ML20236X451

New England Coalition on Nuclear Pollution Motion for Leave to File Reply Brief on Appeal of LBP-98-12.* for Reasons Stated,New England Coalition on Nuclear Pollution Should Be Allowed to File Attached Reply Brief

ML20236X451
Person / Time
Site:	Yankee Rowe
Issue date:	08/05/1998
From:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC COMMISSION (OCM)
Shared Package
ML20236X453	List: ML20236X451 ML20236X467
References
CON-#398-19398 LA, LBP-98-12, NUDOCS 9808100025
Download: ML20236X451 (3)

Text

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DOCKETED l UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSON BEFORE THE COMMISSION '98 AUG -7 P3 :00 In the Matter of ) OFFL t ci f RUM B.> '

YANKEE ATOMIC ELECTRIC CO. )

) Docket No. 50-029-LA (Yankee Nuclear Power Station) ) August 5,1998 NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE TO FILE REPLY BRIEF ON APPEAL OF LBP-98-12 L INTRODUCTION The New England Coalition on Nuclear Pollution ("NECNP") hereby moves for leave to file the attached Reply Brief on Appeal of LBP-98-12, in response to the Brief of the Licensee Yankee Atomic Electric Company (July 17,1993)(hereinafter "YAEC Brief'), and the NRC Staff s Response to New England Coalition on Nuclear Pollution's Appeal of LBP-98-12 (July I

27,1998)(hereinafter "NRC Staff Brief"). NECNP submits that leave to file a Reply Briefis necessary in order to allow NECNP to respond to arguments not anticipated by NECNP in preparing its Brief on Appeal of LBP-98-12 (July 10,1998) (hereinafter "NECNP Initial Brief')

and to address misstatements oflaw and facts by YAEC and the NRC Staff.

I IL STATEMENT OF FACTS l On July 10,1998, NECNP filed a notice of appeal and its Initial Brief, seeking reversal of LDP-98-12, the Licensing Board's Memorandum and Order (Decision on Standing), which denies NECNP's request for a hearing on Yankee Atomic Electric Company's ("YAEC's") License Termination Plan ("LTP") for the Yankee Rowe Nuclear Power Station (" Yankee Rowe"~

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2 YAEC filed its responsive brief on July 17,1998, 'and the NRC Staff responded on July 27,1998.8 Hl. ARGUMENT NRC regulations at 10 C.F.R. 2.714a, which govern appeals of orders wholly denying petitions to intervene, are silent on the question of whether reply briefs are allowed. Therefore, leave must be obtained in order to file a reply. Nuclear Engineering Co. (Sheffield, Ill. Low-Level Waste Disposal Site), ALAB-473, 7 NRC 737, 745 n. 9 (1978). ' NECNP moves for leave to file a reply brief on the following grounds:

1. The NRC has two regulations governing appellate briefs: 10 C.F.R. { 2.714a, and 10 C.FR. 2.786 (for discretionary review of decisions and actions of presiding officers). Although neither of these regulations explicitly provides for the filing of reply briefs, the Commission routinely schedules reply briefs when it sets briefing schedules under 10 C.F.R. Q 2.786. See, e.g.,

Sequoyah Fuels Corporation CLI-94-4, 39 NRC 187,189 (l994); Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-97-7,45 NRC 437,438 (1997). Although the rationale for allowing reply briefs is not stated in these decisions, in other contexts the Commission has recognized the imponance of permitting prospective interveners to answer arguments that they could not have anticipated in their initial pleadings. See Houston Lighting andPower Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-5654,10 NRC 521,524-25 (1979) (granting interveners an opportunity to reply to appositions to their contentions) (hereinafter "Allens i Creek").

'Although YAEC filed its brief by first-class mail on July 17, the brief was not received by L undersigned counsel for NECNP until ten days later, on July 27,1998. It appears the extended delay was caused by the use of the wrong zip code on the address label of the envelope enclosing the brief.

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Here, a Reply should be allowed because NECNP could not have anticipated all of YAEC's and the Staff s arguments, nor could it have anticipated their misstatements oflaw and fact. If NECNP is not allowed to be heard now, there will be no further opportunity to address the Commission on the arguments made by YAEC and the Staffin support of NECNP's complete dismissal from this proceeding. See <fllens Creek,11 NRC at 525. Therefore, NECNP's Reply Brief should be allowed.

2. NECNP's Reply Briefis being filed within a reasonable time after receipt of YAEC's l and the Staff s briefs. Counsel for NECNP received YAEC's Brief on July 27,1993, and the NRC Staff s Brief on July 28,1998, and the Reply is being filed within seven working days of receiving both briefs. Seven working days is a reasonable period, considering that the Reply Brief makes a combined response to both YAEC's and the Staff s briefs, which total 37 pages.

Counsel for NECNP telephoned counsel for YAEC and asked whether YAEC would object to this Reply Brief on grounds of timeliness, given YAEC's error in serving its brief on l counsel for NECNP. Counsel for YAEC responded that YAEC would have no objection to the motion being allowed.

IV. CONCLUSION

! For the foregoing reasons, NECNP should be allowed to file the attached Reply Brief.

I submitted, Diane Curran HARMON, CURRAN, SPIELBERG & EISENBERG, LLP 2001 "S" Street N.W., Suite 430 Washington, D.C. 20009 202/328-3500 August 5,1998

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