFR $$ 2.714(a)(3) and 2.714(b) permit an amendment such as this, to include an after-acquired member upon whom to base standing, has no foundation. Only a person who has filed a petition for leave to intervene may amend his petition (5 2.714(a)(3)), and only a person

'whose interests may be affected by a proceeding' may file a petition in the first instance ($ 2.714(a)(1)).

If CSP relies upon only Mr. Caldwell as having an interest that might be affected by the proceeding and Mr. Caldwell was not a member at the time of the original filing, CSP would have no standing to file in the first place, and therefore would not be covered by the sections permitting an amendment.

Furthermore, Petitioner confuses an amendment of its pleading, as permitted by 5 2.714(a)(3), with a supplement to its petition in the form of the Caldwell affidavit, that is not authorized under the regulations. An amendment relates to an existing fact that was omitted or erroneously described; it is a supplement to the petition that relates to subsequent facts. Since Mr. Caldwell was not a member at the time the petition was filed, no amendment of the petition can serve to utilize his membership for that time period. Section 2.714(b) upon which Petitioner also relies, and which does permit the filing of a supplement to the petition, relates only to a listing of contentions and does not permit the curing of a jurisdictional defect that existed at the time the original petition was filed."

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l filed its initial pleading, which it has stated was not a petition to intervene, on February 26, 1998, and it filed its " amended" pleading on April 6,1998. The Executive l

Committee and Council vous to which it now points this Board as supplying its standing were not taken until April 29, 1998. Even if that vote convened "after acquired" standing to intervene, it would come too late.

Insofar as the Planning Board seeks " interested state" status, the fact that the Executive Committee and the Council " endorse" and " support" the Planning Board's attempt to enter this proceeding as the Planning Board does not sufficiently address the t

L fact that, in its own name, the Planning Board lacks municipal tatus. The municipal l

. corporation is the Franklin Regional Council of Governments, of which the executive is the Exe. utive Committee and the legislative branch is the Council. ' If the FRCOG had timely elected to seek admission into this proceeding, in its own name and bearing l

its own responsibility, it might have done so.2 That.the FRCOG might have had l

municipal standing, however, does not confer upon it the power to lend its standing to a body that, in its own right, does not.

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'Indeed, if a hearing is held on the admitted contentions of another intervenor, the FRCOG (but not the Planning Board) might nonetheless seek to panicipate as an " interested state." Pacific Gas and l

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-600,12 NRC 3,8 (1980); Long l

Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-13,17 NRC 469,471 (1983). As j

an " interested state," FRCOG's participation would be conditioned on its shouldering the responsibilities j

of participation. Eg., Gul/ States Utilities Co. (River Bend Station, Units 1 and 2), LBP-76-32,4 NRC 293,299 (1976). Under Massachusetts law, the FRCOG, as a municipal corporation, may be represented

. only by an attorney. Brattrnan v. Secretag of the Commonwealth,421 Mass. 508,511,658 N.E.2d 159, 161 (1995); Varney Enterprises, Inc. v. WMF,Inc., 402 Mass. 79,79,520 N.E.2d 1312 (1988). See also G.

L. (1996 ed.) ch. 268A, $ 11(c); 10 C.F.R. $ 2.713(a).

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i For the foregoing reasons and those previously set forth, the petition of the Planning Bond to intervene should be denied as untimely and for lack of standing, and the request of the Planning Board for " interested state" status (in the event a hearing -

is otherwise granted) should be denied for lack of municipal status.

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Mpectfull submitted, I

Thomas

. Dig

, Jr.

N R. K. Gad m Ropes & Gray One International Place i

Boston, Massachusetts 0211^

(617) 951-7000 Dated: May 5,1998.

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DOCKETED USNRC l

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11 P3 :03 my"73p Js'- Ci!RTIFichTE OF SERVICE ' '

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I, Robert K. Gad m, one of the attorneys for Yankee Atomic Electric CompanMI61Q - Or SECp 9 gy l

hereby certify that on May 5,1998, I served the within pleading in this matter by Un t dA LM A J 'O,,w g States Mail (and also where indicated by an asteris'. by facsimile transmission) as fol UDICt ONE. supp l

l The Hon. James P. Gleason, Chairman The Hon. Thomas D. Murphy Administrative Judge Administrative Judge l

Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel l

U.S.N.R.C. '

U.S.N.R.C.

Washington, D.C. 20555 Washington, D.C. 20555 i

l FAX: 301-415-5599 FAX: 301-415-5599 l

l The Hon. Dr. Thomas S. Elleman Administrative Judge

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l 704 Davidson Street

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Raleigh, North Carolina 27609 i

FAX: 919 782-7975 1

Jonathan M. Block, Esquire Mr. Adam Laipson, Chairman

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i Main Street Franklin Regional Planning Board

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Post Office Box 566 425 Main Street Putney, Vermont 05346 Greenfield, Massachusetts 01301 FAX: 802-387-2667 FAX: 413-774-1195 Attorneyfor NECNP Ms. Deborah B. Katz Anne B. Hodgdon, Esquire 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: 301415-3725 On Behalfof CAN Office of Commission Appellate Adjudica-Office of the Secretary tion U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Wa mgto,

.C. 20555 Washington, D.C. 20555 (AX: 301-415-1 2A[

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