ML080320514
| ML080320514 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/01/2008 |
| From: | Lathrop H, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 07-858-03-LR-BD01, 50-247-LR, 50-286-LR, RAS 15019 | |
| Download: ML080320514 (7) | |
Text
1 Licensing Board Order (Barring Sherwood Martinelli From Further Participation in This Proceeding) (Dec. 13, 2008) (unpublished) [hereinafter "Martinelli Order"].
2 See Licensing Board Order (Striking FUSE's Multiple Requests For Hearing) (Nov. 28, 2007) (unpublished).
3 Martinelli Order at 5.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point Nuclear Generating Units 2 and 3)
Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01
February 1, 2008 ORDER (Granting the NRC Staff's Motion to Strike FUSE's Superceding Request for Hearing)
In an Order dated December 13, 2007, this Board struck a Petition to Intervene and Request for Hearing that had been filed on behalf of Friends United for Sustainable Energy (FUSE).1 In that Order the Board advised FUSE that it had not complied with an earlier Board Order dated November 28, 2007, 2 noted that any of its then current derelictions would constitute sufficient grounds to dismiss FUSE's petition, 3 but nevertheless allowed FUSE another opportunity to correct deficiencies in its petition and to file a Superceding Request for Hearing
and Petition to Intervene on or before December 24, 2007. 4 Superceding Request For Hearing and Petition to Intervene (Dec. 24, 2007)
[hereinafter "FUSE Superceding Petition"].
5 NRC Staff's Motion to Strike the "Superceding Request for Hearing and Petition to Intervene" Filed by Friends United for Sustainable Energy, USA (FUSE) (Jan. 4, 2008)
[hereinafter "NRC Staff Motion"].
6 NRC Staff's Supplement To Its Motion to Strike FUSE's Superceding Petition (Jan. 9, 2008) [hereinafter "NRC Staff Supplement"].
7 FUSE had the right to file a reply to the NRC Staff's Motion on or before January 22, 2008. 10 C.F.R. § 2.323(c).
8 NRC Staff Motion at 11-15.
9 FUSE Superceding Petition at 468-71.
10 NRC Staff Motion at 13.
Seeking to avail itself of the opportunity granted to it by this Board, FUSE timely filed its Superceding Petition on December 24, 2007.
4 That Petition consisted of 472 numbered pages and was supplemented by an electronic copy of exhibits consisting of thousands of pages.
Thereafter, on January 4, 2008, the NRC Staff filed a Motion to Strike FUSE's Petition to
Intervene 5 and followed up that filing with a Supplement to its Motion on January 9, 2008.
6 FUSE did not file a Response to the NRC Staff's Motion.
7 In its Motion, the NRC Staff demonstrated that FUSE had not served its Superceding Petition as required by NRC Regulations (10 C.F.R. § 2.305), and had filed an inaccurate
Certificate of Service which had not been corrected.
8 As explained by the NRC Staff, FUSE stated in its Certificate of Service that it had sent its Superceding Petition to various named
persons, at specified addresses, "by e-mail, with hard copies to follow via First Class U.S. mail
postage prepaid."
9 Had FUSE done what they certified they had done, they would have complied with 10 C.F.R. § 2.305. The NRC Staff, however, demonstrated that FUSE did not do
what they certified.
10 11 NRC Staff's Motion at 4; NRC Staff's Supplement at 2.
12 In the Licensing Board Order of December 13, the deadline set for FUSE to file and serve its Superceding Petition was Dec. 24, 2007.
13 NRC Staff Motion at 4.
Pursuant to NRC Regulations, a Petitioner is required to serve paper copies of its Petition and the Exhibits they rely upon in support of that Petition, unless granted a dispensation from that requirement by the Presiding Officer or the Commission. 10 C.F.R. § 2.305(c). To
date FUSE has neither requested dispensation from the rule nor served a paper copy of its
exhibits.11 FUSE's Certificate of Service states that they sent "hard copies" to the parties via first class mail on December 24, 2007, to addresses specified in the Certificate.
12 Instead, on January 4, 2008, FUSE sent several paper copies of its Petition via UPS, accompanied by CD-ROM discs which were represented as containing the exhibits, to the Commission Secretary
with an unsigned note asking the Secretary to effectuate service.
13 To date, FUSE has not corrected its Certificate of Service.
Over the past three months we have repeatedly told FUSE what the NRC Rules of Practice require (10 C.F.R. Part 2), repeatedly explained the rationale underlying specific rules, and explained why failure to comply with the rules was unfair to the other participants in the
litigation, and why it could not be allowed by the Board. As early as October 29, 2007, in 14 Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) at 2 (Oct. 29, 2007) (unpublished).
15 See NRC Staff Motion at3-6, NRC Staff Supplement at 1-3.
16 See McNeil v. U.S.
58 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); See also Iwachiw v. New York State Dept. of Motor Vehicles , 396 F.3d 525, 529 n.1 (2nd Cir. 2005) (citation omitted), Edwards v. I.N.S., 59 F.3d 5, 8 (2nd Cir. 1995) ("[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.") (citation omitted), American Ass'n of Naturopathic Physicians v. Hayhurst , 277 F.3d 1104, 1107-08 (9th Cir. 2000) (citation omitted).
commenting on a failure by FUSE to properly make and certify service, the Board expressly told FUSE that:
[T]he Board and the parties must not be left uncertain as to whom, and when, pleadings have been provided. Accordingly, service
must be properly made and Certificates of Service must be
accurate and complete, including the identity of the person served, the address to which it was sent, the method of service, and the
signature (in writing or electronic) of the person who has certified
that service has been made exactly as specified on the
Certificate.
14 Now, despite repeated warnings from this Board and the Commission, FUSE has once again, by ignoring the Commission's Rules and the Board's Orders, improperly diverted time and attention from the NRC Staff, which had to track down FUSE's Superceding Petition and
the related Exhibits. The laborious steps taken by the NRC Staff to locate FUSE's filings, and
the apparent indifference to the Staff's predicament demonstrated by FUSE, are clearly
articulated in the Staff's Motion and Supplement and need not be repeated here.
15 We cannot allow this wasteful practice to continue. Even a pro se litigant such as FUSE cannot be excused from knowing, and adhering to the most basic pleading requirements.
16 In allowing FUSE yet another opportunity to participate in this litigation, the Board, in our Order of December 13, 2007, expressly advised Petitioners that any failure by FUSE to meet all of the specific requirements articulated by the Board would result in the rejection of the 17 Martinelli Order at 5.
18 See Licensing Board Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) at 2 (Oct. 29, 2007) (unpublished); Licensing Board Order (Authorizing FUSE to Submit a Section 2.335 Petition) at 3 (Nov. 21, 2007) (unpublished);
Licensing Board Order (Denying an Extension of Time Within Which To File Requests For
Hearing) at 3 (Nov. 27, 2007) (unpublished); Lic ensing Board Order (Granting an Extension of Time To Clearwater Within Which To File Requests For Hearing) at 3 (Nov. 27, 2007)
(unpublished); Licensing Board Order (Denying Entergy's Motion to Strike But Sua Sponte Striking FUSE's Multiple Requests For Hearing) at 3 (Nov. 28, 2007) (unpublished); Licensing
Board Order (Denying an Extension of Time Within Which To File Requests For Hearing) at 2 (Nov. 28, 2007) (unpublished); Licensing Board Order (Granting An Extension Of Time Within
Which To File Requests For Hearing) at 4 (Nov. 29, 2007) (unpublished); Licensing Board Order (Censure of Sherwood Martinelli) at 3 (Dec. 3, 2007) (unpublished).
Superceding Request for Hearing and Petition to Intervene.
17 We included that unequivocal language in our Order of December 13, 2007, because we were not addressing the first instance in which FUSE had failed to comply with the Rules of Practice and Board Orders.
More specifically, in granting FUSE yet another opportunity to file an acceptable Petition to
Intervene, the Board expressly referenced eight separate Orders in which we had articulated in
great detail what FUSE, and other putative intervenors, need to do in order to become
participants in this litigation. These Orders, inter alia , included detailed instruction regarding the preparation of a proper Certificate of Service and detailed explanations of why accurate proof of
service is necessary to the orderly progress of this proceeding.
18 Having raised these issues nine times without bringing FUSE into compliance, it is the considered opinion of this Board that FUSE has demonstrated to an absolute certainty that it is
either incapable or unwilling to follow directions. Accordingly, to allow any further participation
in this proceeding by FUSE would serve to work manifest injustice on the other participants in 19 We note with dismay that after being directed in our Order of December 13, 2007, "to delete or correct language [from their Petition to Intervene] not meeting common standard of practice and decorum," Martinelli Order at 5, FUSE failed to do so. For example they refer to
Entergy as "low life, filthy dirty lying scum," and "scoundrels of the wors[t] [kind] lower than OJ
Simpson and Adolf Hitler." FUSE Superceding Petition at 276-77. FUSE is no more polite to the
NRC Staff: "NRC stands for no regulatory control. Maybe if the NRC took their heads out of
NEI's ass long enough to look at these serious issues . . . ." Id.
at 256. FUSE also repeatedly makes false, unsupported allegations regarding the Board, and uses disrespectful language
regarding the Board. For example, "members of this [B]oard played some part in the creation and acceptance of some of the criteria found in those documents [supporting Entergy's aging
management plans]," and "[h]ells bells, the [B]oard dismissed all of FUSE USA's contentions
because Entergy whined." Id.
at 95, 288. Such language and unsupported allegations have no legitimate role in a serious adjudicative proceeding.
20 FUSE Superceding Petition at 87.
21 See New York State Notice of Intention to Participate and Petition To Intervene (Nov. 30, 2007).
this litigation who, unlike FUSE, have demonstrated that they take their responsibilities seriously, and have the capacity to participate in this serious and complicated matter.
19 As pointed out in its Petition, 20 and as is evident from the documents presented, FUSE has spent a great deal of time studying this matter and preparing its Petition. Likewise it is clear
that the members of FUSE have a real and legitimate interest in the safe operation of the Indian
Point facility and a need to know that, if it will continue to operate, it will operate safely. Nothing
less than the lives and health of FUSE's members and the lives and health of their families are
the issue. Accordingly, the Board has extended chance after chance to the Petitioner in the
forlorn hope that FUSE would read and heed the Board's Orders, use the highly professional
submissions of other Petitioners 21 as models to go by, learn from its mistakes, control its passion, and participate in this proceeding in a responsible manner. Our efforts have proved
unsuccessful. In fairness to all of the participants in this litigation, we must move on. 22 On January 10, 2008, the Applicant, Entergy Nuclear Operations, Inc. (Entergy), also filed a Motion to Strike FUSE's Superceding Request for Hearing and Petition to Intervene. By granting the earlier Motion to Strike that was filed by the NRC Staff, we render Entergy's Motion
moot. We noted above that FUSE did not respond to the NRC Staff's Motion to Strike. We note
here that FUSE likewise did not reply to Entergy's Motion to Strike.
23 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for the State
of Connecticut; (5) Counsel for Riverkeeper, Inc.; (6) Counsel for WestCan, RCCA, PHASE, the
Sierra Club - Atlantic Chapter, and Richard Brodsky; (7) Nancy Burton, the Representative of
CRORIP; (8) Manna Jo Green, the Representative for Clearwater; (9)
John LeKay, the Representative for FUSE; (10) Counsel for Westchester County; and (11) Counsel for the Town of Cortlandt.
Accordingly, after consideration of the NRC Staff Motion, and the entire history of this proceeding, the Board grants the Staff's Motion and strikes FUSE's Superceding Request for Hearing and Petition to Intervene with prejudice.
22 Pursuant to 10 C.F.R. § 2.314(c)(3) an appeal of this Order may be filed with the Commission within ten (10) days after issuance, that is on or before February 11, 2007.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 23 Lawrence G. McDade, Chairman
ADMINISTRATIVE JUDGE Rockville, MD
February 1, 2008
/RA/
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONIn the Matter of )
)ENTERGY NUCLEAR OPERATIONS, INC. )Docket Nos. 50-247/286-LR
)
)(Indian Point Nuclear Generating, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (GRANTING THE NRC STAFF'S MOTION TO STRIKE FUSE'S SUPERCEDING REQUEST FOR HEARING) 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 Administrative Judge Lawrence G. McDade, Chair
Atomic Safety and Licensing Board Panel
Mail Stop - T-3 F23
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Administrative Judge Richard E. Wardwell
Atomic Safety and Licensing Board Panel
Mail Stop - T-3 F23
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Administrative Judge Kaye D. Lathrop
190 Cedar Lane E.
Ridgway, CO 81432 Sherwin E. Turk, Esq.
Lloyd B. Subin, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq.
Kimberly A. Sexton, Esq.
Christopher C. Chandler, Esq.
Karl Farrar, Esq.
Catherine Marco, Esq.
Office of the General Counsel
Mail Stop - O-15 D21
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
303 South Broadway, Suite 222
Tarrytown, NY 10591 2 Docket Nos. 50-247/286-LR LB ORDER (GRANTING THE NRC STAFF'S MOTION
TO STRIKE FUSE'S SUPERCEDING REQUEST FOR HEARING)
Michael J. Delaney, Vice President - Energy New York City
Economic Development Corporation
110 William Street
New York, NY 10038 Arthur J. Kremer, Chairman New York AREA
347 Fifth Avenue, Suite 508
New York, NY 10016 Martin J. O'Neill, Esq.
Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Mauri T. Lemoncelli, Esq.
1111 Pennsylvania Avenue, NW
Washington, DC 20004 Manna Jo Greene, Director Hudson River Sloop Clearwater, Inc.
112 Little Market St.
Poughkeepsie, NY 12601 Daniel E. O'Neill, Mayor Village of Buchanan
James Seirmarc, M.S., Liaison to Indian Point
236 Tate Avenue
Buchanan, NY 10511 Robert D. Snook, Esq.
Assistant Attorney General
of the State of Connecticut
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120 Charlene M. Indelicato, Esq.
Westchester County Attorney
Justin D. Pruyne, Esq.
Assistant County Attorney
148 Martine Avenue, 6 th Floor White Plains, NY 10601 Thomas F. Wood, Esq.
Daniel Riesel, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022 Andrew M. Cuomo, Esq.
Attorney General of the State of New York
John J. Sipos, Esq.
Assistant Attorney General
The Capitol
Albany, NY 12224-0341 Nancy Burton 147 Cross Highway
Redding Ridge, CT 06876 Riverkeeper, Inc.
Phillip Musegaas, Esq.
Victor Tafur, Esq.
828 South Broadway
Tarrytown, NY 10591 Diane Curran, Esq.
Counsel for Riverkeeper, Inc.
Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1726 M. Street N.W., Suite 600
Washington, DC 20036 Docket Nos. 50-247/286-LR LB ORDER (GRANTING THE NRC STAFF'S MOTION
TO STRIKE FUSE'S SUPERCEDING REQUEST FOR HEARING) 3 Joan Leary Matthews, Esq.
Senior Counsel for Special Projects
Office of General Counsel
New York State Department of
Environmental Conservation
625 Boadway
Albany, NY 12224 Weschester Citizen's Awareness Network (WestCan), Citizens Awareness Network (CAN),
etc.Susan H. Shapiro, Esq.
21 Perlman Drive
Spring Valley, NY 10977 Richard L. BrodskyAssemblyman
5 West Main Street
Suite 205 Elmsford, NY 10523 FUSE USA Heather Ellsworth Burns-DeMelo
John LeKay
Remy Chevalier
Belinda J. Jaques
Bill Thomas
351 Dyckman Street
Peekskill, New York 10566 Elise N. Zoli, Esq.
Goodwin Procter, LLP
Exchange Place
53 State Street
Boston, MA 02109
[Original signed by R. L. Giitter] Office of the Secretary of the Commission Dated at Rockville, Maryland this 1 st day of February 2008