ML20066G971

Licensees Motion to Reject or Strike Petitioners Reply to Motion to Dismiss.* Moves Aslab to Reject or Strike Nuclear Energy Accountability Project 910128 Reply Due to Discourteous & Insulting Tone of Reply.W/Certificate of Svc

ML20066G971
Person / Time
Site:	Turkey Point
Issue date:	02/08/1991
From:	Reis H NEWMAN & HOLTZINGER, NUCLEAR ENERGY ACCOUNTABILITY PROJECT
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#191-11419 OLA-5, NUDOCS 9102200127
Download: ML20066G971 (6)

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3MEMI[]{@$[ u$HRC February 8, 1991 UNITED STATES OF-AMERICA 9 FEB 12 R2 C NUCLEAR REGULATORY COMMISSION nriU1 . 3FCE! i

- ATOMIC SAFETY AND LICENSING A! 'EAL BOARD 00CM ' I Administrative-Judges:

Thomas S. Moore, Chairman i Howard'A. Wilber G. Paul Bo11werk, III

)

In-the Matter of )

) Docket Nos. 50-250 OLA-5 i FLORIDA POWER &-LIGHT ) 50-251 OLA-5  ;

COMPANY _)  ;

) (Technical Specifications

(Turkey Point Nuclear Plant

) Replacement)

-Units 3 and 4) )  :

)- '

LICENSEE'S MOTION TO REJECT OR STRIKE PETITIONER'S REPLY T0' MOTION TO DISMISS l

3 On January 9, 1991, +.he Atomic. Safety and Licensing Appeal-Board' issued an order directing Appellant, the Nuclear

-Energy Accountabi'lity_ Project.(" NEAP"), to respond to Florida Power _& Light Company's:("Licensoe")_ motion of December 19,.1990, which the! Board: treated as a-motion to dismissLthe appeal'because NEAP had " indicated in other litigation before the Licensing

. Board that it. will, beidis' solved ef fective December 31, 1990."

Represented by Thomas J._ Saporito, Jr., its Executive Director,

-NEAP, responded with its " Reply," which was dated January 28,

-1991,.and was styled "In the Matter of FLORIDA POWER & LIGHT CO.

(The ' Big _ Turkey' Nuclear _ Plant-Units:3 and-4)." "Athout further explanation or reference to the basic corporate documents or 9102200127 910208 15 PDR ADOCK 05000250 0 0 PDR w$

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. 2-ections conferring authority upon,_or denying authority to, the Executive Director, the neply states:

Mr. Saporito, Executive Director of NEAP, acted outside his a the NRC that NEAP would be dissolved by December 31, 1990. Mr. Saporito failed to notify NEAP board members of his decision.

The Board of Directors of NEAP have not decided to dissolve NEAP and therefore NEAP remains intact as an environment organization. . . .

In light of the above, the ASLB's January 10, 1991 order is moot and requires no further justification by NEAP.

Due to the disecurteous, insulting and disrespectful tone and substance of NEAP's Reply, the Licensoe moves the Appeal Board to reject or strike the Reply. 1/

The rules of the Nuclear Regulatory Commission dictate i f that "[t]he signature of a person signing in a representat ve capacity is n' representation that the document har_been 10 subscribed in the capacity specifiec with full authority."

Moreover, in an earlier phase of this CFR S 2.708(c).

proceeding, it was made abundantly clear that the Commission was relying on the assumption that "[a)s the representative of NEAP, Mr. Saporito had the full authority and responsibility to in any event, simply 1/ We assume that the Board would not, accept and act upon the without a further showing of the exact scope of and limitations upon the authority of the Executive Director when he made his subsequently repudiated represent articles of incorporation and by-laws, and an inquiry into whether, in reality, NEAP is controlled by Mr. Saporito or is merely his alter egn.

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actions conferring authority upon, or denying authority to, the Executive Director, the Reply states:

Mr. Saporito,' Executive Directcr of NEAP,  ;

acted outside his authority when he notified l the NRC that NEAP would be dissolved by December 31, 1990. .)hr. Saporito failed to notify NEAP board members of his-decision.

The Board of-Directors of NEAP have.not decided to dissolve NEAP and therefore NEAP-remains intact.as an environment organization. . . .

In light _of-the above, the ASLB's January 10, i 1991 order is moot and requires no further "

justification by NEAP.

Due to the discourteous, insulting and disrespectful tone and substanceLof NEAP's Reply, the Licensee moves the Appeal Board to treject.or strike the Reply. 1/

The rules of'the Nuclear Regulatory Commission dictate ~

that'"[t]he. signature of a person signing in a representative j capacity is a representation that the-document has been subscribed incthe capacity specified with full authority." 10 l CFR S 2.708(c). Moreover, in an earlier phase of this proceeding,_it.was made abundantly clear that.the Commission was relying on the assumption that "[a)s the-representative of NEAP, Mr.:Saporito-had the full authority and responsibility to

, . i 1/ We assume-that'the Board would not,.in_any. event, simply

. accept and act upon the sketchy assertions made in the Reply.

without a-further showing of the exact scope of and-limitations upon;the authority of the Executive Director

-when he made his subsequently repudiated representation based upon the relevant corporate documents, including'its articles of incorporation and by-laws, and an inquiry into whether, in reality, NEAP is controlled by Mr. Saporito or is.merely his alter egn, s

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represent it, on both technical and procedural matters." LBP 24, 32 NRC 12, 15 (1990). For Mr. Saporito or Neap _to advise the Appeal Board and the parties at this late date, without explanation or excuse, that they could not rely on his authority or representations and therefore that the Appeal Board's order of January 9, 1991 is, by his ipse dixit, " moot and requires no further justification . . . " is clearly insulting and disrespectful to the Board and the parties.

In addition, the manner in which NEAP has styled the Reply is both in violation of the rules because it is improperly titled (see 10 CFR S 2.708(a)) and further evidences the flippant and discourteous attitude which NEAP and its representative bring to the NRC adjudicatory process. The Rc71y also fails to meet toe proof of service requirements of the rules. 10 CFR S 2.712(f). While that provision is not always strictly enforced, in this case, it is an additional manifestation of the lack of gravity with which NEAP regards its obligation to comply with the rules. In addition, a diligent search does not disclose receipt of the Reply by any of Licensee's counsel. A copy was supplied by NRC's Counsel.

Although licensing and appeal boards " extend special consideration to litigants appearing without benefit of counsel,"

such litigants are not " free of any obligation to familiarize themselves with [the NRC'A) rules." Pennsylvania Power and Light Co.. et al.

(Susquehunna Steam Electric Station, Units 1 and 2),

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p.7

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-ALAB-563,--10 NRC-449, 450 n.1-(1979). Saa also Philadelphia A'

Electric Co1 .(Limerick Generating Station, Units 1 and 2), ALAB-1778, 20 NRC 42,~46-47 n.4E(1984).- Under the NRC's-rules'of-

-procedure,- parties and- their - representatives- are- required to conduct themselves with honor, dignity, and decorum as they should:before a! court of law." -10 CFR S 2.713(a). Consequently, even-though NEAP.is not represented by-a lawyer,-it is 4 appropriate to' reject or strike its submission which is

" insulting and. disrespectful in tone." Metronolitan Edison Co.

in

'(Three=MileDIsland Nuclear Station, Unit No. 2), ALAB-474,-7 N'RC .

L746,2748-49-(1978)c(citing Louisiana Power & Light Co. (Waterford y Steam Electric l Station,-Unit:3), 6--AEC 319-(1973)). -

In,any1 event, NEAP should-be estopped from denying that. -j Mr..Saporitothad the. authority lthat.he has1previously and-4 consistentlyfrepresented: he -had -1 and apparently .continuesL to

~ represent he/ihas. Unless the1 Board andLthelparties canfrelyland '

act upon thelsubmissions made.to them-inLproceedings,-the adjudicatory process-will.be transformed;into:a" capricious game.

~ Respectfully' submitted,. l

/ '

Co-Counne'l- - Harold: F. : Reis -

Steven Carry Esq. Michael A'.'Bauseri n Florida Poweri.&-Light- Newman & Holtsinger, P.C.

~ Company- 1615 L St.,,N.W.,. Suite 1000

P.O.. Box;14000; -Washington,.;D.C. - 20036 Juno Beach,1 Florida 33408 Datedi. February-8, 1991 Attorneys for Florida Power & Light Company

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as :i:e i 3 UMC UNITED STATES OF AMERICA NUCLEAR nEGutAToRY CoxxrSsIoM

.g g g g .g ATOMIC SAFETY AND LICENSING APPEAL EDARD~

O! n c!: at M Ciu bu t

~A dministrative Judges: 00CM W A Si a E!

14RAHc4 Thomas 5 1Noore, Chairman Howard AJ Wilber G. Paul Bo11werk, III

)

In the Matter of )

) Docket Mos. 50-250 OLA-5 TLORIDA POWER 6 LIGHT ) 50-251 OLA-5 COMPANY' )

) (Technical Specifications

.(Turkey Point Plant ) Replacement)

Units 3 and 4) )

)

a

CERTIFICATE OF EERVICE I hereby certify that_ copies of the attached " Motion to

~

Rejectror Strike Petitioner's Reply to Motion to Dismiss" in the ,

above-captioned proceeding were served on the following by

deposittin the United States Mail, first class postage _ paid,. on the date~shown below: ' '

Administrative Judge

• Administrative Judge

Thomas,S.nMoore,. Chairman Peter B. Bloch,-Chairman AtomicLSafety and Licensing Atcmic Safety and cAppeal'Boardi Licensing Board UiS. Nuclear Regulatory U.S. Nuclear Regulatory fCommission Comminsion Washington,DD.C. 20555- Washington,'D.C. 20555

!AdministrativevJudge* Administrative Judge

-Howard.A.:Wilber: Dr. George C._ Anderson

Ato- 4 Safety; and

Licensing 7719. Ridge-Drive, N.E.

, ;eal Board Seattle, WA 98115 EU.S.: Nuclear: Regulatory Commission

< Washington, D.C. 20555 1 Administrative Judge

• Administrative Judge

- G '. Paul:Bollwerk, III. Elizabeth B. Johnson Atomic-Safety'and Licensing Oak Ridge National

. Appeal Board Laboratory U.S. Nuclear' Regulatory P.O. Box 2008 Commission-LWashington, D.C.

Bethel Valley Road, Bldg. 3500 20555 Mail Stop 6010 Oak Ridge, TN 37831

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Atomic Safety and Licensing Atomic Safety and Licensing Board Panel '

Appeal Board Panel

Adjudicatory File' Adjudicatory File #

U.S. Nuclear Regulatory- U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555' ,

(two copies)- (three copies)

Office of-the Secretary Billie Pirner Garde, Esq.

U.S.LNuclear Regulatory Hardy, Nilutin'& Jones Commission 500 Two Houston Center Washington, D.C. 20555 909 Fannin ATTN: Chief,-Docketing and ' Houston, TX 77010 Service Section (Original ~plus two copies)

Janice Moore, Esq.* Richard Goddard, Esq.

Patricia A.;Jehle, Esq. U.S. Nuclear Regulatory Office of General Counsel ' Commission-U.S. Nuclear Regulatory 101 Marietta St., N.W. #2900 Commission _ Atlanta, Georgia 30323.

Washington, D.C. 20555 John T. Butler,-Esq. . Thomas Saporito Steel Hector & Davis 6140 SW 62nd Place-4000. Southeast Financial S. Miami, Florida 33143 Center Miami, Florida 33113~

Harold F.--Reis Newman &.Holtzingerf P.C.

1615 L-St., N.W., Suite 1000 Washington, D.C. 20036 Dated: February 8, 1991 1

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