ML083440174
| ML083440174 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/09/2008 |
| From: | Annette Vietti-Cook NRC/SECY |
| To: | |
| SECY/RAS | |
| References | |
| RAS E-196 | |
| Download: ML083440174 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Dale E. Klein, Chairman Gregory B. Jaczko Peter B. Lyons Kristine L. Svinicki
)
ENTERGY NUCLEAR OPERATIONS, INC.
)
) Docket Nos. 50-247-LR and 50-286-LR (Indian Point Nuclear Generating Units 2 and 3)
)
_________________________________________)
CLI-08-29 MEMORANDUM AND ORDER On December 10, 2007, Westchester Citizens Awareness Network, Rockland County Conservation Association, Public Health and Sustainable Energy, Sierra Club - Atlantic Chapter, and New York State Assemblyman Richard Brodsky (collectively, WestCAN) filed a joint petition to intervene and request for hearing on Entergys license renewal application for Indian Point Nuclear Generating Units 2 and 3. On July 31, 2008, the Board issued an Order striking WestCANs petition and request, thereby expelling them from this adjudication.1 The Board rested its decision on grounds that are highly unusual in a Commission adjudication -
WestCAN counsels appalling lack of candor and repeated[] misrepresent[ations of the]
facts.2 WestCAN has appealed the Boards Order. We affirm.
Dismissal of a party falls within the spectrum of sanctions... available to the boards to assist in the management of proceedings under 10 C.F.R. § 2.319, although dismissal should 1 Order (Striking WestCANs Request for Hearing) (July 31, 2008) (unpublished) (July 31 Order).
2 Id. at 1.
2 be reserved for severe cases.3 Our Appeal Board stated, albeit in dictum, that a Licensing Board is clearly authorized to dismiss a party who obstructs the discovery process, disobeys the Board orders, and engages in willful, bad-faith, and prejudicial conduct towards another party.4 We also observe that dismissal due to counsels malfeasance is a logical extension of the Boards disciplinary authority under 10 C.F.R. § 2.314(c) to reprimand, censure or suspend from a proceeding any party or representative who refuses to comply with its directions - a transgression that WestCANs counsel committed repeatedly in this adjudication.
As we announced earlier in this proceeding, we are generally loath to interfere with the Boards management of its cases, absent an abuse of power.5 We find no such abuse here.
We have reviewed in detail the extensive record underlying the Boards decision and find ample evidence to support the Boards conclusion. WestCAN counsel have, for instance, repeatedly included inaccurate service dates on pleadings, repeatedly claimed that an untimely document had been timely served, inaccurately claimed that documents submitted at different times were identical, and inaccurately certified that all participants had been served in a particular manner.
We therefore affirm the Boards July 31 Order on the grounds specified by the Board.
3 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
Cf. Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998) (referring to dismissal of a party as an appropriate sanction in extreme cases where the party fails to provide legal and factual support for its arguments and assertions). See generally 10 C.F.R. § 2.319(g) (The presiding officer has the power to [r]egulate the course of the hearing and the conduct of participants).
4 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-902, 28 NRC 423, 428 (1988).
5 CLI-08-7, 67 NRC 187, 192 (2008).
3 We might be more willing to consider a lesser penalty than WestCANs expulsion if the record showed these misrepresentations to be clearly inadvertent and isolated.6 But they are not. Rather, we find a pattern of disregard of our regulations and the Boards instructions. And therein lies our second, independent ground for todays affirmance of the Boards July 31 Order.
To offer but a sample: WestCANs counsel failed to serve all participants on the official service list; failed to attach certificates of service; failed to certify in WestCANs motions that counsel had sought to resolve the issues with opposing counsel; omitted participants from service; failed to include attachments; and submitted multiple, often non-identical versions of the same pleading to participants and/or the Board. Beginning with their very first submissions,7 WestCAN counsel consistently ignored both the Boards and our own warnings that failure to comply with the agencys service requirements could result in pleadings being stricken from the administrative record.8 This pattern of behavior regularly continued despite the Boards striking WestCANs first two pleadings in November 2007.9 6 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC at 454 (instructing boards to consider, among other things, whether a participants failure to meet an obligation is an isolated incident or part of a pattern of behavior).
7 Letters to Chairman Klein and Lawrence G. McDade from Susan Shapiro (Nov. 21, 2007) (Re:
Additional Extension Request to File Formal Requests for Hearing and Petitions to Intervene with Contentions, due to Document Access Issues) (ML073380808 and ML073380896).
Neither of these two requests for extension of time was accompanied by the required certificate of service.
8 See, e.g., Commission Order (Nov. 16, 2007) at 1-2 (unpublished); Order (Denying an Extension of Time Within Which To File Requests For Hearing) (Board Nov. 27, 2007) at 2-4 (unpublished) (November 27 Order); Memorandum and Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) (Board Oct. 29, 2007) at 1-2 (unpublished) (October 29 Order).
9 November 27 Order. See also Order (Denying an Extension of Time Within Which to File Requests for Hearing) (Nov. 28, 2007) (unpublished).
4 WestCAN counsel likewise ignored both the Boards express warning that it would dismiss litigants who failed to comply with the Commissions procedural rules10 and the Boards subsequent expulsion of another petitioner (one who had earlier been represented by one of WestCANs own attorneys) for that very reason.11 And counsels sequential submission of multiple, often non-identical copies of WestCAN pleadings - notably, its Reply - forced the Board and the other participants to needlessly expend large amounts of time, effort and resources simply to determine exactly which document WestCAN intended as its filing. The Boards ultimate expulsion of WestCAN came only after multiple warnings and the use of lesser disciplinary measures (striking two of WestCANs pleadings from the record) - none of which had gained the desired result of WestCAN counsels compliance.
WestCAN counsels repeated inability or refusal to comply with the Boards instructions and our procedural rules has seriously disrupted the Boards efforts to meet its responsibility to conduct a fair, orderly and efficient hearing, has interfered with the other participants efforts to use their own litigation resources efficiently, and has made our own review of the appellate documents and the underlying record far more time-consuming than necessary.12 It would be 10 October 29 Order at 3.
11 Order (Granting the NRC Staffs Motion to Strike FUSEs Superceding [sic] Request for Hearing) (Feb. 1, 2008) (unpublished). There, the Board relied in significant part on counsels submission of an inaccurate certificate of service, and counsels repeated failure to comply with the agencys procedural regulations despite numerous instructions from the Board. Id. at 2-6.
12 Furthermore, WestCAN counsel continue to make similar procedural errors in conjunction with this appeal. One example of WestCANs flawed appellate pleadings is its Motion and Reply to Entergys Opposition to Petitioners Appeal to the Commission (Sept. 3, 2008). This pleading included a motion to strike Entergys Answer to WestCANs Appeal. We reject the motion on the grounds that WestCAN counsel failed to comply with the certification requirements of 10 C.F.R. § 2.323(b) regarding consultation with opposing counsel (an error counsel repeatedly committed before the Board), and also failed to state with particularity the grounds for the motion, as likewise required under 10 C.F.R. § 2.323(b). WestCAN also moved (continued...)
5 unfair to all these entities if we were to permit WestCAN to continue draining their time, effort and resources. For all these reasons, we include WestCAN counsels consistent abuse of the adjudicatory process as our own independent ground for dismissing WestCANs petition and request.
In only one prior adjudication (Millstone) have we faced this degree of consistent procedural noncompliance from an attorney. There, we eventually directed our Office of the Secretary (SECY) to screen all filings bearing [that counsels] signature[,...] not to accept or docket them unless they meet all procedural requirements... [and] to reject summarily any nonconforming pleadings without referring them to the Atomic Safety and Licensing Board Panel or the Commission.13 Our directive applied not only in the Millstone case then at bar but in all subsequent adjudications. We now issue this same directive to SECY regarding any filings it receives from Ms. Susan Shapiro or Ms. Sarah Wagner in this or any other proceeding.
to strike the NRC Staffs multiple answers to WestCANs appeal. Petitioners' Motion to Strike the NRC Staff[s] Multiple Answers to Petitioners Appeal (Sept. 10, 2008) at 9. We deny this second motion on the first ground set forth above.
13 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 4, 63 NRC 32, 38-39 (2006).
6 CONCLUSION We deny WestCANs appeal of the Boards July 31 Order and affirm that same order.
For the Commission (NRC Seal)
/ RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 9th day of December, 2008.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
ENTERGY NUCLEAR OPERATIONS, INC.
)
Docket Nos. 50-247-LR
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50-286-LR
)
(Indian Point Nuclear Generating Station,
)
Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-08-29) 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 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001 Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission.
Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Washington, DC 20555-0001 Administrative Judge Lawrence G. McDade, Chair E-mail: lawrence.mcdade@nrc.gov Administrative Judge Richard E. Wardwell E-mail: richard.wardwell@nrc.gov Administrative Judge Kaye D. Lathrop 190 Cedar Lane E.
Ridgway, CO 81432 E-mail: kaye.lathrop@nrc.gov Zachary S. Kahn, Law Clerk E-mail: zachary.khan@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 Sherwin E. Turk, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq.
Jessica A. Bielecki, Esq.
Marcia J. Simon, Esq.
Karl Farrar, Esq.
Brian Newell, Paralegal E-mail:
set@nrc.gov bnm1@nrc.gov der@nrc.gov jab2@nrc.gov mjs5@nrc.gov klf@nrc.gov bpn1@nrc.gov
2 Docket Nos. 50-247-LR and 50-286-LR COMMISSION MEMORANDUM AND ORDER (CLI-08-29)
William C. Dennis, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Email: wdennis@entergy.com Andrew M. Cuomo, Attorney General John J. Sipos, Assistant Attorney General Mylan L. Denerstein Deputy Assistant Attorney General Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 E-mail: john.sipos@oag.state.ny.us Mylan.Denerstein@oag.state.ny.us Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. ONeill, Esq.
Mauri T. Lemoncelli, Esq.
Counsel for Entergy Nuclear Operation, Inc.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksutton@morganlewis.com pbessette@morganlewis.com martin.oneill@morganlewis.com mlemoncelli@morganlewis.com Joan Leary Matthews, Esq.
Senior Attorney for Special Projects New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, New York 12233-5500 E-mail: jmatthe@gw.dec.state.ny.us Michael J. Delaney Vice President, Energy Department New York City Economic Development Corporation (NYCEDC) 110 William Street New York, NY 10038 E-mail: mdelaney@nycedc.com Robert D. Snook, Esq.
Office of The Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 E-mail: robert.snook@po.state.ct.us
Docket Nos. 50-247-LR and 50-286-LR COMMISSION MEMORANDUM AND ORDER (CLI-08-29) 3 Arthur J. Kremer, Chairman New York Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508 New York, NY 10016 E-mail: kkremer@area-alliance.org Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
303 South Broadway, Suite 222 Tarrytown, NY 10591 E-mail: sfiller@nylawline.com Daniel E ONeill, Mayor James Siermarco, M.S.
Liaison to Indian Point Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 E-mail: vob@bestweb.net Manna Jo Greene, Environmental Director Hudson River Sloop Clearwater 112 Little Markey Street Poughkeepsie, NY 12601 E-mail: mannajo@clearwater.org Thomas F. Wood, Esq.
Town of Cortlandt Daniel Riesel, Esq.
Jessica Steinberg, J.D.
Counsel for the Town of Cortlandt Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com jsteinberg@sprlaw.com Nancy Burton, Esq.
Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP) 147 Cross Highway Redding Ridge, CT 06876 E-mail: NancyBurtonCT@aol.com Elise N. Zoli, Esq.
Goodwin Proctor, LLP Exchange Place 53 State Street Boston, MA 02109 E-mail: ezoli@goodwinprocter.com Justin D. Pruyne 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: jdp3@westchestergov.com
4 Docket Nos. 50-247-LR and 50-286-LR COMMISSION MEMORANDUM AND ORDER (CLI-08-29)
FUSE USA John LeKay Heather Ellsworth Burns-DeMelo Remy Chevalier Bill Thomas Belinda J. Jaques 351 Dyckman Street Peekskill, New York 10566 E-mail: fuse_usa@yahoo.com Westchester Citizens Awareness Network (WestCan), Citizens Awareness Network, (CAN),
etc.
Susan H. Shapiro, Esq.
21 Pearlman Drive Spring Valley, NY 10977 E-mail: mbs@ourrocklandoffice.com Victor M. Tafur, Senior Attorney Philip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 E-mail: vtafur@riverkeeper.org phillip@riverkeeper.org dbrancato@riverkeeper.org Richard L. Brodsky Assemblyman 5 West Main Street Suite 205 Elmsford, NY 10523 E-mail: brodskr@assembly.state.ny.us richardbrodsky@msn.com Diane Curran, Esq.
Counsel for Riverkeeper, Inc.
Harmon, Curran, Spielberg,
& Eisenberg, LLP 1726 M. Street NW, Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Sarah L. Wagner, Esq.
Legislative Office Building, Room 422 Albany, NY 12248 E-mail: sarahwagneresq@gmail.com
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 9th day of December 2008