ML19327B683

Memorandum.* Advises That Board 890928 Initial Decision ALAB-923 Re NRC Suspension of & Refusal to Renew Operator License Held by MP Acosta,Will Become Final Decision on 891030.W/Certificate of Svc.Served on 891025

ML19327B683
Person / Time
Site:	05508347
Issue date:	10/25/1989
From:	Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#489-9356 ALAB-923, EA-88-164, LBP-89-26, NUDOCS 8911060263
Download: ML19327B683 (6)

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UNITED STATES OF AMERICA 89 OCT 25 P1 :54 NUCLEAR REGULATORY CONMISSION i

i ATOMIC SAFETY 1.ND LICENSING APPEAL PANELr8..

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l Christine N. Kohl, Chairman October 25, 1989 (ALAB-923) i SERVED OCT 2 5 1989

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In the Matter of

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i MAURICE P. ACOSTA, JR.

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Docket No. 55-08347

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Operator Licenso No. 6010-2

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(EA 88-164)

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MEMORANDUM On September 28, 1989, the Licensing Board issued its j

initial decision in this proceeding involving the NRC l

staff's suspension of and refusal to renew the reactor t

operator's license held by Maurice P. Acosta, Jr., an employee of Southern California Edison Company (SCE) who was

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authorized to operate the controls of the reactors at the i

San Onofre Nuclear Generating Station (SONGS), Units 2 and 3.

See LBP-89-26, 30 NRC,_,_.

The basis for the staff's l

order was that Mr. Acosta's documented history of using l

l illegal drugs " suggests a pattern of behavior and lack of sound judgment that may be inimical to the public health and l

safety."

53 Fed. Reg. 24,383, 24,384 (1988).

Conscquently, l

the staff stated that it does not have the necessary reasonable assurance that [Mr. Acosta) will carry out his duties in the future with sufficient alertness and ability to safely operate SONGS and observe all applicable t

8911060263 891025 0'V i

SECY LIC55 05508347 i

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requirements including obligations imposed by SCE's policies and procedures, as well as the NRC's requirements.

i Ibid.

After a formal hearing, the Licensing Board upheld I

the staff's action.

No one has appealed the Licensing Board's decision.1

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In the absence of an appeal, it has long been our customary practice in cases involving the licensing of nuclear j

facilities to review on our own "any final disposition.

i that either was or had to be founded upon substantive 1

determinations of significant safety or environmental

'i issues."

Washington Public Power Supply System (WPPSS l

l Nuclear Project No. 2), ALAB-571, 10 NRC 687, 692 (1979) j l

(emphasis in original).

Economic issues, intervention j

requests, and procedural matters, however, ordinarily are i

excluded from such sua sponte review.

Consumers Power Co.

i (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 908 I

t (1982), review declined, CLI-83-2, 17 NRC 69 (1983).

The l

instant case, in which the Licensing Board sustains a staff l

decision to suspend and not to renew a reactor operator's f

license, falls more properly into the latter category of l

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l 1 Under the Commission's Rules of Practice, any notice of appeal from LBP-89-26 should have been filed (i.e.,

mailed) no later than October 17, 1989.

See 10 C.F.R.

SS 2.762(a), 2.710.

1-L l,

3 cases.

That is, where an operator's license has effectively been terminated, the issues generally involve that individual operator's rights alone and are essentially sconomic and procedural in nature, rather than raising questions that implicate the public heslth and safety or environment.

Accordingly, an appeal board will not be established to conduct any sua sponte review in this case or others where a licensing board decision upholds the staff's suspension, revocation, failure to renew, or other termination of a reactor operator's license under 10 C.F.R. Part 55.

Where a licensing board decision reinstates or grants an individual operator's license and there are no appeals from such decision, however, an appeal board will be designated to conduct sua oponte review of any significant public health and safety or environmental issues.3 See generally Lon2 Midland itself did not readily fit into either the

" review" or "no review" category.

Nonetheless, an appeal board conducted sua sponte review because the case raised cerious qu9stions about the integrity of the NRC's hearing process.

16 NRC at 908.

3 Two relatively recent cases involved decisions by a single administrative judge (rather than a licensing board) that granted reactor operators' licenses.

See David W. Held (Senior Reactor Operator License for beaver Valley Power Station, Unit 1), LBP-88-22, 28 NRC 176 (1988); Alfred J.

Morabito (Senior Operator License for Beaver Valley Power station, Unit 1), LBP-88-10, 27 NRC 417, as modified, LBP-88-16, 27 NRC 583, vacated as moot, CLI-88-4, 26 NRC 5 (Footncte Continued)

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Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-911, 29 NRC 247, 250 (1989) (the purpose of sua sponte review is " protection of the public interest in general (as opposed to a particular litigant's interest) by l

providing r.nother independent level of review of significant j

1 health, safety, and environmental issues on which a substantial evidentiary record already exists").

l Under 10 C.F.R. S 2.760(a), the Licensing Board's l

decicicn in LBP-89-26 will become the Commission's final l

decision in this matter on October 30, 1989, unless the i

i Commission itself directs otherwise.

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f (Footnote Continued)

(1988), re_ consideration denied, CLI-89-16, 30 NRC l

(August 26, 1989).

No appeal board was established to conduct sua sponte review in those casec because the CommissiEh' initiated them by individual orders as informal proceedings, over which appeal boards had no jurisdiction.

i This differs from the formal "show causc" adjudication before a three-member licensing board that Mr. Acosta received and in which there is appeal board jurisdiction.

i See 10 C.F.R. S 2.700 et seg.

The Commirsion now has pending a proposed rulemakir,

that would make all proceedings for the grant, renewal, or r

licensee-initiated amendment of an operator's license subject to the newly promulgated informal hearing procedures in 10 C.F.R. Part 2, Subpart L, 54 Fed. Reg. 8269 (1989).

See 54 Fed. Reg. 17,961 (1989).

Appeal boards have jurisdiction in Subpart L proceedings.

10 C.F.R. 5 2.1255.

Thus, if the proposed rules are enacted, future cases like lleid and Morabito would be subject to appeal board review.

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FOR THE APPEAL PANEL CHAIRMAN c

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I Barbara A. Torpkins r

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recretary to the Appeal Panel i

This memorandum is issued pursuant to the Appeal Panel chairman's authority in 10 C.F.R. $ 2.787(a), (b) (2).

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UNITED STATES OF AMERICA i

NUCLEAR RESULATORY COMMISSION l

In the Matter of I

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l MAURICE P. ACOSTA, JR.

I Docket No.(s) 55-00347

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(Operator License No. 6010-2 l

I EA 00-164) i I

CERTIFICATE OF SERVICE i

I hereby certify that copies of the foregoing Al MEMORANDUM (ALAB-923) 10/25 have been served upon the f ollowing persons by U.S. asil, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Atomic Safety and Licensing Appeal Administrative Judge Board B. foul Cotter, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Lic6nsing Boara Washington, DC 20555 U.S. Nuclear Regulatory Consission Washington, DC 20555 i

Administrative Judge Administrative Judge Jerry R. Kline Harry Foreman Atoate Safety arid Licensing Board 1564 turton Avenue U.S. Nuclear Regulatory Commission St. Paul, MN 55100 i

Washington, DC 20555 i

Janics E. Moore, Esq.

Office of the General Counsel Maurice P. Acosta, Jr.

U.S. Nuclear Regulatory Consission 193 Banta Maria Court Washington, DC 20555 Vistai CA (2383 Dated at Rockville, Md. this 25 day of October 1989 6filie" iheSecreliry~cftheCos$is$ ion

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