ML20238D192

Order Denying Aj Morabito 870711 Motion for Commission to Modify 870701 Order Removing Prohibtion on Commission Entertainment of Petition for Review Re Presiding Officer Decision Denied.Served on 871002

ML20238D192
Person / Time
Site:	05560755
Issue date:	10/02/1987
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	MORABITO, A.J.
References
CON-#188-5185 SP, NUDOCS 8801040143
Download: ML20238D192 (2)

Text

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CIW EOLKETFI UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS10M

'87 OCT -2 P 2 :13 Commissioners: c. .

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Lando W. Zech, Jr., Chairman Thomas M. Roberts

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Frederick M. Bernthal Kenneth M. Carr Kenneth C. Rogers SERVED OCT -21987 In the Matter of ALFRED J. MORABITO Docket No. 55-60755-SP (Senior Operator License for Beaver Valley Nuclear Power Station, Unit 1)

ORDER On July 1,1987, the Commission ordered that an informal hearing be afforded Alfred J. Forabito to consider the NRC Staff's denial of his application for a senior operator license for the Beaver Valley Nuclear Power Station, Unit 1. The Commission's Order provided, inter alia, that no petition for review would be entertained by the Commission regarding the presiding officer's decision. On July 11, 1987, Mr. Morabito moved the Comission to modify the Order by removing this prohibition. In addition, he requested that the informal hearing already aranted be viewed as a step toward a formal adjudicatory proceeding conducted under 10 C.F.R. Part 2, Subpart G procedures, alleging that he has a riobt to such a hearing under 10 C.F.R. % 2.104 and the Due Process Clause of the Constitution.

Mr. Morabito has rot alleged any harm that will befall him by not 8801040143 871002 'l/

SECY LIC55 05560755 50

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being able to petition for Commission review of the presiding officer's decision. Assuming the Commission declines to disturb an adverse decision of the presiding officer, preclusion of a petition affords him the benefit of earlier access to judicial review, should he so desire, than would be the case if additional ac'ministrative procedures were ,

permitted. Nor do we believe that all the acccutrements of a formal proceeding are necessary or desirable for resolution of the issue of whether the Staff's denial of his application for a senior operator license was proper. Contrary to Mr. Morabito's belief,10 C.F.R.

b 2.104 does not apply to this type of hearing request and he has no constitutional right to more formal hearing procedures. See Kerr-McGee Corporation (West Chicago Rare Earths F6cility), 15 NRC 252 (1982),

aff'd, City.of West Chicago v. NRC, 701 F.2d 532 (7th Cir.1983). The procedures adopted for the proceeding afford Mr. Morabito the fair process that be is due. Most importantly, his case is being reviewed by a presiding officer who is independent of the staff that denied his application to ensure an impartial review of Mr. Morabito's relevant contentions and supporting evidence. For these reasons, Mr. Morabito's motion to modify the Order granting him an informal hearing is denied.

It is so ORDERED.

e# "% For the Commission O'% s:' 8

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y f" SAMUEL C CHILK Secretary of the Commission

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Dated at Washinoton, D.C.

this ~)d day of October,1987.

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