ML20217A928
| ML20217A928 | |
| Person / Time | |
|---|---|
| Issue date: | 09/19/1997 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Cordes J NRC OFFICE OF COMMISSION APPELLATE ADJUDICATION (OCAA) |
| References | |
| REF-10CFR9.7 CLI-97-11, M970919B, SECY-97-209-C, NUDOCS 9709230095 | |
| Download: ML20217A928 (4) | |
Text
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NUCLE AR HEGULATORY COMMISSION n
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September 19 1997 IN RESPONSE, PLEASE e*
REFER TO:
M970919B Of fICE OF THl 51CHETAHV MEMORANDUM FOR:
John F.
Cordes, Acting Director Office of Commission Appellate %djudication JohnC. Hoyle,becretary FROM:
SUBJECT:
STAFF REQUIREMENTS - AFFIRMATION SESSION, 11:30 A.M.,
FRIDAY, SEPTEMBER 19, 1997, COMMISSIONERS' CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MA 'YLAND (OPEN TO PUBLIC ATTENDANCE)
L SECY-97-209 - Louisiana Enercy Services (Claiborne Enriellment Center); Citizens Against Nuclear Trash's Motion for Reconsideration of CLI-97-11 The Commission approved the attached order denying the motion of Citizens Against Nuclear Trash (CANT) for reconsideration of the Commission order, CLI-97-11, that remanded one issue on waste disposal and decommissioning funding to the Atomic Safety and Licensing Board.
(Subsequently, on September 19, 1997 the Secretary signed the Order.)
Attachment:
As stated cc:
Chairman Jackson Commissioner Dicus Commissioner Diaz I
Commissioner McGaffigan 0D CIO CFO OCAA OA 6M" O b N OCA OIG Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail)
PDR - Advance DCS - P1-17 9709230095 970919 PDR 10CFR PT9.7 PDR
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERSt Shirley Ann Jackson, Chairman Greta J.
Dieus Nils J.
Diaz Edward McGaffigan, Jr.
)
In the matter of
)
)
Louisiana Energy Services
)
Docket No. 70-3070-ML
)
(Claiborne Enrichment Center) )
)
CLI QE_D.EB Citizens Against Nuclear Trash (CANT) has filed a motion for reconsideration of CLI-97-11, 46 NRC (September 3, 1997).
In CLI-97-11, we remanded for clarification one issue decided by the Atomic Safety and Licensing Board in its decision on waste disposal and decommissioning funding, LBP-97-3, 45 NRC 99 (1997).
For the reasons discussed below, the Commission denies CANT's motion for reconsideration of CLI-97-11.
Our remand order asked the Board to clarify its explanation of why deep-mine disposal is a plausible strategy for handling depleted uranium waste.
CANT believes that because its petition for review challenged the Board's explanation, the Commission is compelled by its own regulations to grant plenary review rather than order a remand for clarification.
We disagree.
The section of our regulations to which CANT refers, 10 C.F.R.
S 2.786,
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describes considerations under which the Commission "may" grant a pe'.ition F^r review but does not mandate any circumstance under p
which the Con.mdssion must take review.
Commission review under 9
f section 2.786 establishes a certiorari-like process that leaves full discretion to the Commission.
Nothing in the rule prevents a remand to the Board prior to a Commission decision on whether to grcnt plenary review.
1 The Commission considers an immediate remand of the deep-mine disposal issue the most efficient way to deal with what we view as an unclear Board discussion of the issue.
The Board, as r
the Commission's primary adjudicatory fact-finder, is well equipped to handle the remanded matter.
Giving the Board an opportunity to clarify the deep-mine d.;aposal issue leaves the Commission free to focus its attention on other pending issues in this proceeding.2 CANT is not prejudiced by a remand.
The Commission expects Recently, on September 11, 1997, the Licensing Board issued a procedural order thct, among other things, requested the parties' views on the " basis for the Licensing Board's jurisdiction to proceed" on the remanded issue.
This Board inquiry may stem from Commission precedent divesting the Board of jurisdiction over matters pending on appeal or on a petition for review.
- See, e.a.,
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-823, 22 NRC 773 (1985).
But that general practice, while sensible in most cases, does not apply where, as in this case, the Commission expressly retains jurisdiction and orders - remand for Board consideration of a
particular issue.
See cenerally Commonwealth Edipon Co. (Byron Nuclear Power Station, Units 1 and 2),
ALAB-770, 19 NRC 1163,
- 1168, 1181-82 (1984).
In these b
circumstancer.
" [wl e see no valid purpose to be served by an extended meta,:.ysical discussion of when jurisdiction passes" from one adjudicatory body to another.
See Philadelphia _ Electric Cg. (Limerick Generating Station, Units 1 and 2), ALAB-726, 17 NRC 755, 757 (1983).
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4 that the deep-mine disposal issue will be fully aired by the Board and that CANT will have sufficient opportunity to have its concerns addressed.
Moreover, when the Board issues its supplemental decision, CANT will be free to supplement its petitions for Commission review if CANT remains dissatisfied with l
the Board's treatment of the issue.
The Commission has neither franted nor denied the petitions for review and would give appropriate consideration to any supplemental petition.
In sum, the Commission seec no reason to reconsider its decision to remand the deep-mine disposal issue to the Board.
Accordingly, reconsideration is denied.
For the Commission John C.
Hoyle Secretary of the Commission Dated at Rocky.ille, Maryland, this day -f September, 1997.
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