ML073330346
| ML073330346 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/29/2007 |
| From: | Lathrop H, Mcdade E, Richard Wardwell Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 07-858-03-LR-BD01, 50-247-LR, 50-286-LR, RAS 14689 | |
| Download: ML073330346 (8) | |
Text
1 Extension Request of WestCan, CAN, RCCA, and PHASE (Nov. 21, 2007).
2 Extension Request of the Sierra Club - Atlantic Chapter (Nov. 21, 2007).
UNITED STATES OF AMERICA DOCKETED 11/29/07 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD SERVED 11/29/07 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. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01 November 29, 2007 ORDER (Granting an Extension of Time Within Which To File Requests For Hearing)
In a letter dated November 21, 2007, which was signed by Susan Shapiro, Esq. on behalf of Westchester Citizens Awareness Network (WestCan), Citizens Awareness Network (CAN), Rockland County Conservation Association (RCCA), and Public Health and Sustainable Energy (PHASE), four public interest groups requested an extension of time within which to file Requests for Hearing and Petitions to Intervene.1 In another letter dated November 21, 2007, which was also signed by Susan Shapiro, Esq. on behalf of the Sierra Club - Atlantic Chapter (Sierra Club), that public interest group also requested an extension of time within which to file Requests for Hearing and Petitions to Intervene.2 A similar request for an extension of time had been submitted to the Nuclear Regulatory Commission (NRC or the Commission) by Friends United for Sustainable Energy (FUSE) on November 7, 2007. FUSEs request for an extension of time was granted in part by the 3 Commission Order (Granting an Extension of Time) (Nov. 16, 2007).
4 Id. at 1.
5 E-mail from Emile I. Julian, Assistant for Rulemakings and Adjudications, Office of the Secretary, NRC, to Susan Shapiro, Esq. (Nov. 20, 2007).
6 Licensing Board Order (Denying An Extension Of Time Within Which To File Requests For Hearing) (Nov. 27, 2007).
7 Extension Request of WestCan, CAN, RCCA, PHASE, and the Sierra Club (Nov. 27, 2007).
Commission on November 16, 20073 and FUSE was given an additional 10 days, until December 10, 2007, within which to file Requests for Hearing and Petitions to Intervene.4 In addition, the Commission directed that any further requests for extensions of time should be submitted to this Board.5 Accordingly, these two requests were properly directed to this Board. However, neither of these requests were accompanied by a Proof of Service which is required pursuant to 10 C.F.R. § 2.302(b) or by a certification pursuant to 10 C.F.R. § 2.323(b) that the movant had made a sincere effort to contact other parties to the proceeding and resolve the issue(s) raised in the motion. Accordingly, these motions for an extension of time were denied.6 Thereafter, in a letter dated November 27, 2007, which was signed by Susan Shapiro, Esq. on behalf of WestCan, CAN, RCCA, PHASE, and the Sierra Club, these five public interest groups once again requested an extension of time within which to file Requests for Hearing and Petitions to Intervene.7 That Motion was accompanied by an adequate, though somewhat inaccurate, Certificate of Service but, yet again, it did not include a certification by Ms. Shapiro that the movant has made a sincere effort to contact other parties to the proceeding and resolve the issue(s) raised in the motion as required by 10 C.F.R. § 2.323(b). Accordingly, this Motion 8 Licensing Board Order (Denying an Extension of Time Within Which to File Requests For Hearing) (Nov. 28, 2007).
9 Extension Request of WestCan, CAN, RCCA, PHASE, and the Sierra Club (Nov. 28, 2007). We note that FUSE filed an Opposition to this Motion because it was not consulted before the Motion was filed. FUSE s Motion in Opposition to the Extension Request of WestCan, CAN, RCCA, PHASE, and the Sierra Club (Nov. 28, 2007). However as we noted in our Order denying the Second Extension Request of WestCan, CAN, RCCA, PHASE, and the Sierra Club (Nov. 27, 2007), at this point in this proceeding the parties are the NRC Staff and Entergy. Accordingly, while it would have been appropriate for counsel to consult with FUSE before filing this Motion, it was not required by 10 C.F.R. § 2.323(b).
was also denied.8 Finally, in a letter dated November 28, 2007, which was once again signed by Susan Shapiro, Esq. on behalf of WestCan, CAN, RCCA, PHASE, and the Sierra Club, these five public interest groups, again requested an extension of time within which to file Requests for Hearing and Petitions to Intervene. Finally, this Motion for an Extension of Time was filed with both an adequate Certificate of Service and a certification by Ms. Shapiro that the movant has made a sincere effort to contact other parties to the proceeding and resolve the issue(s) raised in the motion as required by 10 C.F.R. § 2.323(b).9 A procedurally adequate motion having at long last been filed by Ms. Shapiro, the motion for an extension of time is granted in part. If a Petition to Intervene and Request for Hearing is filed on behalf of WestCan, CAN, RCCA, PHASE, or the Sierra Club, it must be served so that it is received by the Board, the NRC Staff and Entergy on or before December 10, 2007. Copies of that Petition to Intervene and Request for Hearing should also be sent to Sherwood Martinelli, the representative for FUSE; the New York Affordable Reliable Electricity Alliance; and Counsel for the New York City Economic Development Corporation; Manna Jo Greene, the representative for Clearwater; and Justin D. Pruyne, the attorney for Westchester County.
10 NRC Staffs Response to the Second Request of WCAN, CAN, RCCA, PHASE, and the Sierra Club For an Extension of Time in Which to File Petitions For Leave to Intervene in This Proceeding at 8 (Nov. 28, 2007).
11 Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) at 2 (Oct. 29, 2007).
Conclusion Before closing this Order the Board believes that an issue raised by the NRC Staff in their Response to the Second Request of WCAN, CAN, RCCA, PHASE, and the Sierra Club For an Extension of Time needs to be addressed and resolved. The NRC Staff pointed out that in this proceeding they have repeatedly received duplicate copies of identical, or similar pleadings, and have then been left with the burden of analyzing the submissions to determine what, if any, differences exist between them and, if differences exist, which pleading is intended to be operative. The Staff is correct that this practice wastes the time of all participants and may well result in incomplete or incorrect responses by the parties, and incorrect rulings by the Board. The Staff then implore the Board to end this practice.10 The Board thought that we had already addressed and resolved this problem. In our initial Order entered in this proceeding we stated:
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.11 Apparently, however, participants to this proceeding either did not read, did not understand, or have ignored that simple directive.
In light of the record of this proceeding to date, the Board expresses its amazement that attorneys can not, or will not, follow even the simplest of directions. Even when we tell a participant exactly what they must do in order to submit a valid pleading our instructions are ignored. This Board can not be correcting litigants deficient pleadings when it will then have to rule on the substance of those pleadings. We can, however, issue Orders and then enforce those Orders.
Accordingly, we reiterate our directive with regard to duplicate pleadings and advise participants in this proceeding that, if this practice continues, they should anticipate that the Board will sua sponte strike such pleadings from the record and not allow them to be re-filed.
We direct participants in this litigation to examine pleadings before they are filed so that corrected pleadings will seldom, if ever, need to be filed and, in the event a mistake is made and a participant to this litigation finds it necessary to file a corrected pleading, they shall clearly label such pleadings, and accompany the pleading with a cover letter which clearly explains the differences between the two pleadings, and why a supplemental filing was necessary. Such practice is no more than common courtesy and, without such practice, we can not conduct this proceeding in an orderly manner.
12 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for WestCan, CAN, RCCA, PHASE, and the Sierra Club - Atlantic Chapter; (2) Counsel for the NRC Staff; (3) Counsel for Entergy; (4) Sherwood Martinelli, the representative for FUSE; (5)
New York Affordable Reliable Electricity Alliance; (6) Counsel for the New York City Economic Development Corporation; (7) Manna Jo Greene, the representative for Clearwater; and (8)
Justin D. Pruyne, the attorney for Westchester County.
In addition, based on our recent, discouraging experience in this proceeding, we again urge all counsel to read the 10 C.F.R. Part 2 Rules of Practice and the Orders of this Board, and then prepare, file, and serve any further pleadings in this proceeding accordingly. Failure to follow this directive will result in pleadings being stricken from the record.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD12
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD November 29, 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 ORDER (GRANTING AN EXTENSION OF TIME WITHIN WHICH TO FILE 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, Esq.
FUSE USA 351 Dykman Street Peekskill, New York 10566
2 Docket Nos. 50-247/286-LR LB ORDER (GRANTING AN EXTENSION OF TIME WITHIN WHICH TO FILE 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 29th day of November 2007