ML20217N305

Motion of Yankee Atomic Electric Co to Strike Unauthorized Planning Board Pleading & Conditional Motion for Leave to Reply Thereto.* Planning Board Filing of 980428 Should Be Stricken & Petition Denied.W/Certificate of Svc

ML20217N305
Person / Time
Site:	Yankee Rowe
Issue date:	04/30/1998
From:	Gad R ROPES & GRAY, YANKEE ATOMIC ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#298-19017 98-736-01-LA, 98-736-1-LA, LA, NUDOCS 9805050286
Download: ML20217N305 (5)

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/90l'1 DOCKETED United States of America l Nuclear Regulatory Commission

! before the '96 MAY -4 P3 :05 l Atomic Safety and Licensirig Board OFW nF % ab:

In the Matter of h= ' [

Docket No. 50-029-LA

_ kjkg j YANKEE ATOMIC ELECTRIC COMPANY

. ASLBP No. 98-73601 LA I (Yankee Nuclear Power Station)

! MOTION OF YANKEE ATOMIC ELECTRIC COMPANY TO STRIKE UNAUTHORIZED PLANNING BOARD PLEADING AND CONDITIONAL MOTION FOR LEAVE TO REPLY TIIERETO Motion to Strike This Board's Order of March 25,1998, provided for the filing, by the petitioners j I

for a hearing, of " amendments" to their petitions, and for the filing by the Licensee and the Staff of responses to any such amendments. The Order did not authorize any other filing and, in particular, it did not authorize the filing of responses to the Licensee and Staff authorized filings. Nor did the Planning Board move for leave to file an additional pleading submitting additional documentation before simply doing so under j date of April 28,1998. Under the circumstances, the Planning Board's unauthorized filing should be stricken.

Motion to Leave to Reply l i

In the event that the Planning Board's filing of April 28, 1998, is not stricken, Yankee moves for leave to submit the within short reply:

1. Timeliness. The Planning Board asserts, without any citation to authority, that the Notice of Opportunity for a Hearing published by the Commission on January 28, 1998 (63 Fed. Reg. 4308,4328) "can be interpreted to allow an interested party to request a hearing and at a later date, once a hearing has been granted, petition to intervene to gain party status." Planning Board Reply at 2. Such a view would stand  ;

more than 30 years of NRC jurisdiction on its head. First, a " request for a hearing" l

unaccompanied by a petition for leave to intervene is a nullity. E.g., Duquesne Light 9805050286 980430 PDR ADOCK 05000029 9 PDR

r o o Ce. (Beaver Valley Power Station, Unit 2), LBP-84-6,19 NRC 393,425-27 (1984) and the other authorities cited by Yankee in its Response to the Planning Board's Amendment at 8-9. Second, the Federal Register notice, which is jurisdictional and controlling, requires no " interpretation" as to when petitions for leave to intervene i must be filed:

"By February 27, 1998, . . . any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's ' Rules of Practice for Domestic Licensing Proceedings

• in 10 CFR Part 2.

Interested persons should consult a current copy of 10 CFR 2.714 which j is available at the Commission's Public Document Room, the Gelman Building,2120 L Street, NW., Washington, DC and at the local public document room for the particular facility involved. If a request for a hearing or petition for leave to intervene is filed by the above date, the Commission or an Atomic Safety and Licensing Board, designated by the Commission or by the Chairman of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the designated Atomic Safety and Licensing Board willissue a notice of a hearing or an appropriate order.

"A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, the Gelman Building,2120 L Street, NW., Washing-ton, DC, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commis-sion, Washington, DC 20555-0001, and to the attorney for the licensee.

"Nontimely filings of petitions for leave to intervene, amended 1 petitions, supplemental petitions and/or requests for a hearing will not 1 be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of factors specified in 10 CFR 2.714(a)(1) (i)-(v) and 2.714(d)."

I Id. at 4308-09 (emphases added). Since the Planning Board admittedly did not file a petition for leave to intervene until March 25,1998, its petition was untimely in a way j not curable by " interpretation" of the Notice of Opportunity for Hearing. Finally, the 2-

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notion that the rules applicable to untimely petitions for leave to intervene are optional or discretionary was interred by Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983), rev'g in part ALAB-687,16 NRC 460 (1982),

many years ago.

2. The Charter. In support of its alternative request for " interested state" status under 10 C.F.R. 5 2.715(c) (in the event that a hearing is granted on someone else's petition), the Planning Board submits for the first time at this late hour the text of i

what is supposed to be its " charter." Prescinding from the lack of authentication, a review of the document attached to the Planning Board's most recent filing confirms the defects that Yankee had previously pointed out in the Planning Board's standing ,

to act as (or for) Franklin County (or its successor). Rather, the municipal corporation is the " Franklin Regional Council of Governments." $ 2.1. The Franklin Regional l Council of Governments ("FRCOG"), alone among all of the entities named in the charter, has "the power . . . to sue and be sued," i.e., the capacity under Massachusetts  !

law to be a party to litigation. $ 2.2.4(e). Likewise, it is the FRCOG, not the j Planning Board, that has "[t]he powers of regional planning agencies and economic development areas as previously conferred upon the County of Franklin . . . [and][t]he power to exercise any powers, authorities or duties which may be assigned by general law or administrative rule to regional planning agencies or counties." $ 2.2.4(j) & (o).

The legislative body of the FRCOG is the " Council," to which the Planning Board has the power of appointing one of more than 26 members. $3.1. The executive function of the FRCOG is lodged in the " Executive Committee," comprising five members of which the Planning Board has the power to nominate one. 5 4.1.1.

Both the Council and the Executive Committee operate on the time-tested principle of majority rule. $$ 3.1.6, 3.1.7 (Council), 4.1.6,4.1.7,4.2.2 (Executive Committee). By definition under the charter (as well as under generally accepted principles of longstanding law), the Planning Board acting unilaterally is not the government of the former Franklin County.

Finally, the charter confirms that the Planning Board is limited to an advisory function. $7.1,7.3.1.

2. Dmding. Apparently coming to the realization that this Board is without authority to provide the Planning Board with an " initial" grant of $100,000, the Planning Board falls back to a request that this Board order Yankee to pay it $100,000.

Planning Board Reply at 6. Needless to say, the Planning Board cites no authority for such an unusu'ai request, and none exists. l l

Conclusion For the foregoing reasons and those previously set forth, the Planning Board's filing of April 28, 1998, should be stricken, the petition of the Planning Board 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. i espe ully submitted, I

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Thomas G. Dig,n'an, Jr. %

R. K. Gad III Ropes & Gray One International Place Boston, Massachusetts 02110 (617) 951-7000 Dated: April 30,1998.

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00CKETED USHRC

. CEREFIdITE OF SERVICES ..- _.

4] 3.05 -

I, Robert K. Gad In, one of the attorneys for Yankee Atomic Electric Company, do hereby certify that on April 30,1998, I served the within pleading in this matter b -

q ,. py States Mail (and also where indicated by an asterisk, by facsimile . f,g transm JUD M ' * ,

uA;F i The Hon. Jaines P. Gleason, Chairman The Hon. Thomas D. Murp y 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 Jonathan M. Block, Esquire Mr. Adam Laipson, Chairman 1 Main Street Franklin Regional Planning Board Post Office Box 566 425 Main Street Putney, Vermont 05346 Greenfield, Massachusetts 01301 l FAX: 802-387-2667 FAX: 413-774-1195 l 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: 301-415-3725 On Behalf of CAN Office of Commission Appellate Adjudica- Office of the Secretary tion U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 FAX: 30F4154672 , ,

.' M R. K. Gad III l

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