ML080220073
| ML080220073 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/10/2008 |
| From: | Bessette P Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 14923 | |
| Download: ML080220073 (23) | |
Text
R 0 S 11+9 d- -3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop DOCKETED USNRC January 10, 2008 (3:00pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF 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-BDO1 January 10, 2008 MOTION OF ENTERGY NUCLEAR OPERATIONS, INC.
TO STRIKE SUPERCEDING REQUEST FOR HEARING AND PETITION TO INTERVENE BY FRIENDS UNITED FOR SUSTAINABLE ENERGY, USA I.
INTRODUCTION In accordance with 10 C.F.R. §§ 2.1204 and 2.323, Entergy Nuclear Operations, Inc.
("Entergy"), Applicant in the above-captioned matter, hereby moves to strike the superceding Formal Petition to Intervene, Formal Request for Hearing, and Contentions, filed on or about December 24, 2007 ("Superceding Petition"), by Friends United for Sustainable Energy, USA
("FUSE").' The Petition responds to the United States Nuclear Regulatory Commission ("NRC" or "Commission") Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing ("Notice"), published in the Federal Register on August 1, 2007 (72 Fed. Reg. 42,134), regarding Entergy's application to renew the operating licenses for Indian Point Nuclear Generating Units 2 and 3.
In accordance with 10 C.F.R. § 2.323(b), on January 10, 2008, counsel for Entergy attempted to contact the lead representative for FUSE. FUSE did not respond to calls from Entergy. Counsel for the NRC Staff indicated it does not oppose this motion.
Tre M e L A-T E_ :SZC "-I
-c
'Y 9/
As discussed below, FUSE flagrantly flouts the Commission's Rules of Practice and clear direction contained in the presiding Atomic Safety and Licensing Board's ("Board") several Orders. 2 These continuing violations already have created substantial confusion in the record, and have significantly disadvantaged Entergy and other parties in this proceeding. Allowing this substantial unfairness to continue any further undermines the Board's ability to conduct an orderly proceeding. For the reasons set forth in the detail below, FUSE's Superceding Petition should be stricken.
II.
BACKGROUND Already, at this very early stage in the proceeding, FUSE has repeatedly disregarded the Board's simple, clear direction to bring its pleadings into conformance with NRC Rules of Practice in 10 CFR 2. Despite repeated opportunities to amend those pleadings to conform, FUSE continues to demonstrate a stubborn unwillingness or inability to meet those standards. A chronological summary illustrates the numerous missed opportunities that have led the Applicant to file the Motion to Strike. 3 2
These Orders include: Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) (Oct. 29, 2007); Licensing Board Order Authorizing FUSE to Submit a Section 2.335 Petition) (Nov. 21, 2007); Licensing Board Order Denying an Extension of Time Within Which To File Requests For Hearing) (Nov. 27, 2007); Licensing Board Order (Granting an Extension of Time To Clearwater Within Which To File Requests For Hearing) (Nov. 27, 2007); Licensing Board Order (Denying Entergy's Motion to Strike But Sua Sponte Striking FUSE's Multiple Requests For Hearing) (Nov. 28, 2007); Licensing Board Order (Denying an Extension of Time Within Which To File Requests For Hearing) (Nov. 28, 2007); Licensing Board Order (Granting An Extension Of Time Within Which To File Requests For Hearing) (Nov. 29, 2007); Licensing Board Order (Censure of Sherwood Martinelli) (Dec. 3, 2007); Licensing Board Order (Barring Sherwood Martinelli from Further Participation In.This Proceeding) (Dec. 13, 2007).
On January 4, 2007, the NRC Staff filed a Motion to Strike FUSE's Superceding Petition based on FUSE's failure to comply with the direction of this Board and NRC Rules of Practice regarding service. On January 9, 2008, the NRC Staff filed a Supplement to its Motion to Strike FUSE's Superceding Petition. Entergy notes that the arguments by the NRC Staff are entirely complementary of the other examples of egregious failures by FUSE to comply with the direction from the Board and the Commission, or with the NRC Rules of Practice.
A.
Rules and Consequences Explained on Numerous Occasions On August 1, 2007, the NRC published in the Federal Register the Notice of Acceptance for Docketing of Application and Notice of Opportunity for Hearing for the IPEC licenses. 4 That Notice advised:
Requests for a hearing or petitions for leave to intervene must be filed in accordance with the Commission's "Rules of Practice for Domestic Licensing Proceedings" in 10 CFR Part 2.'
On or about September 21, 2007, FUSE submitted its first Request for Hearing and Petition to Intervene to the Commissioners. On or about October 3, 2007, FUSE submitted a revised Request for Hearing and Petition for Leave to Intervene. On October 18, 2007, the Chief Administrative Judge issued an Order establishing this Board to preside over the hearing requests of FUSE and others. 6 Recognizing the failure of petitioners, including FUSE, to adhere to the NRC Rules of Practice, on October 29, 2007, this Board issued a Memorandum and Order (Administrative Matters and Directing Parties Attention to Requirements of Proper Service) ("Administrative Order"). The Administrative Order warned that improperly-filed Petitions for Leave to Intervene risked dismissal.7 The Board explained:
We urge all persons or organizations who wish to participate in this matter to read the Commission's Rules of Practice, 10 CFR 2.
Those Rules outline procedures that allow hearings to proceed in a fair and orderly manner. Failure by any party to comply with the Rules works an injustice on the other parties to the proceeding.
4~
72 Fed. Reg. 42134, Aug. 1, 2007 ("Notice").
Id.
6 Establishment of Atomic Safety and Licensing Board (Oct. 18, 2007).
7~
Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements of ProperService),
(Oct. 29, 2007) ("Administrative Order") at 1.
Accordingly, failure to comply with the Rules can well result in a litigant being dismissedfrom this proceeding.
8 On or about November 9, 2007, FUSE filed its third attempt, a second revised Request for Hearing and Petition for Leave to Intervene. Despite already having extended the deadline for filing intervention petitions once, on November 16, 2007, the Commission granted a request by FUSE, and further extended that deadline until December 10, 2007.9 In doing so, the Commission noted "FUSE's previous failure to follow these rules, and [reminded] FUSE that there are potential repercussions for failing to follow the pleading requirements," and added a warning that deficient pleadings "may be stricken."' 0 B.
Admonishments to Adhere to the Rules of Practice and Standards of Decorum On November 27, 2007, the Board issued an Order (Denying an Extension of Time Within Which To File Requests For Hearing) denying the requests of other petitioners for additional time, and admonished all parties, including FUSE, of the importance of adherence to the Rules of Practice.
Regardless of the reason for this dereliction, however, litigation cannot proceed in a fair and orderly manner unless participants inform themselves of the applicable rules and follow those rules.
To allow a participant to ignore the rules without consequences would work a fundamental unfairness upon the other participants in this proceeding..... We again urge representatives who wish to participate in this proceeding to read the regulations and orders of the Commission and this Board. The level of disregard for the Commission's rules ofpractice displayed by counsel in this proceeding to date is bewildering.
8 Administrative Order at 2 (emphasis supplied).
9 Commission Order (Nov. 16, 2007).
10 Id. at2.
11 Licensing Board Order (Denying an Extension of Time Within Which to File Requests for Hearing) (Nov. 27, 2007), at 3 and n.9. (Emphasis supplied.) This Order was served on FUSE. See Id. at n. 12. The Board's apparent The next day, on November 28, 2007, the Board issued an Order taking its first corrective action to address FUSE's repeated failures to adhere to NRC Rules of Practice, and granting FUSE "one" additional opportunity to file a conforming petition. 12 The Board noted:
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, FUSE's Petitions have been stricken from the record. 13
- And, We again urge FUSE, and all other persons or organizations who wish to participate in this matter, to read the Commission's Rules of Practice, 10 CFR 2, and the Boards' Orders. Those Rules and Orders outline procedures that allow hearings to proceed in a fair and 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 litigation 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. 14 C.
Escalating Sanctions for Continuing Failure to Comply On November 30 2007, FUSE filed its fourth attempt - a third revised Request for Hearing and Petition for Leave to Intervene. Also on that date, despite the Board's unusual patience, clear direction, and explicit warnings of potentially dire adverse consequences, FUSE's representative further taunted the Board by e-mailing four copies of a letter to NRC Staff counsel containing profane characterizations of the Board members.
frustration included the failures by FUSE and others to follow the service requirements.
12 Licensing Board Order (Denying Entergy's Motion to Strike But Sua Sponte Striking FUSE's Multiple Requests for Hearing) (Nov. 28, 2007).
13 Id. at2.
14 Id. at 3-4 (emphasis supplied).
The Board responded on December 3, 2007, by censuring FUSE's representative.15 In that Censure Order, the Board warned FUSE as well as its representative:
[T]his discourteous and wasteful practice will not be allowed to continue. We again admonish all participants to read and comply with the Orders of the Board, as they will be held to strict compliance with those Orders."'16 D.
FUSE's Last Chance Squandered On December 13, 2007, after FUSE's representative failed to comply with the requirements in the Censure Order, the Board barred that representative from this proceeding. 17 The Board also struck FUSE's two previously filed petitions for failing to meet NRC Rules of Practice.' 8 The Board noted that barring its representative left FUSE without either a petition or a representative.19 Nonetheless, as it had before, the Board afforded FUSE one final chance to submit a proper pleading. In doing so, the Board did not authorize any departure from the Rules of Practice or NRC standards for decorum. Rather, it provided clear, simple steps for FUSE to follow to bring its pleading into conformance. The Board granted FUSE ten days, until December 24, 2007, to meet those standards and provided the following guidance:
.1) clearly label the revised petition as the "Superceding Request for Hearing and Petition to Intervene," with each page numbered, and index listing all of the attached exhibits;
- 2) modify the petition to reflect the new representation "e.., changing, as needed, the first person pronouns) and to delete or correct language not meeting the common standard of practice and decorum;
'5 Licensing Board Order (Censure of Sherwood Martinelli) (Dec. 3, 2007) ("Censure Order"), aff'd CLI-07-28 (Dec. 12, 2007).
16 Censure Order at 1-2 (emphasis supplied).
17 Licensing Board Order (Barring Sherwood Martinelli From Further Participation In This Proceeding) (December 13, 2007) ("Martinelli Ban").
is Id. at4.
19 Id. at4.
- 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.20 The Board made very clear this last and final chance was not an opportunity for FUSE to substantively modify or amend its contentions. It expressly cautioned:
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 FUSE's 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.
Finally, noting that FUSE had come to the end of its rope in terms of the Board's patience, the Board added:
Any failure by FUSE to meet all of the specific requirements will result in rejection of the Superceding Request for Hearing and Petition to Intervene. 22 Amazingly, even in this last final chance, FUSE failed. It failed to conform to the NRC's Rules of Practice. It failed to meet the Board's specific requirements set out in multiple Orders and - perhaps most shockingly -- it violated the Board's clear prohibition against substantively amending its petition. FUSE's fifth chance - the December 24, 2007 Superceding Petition missed all of the marks set out by the Board. Any one of these errors in isolation might suggest 20 Id.
21 Id at 5 n. 12 (emphasis supplied).
22 Id. at 6 (emphasis supplied).
oversight. As will be shown below, however, the number, degree, and magnitude of these instances contained in the Superceding Petition reveal something else. FUSE has clearly demonstrated that, either with or without Mr. Martinelli's participation, it cannot or will not comply with requirements of this tribunal. Accordingly, its petition should be stricken in its entirety.
III.
LEGAL STANDARDS A.
Control of and Decorum In Hearings The Commission delegated to licensing boards all powers necessary to fulfill their duties to conduct fair and impartial hearings, to control the prehearing and hearing process, to avoid delay, and to maintain order.23 Those powers include the power to strike pleadings or issue other orders, as necessary, to carry out the Board's duties and responsibilities. 24 In exercising its control over an orderly hearing, the Board is aided by the long-standing, generally-applicable Rules of Practice at 10 CFR 2, Subpart C. Those rules include a requirement for appropriate decorum by all participants in NRC adjudicatory hearings. 25
[P]arties and their representatives in proceedings subject to this subpart are expected to conduct themselves with honor, dignity, and decorum as they should before a court of law. 26 These rules for decorum apply equally to parties represented by an attorney-at-law, a lay representative, and pro se litigants. 27 The Board's power to enforce these standards include "reprimand, censure or suspension from the proceeding" of either a party or its representative.
23 10 C.F.R. § 2.321(c), § 2.319.
24 10 C.F.R. § 2.319(d), (q). See also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 643-44 (noting the propriety of a Board imposing sanctions against Nancy Burton under 2.319(g) for repeated refusal to comply with the Board's direction).
25 10 C.F.R. § 2.314(a).
26 Id.
[The Board] may, if necessary for orderly conduct of the proceeding, reprimand, censure or suspend from participation in the particular proceeding pending before it anyparty or representative of a party who refuses to comply with its directions, or who is disorderly, disruptive, or engages in contemptuous conduct.
29 B.
Attacks on Licensee Character and Fitness Ad hominem attacks on the licensee's character have no place in pleadings before the Board. "For management character to be an appropriate issue for adjudication in a licensing proceeding there must be some direct and obvious relationship between the character issues and the licensing action in dispute." 30 When such issues are raised, they must be directly germane to the challenged licensing action. 31 Even then, character allegations are subject to strict limits and must be of more than historical significance. When making allegations regarding integrity and character, the petitioner must have some basis for those charges and exercise care in asserting them. 32 "Lack of resources is no excuse. If charges of this type cannot be accurately 27 See Entergy Nuclear Operations Inc. (Indian Point Nuclear Generation Units 2 and 3) CLI-07-28, _
NRC (December 12, 2007), citing Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2) ALAB-474, 7 NRC 746, 748-49 (May 5. 1978).
28 10 C.F.R. § 2.314(c).
29 10 C.F.R. § 2.314(c)(1) (emphasis supplied).
30 Dominion Nuclear Connecticut, Inc., (Millstone Nuclear Power Station, Units 2 and 3), CLI-0 1-24, 54 NRC 349, 365-367 (Dec. 5, 2001) (affirming rejection of contentions based on past criminal conduct), citing Commonwealth Edison Co., (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 189 (1999) (quotations omitted).
31 Id.
32 Houston Light and Power Co., (South Texas Project Units 1 and 2), LBP-85-45, 22 NRC 819, 828 (Nov. 14, 1985)(criticizing intervener's baseless allegations of withholding documents).
documented, they should not be made." 33 Pleadings containing baseless allegations or which otherwise do not live up to the high standards of NRC practice may be stricken.34 C.
Derogatory Characterizations of the NRC Staff The Commission has held that derogatory descriptions of the NRC Staff in pleadings before the agency violate the decorum standard and are inappropriate in such pleadings.35 In Curators, the petitioner characterized the NRC Staff as being "incapable of making [a]
determination in a sensible fashion." 36 The Commission characterized this remark as "another example of the intemperate, even disrespectful, rhetoric that has characterized their pleadings throughout this proceeding" and found it contrary to the requirements of 10 C.F.R. § 2.314(a). 31 IV.
DISCUSSION In issuing its Order barring its representative from this proceeding, the Board exercised considerable restraint in allowing FUSE "yet another opportunity" to submit an acceptable initial pleading. FUSE has squandered multiple opportunities to amend its pleadings, notwithstanding clear guidance from the Board of the specific changes necessary. Short of rewriting the pleading for FUSE - which the Board has said it could not and would not do38 -- there is nothing left that this Board has not tried to alert FUSE to the applicable standard and to lead them to it. As the Board and Commission have repeatedly observed, the NRC's Rules of Practice serve an 33 Id.
34 Id.
35 Curators of the University of Missouri, CLI-95-17, 42 NRC 229, 232 n. 1 (Dec. 14, 1995) ("Curators").
36 Id.
37 Id. (citing previous section number as 10 C.F.R. § 2.713) (quotations and citation omitted).
38 Licensing Board Order (Denying Entergy's Motion to Strike But Sua Sponte Striking FUSE; Multiple Requests For Hearing (Nov. 28, 2007) at 4.
important purpose. They are necessary for the orderly conduct of adjudicatory proceedings, and failure to enforce them works significant unfairness and hardship on the other parties and potential parties. Because FUSE has not, apparently will not, and likely cannot adhere to the NRC Rules of Practice, including standards for decorum, or to the Board and Commission Orders, pursuant to 10 C.F.R. § 2.314, the Board should strike FUSE's Superceding Petition.
A.
FUSE's Superceding Petition Fails to Comply with NRC Standards for Decorum, the Board's Order, or with the Board's Prohibition on Substantive Amendment As explained above, the Board warned that "Any failure by FUSE to meet all of these specific requirements will result in rejection" of its petition.39 In choosing these words, the Board made abundantly clear that this was FUSE's last chance and that these terms were not negotiable.
- 1.
FUSE's Petition Fails to Comply with Standards for Decorum In its December 13, 2007 Order, the Board told FUSE expressly to "delete or correct language not meeting common standards of practice and decorum." 40 FUSE refused. The Superceding Petition contains numerous violations of the standards of decorum. Those violations fall into three'categories: a) use of inappropriate language; b) unwarranted derogatory characterizations of the NRC Staff; and c) baseless allegations regarding the integrity of the licensee.
- a.
FUSE's Language Violates NRC Standards of Decorum As the Board previously noted in declining FUSE's taunting request for a list of prohibited language, NRC regulations "give[ ] participants in litigation before the Board 39 Id. at 6 (emphasis supplied).
40 Martinelli Ban at 5.
sufficient warning of what is expected by way of decorum." 41 Despite direction from the Board to strike all such language, FUSE has not done so. While striking some of the more colorful rants, FUSE's new representatives elected to retain other inappropriate verbiage, including:
- Contention 40 "That's right, scoundrels of the worse, (sic) lower than OJ Simpson Pages 276-277 and Adolph Hitler. Don't gasp, nuclear kills, and we all know it, and now Entergy wants to omit damning information from their LRA in the name of a Nuclear Renaissance... what pisses everyone off, is that deep down in your vile black hearts, you know this is truth."
" Contention 56 "the financial raping of the citizens of New Orleans" Page 413
" Contention 57 "Some would call such a grave omission a scum sucking lie" Page 423 These passages are merely illustrative examples. They are located in multiple contentions, hundreds of pages apart. While it might be possible to merely overlook such verbiage in one contention, the number of instances in the Superceding petition make that possibility highly implausible.
- b.
FUSE's Unwarranted Derogatory Characterizations Of The NRC Staff Violate NRC Standards Of Decorum The Commission has held that derogatory descriptions of the NRC Staff in pleadings before the agency violate the decorum standard.42 Nonetheless, toward the NRC Staff, FUSE directs both profanity and warrantless criticism:
41 Martinelli Ban at 3.
42 Curators at 232 n. 1.
Contention 16 Page 153
- Contention 37 Page 256 "Entergy as well as the federal agency [NRC] willfully and knowingly violated the Administrative Procedures Act, and as a result prostituted the license renewal submittal...
"That is why the public believes NRC stands for No Regulatory Control. Maybe if the NRC took their heads out of NEI's ass long enough to look at the serious issues, the public would begin to hold them in higher regard."
Again, these are examples of the language and tone that remain in the Superceding Petition. As noted above, the pervasiveness and severity of the offending language suggests this inclusion is not inadvertent.
- c.
FUSE's Baseless Allegations Regarding the Character and Integrity of Entergy Violate the NRC Standards for Decorum FUSE's attacks on Entergy's character and integrity are numerous and pervasive. More importantly, FUSE points to no basis whatsoever for its groundless allegations. Its allegations of wrongdoing and criminal conduct by Entergy fall into two main categories: 1) allegations regarding Entergy's corporate parent related to Hurricane Katrina recovery;43 and 2) allegations that plans for vessel head replacements suggest deliberate concealment of key information related to refurbishments during the license renewal period. FUSE identifies no credible support for either. The comprehensive nature of FUSE's failure even to investigate, let alone supply a 43 Particularly offensive are the assertions regarding Entergy response to Hurricane Katrina and the impact on the people of New Orleans. Thousands of Entergy employees were directly affected by hurricanes Katrina and Rita.
Many lost their homes and suffered physical, emotional, mental and economic hardships that distant litigants such as FUSE hopefully will never experience. Entergy's corporate headquarters, located in downtown New Orleans were shuttered and its employees spread across several states. Entergy and its employees who remained in New Orleans and elsewhere along the Louisiana and Mississippi Gulf Coast played a significant role in helping restore those storm devastated communities. Entergy is proud to play an integral an essential role in the economy of the Gulf Coast. Entergy suffered significant losses and shouldered a large part of the load for rebuilding critical infrastructure. In the face of the first hand experience of Entergy and its employees, and the hardships many continue to endure to this day, the baseless allegations by FUSE are particularly offensive.
credible basis for, the allegations fails to conform to the NRC's standards of decorum applicable to proceedings before this Board. Some examples are provided below:
Contention 24 Pages 196 - 200
" Contention 39 Page 275 Contention 40 Pages 276-289 "Entergy has deliberately and knowingly caused another person (NRC Staff) to hide and/or withhold documents from an official agency proceeding (License Renewal Application Process)...
18 U.S.C. §§ 1512(b)(2)(A) and (B) makes it a serious crime to
'knowingly. *. corruptly persuade another person.., with intent to cause' that person to 'withhold' documents from, or 'alter' documents for use in, an 'official proceeding."' (sic)(197)
"Past historical review of Indian Point, and the regulatory problems associated with the site, show there is reason not to trust either the licensees or the NRC.(200)
"Hundreds of people are involved in a decision to replace reactor heads, and the costs require very senior management to approve such a costly refurbishment plan. This reality of Senior Management involvement and knowledge is conclusive proof that the applicant egregiously, misrepresented this issue in their application...
"IP2 LLC, IP3 LLC and Entergy have deliberately, egregiously, negligently and with malice have submitted a materially false LRA.
That's right, scoundrels of the worse, (sic) lower than OJ Simpson and Adolph Hitler. Don't gasp, nuclear kills, and we all know it, and now Entergy wants to omit damning information from their LRA in the name of a Nuclear Renaissance... what pisses everyone off, is that deep down in your vile black hearts, you know this is truth." (276-277)
"Realizing that the second largest reactor owner in America is hiding significant refurbishment issues, is perpetrating a fraud upon an agency of the Federal Government raises concerns that Entergy is involved in criminal behaviors..."(277)
"This notice is absolute defacto proof of Entergy's attempts to defraud. It is also proof they are just PLAIN SLEEZY, (sic) but then after they held New Orleans ransom after Katrina until they got almost $300 Million in grants, we all knew that already." (279-280)
"Hells (sic) bells, the board dismissed all of FUSE USA's contentions because Entergy whined, and claimed they were CONFUSING."(288)
"Let's show these low life corporate thugs a lesson, make and (sic) example of them for the industry, and to restore public faith." (289)
Contention 46 "Applicant in the view of FUSE USA has deliberately and Page 352 knowingly cause another person (NRC Staff) to defacto hide and/or withhold documents from an official proceeding (License Renewal Application Process)... "
18 U.S.C. §§ 1512(b)(2)(A) and (B) makes it a serious crime to
'knowingly or corruptly persuade another person with intent to cause' that person to 'withhold' documents from, or 'alter' documents for use in, an official proceeding. "'(sic)
- Contention 57 "Therefore, Stakeholders contend that the Applicant, the second Page 424 largest reactor owner in the United States, deliberately hid material facts, and egregiously submitted a materially false LRA in violation of 10 C.F.R. § 50.5 and 10 C.F.R. § 50.9 by attempting to hide significant environmental, health and safety concerns in an attempt to streamline its LRA... "
The examples above do not encompass all of the objectionable language or assertions contained in the FUSE Superceding Petition. Rather, they represent a sample of the kind and magnitude of the violations of the Commission's rules and the Board's numerous Orders to comply with them. Moreover, they are not oversights. " Although baseless on their faces, several reside at the core of contentions in which they reside. At least one of the examples above was edited by FUSE after the censure of its last representative. Together, these examples demonstrate conclusively that FUSE will not or cannot conform itself to the standards required of this proceeding.
- 2.
FUSE's Petition Fails to Comply with the Board's Order As noted above, the Board directed FUSE to complete four simple ministerial tasks within the ten days allotted. Of those, FUSE failed two: "delete or correct language not meeting 44 Italics noted in Contention 46 language above reflect an addition to the text in FUSE's stricken November 30, 2007 petition.
common standards of practice and decorum;" (just discussed) and "certify that the numbered contentions are the only ones to be considered by the Board.",45 At the risk of belaboring the obvious, the violations of 10 C.F.R. § 2.3 14(a) set forth above, also violate the Board's direct order to remove all such language. With respect to certifying that its contentions are the only ones to be considered by the Board in this proceeding, FUSE pays only lip service to the Order, and crosses its fingers behind its back. First, in the Certificate at page 7, FUSE adds a caveat that it may seek to reintroduce Mr. Martinelli's contentions, should he prevail on appeal. Second, at page 161 FUSE attempts to preserve some ability to amend Contention 18 with the language: "A detailed list of specific violations of 10 CFR Part 54 will be provided in supplemental (sic) to this contention." Clearly, FUSE's certification and simultaneous attempts to keep the door open is not what the Board intended.
These failures further show that FUSE does not wish to participate constructively in this proceeding.
- 3.
FUSE's Petition Violates the Board's Prohibition on Substantive Amendments Perhaps more importantly, the Board made very clear it would not tolerate substantive changes to the contentions filed as of November 30, 2007.46 The temptation to tinker with its previous contentions and their bases proved too much. Throughout this (now fifth) version, FUSE's new representatives edited the previous contentions, making numerous substantive 45 Martinelli Ban at 5. FUSE also flouted compliance with the Board's direction-to include an "index of all the attached exhibits." Their new index simply dumps in a collection of documents rife with significant uncorrected "compilation inequities." FUSE attributes the "inequities" to its former counsel. Superceding Petition at 27. FUSE includes these many thousands of pages of exhibits with scant reference to any of them in the Superceding Petition.
46 Martinelli Ban at 5, n. 12 changes to the contentions and their bases in direct and surreptitious contravention of the Board's Order. For example:
Page Contention Description of Prohibited Substantive Change
/Section 50 Standards Adds demand for list of exemptions and reasons 51 Standards Adds new argument that LR for IP2 will delay decommissioning of IP 1 by 20 plus years 61 1
Modifies to ask for enforcement of 10 C.F.R. § 2.390 disclosure requirements 63 1
Modifies the list of groundwater issues from tritium and Sr90 to include "and other contaminants" 68 1
Adds a claim that NRC needs to keep statistics on FOIA withholding requests; adds allegation that NRC billed FUSE $22,000 for access to documents 70 1
Adds example of information withheld from public view -
recent environmental monitoring results 72 1
Adds example of info withheld from public view - CLB 74 1
Adds argument re: disclosure of entire CLB 77 1
Adds "generic letters" to a list of examples of content of CLB 79 1
Add argument that documents incorporated by reference into LRA must be provided to requestors or specific citation to ADAMS/PDR provided 80 1
Adds a request for disclosure of all communications between Entergy and NRC 89 2
Adds argument that CLB references unavailable for NRC inspection are also unavailable for FUSE 90 2
Adds rhetorical query whether commitments are an acceptable substitute for AMPs Page Contention Description of Prohibited Substantive Change
/Section 92 2
Restates and embellishes argument about lack of resources and unfamiliarity with materials as justification for more time 95 2
Adds "calendar" to judiciary process as areas for relief; and adds "economic" to environmental justice claims 95 2
Adds allegation that ASLB panel members "played some part in creation and acceptance of some criteria" in industry documents 96 2
Adds prayer for reimbursement of legal fees 99 2
Adds claim that shared systems are not acceptable 111 5
Adds a note alleging run times greater than 200K hours in support of contention; 125 13 Adds "or terrorist attack" to list of events to which off-site emergency responders might be drawn 135 14 Expands scope of contention to pipes "and structures" throughout contention 182 23 Amends argument to include 1P2 SEP rack realignment pre-operation as complicating factor.
208 26 Adds argument that promises are not enforceable 370 51 A Amends language to include "exceptions" to list:
"deviations, exceptions and exclusion" 391 53 Amends argument to incorporate head replacements into previous FAC argument 399 55 Amends argument to include discussion of TP2 SEP as transfer point for IP3 fuel 443 58 Changes the number for terrorist attacks in the argument from "9438" to "over 10,000" 453 58 Enhances argument to include absence of reimbursement for medical costs of increased cancers Page Contention Description of Prohibited Substantive Change
/Section 460 58 Modifies contention to demand "extensive health studies" if LR is granted 461 Prayer Substantively modifies:
9 New request for change of venue to the World Court
- Other new relief requested
- Enhancements to previously stated relief requests Again, the items listed above are not intended to be a comprehensive list of every substantive change between the November 30, 2007 and the December 24, 2007 versions of FUSE's pleading. They are intended to demonstrate the scope and magnitude of the changes that FUSE's new representatives made to the pleading in flagrant disregard of the clear instruction by this Board not to do so. In the Board's apt characterization, the level of disregard to the NRC Rules of Practice and this Board's Orders by FUSE in this proceeding remains "bewildering.47 CONCLUSION Reviewing, deciphering, interpreting, and responding to FUSE's multiple versions of its petition over the past five months has been and continues to be an enormously time consuming effort and a significant imposition on all parties to this proceeding. The repeated, venomous and unfounded attacks by FUSE on the Board members, the NRC Staff, and Entergy more than coarsen the discourse; they present a substantial impediment to the ability of the Board to conduct a fair and orderly hearing. FUSE has demonstrated that regardless of its representative, the results are the same. FUSE has proven that it does not take seriously either this proceeding or direction from the Board. Because FUSE has not, apparently will not, and likely cannot 47 Licensing Board Order (Nov. 27, 2007) at 3, n.9.
adhere to the NRC Rules of Practice, or to the Board's or Commission's Orders, the Board should strike FUSE's Superceding Petition in its entirety.
Respectfully submitted, Kat4 Sutton, Essqq.q Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
MORGAN, LEWIS & BOCKIUS, LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: (202) 739-5738 E-mail: ksuttonamorganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.o'neill(,morganlewis.com I-WA/2882844.4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop 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-BDO1 January. 10, 2008 CERTIFICATE OF SERVICE I
hereby certify that copies of "MOTION OF ENTERGY NUCLEAR OPERATIONS, INC. TO STRIKE REQUEST FOR HEARING AND PETITION TO INTERVENE BY FRIENDS UNITED FOR SUSTAINABLE ENERGY, USA" were served this 10th day of January 2008 upon the persons listed below, by first class mail and e-mail as shown below.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: ocaamailgrnrc.gov)
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 (E-mail: rew(.nrc.gov)
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 (E-mail: lgml @nrc.gov)
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 (E-mail: kdl2@nrc.gov)
I-WA/2884970.1
Office of the Secretary
- Attn: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: hearingdocket@nrc.gov)
Zachary S. Khan Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxkl gnrc.gov)
Manna Jo Greene Environmental Director Hudson River Sloop Clearwater 112 Market Street Poughkeepsie, NY 12601 (E-mail: mannajo(aclearwater.org)
Sherwin E. Turk, Esq.
Lloyd B. Subin, Esq.
Beth N. Mizuno, Esq.
Office of the General Counsel Mail Stop 15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: setinrc.gov)
(E-mail: lbs3@ nrc.gov)
(E-mail: bnmIQ*nrc.gov)
Nancy Burton 147 Cross Highway Redding Ridge, CT 06876 (E-mail: NancyBurtonCTgaol.com)
Justin D. Pruyne, Esq.
Assistant County Attorney, Litigation Bureau of Counsel to Charlene M. Indelicato, Esq.
Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 (E-mail: idp3@westchestergov.com)
Diane Curran, Esq.
Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1726 M Street N.W., Suite 600 Washington, D.C. 20036 (E-mail: dcurran@harmoncurran.com)
Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
303 South Broadway, Suite 222 Tarrytown, NY 10591 (E-mail: sfillergnvlawline.com)
Phillip Musegaas, Esq.
Victor M. Tafur, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 (E-mail: phillipM-)riverkeeper.org)
(E-mal: vtafur(griverkeeper.org)
Thomas F. Wood, Esq.
Daniel Riesel, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 (E-mail: driesel@sprlaw.com) 2
Robert D. Snook, Esq Assistant Attorney General 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert.Snook((,po.state.ct.us)
Andrew M. Cuomo, Esq.
Attorney General of the State of New York John J. Sipos, Esq.
Assistant Attorney General The Capitol Albany, NY 12224-0341 (E-mail: iohn.sipos(ioag.state.ny.us)
Susan H. Shapiro, Esq.
21 Perlman Drive Spring Valley, NY 10077 (E-mail: Palisadesartgaol.com mbs(2ourrocklandoffice.com)
John LeKay Heather Ellsworth Burns-DeMelo-Remy Chevalier Bill Thomas Belinda J. Jaques FUSE USA 351 Dyckman Street Peekskill, NY 10566 (E-mail: fuse usa@yahoo.com)
Joan Leary Matthews, Esq.
Senior Counsel for Special Projects Office of General Counsel New York State Department of Environmental Conservation 625 Broadway Albany, NY (E-mail: jlmatthe@gw.dec.state.ny.us)
- Original and 2 copies Paul M. Bessette Counsel for Entergy Nuclear Operations, Inc.
3