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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEAR3F0999-05, Comment Supporting Proposed Rules 10CFR50 & 72 Re Reporting Requirements for Nuclear Power Reactors & Draft NUREG-1022, Rev 2, Event Reporting Guidelines1999-09-14014 September 1999 Comment Supporting Proposed Rules 10CFR50 & 72 Re Reporting Requirements for Nuclear Power Reactors & Draft NUREG-1022, Rev 2, Event Reporting Guidelines L-99-201, Comment Supporting Proposed Rules 10CFR50 & 72 Re Reporting Requirements for Nuclear Power Reactors.Fpl Followed Development of NEI Comments on Rulemaking & Endorse These Comments1999-09-0707 September 1999 Comment Supporting Proposed Rules 10CFR50 & 72 Re Reporting Requirements for Nuclear Power Reactors.Fpl Followed Development of NEI Comments on Rulemaking & Endorse These Comments ML20206H4441999-05-0303 May 1999 Comment Opposing Proposed Rules 10CFR170 & 10CFR171 Re Rev of Fy 1999 Fee Schedules ML20205J0461999-04-0101 April 1999 Comment Supporting Proposed Draft Std Review Plan on Foreign Ownership,Control & Domination.Util Supports Approach Set Forth in SRP Toward Reviewing Whether Applicant for NRC License Owned by Foreign Corp.Endorses NEI Comments ML20205B3771999-03-16016 March 1999 Comment Opposing PRM 50-64 Re Liability of Joint Owners of Npps.Util Endorses Comments of NEI & Urges Commission to Deny Petition for Rulemaking ML17355A2511999-03-0909 March 1999 Comment Supporting Amend to Policy & Procedure for NRC Enforcement Actions Re Treatment of Severity Level IV Violations at Power Reactors.Util Also Endorses Comments of NEI on Revs L-98-306, Comment Opposing Proposed Rule 10CFR50 Re Requirements for Monitoring Effectiveness of Maint at NPP1998-12-10010 December 1998 Comment Opposing Proposed Rule 10CFR50 Re Requirements for Monitoring Effectiveness of Maint at NPP L-98-272, Comment on Draft Reg Guide DG-4005, Preparation of Suppl Environ Repts for Applications to Renew Nuclear Power Plant Operating Licenses1998-10-28028 October 1998 Comment on Draft Reg Guide DG-4005, Preparation of Suppl Environ Repts for Applications to Renew Nuclear Power Plant Operating Licenses L-98-252, Comment Supporting Proposed Rules 10CFR2 & 51 Re Streamlined Hearing Process for NRC Approval of License Transfers.Fpl Also Endorses Comments of NEI on Proposed Rule1998-10-0606 October 1998 Comment Supporting Proposed Rules 10CFR2 & 51 Re Streamlined Hearing Process for NRC Approval of License Transfers.Fpl Also Endorses Comments of NEI on Proposed Rule L-98-248, Comment Supporting Statement of Policy on Conduct of Adjudicatory Proceedings.Fpl Also Endorses Comments of NEI on Policy Statement1998-10-0505 October 1998 Comment Supporting Statement of Policy on Conduct of Adjudicatory Proceedings.Fpl Also Endorses Comments of NEI on Policy Statement ML17354A8741998-03-27027 March 1998 Comment Opposing Proposed Generic Communication,Lab Testing of nuclear-grade Activated Charcoal (M97978) ML17354B1061998-02-26026 February 1998 Submits Listed Requests for NRC EA Per 10CFR2.206 to Modify OLs for All FPL NPPs Until Licensee Can Demonstrate Open Communication Channels Exist Between NRC & Licensee.Also Requests EA to Address Alleged Discriminatory Practices ML20217M0751997-08-13013 August 1997 Licensee Response to Supplemental 10CFR2.206 Petitions Filed by Tj Saporito & National Litigation Consultants.Petition Provides No Basis for Extraordinary Relief Requested. Petition Should Be Denied.W/Certificate of Svc ML20217J4321997-08-0707 August 1997 Memorandum & Order.* Grants Staff Petition for Review & Reverses Presiding Officer Decision Requiring Staff to Issue Tetrick SRO License.Order Disapproved by Commissioner Diaz. W/Certificate of Svc.Served on 970807 ML20148P8461997-06-25025 June 1997 Memorandum & Order (Determination of Remand Question).* Concludes That Presiding Officer Reaffirms Determination That Response of Rl Tetrick to Question 63 of Exam to Be SRO Was Incorrect.W/Certificate of Svc.Served on 970626 ML17354A5521997-06-18018 June 1997 Comment Opposing Proposed NRC Bulletin 96-001,suppl 1, CR Insertion Problems. ML20141F5441997-06-13013 June 1997 NRC Staff Response to Presiding Officer Memorandum & Order (Questions Relevant to Remand).* Staff Submits That Tetrick Request for Reconsideration of Grading of Question 63 on SRO License Written Exam Should Be Denied ML20141F5711997-06-13013 June 1997 Supplemental Affidavit of B Hughes & Ta Peebles.* Affidavit Re Tetrick Request for Reconsideration of Grading of Question 63 on SRO License Written Exam.W/Certificate of Svc ML17354A5181997-05-27027 May 1997 Licensee Response to 10CFR2.206 Petition Filed by Tj Saporito & National Litigation Consultants.Petition Should Be Denied,Based on Listed Info.W/Certificate of Svc ML20148G6531997-05-27027 May 1997 Notice.* Forwards Documents Received & Read by Author from Rl Tetrick on 970317 W/O Being Served as Required Under Procedural Rules.W/Certificate of Svc.Served on 970527 ML20148G7071997-05-27027 May 1997 Memorandum & Order (Questions Relevant to Remand).* Rl Tetrick May Respond to Questions W/Filing Served Pursuant to Procedural Regulations W/Notarized Statement to Be Received by 970617.Certificate of Svc Encl.Served on 970527 ML20148G7501997-05-20020 May 1997 Memorandum & Order CLI-97-05.* Staff May Withhold Issuance of SRO License to Rl Tetrick Pending Further Order of Commission.W/Certificate of Svc.Served on 970520 ML17354A5631997-05-17017 May 1997 Second Suppl to 970423 Petition Requesting Enforcement Against Listed Util Employees by Imposing Civil Penalties, Restricting Employees from Licensed Activities & Revoking Unescorted Access ML20141C7331997-05-16016 May 1997 Order Extending Until 970616,time within Which Commission May Rule on NRC Staff 970416 Petition for Review of Presiding Officer Initial Decision.W/Certificate of Svc. Served on 970516 ML17354A5611997-05-11011 May 1997 Suppl to 970423 Petition Requesting Enforcement Action Against Util Former Executive Vice President,Site Vice President & Maint Superintendent by Imposing Civil Monetary Penalty ML20138J2331997-05-0202 May 1997 Affidavit.* Affidavit of B Hughes Re Denial of Application for SRO License for Rl Tetrick.W/Certificate of Svc ML20138J2271997-05-0202 May 1997 NRC Staff Response to Questions Posed in Commission Order of 970425.* Staff Respectfully Submits That Commission Should Undertake Review of Presiding Officer Decisions in Proceedings LBP-97-2 & LBP-97-6 ML20138J2241997-05-0202 May 1997 Line (Providing Omitted Citation).* Informs That Submitted Citation Inadvertently Omitted from Response to Questions Posed in Commission Order of 970425.W/Certificate of Svc ML20138J2401997-04-25025 April 1997 Scheduling Order.* Staff Instructed to File W/Commission,By COB 970502,response to Tetrick Argument Re Question 63 & Discussion of Legal Significance of Consistent Staff Practices.W/Certificate of Svc.Served on 970425 ML17354A5651997-04-23023 April 1997 Requests That NRC Take EA to Modify,Suspend or Revoke FPL Operating Licenses for All Four Nuclear Reactors Until Licensee Can Sufficiently Demonstrate to NRC & Public That Employees Encouraged to Freely Raise Safety Concerns ML20137X5921997-04-16016 April 1997 NRC Staff Petition for Commission Review of Presiding Officer Decisions in Proceeding (LBP-97-2 & LBP-97-6).* Commission Should Undertake Review of Presiding Officer Decisions in Proceeding.W/Certificate of Svc ML20137X5511997-04-11011 April 1997 NRC Request for Issuance of Order Staying Effectiveness of Presiding Officer Decisions in Proceeding (LBP-97-2 & LBP-97-6).* Commission Should Stay Effectiveness of Decision in Subj Proceeding.W/Certificate of Svc ML20137R3531997-03-27027 March 1997 Correct Copy of Memorandum & Order (Denial of Reconsideration,Stay).* Denies NRC Staff Motion for Reconsideration.W/Certificate of Svc.Served on 970327 ML20137F5551997-03-25025 March 1997 NRC Staff Response to Memorandum & Order of 970321.* Presiding Officer Should Grant Staff 970310 Motion for Reconsideration.W/Certificate of Svc ML20137F8251997-03-21021 March 1997 Memorandum & Order (Grant of Housekeeping Stay).* Orders That Effect of Initial Decision Postponed Until Close of Business on 970326.W/Certificate of Svc.Served on 970321 ML20137F5081997-03-17017 March 1997 NRC Staff Motion for Issuance of Stay.* Requests That Presiding Officer Deny NRC Staff Request for Issuance of Stay in Matter of Issuance of SRO License ML20137F5371997-03-17017 March 1997 NRC Staff Motion for Reconsideration in Matter of Rl Tetrick.* Requests That Presiding Officer Deny NRC Staff Request for Reconsideration ML20136F2981997-03-12012 March 1997 Memorandum & Order (Grant of Housekeeping Stay).* Informs That Initial Decision Issued by Presiding Officer on 970228 Postponed Until 970321 & Rl Tetrick May File Response by 970318.W/Certificate of Svc.Served on 970312 ML20136F2351997-03-10010 March 1997 NRC Staff Motion for Reconsideration Introduction.* Requests That Presiding Officer Reconsider Determination That Tetrick Passed Written Exam & Find,Instead,That Tetrick Failed Written Exam ML20136F3411997-03-10010 March 1997 NRC Staff Request for Issuance of Order Staying Effectiveness of Presiding Officers Initial Decision LBP-97-2.* Staff Submits That Presiding Officer Should Stay Effectiveness of Initial Decision.W/Certificate of Svc ML20136F2721997-03-0606 March 1997 Supplemental Affidavit of B Hughes.* Supports Staff Motion for Reconsideration of Presiding Officer Initial Decision of 970228.W/Certificate of Svc ML20138Q0191997-02-28028 February 1997 Initial Decision.* Concludes That Rl Tetrick Had Passing Score of 80% & Should Be Granted License as Sro. W/Certificate of Svc.Served on 970228 ML20134A6551997-01-23023 January 1997 Written Presentation of NRC Staff.* Staff Concludes That SE Turk Failed Written Exam & Did Not Establish Sufficient Cause to Change Grading of Answers to Listed Questions. Denial of Application for SRO License Should Be Sustained ML20134A6661997-01-23023 January 1997 Affidavit of B Hughes & Ta Peebles Re Denial of Application for SRO License.W/Certificate of Svc.Served on 970124 ML20129J5681996-10-23023 October 1996 Memorandum & Order (Error).* Informs of Incorrect Caption Identified in Order .W/Certificate of Svc.Served on 961023 ML20129D4981996-10-21021 October 1996 Memorandum & Order (Grant of Request for Hearing Scheduling).* Requests for Hearing Hereby Granted. W/Certificate of Svc.Served on 961021 ML20129D6681996-10-18018 October 1996 NRC Staff Answer to Rl Tetrick Request for Hearing.* Staff Does Not Oppose Request & Will Be Prepared to Submit Hearing File.W/Certificate of Svc & Notice of Appearance ML20129D4401996-10-0909 October 1996 Designating of Presiding Officer.* Pb Bloch Designated to Serve as Presiding Officer to Conduct Informal Adjudicatory Hearing in Proceeding of Rl Tetrick Re Denial of SRO License.W/Certificate of Svc.Served on 961010 ML17353A6311996-01-19019 January 1996 Decision & Remand Order Re FPL Discrimination Against RR Diaz-Robainas.FPL Ordered to Offer Reinstatement to RR Diaz-Robainas W/Comparable Pay & Benefits,To Pay Him Back Pay W/Interest & to Pay His Costs & Expenses Re Complaint ML17353A2471995-06-27027 June 1995 Comments on Proposed Rule Re, Review of NRC Insp Rept Content,Format & Style. 1999-09-07
[Table view] Category:PLEADINGS
MONTHYEARML17354B1061998-02-26026 February 1998 Submits Listed Requests for NRC EA Per 10CFR2.206 to Modify OLs for All FPL NPPs Until Licensee Can Demonstrate Open Communication Channels Exist Between NRC & Licensee.Also Requests EA to Address Alleged Discriminatory Practices ML20217M0751997-08-13013 August 1997 Licensee Response to Supplemental 10CFR2.206 Petitions Filed by Tj Saporito & National Litigation Consultants.Petition Provides No Basis for Extraordinary Relief Requested. Petition Should Be Denied.W/Certificate of Svc ML20141F5441997-06-13013 June 1997 NRC Staff Response to Presiding Officer Memorandum & Order (Questions Relevant to Remand).* Staff Submits That Tetrick Request for Reconsideration of Grading of Question 63 on SRO License Written Exam Should Be Denied ML17354A5181997-05-27027 May 1997 Licensee Response to 10CFR2.206 Petition Filed by Tj Saporito & National Litigation Consultants.Petition Should Be Denied,Based on Listed Info.W/Certificate of Svc ML17354A5631997-05-17017 May 1997 Second Suppl to 970423 Petition Requesting Enforcement Against Listed Util Employees by Imposing Civil Penalties, Restricting Employees from Licensed Activities & Revoking Unescorted Access ML17354A5611997-05-11011 May 1997 Suppl to 970423 Petition Requesting Enforcement Action Against Util Former Executive Vice President,Site Vice President & Maint Superintendent by Imposing Civil Monetary Penalty ML20138J2271997-05-0202 May 1997 NRC Staff Response to Questions Posed in Commission Order of 970425.* Staff Respectfully Submits That Commission Should Undertake Review of Presiding Officer Decisions in Proceedings LBP-97-2 & LBP-97-6 ML17354A5651997-04-23023 April 1997 Requests That NRC Take EA to Modify,Suspend or Revoke FPL Operating Licenses for All Four Nuclear Reactors Until Licensee Can Sufficiently Demonstrate to NRC & Public That Employees Encouraged to Freely Raise Safety Concerns ML20137X5921997-04-16016 April 1997 NRC Staff Petition for Commission Review of Presiding Officer Decisions in Proceeding (LBP-97-2 & LBP-97-6).* Commission Should Undertake Review of Presiding Officer Decisions in Proceeding.W/Certificate of Svc ML20137X5511997-04-11011 April 1997 NRC Request for Issuance of Order Staying Effectiveness of Presiding Officer Decisions in Proceeding (LBP-97-2 & LBP-97-6).* Commission Should Stay Effectiveness of Decision in Subj Proceeding.W/Certificate of Svc ML20137F5551997-03-25025 March 1997 NRC Staff Response to Memorandum & Order of 970321.* Presiding Officer Should Grant Staff 970310 Motion for Reconsideration.W/Certificate of Svc ML20137F5081997-03-17017 March 1997 NRC Staff Motion for Issuance of Stay.* Requests That Presiding Officer Deny NRC Staff Request for Issuance of Stay in Matter of Issuance of SRO License ML20137F5371997-03-17017 March 1997 NRC Staff Motion for Reconsideration in Matter of Rl Tetrick.* Requests That Presiding Officer Deny NRC Staff Request for Reconsideration ML20136F2351997-03-10010 March 1997 NRC Staff Motion for Reconsideration Introduction.* Requests That Presiding Officer Reconsider Determination That Tetrick Passed Written Exam & Find,Instead,That Tetrick Failed Written Exam ML20136F3411997-03-10010 March 1997 NRC Staff Request for Issuance of Order Staying Effectiveness of Presiding Officers Initial Decision LBP-97-2.* Staff Submits That Presiding Officer Should Stay Effectiveness of Initial Decision.W/Certificate of Svc ML20129D6681996-10-18018 October 1996 NRC Staff Answer to Rl Tetrick Request for Hearing.* Staff Does Not Oppose Request & Will Be Prepared to Submit Hearing File.W/Certificate of Svc & Notice of Appearance ML20070E7721991-02-25025 February 1991 NRC Staff Response to Licensee Motion to Reject or Strike Appellant Reply.* Sarcastic Language in Reply Should Be Stricken & Applellant Should Be Required to Provide Supplementary Info.W/Certificate of Svc ML20070C1971991-02-19019 February 1991 Licensee Reply to Appeal Request of Tj Saporito.* Licensee Adopts Position & Argument of NRC as Stated in Appeal. W/Certificate of Svc ML20066G9711991-02-0808 February 1991 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 ML20073E0511991-01-28028 January 1991 Reply.* Board of Directors of Nuclear Energy Accountability Project (Neap) Have Not Decided to Dissolve Neap.Tj Saporito Notification That Neap Will Dissolve by 901231 Was Outside Authority.Aslb 910110 Order Is Moot.Appeal Should Be Valid ML20070A0371991-01-0909 January 1991 Licensee Answer to Petitioner Motion for Reconsideration.* Request for Hearing & Intervention Should Be Denied Due to Petitioner Lack of Standing & Timing of Contentions Is Moot. W/Certificate of Svc ML20066D5981990-12-26026 December 1990 Reply to Answers to Petition & Amended Petition.* Intervenor Finds ASLB 901206 Order Premature & Requests That Hearing on Record Be Granted ML20066A2531990-12-21021 December 1990 Motion for Order to Show Cause Why Nuclear Energy Accountability Project (Neap) Should Not Be Dismissed from Proceeding.* Unless Aslab Denies Appeal Prior to 901231,NEAP Should Show Cause for Dismissal.W/Certificate of Svc ML20066A1081990-12-19019 December 1990 Motion for Order to Show Cause Why Proceeding Should Not Be Terminated.* Nuclear Energy Accountability Project Should Be Directed to Show Why Proceeding Should Not Be Terminated, Unless Appeal Denied Prior to 901231.W/Certificate of Svc ML20065T8771990-12-13013 December 1990 Motion to Withdraw.* Withdraws from Proceeding Due to Dissolution of Organization,Effective 901231.W/Certificate of Svc.Served on 901213.Granted for Licensing Board on 901212 ML20065T7851990-12-13013 December 1990 Licensee Response to Motion to Withdraw.* Licensee Lack of Objection to Withdrawal of Nuclear Energy Accountability Project from Proceeding Noted.W/Certificate of Svc ML20065T7921990-12-0808 December 1990 Motion to Withdraw.* Nuclear Energy Accountability Project Will Be Dissolved Effective 901231.W/Certificate of Svc ML20065T8461990-12-0505 December 1990 Licensee Response to Notices of Change of Address.* Inconsistencies Re Issue of Standing Have Been Injected Into Proceeding by Notices.W/Certificate of Svc ML20062B9861990-10-11011 October 1990 Licensee Opposition to Nuclear Energy Accountability Project (Neap) Request to Change Location of Oral Argument.* Neap Request to Transfer Location of Oral Argument Should Be Denied.W/Certificate of Svc ML20059L8401990-09-14014 September 1990 Applicant Response to Memorandum & Order (Motion to Dismiss).* Board Should Not Undertake Sua Sponte Review Due to Board Lacking Jurisdiction.W/Certificate of Svc ML20059C5021990-08-31031 August 1990 NRC Staff Response to Licensing Board Order of 900717.* Requests That Licensing Board Refrain from Raising Sua Sponte Issues ML20059A8941990-08-16016 August 1990 Opposition to Motion for Extension of Time to Appeal.* Requests That Nuclear Energy Accountability Project 900813 Motion for Extension of Time to File Brief in Support of Appeal Be Denied.W/Certificate of Svc ML20059B0161990-08-13013 August 1990 Motion for Extension of Time to Appeal.* Board Should Grant Extension of Time to Insure Intervenor Has Opportunity to Fully & Completely Address Issues on Appeal.W/Certificate of Svc ML20059A8791990-08-13013 August 1990 Motion for Extension of Time to Appeal.* Requests Extension of 15 Days to File Brief in Support of Appeal.W/Certificate of Svc.Served on 900817.Granted for Appeal Board on 900817 ML20056B2181990-08-10010 August 1990 NRC Staff Motion for Extension of Time.* Requests Extension of Time Until 900831 to File Response to Licensing Board 900717 Order,Per 10CFR2.711.W/Certificate of Svc ML20056B2011990-08-0303 August 1990 Licensee Motion for Leave to Submit Citation to Supplemental Authority.* Licensee Moves for Leave to Call Recent Supreme Court Authority to Attention of Appeal Board.W/Certificate of Svc.Served on 900803.Granted for Appeal Board on 900803 ML20056A3751990-07-31031 July 1990 NRC Staff Response to Licensee Motion to Submit Citation to Supplemental Authority.* NRC Has No Objection to Granting of Licensee 900716 Motion.W/Certificate of Svc ML20056A3821990-07-25025 July 1990 Notice of Appeal.* Requests Oral Argument on Issue of Standing & That Argument Be Held in Miami,Fl to Permit Fair & Equitable Opportunity to Address Issue in Proceeding. W/Certificate of Svc ML20055G6491990-07-16016 July 1990 Licensee Motion for Leave to Submit Citation to Supplemental Authority.* Licensee Moves for Leave to Call Recent Supreme Court Authority to Attention of Appeal Board & Parties. Certificate of Svc Encl ML20055G7851990-07-12012 July 1990 NRC Staff Response to Applicant Motion for Reconsideration.* Advises That Nuclear Energy Accountability Project Has Not Established Standing to Intervene in Proceeding,Therefore, Petition Should Be Denied.W/Certificate of Svc ML20055F5891990-07-0606 July 1990 NRC Staff Response to Motions for Change of Location of Oral Argument.* NRC Does Not See Necessity for Aslab to Depart from Practice of Holding Oral Arguments in Bethesda,Md. Motion Should Be Denied.W/Certificate of Svc ML20058K7551990-06-24024 June 1990 Intervenor Motion for Reconsideration of Appeal Board Order Setting Oral Argument.* Requests That Appeal Board Move Oral Argument Scheduled for 900710 in Bethesda,Md to Miami,Fl. Certificate of Svc Encl ML20055D9241990-06-20020 June 1990 Appellant Motion to Move Place of Oral Argument.* Appellant Motion Should Be Granted.W/Certificate of Svc ML20043H1801990-06-19019 June 1990 Unopposed Request for 1-day Extension.* Extension Requested in Order to Seek Legal Advise Re Board 900615 Order on Intervention Status.Granted for ASLB on 900619. Served on 900620.W/Certificate of Svc ML20043A6761990-05-17017 May 1990 Applicant Reply to Nuclear Energy Accountability Project (Neap) Response to ASLB Memorandum & Order.* Neap Petition to Intervene Should Be Denied & Proceeding Dismissed.W/ Certificate of Svc ML20042E6011990-04-20020 April 1990 Intervenors Answer to Applicant 900413 Response & Intervenors Motion for Sanctions Against Applicant & Intervenors Motion for Leave to Amend Contentions.* Certificate of Svc Encl ML20012F7051990-04-13013 April 1990 Applicant Response to Notice of Withdrawal from Proceeding.* Advises That Nuclear Energy Accountability Project (Neap) No Longer Has Standing Since Saporito Withdrew from Proceeding & Neap Has Not Established Standing.W/Certificate of Svc ML20011F1081990-02-23023 February 1990 Intervenors Motion for Extension of Time to File Appeal Brief.* Extension Requested to File Brief Due to Intervenor J Lorion Involved W/Family Health Matters.W/Certificate of Svc.Served on 900226.Granted for Aslab on 900223 ML20011F1151990-02-23023 February 1990 Intervenors Motion for Extension of Time to File Appeal Brief.* Requests 5-day Extension Until 900305 to File Appeal Brief Due to Author Family Health Matters Interfering W/ Ability to Meet Commitments.W/Certificate of Svc ML20006G1171990-02-21021 February 1990 Motion for Reconsideration of Time Extension.* Petitioners Ask That Board Reconsider 900208 Request for Extension of Time Until 900305 to File Amended Petition & Contentions Based on Parties Agreement.Certificate of Svc Encl 1998-02-26
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Text
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L UNITED STATES OF AMERICA Si -
NUCLEAR REGULATORY COMMISSION
'a ?? py BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '
In the Matter of ) Docket Nos. 50-250-OLA-1
) w&O-251-OLA-1 FLORIDA POWER & LIGHT COMPANY )
(Turkey Point Nuclear )
Generating Units 3 and 4) ) ASLBP No. 84-496-03-LA
)
)
LICENSEE'S MOTION FOR RECONSIDERATION OR CLARIFICATION OF ORDER Licensee, Florida Power & Light Company, moves for an Order. reconsidering or clarifying the " Order Scheduling Prehearing Conference," entered by the Atomic Safety and Licensing Board February 8, 1985, for the reasons set out below.
- 1. On May 16, 1984, the Board entered its "Prehearing Conference Order" following a prehearing conference held in Homestead, Florida, February 28, 1984. The Prehearing Conference Order granted standing to the Center for Nuclear i
l Responsibility, Inc., and Joette Lorion ("Intervenors")
to intervene in this proceeding and admitted, as issues for adjudication, Contentions (b) and (d) proposed by i Intervenors.
. 2. On May 29, 1984, Licensee propounded Interroga-tories to Intervenors relative to the respective contentions, i
Q K t
2 which were answered in "Intervenors' Response to Inter-rogatories Propounded by Florida Power & Light Company,"
dated July 10, 1984.
- 3. On August 10, 1984, Licensee filed a separate t Motion for Summary Disposition as to each admitted contention, with supporting affidavits, statements of material facts as to which there is no genuine issue to be heard, and a memorandum of law.
- 4. On September 4, 1984, the NRC staff filed the "NRC Staff Response to Licensee Motions for Summary Disposition ,
of Contentions (b) and (d)," with attached affidavits, supporting the motions for summary disposition. .
- 5. On September 4, 1984, the Intervenors filed "Intervenors Response to Licensee's Motion for Summary Disposition of Intervenors' Contentions (b) and (d),"
with attached affidavits, opposing the motions for summary disposition.
- 6. Thereafter, on September 21, 1984, Licensee moved to strike the affidavits supporting Intervenors' Response in ,
j opposition to the motions for summary disposition as well as that Response. On October 9, 1984, the NRC staff filed a response substantially in support of the motion to strike; i
and, on October 17, 1984, Intervenors filed a response in opposition. Both the motions for summary disposition and the motion to strike are outstanding.
G
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3 4
- 7. On February 8, 1985, this Board entered its " Order Scheduling Prehearing Conference," scheduling a prehearing conference for March 26, 1985 at 9:30 a.m. in the Greater Miami area. The Order specifically provides:
Florida Power and Light Company (Licensee) should be prepared to respond 4 in a didactic manner through its experts to questions and issues raised in the ,
various filings:
' For example:
e The calculations used to determine critical heat flux (CHF) and peak cladding temperature (PCT) for Low-parasitic (LOPAR) fuel, Optbnized Fuel Assemblies (OFA) and mixed LOPAR/OFA fuel.
e The hydraulic and thermal effect of spacer grids (as related.to calculations of CHF and PCT values).
! e The procedure and calculations used in arriving at the 10'F increase in' PCT identified in items 5 and 8 of the Parvin affidavit.
e The uncertainties listed in Joette Lorion's affidavit at pages 4, 5 and 8 and item 9(d) of Dr. Edward's .
l affidavit at pages 6-7.*
- See Intervenors' Response to Licensee's Motion for Summary Disposition of Intervenors' Contentions (b) and (d), dated September 4,1984.
- 8. The Commission's regulations, in particular 10 CFR S 2.749(d) (1984), do not mention oral testimony as one of the matters to be considered in determining
4 1/
a motion for summary disposition.~ In fact, it would appear that the Commission does not contemplate an evidentiary hearing at which oral testimony will be taken in conjunction with such a motion, for it has directed licensing boards to encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues.
Statement of Policy on Conduct of Licensing Proceedings, 13 N.R.C. 452, 457 (1981) (emphasis added). Indeed, as noted in Licensee's Memorandum of Law in Support of its Motions for Summary Disposition, the Appeal Board has endorsed the use of summary disposition as "an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably unsubstantial issues." Houston Lighting & Power Company (Allens Creek Nuclear Generating Station), 11 N.R.C. 542,'550 (1980); Gulf States Utilities Co. (River Bend Station), 7 A.E.C. 222, 228 (1974).
- 9. It has been held that' decisions arising under the Federal Rules may serve as guidelines to licensing boards in applying 10 C.F.R. 2.749. E.g., Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), 16 N.R.C. 512, 519 (1982).
~
1/ Section 2.749 is entitled " Authority of Presiding Officer to dispose of certain issues on the pleadings."
(Emphasis added). See also, 10 C.F.R. Part 2, Appendix A, Section V. (b) (7) .
k 5 Although several federal cases have held that there is a discretionary power to hear oral testimony at a summary 2/
judgmant hearing under Rule 56 of the Federal Rules,- this discretionary power is derived not from Rule 56, but from Rule 43(e), which provides:
Rule 43. Taking of Testimony.
(e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or deposi-tion.
No similar provision to Rule 43(e) appears in the Commission's regulationa.
- 10. The federal cases which have considered the question have found that the courts should use oral testi-mony on a summary judgment motion sparingly and with great care.
! The purpose of summary judgment-providing a speedy adjudication j in cases that present no genuine issue of material fact - would i be compromised if the hearing
! permitted by Rule 43(e) and Rule l 56(c) became a preliminary trial.
Furthermore, oral testimony might
- come as a surprise to the other litigants and therefore they might not have had an opportunity to prepare themselves to rebut that type of evidence. This is particularly l
L/ See cases cited 10 Wright & Miller, Federal Practice and Procedure, Section 2723.
l L
6 undesirable when it is the party opposing the motion who is put at a disadvantage by the interposition of oral evidence.
Hayden v. First National Bank of Mt. Pleasant, Texas, 595 F.2d 994, 997 (5th Cir.1979), citing 10 Wright
& Miller, Federal Practice and Procedure, Section 2723; citing al'so, Georgia Southern and F.RY.Co.
- v. Atlantic Coast Line R.Co., 373 F.2d 493, 497 (5th Cir. 1967) , cert. den. , 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120 (motion to dismiss treated as a motion for summary judgment: Court held that it was abuse of discretion to grant summary judgment without proper notice of how oral testimony and affidavits taken at hearing would be used). See also, 6 Moore's Federal Procedure 11 56.11 [1.6], 56.11 [8); Chan Wing Cheung
- v. Hamilton, 298 F.2d 459, 460 (1st Cir. 1962), wherein the court held:
Moreover, receiving evidence at the hearing, as distinguished from affidavits or depositions normally required to be filed
'at.least 10 days before' (Rule 56(c)), may place the opposing party in an unfair position. There is'a substantial difference between accepting matters at the hearing which show that an issue of fact exists, and taking evidence in support of the motion at the last minute when there is no opportunity to rebut.
- 11. The legal authorities make it clear that an
7 evidentiary hearing on a motion for summary disposition, including the receipt of oral testimony, may not be con-ducted for the purpose of trying or resolving factual issues. The only purpose of such a hearing is to aid the adjudicator in determining whether genuine issues of material fact exist. An examination of the authorities discloses that the line is sometimes a difficult one to observe. See, e.g., Hayden v. First National Bank of Mt. Pleasant, Texas, supra, at 996-7.
- 12. In the circumstances, in the absence of express authority for the use of oral testimony.in the Commission's regulations, and in the apparent absence of any reported N.R.C. d'ecisions on point, Licensee respectfully requests reconsideration or clarification of the Board's Order.
- 13. If, after reconsideration, the Board continues to desire to receive additional information before ruling on the Motions for Summary Disposition, Licensee suggests that the Board adopt appropriate measures to avoid surprise to the other litigants and to maintain the proffering of information within proper bounds. At a minimum, the Licensee recommends that the Board propound in writing the specific questions for which it desires answers. This will eliminate the potential for surprise and will help focus the prehearing session on the fundamental question of whether a genuine issue of material fact exists. Additionally,
, there are alternative procedures which the Board could establish to ensure fairness to all parties. These include L
8
)
the following e The Board could direct the Licensee to respor.d in writing to the questions by means of sworn affidavits from their experts. The Board could then provide the NRC Staff and the Intervenors with an opportunity to respond to the questions and to the Licensee's response by means of sworn affidavits from their experts. The Board could then rule upon Licensee's motions for summary disposition based upon all the pleadings and the written responses to the questions, without the need for oral testimony.
e If the Board, nevertheless, desires to hear oral testimony, it could utilize the same procedure outlined above, and then allow for the parties and the Board to examine the experts. A decision by the Board on Licensee's motions for summary disposition would then be based upon all the pleadings, the written responses to the questions, and the oral testimony upon examination.
Licensee recognises that the procedures suggested herein, and possibly any variant of them, may make it necessary to postpone the prehearing conference now scheduled for March 26, 1985. However, Licensee submits that some such pro-cedure is probably necessary to assure against claims of
9 unfairness, surprise or other error and to confine any information or testimony proffered to that necessary to determine whether any genuine issue of material fact is presented.
- 14. Licensee makes this motion for reconsideration or clarification without prejudice to its outstanding motions for sum.aary disposition and to strike. Licensee continues to submit that the papers presently on file clearly and unequivocally demonstrate that there exists no genuine issue as to any material fact, that summary disposition in its favor on Contentions (b) and (d) is required as a matter of law and that no further oral testimony is required.
Respectfully submitted, Mude F~ 604 Hato'id F. Reis OR COUNSEL:
Norman A. Coll Michael A. Bauser Steel, Hector & Davis Steven P. Frantz 4000 Southeast Financial Newman & Holtzinger, P.C.
Center Miami, Florida 33131-2398 1615 L St. N.W.
Washington, D.C. 20036 Telephone (202) 966-6600 .
Dated: February 19, 1985
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND. LICENSING BOARD In the Matter of ) Docket Nos. 50-250-OLA-1
) 50-251-OLA-1 FLORIDA POWER & LIGHT COMPANY )
(Turkey Point Nuclear )
Generating Units 3 and 4) ) ASLBP No. 84-496-03-LA
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion for Reconsideration or Clarification of Order," dated February 19, 1985, were served on the following by personal service (messenger delivery to home or office) on the date shown below:
Dr. Robe'rt M. Lazo, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West / West Towers Building 4350 East West Highway - Rm. E-423 Bethesda, Maryland Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West / West Towers Building 4350 East West Highway - Ibn. E-411 Bethesda, Maryland Dr. Richard F. Cole Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West / West Towers Building 4350 East West Highway - Rm. E-425 1 Bethesda, Maryland Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission 1717 H St., N.W.
Washington, D.C.
Attention: William L. Clements, Chief Docketing and Service Section l Rm. H-1121
. (Original plus two copies)
I
2 Atomic Safety and Licensing Board Panel c/o Hon. B. Paul Cotter, Jr.
U.S. Nuclear Regulatory Commission East West / West Towers Building 4350 East West Highway - Rm. E-422 Bethesda, Maryland Mitzi A. Young, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission ,
Maryland National Bank Bldg.
7735 Old Gaorgetown Road - Rm. 10706 Bethesda, Maryland Martin H. Hodder, Esq.
1131 N.E. 86th St.
Miami, Florida 33138 Additional copies of the said " Licensee's Motion for Reconsideration or Clarification of Order" were also transmitted to the above-named individuals and the Atomic Safety and Licensing Board Panel by deposit in the United States Mail, first class postage prepaid and properly addressed on the date shown below.
Dated this 19th day of February, 1985.
H&rold F. Reis Newman & Holtzinger, P.C.
1615 L St., N.W.
Washington, D.C. 20036 Telephone (202) 955-6600 i