ML073320449
| ML073320449 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/28/2007 |
| From: | Lathrop H, Mcdade E, Richard Wardwell Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 07-858-03-LR-BD01, 50-0247-LR, 50-286-LR, RAS 14684 | |
| Download: ML073320449 (6) | |
Text
UNITED STATES OF AMERICA DOCKETED 11/28/07 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD SERVED 11/28/07 Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point Nuclear Generating Units 2 and 3)
Docket Nos. 50-0247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01 November 28, 2007 MEMORANDUM AND ORDER (Denying Entergys Motion to Strike But Sua Sponte Striking FUSEs Multiple Requests For Hearing)
On November 21, 2007, the licensee in this proceeding, Entergy Nuclear Operations, Inc. (Entergy) filed a Motion in which it asked this Board to strike the Request for Hearing and Petition for Leave to Intervene that was filed on behalf of Friends United for Sustainable Energy (FUSE) on or about September 21, 2007 (Petition 1), the revised Request for Hearing and Petition for Leave to Intervene that was filed on behalf of FUSE on or about October 3, 2007 (Petition 2), and the second revised Request for Hearing and Petition for Leave to Intervene that was filed on behalf of FUSE on or about November 9, 2007 (Petition 3).
In filing this Motion, however, Entergy failed to comply with 10 C.F.R. § 2.323(b), which requires that a motion must be rejected if it does not include a certification by the attorney...
of the moving party that the movant has made a sincere effort to contact other parties to the proceeding and resolve the issue(s) raised in the motion. Entergys motion was not accompanied by such a certification. Accordingly, we must reject Entergys Motion.
1 FUSE Petition 1, the Request for Hearing and Petition for Leave to Intervene that was filed on behalf of FUSE on or about September 21, 2007; FUSE Petition 2 the Revised Request for Hearing and Petition for Leave to Intervene that was filed on behalf of FUSE on or about October 3, 2007; and FUSE Petition 3, the Second Revised Request for Hearing and Petition for Leave to Intervene that was filed on behalf of FUSE on or about November 9, 2007.
2 The Request for Hearing and Petition to Intervene must be clearly labeled as the Superceding Request for Hearing and Petition for Leave to Intervene, with each page numbered, and all exhibits attached thereto with an index listing all of the exhibits. This Request must be served so that it is received by the Board, counsel for the NRC Staff, and counsel for Entergy on or before December 10, 2007. Copies should also be sent to Susan Shapiro as Counsel for WestCan, CAN, RCCA, PHASE, and the Sierra Club - Atlantic Chapter; Manna Jo Greene as the representative for Hudson Water Sloop Clearwater, Inc.; the New York Affordable Electricity Alliance; and Counsel for the New York City Economic Development Corporation. The Board also notes that when it uses the word should it does so as a synonym for the word must. See FUSEs Response to Entergys Motion to Strike (Nov. 22, 2007), which, we note, although it was a Reply to a Motion filed by Entergy, the Certificate of Service does not state that it was served on Entergy.
However, mindful of our responsibility to conduct a fair and impartial hearing [and] to take appropriate action to control the prehearing... process,... and to maintain order, 10 C.F.R. § 2.319, we exercise our discretion and sua sponte strike the three Requests for Hearing and Petitions to Intervene which have been submitted on behalf of FUSE.1 The repeated, inconsistent, incomplete, and inadequate pleadings that have been submitted on behalf of FUSE in this proceeding have created a confused and disorganized record. To leave the record in this state would be unfair to all other potential participants in this proceeding. Accordingly, FUSEs Petitions have been striken from the record.
However, recognizing FUSEs legitimate interest in this proceeding, we will allow FUSE one more opportunity to file an adequate Request for Hearing and Petition for Leave to Intervene on or before December 10, 2007.2 Because it has apparently been overlooked by the participants in this proceeding, we repeat here what we said in our initial Order in a forlorn effort to insure that potential litigants would know, and comply with, what was expected of them in this proceeding. In that initial Order we stated that:
3 See Licensing Board Memorandum and Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) (Oct. 29, 2007) (unpublished).
4 Cover Letter to FUSE Petition to Intervene (Nov. 9, 2007).
Parties should not - will not - be left to assume which is the operative pleading. Accordingly, any amended pleading must be clearly labeled as such and clearly dated so as to be readily distinguishable from earlier, superceded pleadings. Likewise, the Board and the parties must not be left uncertain as to whom, and when, pleadings have been provided.
Accordingly, service must be properly made and Certificates of Service must be accurate and complete, including the identity of the person served, the address to which it was sent, the method of service, and the signature (in writing or electronic) of the person who has certified that service has been made exactly how, to whom, and when exactly as specified in the Certificate of Service.3 In that same Order, we also expressly advised potential litigants in this proceeding what was necessary in order to make proper service. We stated that:
With regard to proper filing and service,... [a]ll documents offered for filing must be accompanied by proof of service.... [and that f]or purposes of service of documents the staff of the Commission is considered a party. 10 C.F.R. § 2.302(b).... [T]he Commissions regulations provide... [i]f a request for hearing or petition to intervene is filed in response to any notice of hearing or opportunity for hearing, the applicant/licensee shall be deemed to be a party. 10 C.F.R. § 2.309(a).
[And] [w]hen a party has appeared by attorney, service must be made upon the attorney of record. 10 C.F.R. § 2.305(b).
Rather than complying with the Commissions Rules of Practice, 10 C.F.R. Part 2 as explained by this Board in our Order dated October 29, 2007, FUSE has taken a different approach. For example, instead of serving Petition 3 on the appropriate parties FUSE stated: It is quite certain, that other parties will be capable of downloading a copy of this filing from ADAMS in the very near future.4 While the statement may well be true, it did not satisfy FUSEs obligation to serve all parties to this proceeding.
We again urge FUSE, and all other persons or organizations who wish to participate in this matter, to read the Commissions Rules of Practice, 10 C.F.R. Part 2, and the Boards Orders. Those Rules and Orders outline procedures that allow hearings to proceed in a fair and 5 In our Order dated October 29, 2007, we advised the New York Affordable Reliable Electricity Alliance and the New York City Economic Development Corporation that their Petitions were not properly before this Board because of their failure to comply with 10 C.F.R.
§§ 2.302(b), 2.309(a) and 2.305(b). As the record now stands, if those deficiencies are not cured by November 30, 2007, those Petitions will be struck from the record.
6 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for Entergy; (2) Sherwood Martinelli, the representative for FUSE; (3) Counsel for the NRC Staff; (4) Counsel for WestCan, CAN, RCCA, PHASE, and the Sierra Club - Atlantic Chapter; (5) New York Affordable Reliable Electricity Alliance; (6) Counsel for the New York City Economic Development Corporation; and (7) Manna Jo Greene, the representative for Clearwater.
orderly manner. As we have repeatedly stated, failure by any party to comply with the rules and orders works an injustice on the other parties to the proceeding. Accordingly, failure to comply can well result in a litigant being dismissed from this proceeding. This Board cannot, and will not, be in the position of continually correcting litigants deficient pleadings and then ruling on the substance of those pleadings.5 It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD6
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD November 28, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
ENTERGY NUCLEAR OPERATIONS, INC. )
Docket Nos. 50-247/286-LR
)
)
(Indian Point Nuclear Generating,
)
Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING ENTERGYS MOTION TO STRIKE BUT SUA SPONTE STRIKING FUSES MULTIPLE REQUESTS FOR HEARING) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Sherwin E. Turk, Esq.
Lloyd B. Subin, Esq.
Beth N. Mizuno, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Sherwood Martinelli FUSE USA 351 Dyckman Street Peekskill, New York 10566
2 Docket Nos. 50-247/286-LR LB MEMORANDUM AND ORDER (DENYING ENTERGYS MOTION TO STRIKE BUT SUA SPONTE STRIKING FUSES MULTIPLE REQUESTS FOR HEARING)
Michael J. Delaney, Vice President - Energy New York City Economic Development Corporation 110 William Street New York, NY 10038 Arthur J. Kremer, Chairman New York AREA 347 Fifth Avenue, Suite 508 New York, NY 10016 Martin J. ONeill, Esq.
Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Mauri T. Lemoncelli, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Manna Jo Greene, Director Hudson River Sloop Clearwater, Inc.
112 Little Market St.
Poughkeepsie, NY 12601
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 28th day of November 2007