ML20012D637
| ML20012D637 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/22/1990 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, NRC OFFICE OF THE GENERAL COUNSEL (OGC), PACIFIC GAS & ELECTRIC CO. |
| References | |
| CON-#190-10130 FDR, NUDOCS 9003280164 | |
| Download: ML20012D637 (4) | |
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um UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'90 m 22 P4 :47 C0flMISSIONERS:
grFwE OF SEcitt1AA <
Kenneth M.-Carr, Chairman "UCKU$t'd"V'CI i
Thomas M.1 Roberts
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Kenneth C. Rogers James R. Curtiss WWED MAR 2 2 1990 Forrest J. Remick p
In the Matter of:
PACIFIC GAS AND ELECTRIC COMPANY, Docket Nos. 50-275 W 50-323 (Diablo Canyon Nuclear Power Plant, (Fitness for Duty Rule')
Units'1 and 2)-
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ORDER On February 2, 1990, the plaintiffs in Hiett v. Pacific Gas &
Electric Co., No. C 89-4569 FMS(N.D. Cal.),appliedfor"apartialstay of the Commission's Final Rule and Statement of-Policy concerning Fitness-for-Duty Programs as applied to certain employees at the Pacific Gas and Electric Company's Diablo Canyon Nuclear Power Plant in Avila Beach, California, pending review of this matter in the Ninth Circuit Court of
. Appeals." Letter of Mr. Dalzell to Mr. Chilk, dated February 2,1990, at
- p. 1.
Plaintiffs filed their stay motion in order to exhaust the requirements of Rule 18 of the Federal Rules of Appellate Procedure.
The Commission issued a scheduling order requiring the licensee to.
respond to the reouest for stay by February 8, and the NRC Staff to respond by February 12.
Order (unpublished), Nos. 50-275, 50-323 (Feb.'5,1990). The Commission has received those responses.
9003280164 900322 PDR ADOCK 05000275:
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'In the meantime, plaintiffs sought a stay.from the United States Court of Appeals.for the Ninth Circuit.
The flinth Circuit denied the stay motion on February 6, 1990, on the ground that " petitioners have r.either shown' a probability of success on the' merits nor that the balance of hardships tips sharply in their favor." Hiett v. Pacific Gas &
- Electric Co., No. 90-15131 (9th Cir., Feb. 8, 1990), slip op at 2.
The Ninth Circuit also indicated that it lacked jurisdiction under the Hobbs Act to entertain a petition for review challenging the Commission's
' Fitness for Duty regulations because plaintiffs had filed their suit "more j
than 60 days following the date that the challenged regulations were promulgated." M.I In these circumstances, where the court of appeals already has indicated that it lacks-jurtsdiction to review Commission regulations and 2
already has denied a stay pending appeal, the request for relief from the Commission pending review in.the court of appeals is essentially moot.
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The Ninth Circuit did indicate that it would consider
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plaintiffs' stay motion as " signifying plaintiffs' intent to appeal" the district court's refusal, on jurisdictional grounds, to consider plaintiffs' challenge to the Fitness for Duty o
regulations.
Id. The Court, however, required plaintiffs to perfect their 5 peal by paying the appropriate docketing fee.
In addition, as already noted, the Court refused to stay the
_ Commission's regulations pending appeal.
l 2The NRC Staff argues that plaintiffs' request for relief should be viewed as a_ request for an exemption, rather than a u
L request for a stay, because no adjudication is pending before the Commission. The Staff agrees, however, that the same standards applicable to " stay" requests apply to plaintiffs' " exemption" L
request.
Whether viewed as a request for an exemption or a request for a stay, the request lacks merit.
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addition, the request lacks n. erit for the reasons g'iven by the court of appeals. - The request is hereby denied.
It-is so ORDERED.
For the Comission
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-SAMUEL,J(CHILK s
- 6,,4,o Secretary of ttie Comission Dated at Rockville, MD this M day of March, 1990.
t Commissioner Remick was not present for the affirmation of this Order.
If he had been present he would have approved it.
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ho UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION og In the Matter of I
I PACIFIC GAS AND ELECTRIC COMPANY l
' Docket No. (s) 50-275/323-FDR (Diablo' Canyon. Units 1 and 2) l I
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CERTIFICATE OF SERVICE 1 hersb'y certify that copies of the forecoino COMMISSION ORDER DTD 3/22/90 have been served upon the followino persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Lawrence J. Chandler. Escuire Charles E. Mullins. Escuire Assistant General Counsel Attornev Office of the General Counsel Office of the General Counsel.
U.S. Nuclear Reculatory Commission U.S. Nuclear Regulatory Commission Washinoton.=DC 20555 Washinoten, DC 20555 Tom Dalzell. Escuire Attorney lathan T. Annand..Escuire IBEW Local 1245 Counsel for Pacific Gas & Electric r
P..D.
Box 4790 P.O. Box 7442 3083 Citrus Circle San Francisco. CA 04106 Walnut Creek. CA -94596 Dated at Rockville. Md. this 22 day of March 1990
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Office gf the Secretary of the Commission l
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