ML16340B662
| ML16340B662 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/29/1981 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8104300139 | |
| Download: ML16340B662 (10) | |
Text
04/29/81 In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
(Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2
)
Docket Nos.
50-275 O.L 2
.L.
NRC STAFF
RESPONSE
TO PGSE's MOTION TO RECONSIDER NOTICE OF HEARING UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ggg~gOKC
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lp INTRODUCTION On April 14, 1981, Pacific Gas and Electric Co.
(PG8E) filed a motion to reconsider this Board's April 6, 1981 Notice of Hearing.
PGSE bases its motion on a reading of the Licensing Board's notice that would imbue the notice with a decisional quality not normally attributed to notices.
In particular, PGSE objects to the first sentence of the notice which states:
The Board has determined that the record compiled in the Diablo Canyon case to support issuance of a license for fuel loading and low power testing is not adequate.
While the NRC Staff does not believe the cited sentence is anything more than a statement concerning the posture of the proceeding as of April 6, 1981, it would preserve its right to object to the statement if the Board view's~it otherwise.
DISCUSSION PGSE argues that the Notice of Hearing does not properly follow the guidance provided by the Commission in its April 1, 1981 Order.
Pacific Gas and Electric Com an (Diablo Canyon Units 1 and 2), CLI-81-5,
'-NRC-(1981).
PG&E further notes that it has filed a Motion to Reconsider
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V this Board's February 13, 1981 Order in light of the Commission's Order and urges the Board to consider PGE~E's former motion to reconsider as additional support for its latest motion to reconsider.
PGEE's motion does not reference the Licensing Board's memorandum and Order of April 9, 1981.
That Order, issued three days after the Notice of Hearing, specifically denied objections to and requests for reconsideration of the Board's February 13, 1981 Prehearing Conference Order.
The basis for denial was the Commission's Order.
Absent from that Order was any ruling on either the NRC Staff's or PGSE's motions for reconsideration which were based on the Commisison's Order.
Obviously, the Board recognized the need to await ruling until it had responses from the parties.
The Board's Notice of Hearing should be interpreted only as addressing.the status of matters as of the day of the notice.
On that day the Board's February 13, 1981 Order was in full effect.
That Order requires further evidentiary hearings and absent either reconsideration or summary disposition (neither of which is yet ripe for Board decision),
a correct characterization of the record is as stated by the Board in the Notice of Hearing.
This status may change should the Board reconsider or grant summary disposition.
It is an axiom of administrative law that a party cannot be aggrieved by an adjudicative action, whether called an order or not, which does not determine rights or obligations so that legal consequences will flow therefrom.
Rochester Tele hone Cor
. v. U.S.,
307 U.S.
- 125, 131,
- 132, 143 (1938).
A notice of hearing is not an order of definitive character
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dealing with the merits of a proceeding resulting from evidentiary p
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Edison Co.,
304 U.S.
- 375, 384, 386 (1938).
- Thus, a party cannot be heard to argue injury therefrom.
Id.
In any event, PGEE is not objecting to the time or place for hearing which are the consequences flowing from the Notice.
While the above discussion demonstrates that the Notice of Hearing did not affect the status of the proceeding in any substantive way, the Staff would agree with PGIIE if the Board intended its Notice of Hearing to serve some other purpose.
In the latter event the parties should be given the opportuni ty to object to such an action following a Board decision documenting the basis for its finding concerning the record's adequacy.
CONCLUSION The NRC Staff opposes PGIIE's motion to" reconsider the Notice of Hearing if the Notice is not deemed by the Board to have substantially determined the adequacy of the record without further ruling on the pending motions for reconsideration or motions for summary disposition.
Respectfully submitted, Dated Bethesda, t1aryland this 2gthday of April, 1981 William J.
Ol ms ad Assistant Chief Hearing Counsel
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
(Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2
Docket Nos.
50-275 O.L.
50-323 O.L.
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF
RESPONSE
TO PGKE'S MOTION TO RECONSIDER NOTICE OF HEARING in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of April, 1981.
John F. Wolf, Esq.,
Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Glenn 0. Bright, Esq.
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Jerry Kline Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401 Philip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company P.O.
Box 7442 San Francisco, California 94106 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs. Raye Fleming 1920 f/attie Road Shell Beach, California 93449 Richard E. Blankenburg Co-publisher Wayre A. Soroyan, News Reporter South County Publishing Company P.O.
Box 460 Arroyo Grande, California 93420 Marjorie Nordl inger Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gordon Silver Mrs, Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Arthur C. Gehr, Esq.
Snell E Wilmer 3100 Valley Center
- Phoenix, Arizona 95073 Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Bruce Norton, Esq.
3216 North 3rd Street Suite 202
- Phoenix, Arizona 85102 Andrew Baldwin, Esq.
124 Spear Street San Francisco, California 94105
i Johr, R. Phillips, Esq.
Simon Klevansky, Esq.
flargaret Blodgett, Esq.
fiarion P. Johnston, Esq.
Joel
- Reynolds, Esq.
Center for Law in the Public Interest 10203 Santa Monica Boulevard Los Angeles, California 90067 Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814 David S. Fleischaker, Esq.
Suite 709 1735 Eye Street, N.W..
Washington, D.C.
20006 Richard B. Hubbard tlHB Technical Associates 1723 Hamilton Avenue - Suite K
San Jose, California 95125 John Marrs, l1anaging Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P,O.
Box 112 San Luis Obispo, California 93406 Herbert H. Brown Hill, Christopher E Phillips, P.C.
1900 M Street, N.W..
Washington, D.C.
20036 Harry t5. Willis Seymour 8 Willis 601 California St., Suite 2100 San Franc isco, California 94108 Janice E. Kerr, Esq.
Lawrence g. Carcia, Esq.
350 NcAllister Street San Francisco, California 94102 Nr, James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.. 20555 Atomic Safety and Licensing Boa'rd Panel U.S. Nuclear Regu1 atory Commi ss ion Washington, D.C.
20555 Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C.
20555 William J.
Olmstead Assistant Chief Hearing Counsel
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