ML082730001
| ML082730001 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 09/27/2008 |
| From: | Saporito T Saporito Energy Consultants |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-OLA, 50-251-OLA, ASLBP 08-869-03-OLA-BD01, RAS 1188 | |
| Download: ML082730001 (11) | |
Text
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 1 of 11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
Docket Nos. 50-250/251-OLA Florida Power and Light Company ALSBP No. 08-869-03-OLA-BD01 (Turkey Point Nuclear Plant, Units 3 and 4) Date: 27-SEP-2008 PETITIONERS OPPOSITION TO FPLS MOTION TO STRIKE SAPORITOS REPLY AND FOR SANCTIONS On 26-SEP-2008, the licensee, Florida Power and Light Company (FPL) filed FPLs Motion to Strike Saporitos Reply and for Sanctions (FPL Motion), in the above-captioned proceeding. For the reasons set-out below, the Atomic Safety and Licensing Board (ASLB) should deny FPLs motion in its entirety.
A. The Atomic Safety and Licensing Board Lacks Authority to Grant FPLs Motion as a Matter of Law In its motion FPLs states in relevant part that, This case is one of four NRC actions involving reactors owned by subsidiaries of FPL Group, Inc., on which Saporito has requested a hearing during the past few months (other requests were made in proceedings involving FPL Energy Point Beach, LLC (FPLE-PB), FPL Energy Seabrook, LLC (FPLE-S), as well as another FPL facility, the St. Lucie Nuclear Plant.; FPL, FPLE-PB, and FPLE-S are all indirect subsidiaries of FPL Group). These hearing requests are vexatious and amount to harassment and an abuse of the administrative process. . . FPL also moves . . . the Atomic Safety and Licensing Board . . . to certify to
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 2 of 11 the Commission the question whether to impose sanctions against Saporito and SEC, including but not limited to, barring him from filing further meritless hearing requests against FPL Group entities. . .
Id. FPL Motion at 1-2. Thus, FPL seeks broad action on the part of the ASLB extending well beyond the jurisdiction and authority of the assigned ASLB in the present proceeding and where FPL seeks action on the part of the ASLB on matters outside the instant action regarding other adjudicatory proceedings. See, Consolidated Edison Co. of New York, (Indian Point, Unit 2);
Power Authority of the State of New York, (Indian Point, Unit 3), CLI-82-15, 16 NRC 27, 31, 32 (1982). To the extent that FPLs Motion seeks action by the ASLB against Petitioners outside the jurisdiction and authority of the presiding ASLB, the ASLB must deny FPLs Motion as a matter of law.
B. Procedural History The instant proceeding arises out of timely petition for hearing filed on 18-AUG-2008 by Saporito Energy Consultants (SEC) through its President, Thomas Saporito (Saporito).
SECs petition to challenges FPLs request to the U.S. Nuclear Regulatory Commission (NRC) to delete certain notes from the Turkey Point Nuclear Plant (TPN) Technical Specifications (TS) which are the safety operating parameters for the TPN. In its motion, FPL makes a lengthy discussion of litigation
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 3 of 11 involving FPL, its subsidiaries and SECs President encompassing a 20-years time frame. See, FPL Motion at 3-11. For the reasons stated above, the presiding ASLB lacks jurisdiction and therefore authority to entertain administrative proceedings beyond the instant proceeding. Therefore, Petitioners move the ASLB to strike FPLs Motion where its motion seeks action on the part of the ASLB outside the jurisdiction of the ASLB and to deny FPLs Motion in its entirety as a matter of law.1 C. Discussion
- 1. The ASLB Should Grant SECs Amended Contention(s)
In its motion, FPL argues in part that, Saporitos Reply fails to comply with the NRCs Rules of Practice. . . Saporito filed an amended contention to cure his clearly inadmissible initial contentions.
Saporito . . . failed to seek leave of the Board to file new or amended contentions . . . Saporitos new contention and the arguments and affidavit in support
. . . should be stricken.
Id. at 12. Here, FPL conveniently omits from this part its pleading that SECs Reply was submitted in accordance with the Commissions Rules of Practice for Domestic Licensing Proceedings at 10 C.F.R. 2.309 Id. Thus, to the extent that 1
In NRC proceedings in which a hearing is not mandatory but depends upon the filing of a successful intervention petition, and intervention Licensing Board has authority only to pass upon the intervention petition. See, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1&2), LBP 23, 8 NRC 71, 73 (1978). See also, Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP-81-30-A, 14 NRC 364, 366 (1981), citing Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175 (1977).
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 4 of 11 SECs petition was brought under the Commissions Rules of Practice for Domestic Licensing, Petitioners have properly sought leave of the ASLB to amend their petition contentions accordingly. At all times relevant to the instant proceeding, FPL was well aware of Petitioners status as a pro se litigant but none-the-less acted to otherwise mislead this ALSB to rule in its favor in sanctioning Saporito.2 Notably, petitions drawn by counsel experienced in NRC practice must exhibit a high degree of specificity. In contrast, Licensing Boards are to be lenient in this respect for petitions drawn pro se or by counsel new to the field or to the bar. See, Kansas Gas & Electric Co.
(Wolf Creek Generating Station), ALAB-279, 1 NRC 559, 576-577 (1975). In the instant proceeding, Petitioners appear pro se for intervention and should not be held to the same standards of clarity and precision to which a lawyer might reasonably be expected to adhere in the petition to intervene. See, Wisconsin Public Service Corp. (Kewaunee Nuclear Power Plant), LBP-78, 82 (1978). See also, Public Service Electric and Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973), cited in Houston Lighting and Power Co. (Allens 2
This is not the first time that FPL has gone to great lengths to illegally prohibit Petitioners from participating in NRC licensing proceedings. See, http://saporitoenergyconsultants.com/NRC.html and select 10-SEP-2008 Whistleblower Seeks Fines Against FPL shown at the left side of that screen.
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 5 of 11 Creek Nuclear Generating Station, Unit 1 and 2), LBP-82-63, 16 NRC 571, 578 (1982).
Thus, to the extent that Petitioners seek Intervention as pro se litigants, the ASLB should accept their amended contention(s) and grant them a hearing on the merits of the disputed issues in this matter accordingly. Notably, even where a petitioner has not expressly requested a hearing on its petition, but where it seems clear from the petition as a whole that a hearing is what the petitioner desires, the Commission will not dismiss that petition solely on the basis of such a technical pleading defect. See, Yankee Atomic Electric Co.,
(Yankee Nuclear Power Station), CLI-96-1.43 NRC 1, 5 (1966).
FPL continues in its motion to apparently argue matters related to the merits of the petition itself and which should be reserved for the hearing. See, FPL Motion at 12-19. Thus, Petitioners move the ASLB to strike that portion of FPLs Motion accordingly.
- 2. The ASLB Should Deny FPLs Request to Certify to the Commission the Question of Whether to Sanction Saporito for His Abuse of the NRC Adjudicatory Process In its motion, FPL makes a lengthy argument why this ALSB should . . . certify to the Commission the question of whether to employ a solution similar to that utilized in Millstone. . .
FPLs concern is not limited to this single proceeding, but
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 6 of 11 extends to other proceedings before other Licensing Boards, and more importantly, to countless potential future proceedings involving facilities operated by subsidiaries of FPL Group. . .
Id. at 24.
As stated earlier, the presiding ALSB lacks jurisdiction and authority beyond the instant proceeding to entertain FPLs Motion to sanction Petitioners by certifying to the Commission the question of whether to employ a solution similar to that utilized by Millstone. Even more discerning is FPLs request that the presiding ALSB reach far beyond its jurisdiction in the instant proceeding and sanction Petitioners for bringing hearing requests before the Commission in other proceedings outside the jurisdiction and authority of the present ASLB. Notably, FPL requests that this ASLB sanction Petitioners for supposed potential future hearing requests by Petitioners. Clearly, it is FPL that is abusing the Governments adjudicatory process and not Petitioners. Indeed, FPLs Motion is clearly an illegal attempt by a NRC licensee to prohibit a stakeholder from participating in NRC proceedings.3 3
FPLs actions in seeking sanctions against Petitioners for participating in a public NRC forum and to prohibit Petitioners from such participation will be redressed through a filing with the Florida Bar and with the NRCs Office of Enforcement accordingly.
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 7 of 11 Although the requirements of 10 C.F.R. §2.309 must ultimately be met, every benefit of the doubt should be given to the potential intervenor in order to obviate dismissal of an intervention petition because of inarticulate draftsmanship or procedural or pleading defects. See, Sequoyah Fuels Corp.,
(Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-8, 39 NRC 116 (1994). As such, petitioners will usually be permitted to amend petitions containing curable defects. See, Virginia Electric & Power Co., (North Anna Power Station, Units 1 & 2), ALAB-146, 6 AEC 631 (1973). See, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-91-1, 33 NRC 15, 40 (1991); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC 179, 195 (1991); Sequoyah Fuels Corporation and General Atomics (Gore, Oklahoma Site), LBP-94-19, 40 NRC 9, 15 (1994).
D. General Policy on Intervention Before the Atomic Safety and Licensing Board Public participation, like that sought by SEC in the instant proceeding, is a positive factor in the licensing process and that intervenors perform a valuable function and are to be complimented and encouraged. (Emphasis added). See, e.g.,
Virginia Electric & Power Co. (North Anna Power Station, Units 1
& 2), ALAB-256, 1 NRC 10, 18 n.9 (1975); Consolidated Edison Co.
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 8 of 11 of N.Y., Inc. (Indian Point Nuclear Generating Station, Unit 2),
ALAB-229, 8 AEC 425 (1974); Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222 (1974).
CONCLUSION For all the foregoing reasons, and to protect Petitioners right to participate in NRC licensing proceedings, and to protect public health and safety through public intervention in NRC licensing proceedings, the ALSB should deny FPLs Motion in its entirety as a matter of law.
Respectfully submitted,
/Signed electronically by/
Thomas Saporito, President Saporito Energy Consultants Post Office Box 8413 Jupiter, Florida 33468-8413 Voice: (561) 283-0613 Fax: (561) 952-4810 Email: saporito3@gmail.com Web: http://saporitoenergyconsultants.com
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 9 of 11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
Docket Nos. 50-250/251-OLA Florida Power and Light Company ALSBP No. 08-869-03-OLA-BD01 (Turkey Point Nuclear Plant, Units 3 and 4)
CERTIFICATE OF SERVICE I hereby certify that a copy of PETITIONERS OPPOSITION TO FPLS MOTION TO STRIKE SAPORITOS REPLY AND FOR SANCTIONS in the above-styled matter was served on the following relying on the United States Governments Electronic Information Exchange this 27th day of September, 2008:
/Signed electronically by/
By: ___________________________
Thomas Saporito Hon. William J. Froelich, Chair Administrative Law Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: wjf1@nrc.gov Hon. Thomas S. Moore Administrative Law Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: tsm2@nrc.gov
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 10 of 11 Hon. Michael F. Kennedy Administrative Law Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: mfk2@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Office of Commission Appellate Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: OCAAMAIL.Resource@nrc.gov Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: Hearing.Docket@nrc.gov Lloyd B. Subin Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, D.C. 20555-0001 Email: Lloyd.subin@nrc.gov Marcia J. Simon Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, D.C. 20555-0001 Email: marcia.simon@nrc.gov
Docket Nos. 50-250/251-OLA ASLBP No. 08-869-03-OLA-BD01 Florida Power and Light Company Turkey Point Nuclear Plant, (Units 3 and 4)
Page 11 of 11 Mitchell S. Ross Antonio Fernandez Florida Power and Light Company 700 Universe Boulevard P.O. Box 14000 Juno Beach, Florida 33408-0420 Email: mitch.ross@fpl.com Email: antonio.fernandez@fpl.com