ML20070E772
| ML20070E772 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 02/25/1991 |
| From: | Patricia Jehle FLORIDA POWER & LIGHT CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#191-11466 OLA, NUDOCS 9103060202 | |
| Download: ML20070E772 (12) | |
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nt : i UNITED STATES OF AhiERICA FG ' 6 P 3 :%
2 91 NUCLEAR REGULATORY COhihilSSION IlEFORE T11E ATOhilC SAFETY AND LICENSING APPEAL BOARQ s
In the hiatter oi
)
Docket Nos 50 250 OLA 5
)
50-251 OIA 5 FLORIDA POWER AND LIGIIT
)
COhiPANY
)
(Technical Specifications
)-
Replacement)
(Turkey Point Plant, Units 3 and 4
)
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NRC STAFF RESPONSE TO LICENSEE'S hiOTION TO REJECT OR STRIKE APPELLANTS REPLY 9
Patricia Jehle Counsel for NRC Staff February 25, 1991
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l UNITED STATES OF AhiERICA NUCLEAR REGULATORY COhihilSSION
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BEFOIUl_IljE ATOh1lC SAFliTY ANQLICENSING_Al' PEAL HOARD In the hiatter of
)
Docket Nos. 50 250 OIA 5
)
50 251 OIA 5 FLORIDA l'OWER AND LIGIIT
)
COhiPANY
)
(Technical Specifications
)
Replacement)
(Turkey Point Plant, Units 3 and 4
)
4 NRC STAFF RESPONSE TO LICENSEE'S hiOTION TO REJECT OR STRIKE APPELIANTS REPLY 9
l' Patricia Jehle Counsel for NRC Staff February 25, 1991
February 25,1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1)EFORE Tile ATOMIC _ SAFETY ANH_ LICENSING APPEAkilOARD in the Matter of
)
Docket Nos. 50 250 01A 5
)
50 251 OIA 5 FLORIDA POWER AND LIGliT
)
COMPANY
)
(Technical Specifications
)
Replacement)
(Turkey Point Plant, Units 3 and 4) )
NRC STAFF RESPONSE TO LICENSEE'S MOTION TO REJECT OR STillKILAPl*llLANTSJEPLY
- 1. INTRol1UCTION On February 8,1991, Florida Power and IJght Company (Licensee) moved to reject or strike Appellant's
- Reply"(January 28,1991).
- Licensee's Motion to Reject or Strike Petitioner's Reply to Motion to Dismiss" (February 8,1991) (hereinafter Motion). The Licensee moved the Appeal Board to reject or strike the Reply because 1) its tone and substance are " discourteous, insulting and disrespectful", and
- 2) because NEAP should be estopped from denying that Mr. Saporito had full authority and responsibility to represent NEAP in this proceeding.
- Motion for Order to Show Why Proceeding Should Not He Terminated"(December 19, 1990) at 2 3. For the reasons set out below, the NRC Staff supports striking that portion of the Reply which contains sarcastic language.
As to NEAPS status in this proceeding, the Appellant should be required to provide supplementary information.
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- 11. McKGROUND De Atomic Safety and IJeensing 11oard issued its hiemorandum and Order (Prehearing Conference Order: Motion to Dismiss) on July 17, 1990, finding that a
insufficient information was set forth in
- Response of Nuclear Energy Accountability Project" (July 11, 1990) to support NEAP's claim of standing.U Florida Power and Light Company (Turkey Point Plant, Units 3 and 4), IJIP.90-24,32 NRC 12,1415 (1990). NEAP and hir. Saporito filed a " Notice of Appeal" (July 25,1990) and a i
Trie For Appellants on Dismissal of Petition to Intervene" (September 5,1990).
The pplicant filed its responsive brief on October 11, 1990. "lJcensee's Ilrief in Response to the NEAP Appeal of the IJeensing Iloard's July 17, 1990 hiemorandum and Orc:cr (Motion to Dismiss)." The NRC Staff also filed a brief opposing Appellant's appeal. *NRC Staff firief Opposing Appellant's Appeal from the ljeensing Board's hiemorandum and Order of July 17,1990"(October 22,1990).
On December 8,1990, the Nuclear Energy Accountability Project (NEAP) moved to withdraw from another proceeding that is rm appeal before the 1
Commission and to which this IJtensee is also a party,L " Motion to Withdraw" (December 8,1990),
The motion stated that NEAP would be dissolved on i-I December 31, 1990. The Atomic Safety and licensing Board granted NEAP's y
See aho " Request for llearing and Petition for I. eave to intervene" (December 27,1989);" Petitioners (sic) Amended Petition for intenention and Brief
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in Support Thereof" (March 5,1990).
U In the Afatter of Florida Power and Light Company (Turkey Point Plant, i
Units 3 and 4) Docket Nos. 50 250-OIA-6 and 50-251 OIA 6 (Emergency Power System Enhancement).
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3-motion to withdraw on December 12,1990. Copies of the motion to withdraw were transmitted to the Appeal Board and the NRC Staff in the instant proceeding.
I.etter of hi. Bauser to Administrative Judges, dated December 13, 1990.
i Licensee moved that the Appeal Board order NEAP to show cause why this proceeding should not be terminated. hiotion for Order to Show Cause Why Proceeding Should Not Be Terminated"(December 19,1990). ' Die Licensee argued that NEAP would no longer he in a position to conduct litigation in a representational capacity in this proceeding, after NEAP's dissolution on i
December 31, 1990. Id. at 2.
The NRC Staff supported Licensee's show cause motion. *NRC Staff Response to IJeensee's 'hfotion for Order to Show Cause Why Proceeding Should Not Be Terminated'" (December 31,1990). The Appeal Board characterized Licensee's show cause motion as a motion to dismiss the appeal, and ordered Appellant NEAP to explain why the appeal should not be dismissed.
Order, January 9,1991, hir. Saporito, Executive Director of NEAP,F responded to the Appeal Board's Order and stated that he had acted outside his authority in asserting that NEAP would be dissolved on December 31,1990. Reply at 1. hir, Saporito alleged that NEAP's Board of Directors was not notified of his decision to dissolve the organization and that the Board subsequently decided that NEAP would not be F in addition to serving as Executive Director of NEAP, Mr. Saporito is also President and Treasurer of the organization. " Petitioners' Amended Petition for Intervention and Drief in Support Thereof' (hiarch 5,1990) at 11.
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4 dissolved. Id. In addition, the Reply was captioned incorrectly as 'The ' Big Turkey' Nuclear Plant Units 3 and 4."
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111. DJECMSSIDE Licensee first requests that the Reply be rejected due to its use of discourteous language. The Commission's regt'at.ons indicate that rude, sarcastic and derogatory language is not acceptable in Commission proceedings.10 C.F.R. 6 2.713(a). The Commission, Appeal lloards, and Licensing Boards serve a quasi judicial function and
- parties and their representatives in proceedings subject to this subpart are expected to conduct themselves as they should before a court of law."
Id.
" Reprimand, censure or susperision F.,m the proceedings" are sanctions contemplated by the Commission's regulations for breaches of Section 2.713(a).
10 C.F.R. A 2.713(c). There is precedent for striking a rude and insulting pleading submitted by a party in a proceeding before a Commission tribunal. Louisiana 1
Power & Light Company (Waterford Steam Electric Station. ' Unit 3), ALAB 121, 6 AEC 319,321 (1973); see also Aferropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB 474,7 NRC 746,748-49 (1978).
The Reply filed by Mr. Saporito, NEAP's Executive Director, contains sarcastic language which is inappropriate in a pleading filed before the Appeal Board 'ihe Staff, however, does not agree with the Licensee's conclusion that Mr. Saporito's pleading ri.,es to the level of the contentious conduct, which led the Appeal Board to strike an extremely derogatcry appeal brief in li'aterford.
The NRC Staff, g
however, believes that the offending language should be stricken from the Reply.
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4 dissolved. Id. In addition, the Reply was captioned incorrectly as "The ' Big Turkey' Nuclear Plant Units 3 and 4."
Id.
Ill. DISCU" LOR Ucensee first requests that the Reply be rejected due to its use of discourteous language. The Commission's regulations indicate that rude, sarcastic and derogatory language is not acceptable in Commission proceedings.10 C.F.R. I 2.713(a). The Commission, Appeal Boards, and Licensing Boards serve a quasijudicial function and " parties and their representatives in proceedings subject to this subpart are expected to conduct themselves as they should before a court of law."
Id.
" Reprimand, censure or suspension from the proceedings" are sanctions contemplated by the Commission's regulations for breaches of Section 2.713(a).
10 C.F.R. 6 2.713(c). There is precedent for striking a rude and insulting pleading submitted by a party in a proceeding before a Commission tribunal. Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), AIAB 121, 6 AEC 319,321 (1973); see also Metropolitan Edhon Company (Three Mile Island Nuclear Station, Unit No. 2), A1AB-474,7 NRC 746, 748-49 (1978).
The Reply filed by Mr. Saporito, NEAP's Executive Director, contains sarcastic language which is inappropriate in a pleading filed before the Appeal Board. The Staff, however, does not agree with the Licensee's conclusion that Mr. Saporito's pleading rises to the level of the contentious conduct, which led the Appeal Board to strike an extremely derogatory appeal brief in Waterford.
The NRC Staff, however, believes that the offending language should be stricken from the Reply.
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Licensee next argues that the Appeal Board should require Mr. Saporito to present additional information to support his claim that he acted outside his authority in stating that NEAP was to be dissolved.
Motion at 2 n.L The Commission's regulations require that each document filed in a proceeding be signed by a party or hi<. authorized representative.10 C.F.R. i 2.708(c). An officer or representative of an intervenor organization with the requisite personal standing may provide the basis for an organization's standing in Commission proceedings, and, it is presumed, has the authority to act for the organization. See Dul;e Power Company (Amendment to Materials iicense SMN 1773-Transportation of Spent Fuel from Occonee Nuclear Station for Storage at McGuire Nuclear Station),
ALAB 528, 9 NRC 146,151 (1979).
In addition, Mr. Saporito submitted a document in this proceeding which states he is authorized to act for NEAP in his capacity as Executive Director and officer.
Mr. Saporito stated:
I am the Executive Director of the Nuclear Energy Accountability Project located in Jupiter, Florida.
I also hold the positions of President and Treasurer in the organization.... As the Executive Director of the Nuclear Energy Accountability Project, I am authorized to represent the interests of the organization and the interests of the organization's members.
" Affidavit of Thomas J. Saporito, Jr." (February 28,1990) at 2 F in a Memorandum and Order the Licensing Board indicated its reliance upon the Appellant's authority to represent NEAP:
U De " Affidavit" was filed in support of " Petitioners' Amended Petition for Intervention and Brief in Support Thereci" (March 5,1990).
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6-We note that until this time hir. Thomas J. Saporito, who is not a lawyer, has appeared on behalf of NEAP, as is his right under the procedural regulations.
10 C.F.R. } 2.1215(a).
As the representative of NEAP, Mr. Saporito had the full authority and responsibility to represent it, on both technical and procedural matters.
Th>tida Power and Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP 90-24, 32 NitC 12,15 (1990).
Thus, the facts in this proceeding created the presumption that Mr. Saporito had full authority to represent NEAP and to make litigation decisions which affect the organization.
Mr. Saporito recently asserted that he " acted outside his authority when he notified the NRC that NEAP would be dissolved by December 31, 1990." Reply at 1. While this may be the case, Appellant has not provided any support for this belated assertion, which contradicts a fundamental premise of NEAP's participation in this proceeding since December 1989.
Because Appellant's earlier representations created the presumption that Mr. Saporito has the authority to act for NEAP, the 1.icensee, Staff, Licensing Board, and the Appeal Board have relied on that presumption throughout the proceeding. Mr. Saporito's assertions that his recent actim to dissolve NEAP are outside his authority as Executive Director of the organization, should be supported, at a minimum, by (1) documents which set forth the authority of NEAP's Executive Director and officers, (2) an affidavit explaining the NEAP Board of Directors' decision not to dissolve NEAP, (3) an affidavit indicating the NEAP Board's willingness to continue NEAP's involvement in this litigation, and (4) an explanation for the recent change in Mr. Saporito's authority to speak on behalf of NEAP.
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Appellant should be provided a short period of time within which to provide these documents and affidavits. If Appellant fails to respond, the proceeding should be dismissed.
IV. CONCLUSION For the reasons set forth above, the sarcastic language in the Reply should be stricken.
In addition, Appellant should be required to provide supplementary information to enable the Appeal lloard to determine the status of NEAP in this proceeding. In the absence of such supplementary information, the proceeding should be dismissed.
Respectfully submitted, (ht s k%
Patricia Jehle Counsel for NRC Staff Dated at Rockville, Maryland this 25th day of February,1991.
iMU UNITED tiTATES OF AMERICA
'9I UEU NUCLEAR REGULATORY COhihilSSION DEFORE TillLAIDMLC_SALHIY AND LICENSING APPEAL ll}DAllQ In the statter of
)
Docket Nos. 50 250 OIA-5
)
50-251 OIA 5 i
FLORIDA POWER AND LIGilT
)
(Technical Specifications)
COhiPANY
)
)
(Turkey Point I'lant, Units 3 ana 4)
)
CERTIEICAIJLDE_SElB' ICE I hereby certify that copies of "NRC STAFF RESPONSE TO LICENSEli'S h10 TION TO REJECT OR STRIKE APPEl) ANTS REPLY" in the above-captioned proceeding have been se ved on the fo" awing by deposh in the United States mail, first class, or as indicated by an asterisk through depo.,it in the Nuclear Regulatory Commission's internal mail system, this 25th, day of February,1991:
Thomas S. hioore, Chairman' Iloward A. Wilber*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commissica U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D C. 20555 G. Paul Hollwerk, lil' Elizabeth B. Johnson Atomic Safety and Licensing Appeal Administrative Judge Board Oak Ridge Natior.al l_aboratory U.S. Nuclear Regulatory Commission P.O. Box 2008, Bethel Valley Road Washington, D.C. 20555 Building 3500, hiail Stop 6010 Oak Ridge, TN 37831 Peter B. Bloch, Chairman' Administrative Judge Steven P. Frantz, Esq. (2)
Atomic Safety and Licensing liarold F. Reis, Esq.
Board Panel Newman & lioltzinger U.S. Nuclear Regulatory Commission 1615 L St., N,W., Suite 1000 Washington, D.C. 20555 Washington, D.C. 20036 l
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2-Dr. George C. Anderson Atomic Safety and IJeensing Administrative Judge Board Panel (1)'
7719 Ridge Drive, N.E.
U.S. Nuclear Regulatory Commission Seattle, WA 98115 Washington, D.C. 20555 John T. Butler, Esq.
Adjudicatoiy File (2)
Steel,11ector & Davis Atomic Safety and Licensing 4000 Southeast Financial Center Board Miami, FL 331312398 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Executive Director Atomic Safety and Licensing Nuclear Energy Accountability Board Panel (5)'
Project U.S. Nuclear Regulatory Commission 6140 S.W. 62nd Place Washington, D.C. 20555 South Miami, FL 33143 Office of the Secretary (2)*
Billie Pirner Garde, Esq.
U.S. Nuclear Regulatory Commission 500 Two Houston Center Washington, D.C. 20555 909 Fannin, Suite 500 Attn: Docketing & Strvice Section llouston, TX 77010 Stewart Ebneter' Billie Pirner Garde, Esq.
RegiomI Administrator 103 East College Avenue USNRC, Region 11 Appleton, WI 54911 101 Marietta St., N.W.
Suite. 2900 Atlanta, GA 30303
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k Patricia Jehle Counsel for NRC Staf.f 9
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