ML082800056

Petitioners' Opposition to FPL Energy Seabrook, Llc'S Motion to Strike Saporito'S Reply and for Sanctions

ML082800056
Person / Time
Site:	Seabrook
Issue date:	10/04/2008
From:	Saporito T Saporito Energy Consultants
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-443-LA, ASLBP 08-872-02-LA-BD01, RAS 1287, Seabrook Station 50-443-LA
Download: ML082800056 (8)

Text

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 1 of 8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: Date: 04-OCT-2008 FPL Energy Seabrook, LLC Docket Nos. 50-443-LA (Seabrook Station, Unit 1) ALSBP No. 08-872-02-LA-BD01 PETITIONERS OPPOSITION TO FPL ENERGY SEABROOK, LLCS MOTION TO STRIKE SAPORITOS REPLY AND FOR SANCTIONS INTRODUCTION On October 3, 2008, the licensee, FPL Seabrook, LLC (FPL) filed FPL Seabrook, LLCs Motion to Strike Saporitos Reply and for Sanctions (FPL Motion). In its motion, FPL requests that the presiding Atomic Safety and Licensing Board (ASLB) strike the amended contentions in Saporitos Reply and the new arguments and affidavit in support thereof. . .and that the ASLB certify to the Commission the question whether to impose sanctions against Saporito and SEC. . . Id. FPL Motion at 1-2.

For the reasons set-out below, the ASLB should deny FPLs motion in its entirety.

DISCUSSION FPL first argues that Petitioner Saporitos . . . 20 years of abusive, vexatious, and meritless litigation against FPL Groups subsidiaries. . . is somehow relevant to the instant

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 2 of 8 proceeding before the ASLB.1 Id. at 4. It is not relevant and should not be considered by the presiding ASLB. The ASLB in the instant action has authority only to pass upon the intervention petition. See, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 & 2), LBP-78-23, 8 NRC 71, 73 (1978). See also, Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP 30-A, 14 NRC 364, 366 (1981), citing Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175 (1977).

FPL continues in their motion that,

. . . Saporito filed amended contentions in an impermissible attempt to cure his clearly inadmissible initial contentions. . . Requesting leave of the Board is a requirement for filing new or amended contentions after a petitioners initial filing. . .

Id. at 4. FPL then provides a lengthy discussion related to issues which are more properly brought before the ASLB at a hearing. FPL Motion at 5-12. Finally, FPL argues that . . .

Even though the time for requesting a hearing had yet to pass, 1

Petitioners object to FPLs assertion that Petitioners have engaged in abusive, vexatious, and meritless litigation against FPL Groups subsidiaries over the last 20-years. Instead, Petitioners draw the ASLBs attention to the fact that Petitioner Saporito has engaged in protected activity in bringing nuclear safety concerns regarding FPLs nuclear operations to the attention of the U.S. Nuclear Regulatory Commission (NRC) over the last 20-years. In addition, Petitioner Saporito has engaged FPL before the U.S. Department of Labor (DOL) in bringing retaliation complaints against FPL under the Energy Reorganization Act (ERA) over the last 20-years as a direct result of FPLs continuing violation of the ERA in retaliating against [h]im for engaging in protected activities as defined under 10 C.F.R. 50.7 and as defined under 42 U.S.C.A. §5851 accordingly.

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 3 of 8 Saporitos September 20 contention amendment was procedurally defective because he failed to seek leave of the Board to file a new or amended contention. . . FPL Motion at 14. According to FPL, the ASLB should certify to the Commission the question whether the Commission should direct the Office of the Secretary to summarily reject any non-conforming pleadings. Id. at 16-17.

Petitioners aver here that as a rule, pro se petitioners will be held to less rigid standards for pleading. See, Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Units 1 & 2), ALAB-136, 6 AEC 487 (1973); Shieldalloy Metallurgical Corp., CLI-99-12, 49 NRC 347, 354 (1999). 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); 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

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 4 of 8 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). 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 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).

To the extent that Petitioners appear pro se before the ASLB and do not possess the polished skills of FPLs attorneys at law, Petitioners respectfully request that the ASLB provide Petitioners a wide-latitude in the instant proceeding and accept their amended petition accordingly.2 CONCLUSION For all the foregoing reasons and because public participation through intervention is a positive factor in the licensing process and that intervenors perform a valuable function and are to be complimented and encouraged,3 the 2

See, Houston Lighting and Power Co., (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 546 (1980); Consumers Power Co.,

(Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 578 (1982).

3 See, Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2),

ALAB-256, 1 NRC 10, 18 n.9 (1975); Consolidated Edison Co. of N.Y., Inc.

(Indian Point Nuclear Generating Station, Unit 2), ALAB-243, 8 AEC 850, 853 (1974); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 5 of 8 presiding ASLB should deny FPLs motion in its entirety including FPLs request for sanctions against Petitioners in certification of a question to the Commission as a direct result of Petitioners brining the instant action.

Respectfully submitted,

/Thomas Saporito/

Electronically Signed 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 Station Units 1 & 2), ALAB-229, 8 AEC 425 (1974); Gulf States Utilities Co.

(River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222 (1974).

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 6 of 8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: Date: 04-OCT-2008 FPL Energy Seabrook, LLC Docket Nos. 50-443-LA (Seabrook Station, Unit 1) ALSBP No. 08-872-02-LA-BD01 CERTIFICATE OF SERVICE I hereby certify that a copy of PETITIONERS OPPOSITION TO FPL ENERGY SEABROOK, LLCS 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 4th day of October, 2008:

/Thomas Saporito/

By: _______________________

Electronically Signed 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. E. Roy Hawkins Administrative Law Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: erh@nrc.gov

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 7 of 8 Hon. Thomas S. Elleman Administrative Law Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: tse@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 Marcia Simon, Esq.

Email: marcia.simon@nrc.gov Lloyd Subin, Esq.

Email: Lloyd.subin@nrc.gov Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, D.C. 20555-0001 Steven Hamrick FPL Energy Seabrook, LLC 801 Pennsylvania Avenue, N.W.

Suite 220 Washington, D.C. 20004 steven.hamrick@flp.com

ALSBP No. 08-872-02-LA-BD01 FPL Energy Seabrook, LLC Seabrook Station, Unit 1 Docket No. 50-443-LA Page 8 of 8 Mitchell S. Ross Email: mitch.ross@fpl.com Antonio Fernandez Email: antonio.fernandez@fpl.com Florida Power and Light Company 700 Universe Boulevard P.O. Box 14000 Juno Beach, Florida 33408-0420