ML20246B923

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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
ML20246B923
Person / Time
Site: 05508347
Issue date: 08/15/1989
From: Bordenick B
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Atomic Safety and Licensing Board Panel
References
CON-#389-9059 88-577-02-EA, 88-577-2-EA, NUDOCS 8908240082
Download: ML20246B923 (6)


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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.

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-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".

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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

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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.

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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).

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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

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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-

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Dated at Rockville, Maryland this 15th day of August, 1989 l

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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

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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

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_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

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Bernard M. Bordenick Counsel for NRC Staff l 1 l

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