ML073470685
| ML073470685 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/13/2007 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML073470685 (8) | |
Text
UNITED STATES OF AMERICA DOCKETED 12/13/07 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD SERVED 12/13/07 Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating December 13, 2007 Units 2 and 3)
ORDER (Barring Sherwood Martinelli From Further Participation In This Proceeding)
On December 4, 2007, the Board received via electronic mail a copy of a letter that was sent by Mr. Sherwood Martinelli, the representative of Friends United for Sustainable Energy (FUSE), in response to the Boards Censure Order that was dated December 3, 2007.1 That letter was titled Response to Censure Apology to Board, and Other Matters.2 Whatever it may have been, Mr. Martinellis letter was not an acceptable apology, and it did not comply with the Boards Censure Order in several respects.3 1
Licensing Board Order (Censure of Sherwood Martinelli) (Dec. 3, 2007) [hereinafter Censure Order]. The Censure Order was confirmed by the Commission on December 12, 2007. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
CLI-07-28, __ NRC __ (Dec. 12, 2007).
2 Letter from Sherwood Martinelli, Response to Censure -- Apology to Board, and Other Matters (Dec. 3, 2007) [hereinafter Martinelli Letter].
3 We note that in his apology letter Mr. Martinelli did not certify that he had read and would comply with the Licencing Board Orders that were expressly enumerated by the Board in our Censure Order of December 3, 2007, and which are available on the NRCs Electronic Hearing Docket and ADAMS. See Censure Order at 3. Instead, Mr. Martinelli stated that he has read all orders of the board that I have been given a copy of . . . . We are thus left to guess which, if any, Orders of the Board he includes in that group.
Apparently, however, Mr. Martinelli did not include the following Orders, which were
In his apology Mr. Martinelli characterized the Censure Order as an order attempting to limit my freedom of speech.4 He also said that the Board was taking exception to my speaking my honest heart felt opinion and beliefs . . . . 5 Latter in his apology Mr. Martinelli stated that: I freely admit that I gave no thought to the fact that certain thin skinned or puritan people might take offense and, having referenced George Carlins 12 dirty words monologue, identified in our Censure Order, as orders with which he would comply. These Orders instructed the participants in this litigation regarding the proper content of a Proof of Service:
Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) at 2 (Oct. 29, 2007); Licensing Board Order (Authorizing FUSE to Submit a Section 2.335 Petition) at 3 (Nov. 21, 2007); Licensing Board Order (Denying an Extension of Time Within Which To File Requests For Hearing) at 3 (Nov. 27, 2007); Licensing Board Order (Granting an Extension of Time To Clearwater Within Which To File Requests For Hearing) at 3 (Nov. 27, 2007); Licensing Board Order (Denying Entergys Motion to Strike But Sua Sponte Striking FUSEs Multiple Requests For Hearing) at 3 (Nov. 28, 2007); Licensing Board Order (Denying an Extension of Time Within Which To File Requests For Hearing) at 2 (Nov. 28, 2007); Licensing Board Order (Granting An Extension Of Time Within Which To File Requests For Hearing) at 4 (Nov. 29, 2007).
The Certificate of Service attached to Mr. Martinellis letter ignored the provisions of 10 C.F.R. Part 2, as were explained in detail in the Boards Orders cited above. The Proof of Service attached to Mr. Martinellis letter does not indicate to whom it was sent. Instead it merely states that it was sent to all parties. As repeatedly explained by this Board in earlier orders, the parties at this point in this proceeding are the NRC Staff [10 C.F.R. § 2.302(b)] and Entergy [10 C.F.R. § 2.309(a)]. In addition, however, several other entities, including FUSE, have petitioned to become parties to this proceeding. The Censure Order was very specific as to whom Mr. Martinelli need send copies of his apology and it was not limited to just the parties
[the NRC Staff and Entergy]. Given the deficiency in his Proof of Service, there is nothing in the record of this proceeding which demonstrates that Mr. Martinelli complied with the service aspect of the Censure Order.
We have repeatedly stated that participants in this litigation must not be left uncertain as to whom . . . pleadings have been provided. See Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) at 2 (Oct. 29, 2007). Mr. Martinelli, however, either cannot, or will not, follow even the most simple of directions.
4 Martinelli Letter at 2. We note that the pages numbers used in the citation of Mr.
Martinellis letter have been assigned by the Board because, contrary to our direction in earlier Orders, he once again did not number the pages of his submission.
5 In which the Board noted that his language: [T]he board decided to be a bunch of pro industry pricks . . . used in the context of commenting on an earlier Order of this Board, was grossly inappropriate when addressed to the presiding judges in the course of an adjudicative proceeding. Censure Order at 2.
he suggested that the Board may be able to prevent him from stepping over the lines of their
[the Boards] subjective version of propriety if perhaps the board could put forth . . . a list of words or passages they will not allow in documents presented for their consideration?6 Mr.
Martinelli then suggested that his reference to the Board as as a bunch of pro industry pricks was not vulgar because, after all, the dictionary defined a prick as a pointed instrument or weapon before defining it as a vulgar synonym for a penis or a vulgar synonym for a spiteful or contemptible man often having some authority.7 The Board declines Mr. Martinellis request to provide him with a list of prohibited words, and rejects his suggestion that the use of the phrase pro industry pricks in his earlier communication was not an unacceptable breach of decorum in an adjudicative proceeding.
10 C.F.R. § 2.314(a) gives participants in litigation before the Board sufficient warning of what is expected of them by way of decorum. Accordingly, we decline Mr. Martinellis invitation to elaborate on this definition or excuse his earlier breach, and find that his apology - which was objectively more insulting than his initial transgression - is inadequate.
As noted in our Censure Order on this matter, parties and their representatives in proceedings subject to [Subpart 2] are expected to conduct themselves with honor, dignity, and decorum as they should before a court of law.8 Based on his Apology Letter Mr. Martinelli either cannot understand that simple direction, or he is unwilling to comply with it. Either way, in our judgement, it would be impossible for the Board to meet its responsibility to control the prehearing and hearing process . . . maintain order and conduct a fair and impartial hearing 6
Martinelli letter at 2.
7 Id.
8 10 C.F.R. § 2.314(a).
according to the law9 without holding all participants to the level of courtesy and decorum required by the Commissions Regulations. In order to achieve this, we cannot allow further participation in this proceeding by Mr. Martinelli.
Therefore, we are directing all participants in this litigation that, unless and until a further Order is issued by this Board, or by the Commission rescinding this Order, they need not respond to any filing submitted by Mr. Martinelli. In addition, the Board advises Mr. Martinelli that further pleadings in this proceeding submitted by him on his own behalf, or submitted by him on behalf of any organization, will not be considered by the Board.
Barring Mr. Martinelli from further participation in this proceeding does not, per se, strike the petition filed by FUSE on November 30, 2007. However, it does leave the group without a designated representative. In regards to their recent filing, the Board notes that FUSE did not comply with the Boards Order of November 28, 2007, requiring them to correct several deficiencies with their initial petitions that were struck for noncompliance with the NRC Rules of Practice set out at 10 C.F.R. Part 2.10 Furthermore, there were instances where the first person pronouns were used to reflect Mr. Martinellis actions and several paragraphs within the numbered contentions that have new headings, but are unrelated to the topic at hand. Lastly, editorial language, in places, does not meet the standard of decorum required by 10 C.F.R.
§ 2.314(a).
9 10 C.F.R. § 2.319.
10 See Licensing Board Order (Striking FUSEs Multiple Requests For Hearing) at 2 (Nov. 28, 2007) in which the Board instructed FUSE that if they chose to submit an additional petition that 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. FUSE did not comply with any of these simple requirements and instead submitted more than 400 unnumbered pages, with no exhibit index.
Any of these derelictions would constitute sufficient grounds to dismiss FUSEs petition at this time. Accordingly the Board strikes FUSEs November 30, 2007 petition. However, in fairness to the membership of that organization, which to date has had woefully inadequate representation in this proceeding, the Board will allow FUSE another opportunity to participate in this proceeding. Accordingly, if FUSE wishes to be considered for participation in this hearing, the Board will allow it a reasonable period within which to designate a new representative, file an Superceding Request for Hearing and Petition for Leave to Intervene, to correct the noted deficiencies, and clarify the organization and content of their hearing request.
Accordingly, in order to be considered for intervener status in this proceeding FUSE will complete the following actions in a revised Superceding Request for Hearing and Petition for Leave to Intervene and submit it to this Board11 no later than December 24, 2007: 1) clearly label the revised petition as the Superceding Request for Hearing and Petition to Intervene, with each page numbered, and an index listing all of the attached exhibits; 2) modify the petition to reflect the new representation (e.g. changing, as needed, the first person pronouns) and to delete or correct language not meeting common standard of practice and decorum; 3) verify that all proffered contentions are numbered sequentially; and 4) certify that the numbered contentions are the only ones to be considered by the parties and the Board.12 11 Accompanied by an adequate Proof of Service. See Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service)
(Oct. 29, 2007).
12 In granting FUSE yet another opportunity to submit an acceptable Superceding Request for Hearing and Petition to Intervene, we expressly advise FUSE that this is not a license to add additional contentions, to substantively amend contentions previously filed, or to develop additional bases in support of those previously submitted contentions. Rather, it is only an opportunity to make clerical and administrative corrections to the Request for Hearing and Petition to Intervene that was filed on November 30, 2007, so that FUSEs Petition will be in a form that is acceptable to the Board, and the procedure will be fair to the other participants in this litigation.
Any failure by FUSE to meet all of these specific requirements will result in the rejection of the Superceding Request for Hearing and Petition to Intervene.
Pursuant to 10 C.F.R. § 2.314(c)(3), an appeal of this Order may be filed with the Commission within ten (10) days after issuance, that is on or before December 24, 2007.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD13
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD December 13, 2007 13 Copies of this Order were sent this date by Internet e-mail to: (1) Sherwood Martinelli as representative for FUSE; (2) Counsel for the NRC Staff; (3) Counsel for Entergy; (4) Manna Jo Green, the representative for Clearwater; (5) Counsel for WestCan, CAN, RCCA, PHASE and the Sierra Club - Atlantic Chapter; (6) Nancy Burton as the representative of CRORIP; (7) Counsel for Westchester County; (8) Counsel for the State of New York; (9) Counsel for the State of Connecticut; (10) Counsel for the Town of Cortlandt; and (11) Counsel for Riverkeeper, Inc.
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 (BARRING SHERWOOD MARTINELLI FROM FURTHER PARTICIPATION IN THIS PROCEEDING) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative Judge Adjudication Lawrence G. McDade, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Sherwin E. Turk, Esq. FUSE USA Lloyd B. Subin, Esq. 351 Dyckman Street Beth N. Mizuno, Esq. Peekskill, New York 10566 Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
2 Docket Nos. 50-247/286-LR LB ORDER (BARRING SHERWOOD MARTINELLI FROM FURTHER PARTICIPATION IN THIS PROCEEDING)
Michael J. Delaney, Vice President - Energy Arthur J. Kremer, Chairman New York City New York AREA Economic Development Corporation 347 Fifth Avenue, Suite 508 110 William Street New York, NY 10016 New York, NY 10038 Martin J. ONeill, Esq. Manna Jo Greene, Director Kathryn M. Sutton, Esq. Hudson River Sloop Clearwater, Inc.
Paul M. Bessette, Esq. 112 Little Market St.
Mauri T. Lemoncelli, Esq. Poughkeepsie, NY 12601 Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Daniel E. ONeill, Mayor Robert D. Snook, Esq.
Village of Buchanan Assistant Attorney General James Seirmarc, M.S., Liaison to Indian Point of the State of Connecticut 236 Tate Avenue 55 Elm Street Buchanan, NY 10511 P.O. Box 120 Hartford, CT 06141-0120 Charlene M. Indelicato, Esq. Thomas F. Wood, Esq.
Westchester County Attorney Daniel Riesel, Esq.
Justin D. Pruyne, Esq. Sive, Paget & Riesel, P.C.
Assistant County Attorney 460 Park Avenue 148 Martine Avenue, 6th Floor New York, NY 10022 White Plains, NY 10601 Andrew M. Cuomo, Esq. Nancy Burton Attorney General of the State of New York 147 Cross Highway John J. Sipos, Esq. Redding Ridge, CT 06876 Assistant Attorney General The Capitol Albany, NY 12224-0341
3 Docket Nos. 50-247/286-LR LB ORDER (BARRING SHERWOOD MARTINELLI FROM FURTHER PARTICIPATION IN THIS PROCEEDING)
Joan Leary Matthews, Esq. Weschester Citizens Awareness Network Senior Counsel for Special Projects (WestCan), Citizens Awareness Network Office of General Counsel (CAN), etc.
New York State Department of Environmental Conservation Susan H. Shapiro, Esq.
625 Boadway 21 Perlman Drive Albany, NY 12224 Spring Valley, NY 10977 Richard L. Brodsky Assemblyman 5 West Main Street Suite 205 Elmsford, NY 10523
[Original signed by Nancy Greathead]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 13th day of December 2007