ML080670349

LB Order (Relating to the Service and Content of Westcans Reply Dated February 15, 2008)

ML080670349
Person / Time
Site:	Indian Point
Issue date:	03/07/2008
From:	Lawrence Mcdade Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
07-858-03-LR-BD01, 50-247-LR, 50-286-LR
Download: ML080670349 (10)

Text

1 A copy of this letter, as well as the reply to that letter by WestCAN, was sent to the Board members.

UNITED STATES OF AMERICA DOCKETED 03/07/08 NUCLEAR REGULATORY COMMISSION SERVED 03/07/08 ATOMIC SAFETY AND LICENSING BOARD 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 March 7, 2008 ORDER (Relating to the Service and Content of WestCANs Reply Dated February 15, 2008)

Introduction In a letter dated February 29, 2008,1 Counsel for the NRC Staff raised a question regarding the Reply dated February 15, 2008, that was filed on behalf of Westchester Citizens Awareness Network, et al. (WestCAN). Specifically, Counsel for the NRC Staff represented that the WestCAN Reply sent to his office via e-mail at 12:00 am on February 16, 2008, appeared to be different from the WestCAN Reply that was sent to the NRC Hearing Docket and the Applicant via e-mail at 12:53 am on February 16, 2008. Counsel for the NRC Staff went on in that letter to ask WestCAN whether the two versions sent via e-mail are identical, and whether the version delivered by DHL differed from the version sent via e-mail at 12:53 on February 16, 2008.

From the response sent by WestCAN to Counsel for the NRC Staff via e-mail at 2:41 on March 5, 2008 (with a copy sent by WestCAN to the Board), we are unable to determine how 2 Licensing Board Order (Granting an Extension of Time) (Feb.1, 2008).

3 The documentation accompanying this package indicates that it was deposited with Federal Express on February 20, 2008.

4 Two of the four copies of the CD-ROM sent to the Board could not be opened.

service was accomplished, when service was accomplished, to whom WestCANs Reply was sent, and whether all litigants received identical copies of this pleading. Given the repeated difficulties that have occurred in this proceeding with the accuracy of Certificates of Service and the submission of nonidentical copies of pleadings, it is the purpose of this Order to insure that the record regarding the service and content of WestCANs Reply is clear, so that we may determine what action by the Board, if any, is appropriate.

Background

In an Order dated February 1, 2008, the Board granted a Motion filed by WestCAN in which it requested an extension of time within which to file its Reply. Pursuant to that Order, WestCAN could file its Reply on or before February 15, 2008.2 The Certificate of Service attached to the version of WestCANs Reply that was received by the Board states that it was sent via e-mail to the three members of the Board and the Boards Law Clerk via e-mail on February 15, 2008. No member of the Board received a copy of WestCANs Reply via e-mail on February 15th or at any time thereafter. Rather, on Thursday, February 21, 2008, the Board received a package via Federal Express, Overnight Courier Service,3 that contained a copy of a cover letter dated February 19, 2008, addressed to the Office of the Secretary, US Nuclear Regulatory Commission, that was signed by Sarah L.

Wagner as Counsel for WestCAN. The package also contained four copies of a CD-ROM that was referred to in the cover letter. When the Board printed the contents of the CD-ROM4 it contained a 124 page, undated, unsigned, document that was captioned Reply of Petitioners Westchester Citizens Awareness Network, et al.

5 Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) (Oct. 29, 2007) at 2.

In this proceeding the Board and the litigants have been repeatedly presented with inaccurate Certificates of Service. As a result, the Board has repeatedly warned litigants that service must be properly made, and that 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 specified on the Certificate. The Board has repeatedly observed that the parties to this litigation must not be left uncertain regarding to whom, and when, pleadings have been provided. Given such history in this litigation, we must insure that service is properly made and apply appropriate sanctions when it is not.

Likewise, in this proceeding the Board and the litigants 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 Board has repeatedly stated 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. Accordingly, we noted that, given the complexity of this proceeding and the volume of documents that would be generated, this practice would not be tolerated.

The Board initially addressed these problems more than 4 months ago. For example, in the initial Order that the Board 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.5 Regrettably participants to this proceeding either did not read, did not understand, or have ignored that simple directive. Accordingly, we reiterated our directives with regard to Certificates of Service and duplicative pleadings, and advised litigants that they should anticipate that the Board would sua sponte strike defective pleadings from the record and not allow them to be refiled.

We repeatedly directed participants in this litigation to examine Certificates of Service and pleadings before they are filed so that corrections would seldom, if ever, need to be filed and, in the event a mistake was made and it was necessary to file a corrected pleading, to 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.

We repeatedly noted that such practice is no more than common courtesy and that, without such practice, we could not conduct this proceeding in an orderly manner. See, inter alia, 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 Entergys Motion to Strike But Sua Sponte Striking FUSEs 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. 4, 2007).

Response Required The accuracy of the Certificate of Service and the integrity of WestCANs Reply being in question, the Board believes that these issues must be resolved before we consider the admissibility of WestCANs contentions and possibly admit WestCAN as a party to this proceeding. Accordingly, the NRC Staff shall, as soon as is practicable but in any event no later than March 18, 2008, provide to the Board the following:

1) A copy of the document identified as the WestCAN Reply that was received by Staff Counsel via e-mail at 12:00 am on February 16, 2008.

2) A copy of the e-mail banner identifying to whom the 12:00 am, February 16, 2008, submission was sent.

3) A copy of the e-mail banner identifying to whom the 12:53 am, February 16, 2008, submission was sent.

4) A copy of any documentation that the Staff received indicating that the version of the WestCAN Reply received at 12:00 am, February 16, 2008, was not intended to be the operative pleading.

5) A brief statement explaining how and when NRC Staff Counsel first came to suspect that a nonidentical version of WestCANs Reply had been sent to any participant in this proceeding.

6) A brief statement explaining the differences which Staff Counsel believes exist between the version of WestCANs Reply that was received at 12:00 am, February 16, 2008, and the version of WestCANs Reply that was sent to the NRC Hearing Docket at 12:53 am, and/or between the version of WestCANs Reply that was received by Staff Counsel through the mail or via a courier service.

7) A brief statement summarizing any other information that Staff Counsel believes that the Board should consider in order to have a complete and accurate understanding of this incident.

As soon as is practicable after it has received Staff Counsels submission, but in any event no later than 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> after receipt, WestCAN shall provide to the Board the following:

1) A copy of the document identified as the WestCANs Reply that was sent to Staff Counsel via e-mail at 12:00 am on February 16, 2008.

2) A copy of the e-mail banner identifying to whom the 12:00 am, February 16, 2008, submission was sent.

6 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for WestCAN, RCCA, PHASE, the Sierra Club - Atlantic Chapter; and Richard Brodsky; (2) Counsel for the NRC Staff; (3) Counsel for Entergy; (4) Counsel for the State of New York; (5) Counsel for the State of Connecticut; (6) Counsel for Riverkeeper, Inc.; (7) Nancy Burton, the Representative of CRORIP; (8) Manna Jo Green, the Representative for Clearwater; (9)

Counsel for Westchester County; and (10) Counsel for the Town of Cortlandt.

3) A copy of the e-mail banner identifying to whom the 12:53 am, February 16, 2008, submission was sent.

4) A copy of any e-mail banner, or any other writing documenting that, and if so when, a version of WestCANs Reply was sent to the Members of the Board via e-mail.

5) A brief explanation of exactly how service of WestCANs Reply on the Board was perfected (enclose a copy of tracking documents from any courier service).

6) A brief explanation of exactly how service of WestCANs Reply on NRC Staff Counsel was perfected (enclose a copy of tracking documents from any courier service).

7) A brief explanation of exactly how service of WestCANs Reply on The Secretary of the NRC was perfected (enclose a copy of tracking documents from any courier service).

8) A brief statement explaining the differences, if any, between the version of the WestCANs Reply that was sent to Staff Counsel at 12:00am, February 16, 2008, and the version of the WestCANs Reply that was sent to the NRC Hearing Docket at 12:53 am, and/or between the version of WestCANs Reply that was sent to the Board via Federal Express on February 20, 2008. If there were differences, an explanation of what those differences were, what caused or otherwise led to the transmission of nonidentical versions of the Reply, and an explanation of how and when WestCAN learned that nonidentical versions of its Reply had been sent to participants in this litigation, and what action WestCAN took to notify the recipients of the discrepancies.

9) A brief statement summarizing any other information that WestCAN Counsel believes that the Board should consider in order to have a complete and accurate understanding of this incident.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD6

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD March 7, 2008

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,

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Units 2 and 3)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (RELATING TO THE SERVICE AND CONTENT OF WESTCANS REPLY DATED FEBRUARY 15, 2008) 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 190 Cedar Lane E.

Ridgway, CO 81432 Sherwin E. Turk, Esq.

Lloyd B. Subin, Esq.

Beth N. Mizuno, Esq.

David E. Roth, Esq.

Kimberly A. Sexton, Esq.

Christopher C. Chandler, Esq.

Karl Farrar, Esq.

Catherine Marco, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.

303 South Broadway, Suite 222 Tarrytown, NY 10591

2 Docket Nos. 50-247/286-LR LB ORDER (RELATING TO THE SERVICE AND CONTENT OF WESTCANS REPLY DATED FEBRUARY 15, 2008)

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 Daniel E. ONeill, Mayor Village of Buchanan James Seirmarc, M.S., Liaison to Indian Point 236 Tate Avenue Buchanan, NY 10511 Robert D. Snook, Esq.

Assistant Attorney General of the State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Charlene M. Indelicato, Esq.

Westchester County Attorney Justin D. Pruyne, Esq.

Assistant County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 Thomas F. Wood, Esq.

Daniel Riesel, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 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 Nancy Burton 147 Cross Highway Redding Ridge, CT 06876

Docket Nos. 50-247/286-LR LB ORDER (RELATING TO THE SERVICE AND CONTENT OF WESTCANS REPLY DATED FEBRUARY 15, 2008) 3 Janice A. Dean, Assistant Attorney General Office of the Attorney General of the State of New York 120 Broadway, 26th Floor New York, NY 10271 Diane Curran, Esq.

Counsel for Riverkeeper, Inc.

Harmon, Curran, Spielberg,

& Eisenberg, L.L.P.

1726 M. Street N.W., Suite 600 Washington, DC 20036 Joan Leary Matthews, Esq.

Senior Counsel for Special Projects Office of General Counsel New York State Department of Environmental Conservation 625 Broadway Albany, NY 12224 Westchester Citizens Awareness Network (WestCan), Citizens Awareness Network (CAN),

etc.

Susan H. Shapiro, Esq.

21 Perlman Drive Spring Valley, NY 10977 Richard L. Brodsky Assemblyman 5 West Main Street Suite 205 Elmsford, NY 10523 FUSE USA Heather Ellsworth Burns-DeMelo John LeKay Remy Chevalier Belinda J. Jaques Bill Thomas 351 Dyckman Street Peekskill, New York 10566 Elise N. Zoli, Esq.

Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109

Docket Nos. 50-247/286-LR LB ORDER (RELATING TO THE SERVICE AND CONTENT OF WESTCANS REPLY DATED FEBRUARY 15, 2008) 4 Riverkeeper, Inc.

Phillip Musegaas, Esq.

Victor Tafur, Esq.

828 South Broadway Tarrytown, NY 10591

[Original signed by Christine M. Pierpoint]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 7th day of March 2008