ML20212R671

Memorandum & Order.* Order Denying Motion of Mothers for Peace & Sierra Club for Summary Disposition Re Failure of NRC to File Eis,Requesting Prefiled Testimony by 870224 & Setting Date of Hearing for 870309.Served on 870130

ML20212R671
Person / Time
Site:	Diablo Canyon
Issue date:	01/28/1987
From:	Bright G, Cotter B, Harbour J Atomic Safety and Licensing Board Panel
To:	FRIENDS PEACE EXCHANGE (FORMERLY MOTHERS FOR PEACE), SAN LUIS OBISPO MOTHERS FOR PEACE, Sierra Club
References
CON-#187-2373 86-523-03-LA, 86-523-3-LA, OLA, NUDOCS 8702030035
Download: ML20212R671 (6)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COPMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: fg.tj, B. Paul Cotter, Jr., Chairinan Glenn 0. Bright Dr. Jerry Harbour -

SERVED JAN 301987

)

In the Matter of: ) Docket Nos. 50-275-OLA

) and 50-323-OLA 1

PACIFIC GAS AND ELECTRIC COMPANY )

) (ASLBP No. 86-523-03-LA)

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) ) January 28, 1987

)

MEMORANDUM AND ORDER On December 15, 1986 Intervenors Sierra Club and San Luis Obispo Mothers for Peace filed a joint motion for suninary disposition alleging that NRC Staff had failed to file an environmental impact statement and had failed to adhere to the provisions of the Standard Review Plan. The motion concluded that on these grounds the Board should deny a license amendment request by Pacific Gas and Electric Company to expand the capacity of its spent fuel pools at Units 1 and 2 of the Diablo Canyon i Nuclear Power Plant. Subsequently, in a filing dated January 13, 1987, the Mothers for Peace withdrew from "all participation in this

! proceeding".

In an earlier pleading dated December 10, 1986, the third intervenor in this case, Consumers Organized for Defense of 870203o035 870128 3g0

b. t PDR ADOCK 05000275 o PDR

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' t Environmental Safety (CODES), indicated its intention not to participate any further in the proceeding. In a further development, the Sierra Club filed a motion dated January 13, 1987 requesting a continuance of the hearings scheduled to comence on February 2,1987 on the ground that its principal representative and sole witness in the hearing had been injured in an automobile accident.

Upon consideration of these filings and the responses thereto, the -

Board: (1) denies the joint motion for summary disposition; (2) finds that the San Luis Obispo Mothers for Peace and CODES have withdrawn from the proceeding and are no longer parties; and (3) establishes a revised schedule for commencing hearing on March 9,1987.

Motion for Sumary Disposition The motion for summary disposition avers that the license amendment I

to rerack the two spent fuel pools at the Diablo Canyon Plant Units 1

! and 2 should be denied on two independent grounds:

i

1. Because the NRC has failed to comply with the National Environmental Policy Act of 1969 by not preparing an 1

environmental impact statement; and l

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2. "The reracking application fails to meet the NRC acceptance criteria for spent fuel storage at civilian nuclear power stations".

The motion lists material facts as to which there is no dispute. The third of these allegedly undisputed facts is that the proposed spent fuel racks "will collide with each other and cause a postulated seismic event". The motion attaches no supporting affidavit, and there is no showing that counsel who signed the motion has any technical expertise in this area.

Both the NRC Staff and the licensee, Pacific Gas and Electric Company, oppose the motion on both the law and the facts, arguing in part that there are disputed questions of fact and that the motion is i

outside the scope of any contention. Intervenor Sierra Club admits in its motion that it does not " seek to prove a particular contention set for hearing" but alleges, nevertheless, that the motion is directly related to the contentions and should be dispositive of the proceeding.

The Board does not agree. Wholly aside from the technical argument as to whether the motion relates to material facts at issue in this proceeding, the Board is completely satisfied that the resolution of Intervenor's motion will require a decision on factual matters which are disputed by the parties. The Board is further satisfied that the factual disputes in question are such that even if intervenors attempted to support their position by otherwise qualifying affidavits, the t __. _

factual disputes would still remain. Accordingly, the motion is denied.

Cleveland Electric Illuminating Company, 6 NRC 741, 752, 754 (ALAB-443, 1977).

Withdrawal of Intervenors San Luis Obispo Mothers for Peace and Consumers Organized for Defense of Environmental Safety The January 13, 1987 filing by the Mothers for Peace leaves no '

doubt that it has withdrawn from all further participation in this proceeding. Accordingly, its remaining contentions are dismissed.

The December 10, 1986 filing by Intervenor Consumers Organized for Defense of Environmental Safety is less precisely worded but leaves little doubt of its intent. Accordingly, the Board concludes that CODES too has withdrawn from the proceeding and its remaining contention is dismissed.

Hearing Schedule The Sierra Club's Motion for Continuance follows a telephone notification to the Board and parties of the request and the grounds for it. The motion contemplates commencing the hearing on Monday, February 23, 1986. The Board members' schedules and the availability of hearing space in the San Luis Obispo area dictates that the hearing

t cannot commence at that time. Accordingly, the hearing will commence at 9:30 A.M. local time, Monday, March 9, in the Cabana Room, San Luis Bay Inn, Avila Beach, California 93424, and continue from day to day until complete. The parties are to file all prefiled testimony with the Board on or before February 24, 1987. The parties shall also agree upon a marking system for all exhibits, and the Staff shall submit to the Board an agreed-upon list of all such exhibits at the same time prefiled testimony is due. Prefiled testimony shall show in the text the -

contentions and exhibits to which it relates.

Limited Appearances The Board will entertain limited appearance statements from 4:00-6:00 P.H. on Monday, March 9, 1987. If additional time is needed for limited appearance statements, it will be scheduled during the course of the hearing.

ORDER For all the foregoing reasons and upon consideration of the entire record in this proceeding, it is this 28th day of January,1987 ORDERED

1. That the motion of Intervenors Mothers for Peace and Sierra

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Club for summary disposition is denied;

2. That prefiled testimony and a list of exhibits shall be received by the Board and the parties to this proceeding on or before February 24, 1987; and

3. That the hearing shall comance at 9:30 A.M. local time, Monday, March 9,1987 and continue from day to day until ..

complete.

THE ATOMIC SAFETY AND LICENSING BOARD

/b B. Paul Cotter, Jr. ,//hairman ADMINISTRATIVE JUDGF/

A Glenn 0. Bright

- s. d4#

gf ADMINISTRATIVE JUDGE

(/ Jerry Harbour ADMINISTRATIVE JUDGE

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