ML20215F930
| ML20215F930 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/19/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | SAN LUIS OBISPO MOTHERS FOR PEACE, Sierra Club |
| References | |
| CON-#486-1962 OLA, NUDOCS 8612240121 | |
| Download: ML20215F930 (4) | |
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196 2 UNITED STATES OF AMERICA DCLKETEC NUCLEAR REGULATORY COMMISSION USHRC ATOMIC SAFETY AND LICENSING APPEAL gRhc 22 All :42 Administrative Judges:
GFFICE. r Christine N. Kohl, Chairman Decdab'e'igly,j :1986 Gary J. Edles
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SERVED DEC 22 986 1
Ir. the Matter of:
)
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275-OLA
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50-323-OLA (Diablo Canyon Nuclear Power
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Plant, Units.1 and 2)
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)
MEMORANDUM AND ORDER On December 15, 1986, intervenors Mothers for Peace and the Sierra Club filed with us a " Motion to Allow Filing of Summary Disposition Motion and for Reinstatement of Original Schedule."
The motion essentially seeks our review of the Licensing Board's December 1, 1986, Memorandum and Order in this operating license amendment proceeding involving the reracking of the Diablo Canyon spent fuel pool.
That order established a new, somewhat expedited schedule for filings and the hearing before the Licensing Board.
In addition, the Board observed (at 4):
the record makes cicar that the essence of the matters at issue here is factual and that, consequently, the likelihood of success of any motions for summary disposition is de minimis.
The time, effort, and resources required to file motions for summary disposition, weighed against the likely success of such motions, leads the Board to conclude they are not warranted.
Intervenors acknowledge that the Licensing Board has not prohibited any party from filing a motion for summary 8612240121 861219 PDR ADOCK 05000275 f0%
0 PDR
2 disposition.
Motion at 3-4.
Nonetheless, apparently out of 1
a concern that the Licensing Board might reject it, they ask us either to direct the Licensing Board to consider a separate motion for summary disposition attached to their instant filing, or to consider it ourselves.
Id. at 5.
Claiming in general terms inadequate resources and time, intervenors also ask us to reinstate the Licensing Board's
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original hearing schedule.
Because the Commission's Rules of Practice bar interlocutory appeals (see 10 C.F.R. S 2.730(f)),
intervenors' motion is, in effect, a request for directed certification pursuant to 10 C.F.R. SS 2.718 (i),
2.785 (b) (1).
In order to prevail in such a request, a movant must show that the licensing board's action (1) adversely affects it with serious and immediate harm that cannot be remedied later on appeal, or (2) affects the basic structure of the proceeding in a pervasive or unusual manner.
Licensing board scheduling orders, such as that here, are particularly unlikely candidates for interlocutory review via a grant of directed certification.
Houston Lighting & Power Co. (South Texas Project, Units 1 and 2),
ALAB-637, 13 NRC 367, 370-71 (1981).
Intervenors have made no effort to meet either of these well established criteria.
Nor is any harm -- especially serious and immediate irreparable harm -- apparent.
There is no basis.for believing that the Board will reject
3 intervenors' motion for summary disposition outright.
Indeed, until the Board acts on that motion, any request for review is premature at best.1 As for the new hearing schedule, the Board has advanced the hearing and prehearing filing dates about seven weeks by eliminating a formal schedule for summary disposition motions.
We have been given no good cause to second-guess the Board on its view that summary disposition is not likely to be a productive element in the schedule.
Accordingly, we will not intercede in either the Licensing Board's treatment of intervenors' pending summary disposition motion or its establishment of a new hearing schedule.
Intervenors' " Motion to Allow Filing of Summary Disposition Motion and for Reinstatement of Original Schedule" is denied.2 I It is not clear whether intervonors have filed their separate motion for summary disposition directly with the Licensing Board.
If they have not, we hereby refer it to that Board.
It is worth noting, however, that 10 C.F.R.
S 2.749 gives boards considerable discretion in handling summary disposition motions.
Moreover, unless a licensing board ruling on such a motion terminates a proceeding, it is interlocutory.
Thus, appellate review of licensing board action on a summary disposition motion can be obtained only by directed certification (if interlocutory), or at the end of the proceeding through a regular appeal.
Because intervenors' " Motion to Allow.
" so clearly lacks merit and because we did not wish to interfere with the parties' efforts to comply with the new hearing schedulo, we ruled on the motion without awaiting replies.
o 4
It is so ORDERED.
FOR THE APPEAL BOARD
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__N__ _h C.y ean Shoemaker Secretary to the Appeal Board