ML19260A890

Memorandum Explaining Why No Full Opinion Re NRC 790906 Order Will Be Issued

ML19260A890
Person / Time
Site:	07002623
Issue date:	11/08/1979
From:	Bishop C Atomic Safety and Licensing Board Panel
To:
References
NUDOCS 7912060092
Download: ML19260A890 (4)

Text

3C PUBLIC DOCUMEE RDOM.

UNITED STATES OF AMERICA NfIp%

NUCLEAR REGULATORY COMMISSION M

4 ATOMIC SAFETY AND LICENSING APPEAL BOARD 73 N

Alan S. Rosenthal, Chairman I

Dr. John H. Buck Michael C. Farrar N

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In the Matter of

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DUKE POWER COMPANY

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Docket No. 70-2623

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(Amendment to Materials License

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SNM-1773 -- Transportation of

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Spent Fuel from Oconee Nuclear

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Station for Storage at McGuire

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Nuclear Station)

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MEMORANDUM November 8,

1979 1.

On August 7, 1979, the Licensing Board orally denied the request of the NRC staff that certain information pertain-ing to staff-approved routes for the proposed shipment of spent fuel between the Oconee an.' McGuire nuclear facilities be withheld from public disclosure.

On September 4, the staff moved us to review that action by way of directed certifica-tion and also requested the issuance of an interim protective order pending our ruling on the motion.

Two days later, we entered an order en which we summarily denied all of the sought relief.

The order briefly outlined the reasons for do.is so

-1/

The hearing at which the information would h$ve been disclosed was scheduled to begin on Septembg03 0 6 8.

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7912060D Q

n 2-and indicated that an opinion elaborating upon them would be later filed.

The staff immediately took the matter to the Commission.

On September 7, the Commission issued an interim protective order and scheduled oral argument on the staff's petition for review for the following Monday, September 10.

Subse-quent to the argument, the parties were called upon to submit further riemoranda.

On November 2, the Commission entered another order in which it indicated that, in deciding "whether the staff's peti-tion for review should be granted and', if so, whether the interim

• *

• it would be protective order should be made permanent, prudent to examine in camera the routing information" in ques-tion.

The staff was instructed to supply that information immediately to the Commission, and also to make it available to those parties which execute a prescribed " Affidavit of Non-Disclosure".

2.

In the foregoing circumstances, there is no present occasion for a further davelopment of the underpinnings of our September 6 order.

To repeat, that order did not reach the merits of the controversy regarding the public disclosure of the shipment routes; rather, all we decided was that we

. should not inject ourselves into that controversy.

Had the matcer ended at that, the parties would have been entitled to a greater exposition of the reasons behind our ruling than we had been able to provide initially (because of the staff's delay in seeking relief from us, our order denying its motion necessarily was prepared in some haste).

Hence our announced intention to file a full opinion as time per-mitted.

But, upon receipt of our order, the staff chose to seek CommissLion intercession.

Once it had made that election, little ultimate significance continued to attach to why we had concluded that the Licensing Board's action did not war-rant appellate scrutiny.

What then became important was, rather, how the Commission might itself view the staff's claim that the matter demanded review.

To be sure, in aid of its deliberations on whether to grant review, the Comuission might have desired to have at hand a more comprehensive exposition of our thinking than we were able to supply in the face of the time pressure that had confronted us.

That it has not evinced any such desire to date suggests that the Commission perceives no need for such assistance. 2/

Stated otherwise, it now seems apparent that 2/

Moreover, we take the substance of the November 2 order as indicative of a Commission approach to the problem markedly different from our own (as sketched out in our September 6 order).

1510 Ud)h

D.

. the. questions whether appellate review is appropriate and, if so, what result should obtain on that review will be re-solved by the Commission on its own analysis.

In short, events have overtaken our proposal to file a full opinion in additional explanation of the September 6 order.

Accordingly, no such opinion will be filed.

In-stead, the parties and the Bar in general should look to the Commission's eventual disposition of the staff's peti-tion for review for any neaded guidance respecting whether interlocutory review is appropriate in circumstances akin to those presented here.

FOR THE APPEAL BOARD C.

Je B1snop 1

Secretury to the Appeal Board

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