ML20056E747

Memorandum & Order CLI-93-18.* Commission Declines Review of Interlocutory Discovery Order That Board Referred to NRC Re LBP-93-13.Served on 930819.W/Certificate of Svc

ML20056E747
Person / Time
Site:	Diablo Canyon
Issue date:	08/19/1993
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	PACIFIC GAS & ELECTRIC CO., SAN LUIS OBISPO MOTHERS FOR PEACE
References
CON-#393-14231 CLI-93-18, LBP-93-13, OLA, OLA-2, NUDOCS 9308250134
Download: ML20056E747 (5)

Text

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UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION Commissioners: 93 MI 19 R2:30 Ivan Selin, Chairman n .,

Kenneth C. Rogers 14,4- .rcr Forrest J. Remick -

E. Gail de Plangue

)

In the Matter of the )

)

PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275 OLA-2

) 50-323 OLA-2 (Diablo Canyon Nuclear Power )

Plant, Units 1& 2) ) (Construction Period

) Recovery)

)

MEMORANDUM AND ORDER E 9 1993 CLI-9 3 - 18 The Commission is declining review of an interlocutory discovery order that the Atomic Safety and Licensing Board had referred to us in accordance with 10 C.F.R. S 2.730 (f) . See LBP-93-13, 38 NRC (July 19, 1993). In the referred ruling the Licensing Board had ordered Pacific Gas and Electric Company, the applicant in this amendment proceeding, to make available to the San Luis Obispo Mothers for Peace, the intervenor, a document prepared by the Institute for Nuclear Power Operations (INPO) which the applicant claimed was confidential and privileged. The Licensing Board had found that the document was relevant to one of the intervenor's discovery requests and, therefore. should be disclosed. The Licensing Board, however, permitted disclosure to the intervenor subject to a protective order that would prohibit further public dissemination of the document or its contents. As 9308250134 930819 f -

PDR ADOCK 05000275 j g PDR

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the applicant had urged, the Licensing Board referred its ruling to the Commission and stayed the effect of its order pending Commission review.

Upon receipt of the Licensing Board's referral of its ruling in '. 3P-9 3-13, we set a schedule for briefs from the parties.

Counsel for the applicant later informed the Commission in a July 22 filing that the applicant had decided to disclose the INPO document to the intervenor if agreement could be reached on an appropriate protective order, and counsel moved for a deferral i

of the briefing on LBP-93-13. In a July 23 order, the Commission granted the motion in part and deferred briefing until August 3 in the event agreement on a protective order could not be reached.

As a result of further discussions among the parties and a telephoae conference with the Licensing Board on July 29, agreement on a protective order has been reached and the Licensing Board has issued a protective order reflecting that agreement.1 Accordingly, the applicant's counsel informed the Secretary on August 3, 1993, that the applicant would not be filing a brief on LBP-93-10 and suggested that the Licensing Board's referral was now moot.

When LBP-93-13 was issued, the controversy over the t <

l disclosure of the INPO document seemed to fall within the narrow i

1 Memorandum and acder (Protective Order Governing Non-l Disclosure of INPO Report) (Aug. 3, 1993, unpublished); see also l

Memorandum and Order (Telephone Conference Call, 7/29/93), at 2-3 l (Aug. 3, 1993, unpublished).

3 class of interlocutory orders for which Commission review might  !

be appropriate.2 However, the applicant's subsequent agreement to disclose the INPO document and the Licensing Board's entry of a protective order satisfactory to the parties indicates that our ,

review is unnecessary to resolve any immediate controversy.

Accordingly, in the absence of any present circumstance j suggesting that interlocutory review is appropriate under 10 C.F.R. S 2.786(g), we decline review of the referred ruling. l l It is so ORDERED.

l ,g.tph REgby For the Commission 3 l JP

• Samuel . Chilk N Secretary of he Commission Dated at ockville, Maryland, this [7 day of August 1993.

2 See Kansas Gas & Elec. Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, 411 (1976).

3 Commissioner Remick was not present for the affirmation of this Order; if he had been present, he would have approved it.

O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY Docket No.(s) 50-275/323-OLA-2 (Diablo Canyon Nuclear Power Plant, Unit Nos. I and 2)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing CLI-93-18, DATED 8/19/93 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Office of Commission Appellate Administrative Judge Adjudication Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 ,

Administrative Judge Administrative Judge Jerry R. Kline Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Ann P. Hodgdon, Esq. C. J. Warner, Esq.

Office of the General Counsel Richard F. Locke, Esq.

U.S. Nuclear Regulatory Commission Pacific Gas & Electric Company Washington, DC 20555 77 Beale Street San Francisco, CA 94106 Robert R. Wellington, Esq. Joseph B. Knotts, Jr., Esq.

Diablo Canyon Independent Safety David A. Repka, Esq.

Comm.ittee Winston & Strawn x- 857 Cass Street, Suite D 1400 L Street, N.W.

Monterey, CA 93940 Washington, DC 20005 l

l l

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t O

Docket No.(s)50-275/323-OLA '

CLI-93-18, DATED 8/19/93 Truman Burns Peter G. Fairchild, Esq.

Robert Kinosian California Public Utilities Comission California Public Utilities Comission 505 Van Ness Avenue 505 Van Ness, Room 4103 San Francisco, CA 94102 San Francisco, CA 94102 Nancy Culver, President Diane Curran, Esq.

Board of Directors Counsel for SLOMFP Mothers for Peace c/o IEER P. O. Box 164 6935 Laurel Avenue, Suite 204 Pismo Beach, CA 93448 Takoma Park, MD 20912 Dated at Rockville, Md. this _

19 day of August 1993 ,

Office of theyretary of the Comission l