ML20235B475

Memorandum and Order.* ASLAP Orders That Intervenor Appeal of 870902 Interlocutory Order,Denying Contention,Be Dismissed.Aslb 870911 Decision Re Licensee Amends May Be Appealed Per 10CFR2.762(a).Served on 870921

ML20235B475
Person / Time
Site:	Diablo Canyon
Issue date:	09/18/1987
From:	Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	Preston M Sierra Club
References
CON-#387-4423 ALAB-873, OLA, NUDOCS 8709240118
Download: ML20235B475 (3)

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,a p UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 SEr 21 A9 :55 ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman Septemb r.18, 1987 (ALAB-873)

~) SERVED SEP 211987 In the Matter of )

)

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

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

Plant, Units 1 and 2) )

)

Marcia Preston, San Francisco, California, for the intervenor Sierra Club.

MEMORANDUM AND ORDER This is a proceeding on the application of the Pacific Gas and Electric Company for amendments to the outstanding operating licenses for its Diablo Canyon nuclear facility.

The requested amendments would enable the applicant to increase the storage capacity of the facility's spent fuel pools.

While the proceeding was still pending before the Licensing Board, the intervencr Sierra Club sought the admission of an additional contention. In an interlocutory order entered on September 2, 1987,1 the Board denied that relief. The Sierra Club now seeks to appeal that order under 10 CFR 2.714a.

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See LBP-87-24, 26 NRC .

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I The appeal will not lie. In terms, section 2.714a permits an interlocutory appeal from an order rejecting one or more contentions at the threshold only if the'effect of the rejection is to deny in its entirety a petition for leave to intervene in the proceeding.2 In this instance, the September 2 order patently had no such effect.

This does not mean, however, that the Sierra Club has no appellate remedy available to it. On' September 11, 1987, the Licensing Board rendered its' initial decision in the proceeding, authorizing the issuance of the requested operating license amendments.3 That decision is subject to an appeal as a matter of right under 10 CFR 2.762(a). On any such appeal, the Sierra Club may challenge, if it is so inclined, the rejection of the contention in question.4 Appeal dismissed.

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2 See, e.g., Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-599, 12 NRC 1 (1980), and cases there cited.

3 See LBP-87-25, 26 NRC .

4 See ALAB-599, supra, 12 NRC at 2 n.l.

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It is so ORDERED.

FOR THE APPEAL PANEL CHAIRMAN

!  % e. &

Eleanor E. HagiQ; Secretary to the Appeal Panel This action was taken by the Appeal Panel Chairman under the authority of 10 CFR 2.787(b).

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