ML20045E860
| ML20045E860 | |
| Person / Time | |
|---|---|
| Issue date: | 05/29/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-076, SECY-A-80-76, NUDOCS 9307060153 | |
| Download: ML20045E860 (5) | |
Text
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4 May 29, 1980 SECY-A-80-76 i
COMMISSIONER ACTION For:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel
Subject:
Review of ALAB-591 (In the Matter of Duke Power Company)
Facility:
Perkins Nuclear Station, Units 1, 2 and 3
Purpose:
To inform the Commission of an Appeal Board
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[End which, in our opinion, ' ~ ~ decision, review of which ha
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_.. g Review Time i
Expires:
June 12, 1980 (as extended)
Discussion:
A petition seeking leave to intervene in the construction permit proceeding involving the proposed Perkins nuclear facility was filed with the Licensing Board on April 15, 1980 by David Springer.
The NRC staff response, urging denial on the merits of the petition, was sub-mitted not to the Licensing Board but to the i
Atomic Safety and Licensing Appeal Board.
The staff position was that the Licensing Board no longer had jurisdiction to entertain the peti-tion due to its February 22, 1980 partial initial decision on alternate site issues.
The Appeal Board held that the staff-petition was impro-In!ctm 2 3 in t.h reced n' : m-~q perly filed with it because the Licensing Board i
has the right to initial consideration of its in,-.dme w,th h2 m*. M i Arm &.
n own jurisdiction to grant relief specifically nti, excmr. hon; _785' sought of it.
The Appeal Board ordered the F0lA j#-
4 staff response be referred to the Licensing Board for its consideration.
]
The Appeal Board based its decision on several cases upholding the inherent right of a tribunal either judicial or administrative, to determi 9307060153 930317 in the first instance the bounds of its own PDR FOIA isdiction.
It found no special circumst GILINSK92-436 PDR rgow, OGC
2 h
nor were any asserted by the staff, which miE t ustify_ circumvention of this usual procedure.
E7 Recommendation:
i'
',../,['e/
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,,l j:1 it Ja,mes A. Fitzgerald' Assistant General Counsel
Attachment:
ALAB-591 Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Thursday, June 12, 1980.
Comission Staff Office comments, if any, should be submitted to the Comissicars If the NLT June 5,1980, with an infonnation copy to the Office of the Secretary.
paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat
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C l
. UNITED STATES OF AMERICA
'i NUCLEAR REGULATORY COMMISSION 1
ATOMIC SAFETY AND LICENSING APPEAL BOARD
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N
'l Alan S. Rosenthal, Chairman Dr. John H. Buck I
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Richard S. Salzman N-1
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In the Matter of
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DUKE POWER COMPANY
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Docket Nos. STN 50-488
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50-489 i
(Perkins Nuclear Station, Units 1,
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50-490 1
2 and 3)
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Mr. Charles A. Barth for the' Nuclear Regulatory Commission staff
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g ooeg USNRC
,,1 MM' 71980 '> h MEMORANDUM AND ORDER g
i" Office of the Secretary
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May 7,.1980 Dochting & Sonice e.
L neh' sl (ALAB-591) y g
r.n On April 15, 1980, David Springer filed a petition with the Licensing Board in this construction permit proceeding involving the proposed Perkins nuclear facility.
The petition 1/
sought leave to intervene in'this proceeding,- as.well as certain allied relief.
1~/ A previous
%d also untimely) intervention petition filed by Mr. t'rringer was denied by the Licensing Board; on his appea4..cm that denial, we affirmed.
See ALAB-j 431, 6 NRC 460 (1977).
- 1 On May 5, the NRC staff filed its response, in which it urged that the petition be denied on the merits.
That response was not, however, submitted to the Licensing Board.
- Instead, it was addressed to us.
The articulated reason was that, be-cause of the rendition of its February 22, 1980 partial initial 2/
decision on alternate site issues,--
the Licensing Board no longer has jurisdiction to entertain the petition; rather, such jurisdiction now resides exclusively in this Board.
We need not now decide whether the staff is right about 3/
that,--
Be that as it may, it is for the Licensing Board to consider ab initio whether it is empowered to grant relief which has been specifically sought of it.
Every tribunal --
11 NRC By unpublished order of March 4, LBP-80-9, 2/
1980, we tolled tee ~ running of the time period for the filing of exceptions to that decision.
It is worthy of passing note, however, that the Licensing 3/
Board has not totally relinquished jurisdiction over this licensing proceeding.
As stated at the very inception of J
its February 22 parr.ial initial decision, that-Board still has before it generic safety issues.
Thus, at present, there is divided jurisdiction between the two Boards.
In that circumstance, the question possibly might be somewhat This more difficult than the staff's response suggests.
is so notwithstanding the staff's asserted belief (Response,
- p. 4) that the " substance" of Mr. Springer's petition is a motion to reopen the record on matters covered in the February decision.
Indeed, the papers might also be con-strued as a motion to reconsider.
- See, e.g., consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645, 646 (1974).
We neither express nor intimate any opin-ion on how the papers should be construed, we merely re-iterate that things may not be so plain as they seem at first glance.
a.
whether judicial or administrative -- possesses the inherent right (indeed, the duty) to determine in the first instance the bounds of its own jurisdiction.
United States v. United Mine Workers, 330 U.S. 258, 292 fn. 57 (1947); accord, Nestor
- v. Hershey, 425 F.2d 504, 511 (D.C. Cir. 19 69).
As the Supreme Court has said in a related context:
"While the Board's de-ci is: is not the last word (respecting its jurisdiction], it must assuredly be the first".
Marine Engineers Beneficial Assn.
- v. Interlake S.S. Co., 370 U.S. 173, 185 (1962); accord, FPC v.
Louisiana Power & Light Co., 406 U.S.
621, 647 (1972).
The staff has not brought our attention to any special circumstances which might justify its attempt to circumvent that well-settled rule; i.e.,
its calling upon an appellate body to pass initial judgment upon the jurisdiction of a lower tribunal to decide a matter which has been put before that tribunal by another party (or, as here, a prospective litigant).
In short, even if wholly meritorious, the staff's juris-dictional assertions must originally be given consideration by
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the Licensing Board.
Although we accordingly might simply re-ject the staff's papers as having been improvidently filed with us, in the interest of expediting the ultimate disposition of the matter we shall refer them to the Licensing Board for its 1
4-consideration.
We assume that, following its receipt of the J
4/
applicant's response to Mr. Springer's petition,-
the Board will take such action on the petition as appears to it appro-priate in the circumstances.
It is so ORDERED.
FOR THE APPEAL BOARD as_l>&
L-
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Barbara A. Tompkins Secretary to the Appeal Board 9
4/
The applicant applied for and obtained an extension until May 9 of the time for the filing of that response.
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