|
---|
Category:DKT 30 MTL BYPRODUCT
MONTHYEARML20248J3451989-10-13013 October 1989 Erratum.* Lists Change to 890928 Initial Decision.W/ Certificate of Svc.Served on 891016 ML20248H9861989-09-28028 September 1989 Initial Decision.* Sustains NRC 880615 Order Suspending License Effective Immediately & Denies MP Acosta Application to Renew Operator License.W/Certificate of Svc.Served on 891002 ML20246B9231989-08-15015 August 1989 NRC Staff Motion for Issuance of Initial Decision in Absence of Submission of Proposed Findings by MP Acosta.* Initial Decision Should Be Issued Due to NRC Not Receiving,To Date, Proposed Findings.W/Certificate of Svc ML20245F7811989-08-0909 August 1989 Informs That NRC Intends to File Motion Requesting Board to Proceed W/Issuance of Initial Decision in Proceeding Based on Record Before It & NRC 890726 Proposed Findings,If Acosta Proposed Findings or Brief Not Received ML20245J4231989-06-26026 June 1989 NRC Staff Proposed Findings of Fact & Conclusions of Law in Form of Initial Decision.* Suspends Acosta Reactor Operator License Based on Entire Record of Proceeding & Denies Acosta Application for Renewal of License.W/Certificate of Svc ML20246A1841989-05-24024 May 1989 Transcript of ASLB 890524 Hearing in San Diego,Ca Re MP Acosta,Operator License 6010-2.Pp 1-148.Witnesses: a Talley & L Jambor ML20246H5141989-05-0909 May 1989 Direct Testimony of Nk Hunemuller & Ja Zwolinski in Support of NRC Staff Order of 880615.* Supporting Info Encl.Related Correspondence ML20246H1781989-05-0909 May 1989 Fowards Direct Testimony of Nk Hunemuller & Ja Zwolinski in Support of NRC 880615 Order & Direct Testimony of WE Flynn & Ej Cone.Nrc Has Also Applied for Issuance of Subpoenas for Ae Talley,L Jambor & N Pardo.W/O Encls ML20246H6491989-05-0808 May 1989 Application of NRC Staff for Issuance of Subpoenas.* Requests That Encl Subpoenas for Jambor & Pardo to Testify Re Practices of Lab Analyses of Util Drug Tests Be Granted. W/Certificate of Svc.Related Correspondence ML20245L5041989-05-0303 May 1989 Application of NRC for Issuance of Subpoena.* Requests That Encl Subpoena to Have Ae Talley Testify at 890524 Hearing Be Granted.Talley Would Testify Re Util Substance Abuse Program & Policies.W/Certificate of Svc ML20245E6511989-04-21021 April 1989 Notice of Appearance.* Advises That Author Enters Appearance in Proceeding on Behalf of Nrc.W/Certificate of Svc ML20245E6651989-04-21021 April 1989 NRC Staff Second Further Responses to Acosta First Set of Interrogatories & Request for Production of Documents.* W/ Supporting Documentation & Certificate of Svc.Related Correspondence ML20244C0891989-04-13013 April 1989 Notice of Hearing.* Evidentiary Hearing Will Begin on 890524 & Go Through or Part of 890526 in San Diego,Ca.W/Certificate of Svc.Served on 890414 ML20236D6381989-03-15015 March 1989 Order.* Schedule for Hearing in Case Revised as Listed,Per 890314 Telcon.W/Certificate of Svc.Served on 890316 ML20236D5811989-03-15015 March 1989 Notice of Reconstitution of Board.* Bp Cotter,Chairman & H Foreman & Jr Kline,Members.W/Certificate of Svc.Served on 890316 ML20235V4901989-02-10010 February 1989 Advises That Staff Does Not Intend to File Motion for Summary Disposition in Proceeding Per 881021 Request ML20235V2291989-02-0303 February 1989 Informs That NRC Counsel Reviewed Documents Provided by MP Acosta & Determined That NRC Will Not Conduct Any Further Discovery of Acosta,Per NRC Commitment in 890119 Motion for Further Rev of Schedule.Discovery in Proceeding Complete ML20206J6871988-11-17017 November 1988 NRC Staff First Set of Interrogatories & First Request for Production of Documents.* Certificate of Svc Encl.Related Correspondence ML20205D9741988-10-24024 October 1988 Allegation of Intimidation of Witnesses (MP Acosta,Docket 55-08347).* Forwards Pages 24-26 of 881018 Prehearing Conference & 880615 Show Cause Order & Acosta Response,For Appropriate Action.W/O Encls.Served on 881025 ML20154E5581988-09-14014 September 1988 Order Designating Location of Prehearing Conference.* Notifies That Prehearing Conference in Proceeding Scheduled for 881018 in San Diego,Ca.Served on 880915 ML20154F1671988-09-13013 September 1988 Notice of Appearance.* Author Enters Appearance in Proceeding on Behalf of NRC ML20154A2701988-09-0909 September 1988 Order.* Prehearing Conference Will Be Held in or Near San Diego,Ca on 881018 to Discuss Issues in Case & Set Schedule for Proceeding to Hearing,Per Acosta 880701 Appeal. Served on 880909 ML20151W7141988-08-18018 August 1988 Establishment of Aslb.* Bp Cotter,Chairman & H Foreman & KA Mccollom,Members.W/Supporting Documentation.Served on 880819 1989-09-28
[Table view] Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20248J3451989-10-13013 October 1989 Erratum.* Lists Change to 890928 Initial Decision.W/ Certificate of Svc.Served on 891016 ML20248H9861989-09-28028 September 1989 Initial Decision.* Sustains NRC 880615 Order Suspending License Effective Immediately & Denies MP Acosta Application to Renew Operator License.W/Certificate of Svc.Served on 891002 ML20246B9231989-08-15015 August 1989 NRC Staff Motion for Issuance of Initial Decision in Absence of Submission of Proposed Findings by MP Acosta.* Initial Decision Should Be Issued Due to NRC Not Receiving,To Date, Proposed Findings.W/Certificate of Svc ML20245J4231989-06-26026 June 1989 NRC Staff Proposed Findings of Fact & Conclusions of Law in Form of Initial Decision.* Suspends Acosta Reactor Operator License Based on Entire Record of Proceeding & Denies Acosta Application for Renewal of License.W/Certificate of Svc ML20247L3791989-05-25025 May 1989 Transcript of 890525 Hearing in San Diego,Ca.Pp 150-278. Supporting Info Encl.Witnesses:A Keltz,A Talley,W Flynn, E Cone,N Hunemuller,J Zwolinski ML20246A1841989-05-24024 May 1989 Transcript of ASLB 890524 Hearing in San Diego,Ca Re MP Acosta,Operator License 6010-2.Pp 1-148.Witnesses: a Talley & L Jambor ML20248A5021989-05-24024 May 1989 Staff Exhibit S-1,consisting of 880628 Fr Notice Re Order Suspending License,Effective Immediately & Denial of Application for Renewal of Operator License Due to Licensee Testing Positive for Marijuana ML20246H5141989-05-0909 May 1989 Direct Testimony of Nk Hunemuller & Ja Zwolinski in Support of NRC Staff Order of 880615.* Supporting Info Encl.Related Correspondence ML20246H6491989-05-0808 May 1989 Application of NRC Staff for Issuance of Subpoenas.* Requests That Encl Subpoenas for Jambor & Pardo to Testify Re Practices of Lab Analyses of Util Drug Tests Be Granted. W/Certificate of Svc.Related Correspondence ML20245L5041989-05-0303 May 1989 Application of NRC for Issuance of Subpoena.* Requests That Encl Subpoena to Have Ae Talley Testify at 890524 Hearing Be Granted.Talley Would Testify Re Util Substance Abuse Program & Policies.W/Certificate of Svc ML20245E6511989-04-21021 April 1989 Notice of Appearance.* Advises That Author Enters Appearance in Proceeding on Behalf of Nrc.W/Certificate of Svc ML20245E6651989-04-21021 April 1989 NRC Staff Second Further Responses to Acosta First Set of Interrogatories & Request for Production of Documents.* W/ Supporting Documentation & Certificate of Svc.Related Correspondence ML20244C0891989-04-13013 April 1989 Notice of Hearing.* Evidentiary Hearing Will Begin on 890524 & Go Through or Part of 890526 in San Diego,Ca.W/Certificate of Svc.Served on 890414 ML20236D5811989-03-15015 March 1989 Notice of Reconstitution of Board.* Bp Cotter,Chairman & H Foreman & Jr Kline,Members.W/Certificate of Svc.Served on 890316 ML20236D6381989-03-15015 March 1989 Order.* Schedule for Hearing in Case Revised as Listed,Per 890314 Telcon.W/Certificate of Svc.Served on 890316 ML20206J6871988-11-17017 November 1988 NRC Staff First Set of Interrogatories & First Request for Production of Documents.* Certificate of Svc Encl.Related Correspondence ML20205R6461988-11-0303 November 1988 NRC Staff Rept on Status of Negotiations.* NRC Believes That No Basis Exists for Settlement of Matter at Present Time. Parties Intend to Proceed W/Hearing Schedule as Adopted in Board 881021 Memorandum ML20205D5691988-10-21021 October 1988 Memorandum.* Board Confirms Listed Schedule for Completing Case as Discussed W/Parties During 881018 Prehearing Conference.Served on 881024 ML20205D7301988-10-18018 October 1988 Transcript of 881018 Prehearing Conference in San Diego,Ca. Pp 1-62 ML20154E5581988-09-14014 September 1988 Order Designating Location of Prehearing Conference.* Notifies That Prehearing Conference in Proceeding Scheduled for 881018 in San Diego,Ca.Served on 880915 ML20154F1671988-09-13013 September 1988 Notice of Appearance.* Author Enters Appearance in Proceeding on Behalf of NRC ML20154A2701988-09-0909 September 1988 Order.* Prehearing Conference Will Be Held in or Near San Diego,Ca on 881018 to Discuss Issues in Case & Set Schedule for Proceeding to Hearing,Per Acosta 880701 Appeal. Served on 880909 ML20151W7141988-08-18018 August 1988 Establishment of Aslb.* Bp Cotter,Chairman & H Foreman & KA Mccollom,Members.W/Supporting Documentation.Served on 880819 1989-09-28
[Table view] Category:PLEADINGS
MONTHYEARML20246B9231989-08-15015 August 1989 NRC Staff Motion for Issuance of Initial Decision in Absence of Submission of Proposed Findings by MP Acosta.* Initial Decision Should Be Issued Due to NRC Not Receiving,To Date, Proposed Findings.W/Certificate of Svc 1989-08-15
[Table view] |
Text
. - _ _ _ _ _ _ _ _ _ _ - .
August 15,g8g U:Nnc UNITED STATES OF AMERICA- l NUCLEAR REGULATORY COMMISSION 89 TG 17 P256
-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g ena ..
u03.E N . . ,o p m.
In the Matter of )
MAURICE P. ACOSTA, JR. ) Docket No. 55-08347
) ASLBP No. 88-577-02-EA q Operator License No. 6010-2 ) 1 NRC STAFF MOTION FOR ISSUANCE OF AN INITIAL. DECISION IN THE' ABSENCE OF SUBMISSION OF PROPOSED FINDINGS BY MAURICE P. ACOSTA, JR.
INTRODUCTION
. For the reasons set out below, the NRC staff (Staff) respectfully moves the Atomic Safety and Licensing Board (Licensing Board) to proceed with the issuance of an Initial Decision in this proceeding in the absence of the submission of proposed findings of fact and conclusions of law by Maurice P. Acosta, Jr.
BACKGROUND At the conclusion of the evidentiary hearing in this proceeding on May 21, 1949, after an off the record discussion, Judge Cotter made the following culing:
JUDGE COTTER: Back on the record. We had a discussion concerning a briefing schedule off the record and have agreed that the staff brief will be filed June 26th, 1989.
Mr. Acosta's brief wiTT Ee filed July 25, 1989, and the staff reply br (Emphasis added.) gf will beTITed August 9,1989.
l
-1/ Tr. 278. It is the Staff's position that the substance of the off the record discussion and the use of the word "will"-by Judge Cotter constituted a specific-direction to the parties to this proceeding to
' file proposed findings of fact and conclusions of law or a "brief".
l
.)
i 890s240002g%34[
SECy LIC55 pg g )g{
- - _ - - - -L- - - - - - - - _ A
l 4
.' . -)
-' l I
On June 26, 1989, the Staff, as directed by the Licensing Board,
. filed its " Proposed Findings of Fact and Conclusions of Law in the Form of-an Initial Decision". To date, the Staff has not received and, we assume, Maurice P. Acosta, Jr. has failed to file proposed findings of fact and conclusions of law as required by the Licensing Board. 2/ Accordingly, the Licensing Board should proceed to issue an Initial Decision in this proceeding based on the record before it and the Staff's June 26, 1989, proposed findings.
DISCUSSION ,
l 10 CFR s 2.754 provides for the filing of proposed findings of fact i
! .and conclusions of law. The requirement for the submission to a Licensing Board of proposed findings of fact and conclusions of law is not a mere formality.
Proposed findings give a licensing board the benefit of a party's position on factual and legal matters in controversy and permits the licensing board to resolve them in the first instance, possibly in the party's favor, obviating later appeal. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 906-907 (1982). Thus, consistent with 10 CFR $ 2.754(b), matters on which findings have not been submitted may be treated as having been abandoned. Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear Power Station), LBP-82-48, i
15 NRC 1549, 1568 (1982). The presiding officer is empcwered to take a party's failure to file proposed findings, when directed to do so, as a 1
2/
~
By letter dated August 9, 1989, the Staff advised the Licensing Board l that, in the absence of Mr. Acosta's filing, the staff is unable to l prepare reply finding or a reply brief; and, in the event Mr. '
Acosta's findings or brief was not received by the Staff by August 14, 1989, the Staff would file the instant motion.
_-________-__-__a
l j
i default. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), .
ALAB-709, 17 NRC 17, 21 (1983); Kansas Gas & Electric Co. (Wo?f Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 61 n.3 (1984). See Metrc.politan Edison Co. (Three Mile Island Nuclear Station, Unit 1),
ALAB-772, 19 NRC 1193, 1213 n.18 (1984), rev'd in part on other grounds, CLI-85-2, 21 NRC 282 (1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-84-47, 20 NRC 1405,1414 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-87-13, 25 NRC 449, 452-53 (1987).
)
l Other consequences flow from a failure to file proposed findings. In l the event of an appeal the Appeal Board is not required to review exceptions made by a party who has failed to file proposed findings on the issues .
I with respect to which the exceptions are taken. Florida Power & Light Co.
(St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 2 NRC 3, 4 n.2 (1975); 1 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 964 (1974).
The Staff, under the circumstances of this enforcement proceeding, is I not seeking the entry of an order holding Mr. Acosta in default because of the failure of his counsel to file proposed findings or a brief. Were it I to do so, the Licensing Board arguably could dismiss the proceeding without !
l reaching a decision on the merits at all. Rather, the relief requested by j the Staff, based on the absence of proposed findings of fact and conclusions I
i f
1
-_--__-_.-.--_A
3 -4 of law on Mr. Acosta's behalf,.is for.the Licensing Board to proceed to issuance of an Initial Decision based on the record before it and the Staff's June 26, 1989 proposed findings.
CONCLUSION. .
For the reasons set out abdve, the Licensing Board'should proceed to issue an Initial Decision in this proceeding.
Respectfully submitted,--
My M h/k Bernard M. Bordenick Counsel for NRC Staff-
)
Dated at Rockville, Maryland this 15th day of August, 1989 l
a l~,
'i
-1 1
- il aW t t.nt UNITED STATES'0F AMERICA 89 ' AUG 17 P2 56 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD {fgj ['yj p.t te In'the Matter of.
i MAURICE P. ACOSTA, JR. Docket No. 55-08347 ASLBP No. 88-577-02-EA Operator License No. 6010-2 1 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION FOR ISSUANCE OF AN
. INITIAL DECISION IN THE ABSENCE OF SUBMISSION OF PROPOSED FINDINGS BY MAURICE P. ACOSTA, JR." in the above-captioned proceeding have been served on the following by deposit in the United States mail, first i class, or as indicated by an asterisk through deposit in the Nuclear
~
l Regulatory Commission's internal mail system, this 15th day of August,1989:
l B. Paul Cotter, Jr., Chairman
- Atomic Safety Licensing Appeal Administrative Judge Panel (5)* .
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adjudicatory File
- Dr. Harry Foreman Atomic Safety and Licensing Board l Administrative Judge U.S. Nuclear Regulatory Commission 1564 Burton Avenue- -Washington, DC 20555 St. Paul, MN 55108 Docketing and Service Section*
Dr. Jerry R. Kline* Office of.the Secretary Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Wasnington, DC 20555 Michael B. Blume, Esq.
U.S. Nuclear Regulatory Commission Mr. Maurice P. Acosta, Jr. Regional Counsel, Region V 193 Santa Maria Court 1450 Maria Lane, Suite 210 Vista, CA. 92083 Walnut Creek,.CA 94596 Charles R. Kocher, Esq. Atomic Safety and. Licensing James A. Beoletto, Esq. Board (1)*
Southern California Edison, Co. U.S. Nuclear. Regulatory Commission 2244 Walnut Grove Avenue Washington, DC 20555 Rosemead, CA ~91770 l
I l
u______ .-- _ - - - _ _ - _ _
j
l l
_2 Office of the Secretary * !
Robert B. Rothman, Esq. U.S. Nuclear Regulatory Commission 110 West C. St., Suite 2000 Washington, D.C. 20555 San Diego, CA 92101
&f '
Bernard M. Bordenick Counsel for NRC Staff l 1 l
\
i l l i
l 1
L___------------------ -- )