ML20151W031
| ML20151W031 | |
| Person / Time | |
|---|---|
| Issue date: | 10/19/1983 |
| From: | Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Jennifer Davis, Harold Denton, Deyoung R NRC OFFICE OF INSPECTION & ENFORCEMENT (IE), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20151H158 | List: |
| References | |
| FOIA-88-198 NUDOCS 8808230185 | |
| Download: ML20151W031 (2) | |
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NUCLEAR REGULATORY COMMISSION wasmuoros. o. c. 2osss
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OctoberI,1983 MEMORANDUM FOR: Richard C. DeYoung, Director Office of Inspection and Enforcement Harold R. Denton, Director Office of Nuclear Reactor Regulation John G. Davis, Director Office of Nuclear Material Safety Safeguards FROM: Guy H. Cunningham, III Executive t.egal Director
SUBJECT:
AMENDED OPINION IN BELLOTTI V. NRC On October 3,1983, I sent you a memorandum with a copy of the D.C. Circuit t Court of Appeals' decision in Bellotti v. NRC. Since the date of my memo-randum, Judge Bork, who wrote "the majority opinion, issued an amended opinion. Although Ju'ge Bork reached the same result, he expanded his original opinion to respond specifically to the arguments set forth in Judge Skelly Wright's dissenting opinion. A copy of the amended decision, dated October 7,1983, is attached for your information, ;
j As you know, the Bellotti case dealt primarily with the question of the I scope of the intervention and hearing rights of third parties who favor the remedy imposed by an NRC enforcement orc'er, bJt who wish to have a hearing on the need for additional remedies. The majority held that the Comission could deny a hearing in such circumstances. In his amended ,
1 opinion, Judge Bork responded particularly to the dissent's charge that the !
majority's holding would effectively "end all public participation with l respect to nuclear licensing issues of public concern." Dissenting opinic,n, at 4. Judge Bork observed that participation by third party intervenors like Attorney General Bellotti in formal proceedings may be denied only in those instances in which the Comission imposes more stringent safety conditions, i.e., conditions which the intervenor himself supports:
The Commission's power to define the scope of a proceeding will lead to cne denial of inter-vention only when the Comission amends a license to requirc additional or better safety measures. Then, one who, like petitioner Bellotti, wishes to litigate the need for still CONTACT:
Stephen G. Burns OELD x27268 agj02jg508072al JOHNSON 80-190 pog
s more safety measures, perhaps including the closing of the facility, will be remitted to section 2.206's petition procedures. A petition is not a futile gesture, for the Com-mission may not deny it arbitrarily. If, on the other hand, the Comission proposes to amend a license to remove a restriction upon the licensee, the scope of the proceeding is defined by the proposal and section 189(a) pemits public participation to oppose the relaxation. The upshot is that automatic participation at a hearing may be denied only when the Comission is seeking to make a facility's operation safer. Public participation is automatic with respect to all Comission actions that are potentially harmful to the public health and welfare.
Majority opinion, at 7-8. In Judge Bork's view, this interpretation of section 189(a) remits a more orderly and effective regulatory process, because it permits the Comission to allocate its resources and implement enforcement remedies without "turning focussed regulatory proceedings into amorphous public extravanganzas." Majority opinion, at 6.
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&L, ;V J / _a Guy H. Cunniffgham, III Executive Legal Director
Enclosure:
a/s cc: W. J. Dircks Regional Administrators h
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