ML20238D541

NRC Staff Response to Motion for Mod of Commission Order.* Aj Morabito 870711 Motion to Rescind Part of Commission 870701 Order Prohibiting Petition for Review Should Be Denied.W/Certificate of Svc

ML20238D541
Person / Time
Site:	05560755
Issue date:	07/29/1987
From:	Woodhead C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Nrcc NRC COMMISSION (OCM)
References
CON-#188-5171 SP, NUDOCS 8801040303
Download: ML20238D541 (12)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 JUi. 30 A9 :50 BEFORE THE COMMISSION

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In the Matter of )

- )

ALFRED J. MORABITO ) Docket No. 55-60755

)

(Senior Operator License for )

Beaver Valley Nuclear Power )

Station, Unit 1) )

NRC STAFF RESPONSE TO MOTION FOR MODIFICATION OF COMMISSION ORDER Colleen P. Woodhead Counsel for NRC Staff July 29,1987

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UNITED STATES OF ' AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

).

ALFRED J. MORABITO ) Docket No. 55-60755

)

(Senior Operator License for )

Beaver Valley Nuclear Power )

Station, Unit 1) )'

NRC STAFF RESPONSE TO MOTION FOR MODIFICATION OF COMMISSION ORDER Colleen P. Woodhead Counsel for NRC Staff July 29 :.1987

1 UNITED STATES OF AMERICA

• 4 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 1

l'. In the Matter of ) I

)

ALFRED J. M.ORABITO ) Docket No. 55-60755

)

(Senior Operator License for )  !

Beaver Valley Nuclear Power )

Station, Unit 1) )

l NRC STAFF RESPONSE TO MOTION FOR MODIFICATION OF COMMISSION ORDER l 1. INTRODUCTION l

On July 11, 1987, Alfred J. Morabito filed a motion to modify an order for hearing issued on July 1, 1987 by the Commission.1 The motion asks the Commission to rescind that part of the order which prohibits a petition for review of the decision of the Administrative Judge. The motion also questions the propriety of the informal hearing ordered by the Commission in this proceeding. The motion should be denied.

i II. BACKGROUND On Augurt 27, 1987, Alfred J. Morabito was informed by NRC's Region I office that he had failed the written and simulator examinations administered in July 1986 and that his application for senior operator

-1/ The motion was improperly filed with the Administrative Judge, since it seeks modification of a Commission order, but by order dated July 15, 1987, the Judge indicated that he lacked jurisdiction to rule on the motion and deferred to the Commission. Memorandum and Order (Requesting Specification of Claims) at 5. Thus, the Staff is filing its response to the motion with the Commission.

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license for the Beaver Valley Nuclear Power Station, Unit I was denied.  !

. By letter dated September 11, 1986, Mr. Morabito requested a hearing on the denial. NRC's Region I and Division of Human Factors Technology, Office of Nuclear Reactor Regulation , reevaluated the examination and I notified Mr. Morabito that there was no basis to overturn the license denial by letters dated November 12, 1986 and February 2, 1987, respectively. Mr. Morabito renewed his request for hearing and by Order dated July 1, 1987 the Commission granted the request. The Order directed the Chairman of the Atomic Safety and Licensing Board Panel to designate a ' single member of the Panel to act as the presiding officer and designated the NRC staff and Mr. Morabito as parties.

Order,- at 2. The Order directed that the hearing be an informal one; that 10 C.F. R. Part 2, Subpart G procedures do not apply, and that to the extent appropriate, the Commission's proposed rules entitled " informal Hearing Procedures for Materials Licensing Adjudications" published at 52 Fed. Reg. 20,089 (May 29, 1987) could be used as guidance. Order, at 2-3. The Order also directed that the presiding officer's decision-rhould be based on written submissions of the parties and any oral presentations by the parties , and that if additional procedures were believed necessary, the presiding officer could seek authority for the procedures from the Commission. Order, at 3. Finally, the Commission directed that the presiding officer's decision will become final agency action thirty days after the date of issuance unless the Commission, on its own motion, undertakes a review of the decision, but that no petition for review will be entertained by the Commission. id. By order dated July 2, 1987, Administrative Judge Charles Bechhoefer was appointed presiding officer for this proceeding. l 1

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i l-l 111. DISCUSSION A. The Motion

, in his Motion, Mr. Morabito asks that the Commission's order be ,

modified to- delete tne proscription of Commission review. Motion, at 1.

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" Mr. Morabito states that he accepts the informal procedures directed by the Commission, 2/ but then states that the informal hearing. "should, however, be a step toward a formal hearing pursuant to 10 C.F.R.

l 9 2.104 and Subpart G" as this would allow the Commission to maintain Jurisdiction over the proceeding "as long as possible" rather than to 4

" force" the issue to Federal Court or Congress. Motion , at 2.

Mr. Morabito also states that the denial of a formal hearing constitutes a denial of due process. Id. Nevertheless, Mr. Morabito agrees to proceed ,

with informal adjudication, requests that charges he filed on April 16, 1987 with N RC's Office of Inspector and Auditor be investigated in parallel with this proceeding, and states that his primary objective in the hearing is reform of the operator licensing process. 3,/ Motion, at 2-3.

. 2/ Mr. Mvrabito mistakenly interprets the informal proceeding as j implementation of 10 C.F.R 5 2.756. However this rule is contained i within the 10 C.F.R. Part 2, Subpart G procedures made

- inapplicable by the Commission's order. As stated above, the j Commission directed that the proposed rule for informal hearings published in the Federal Register on May 29, 1987, be used as guidance.

3/ Mr. Morabito refers to a complaint to Ol A about a telephone call from Region I personnel to Duquesne Light Co. In March 1987 to discuss Mr. Morabito's examination. Mr. Morabito views this telephone call as "off the record" advice concerning a pending NRC proceeding.

As to Mr. Morabito's objective in seeking a hearing, he will have to I pursue his goal of changing the Commission's method of examining i and licensing nuclear power plant operators by petition for i rulemaking as described in 10 C.F.R. Part 2, Subpart H (6 2.800 et seq.). This proceeding is limited by the terms of 10 C.F.lE (FOOTNOTE CONTINUED ON NEXT PAGE)

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B. The Staff Response

1. Denial of a Right to Commission Review is Harmless

- Mr. Morabito offers no explanation as to how he is harmed by the Commission's prohibition of petition for review of the Administrative Judge's decision. In fact, the denlai of a right to seek Commission review simply eliminates one administrative remedy necessary before Mr. Morabito could seek Judicial review. b It does not deprive Mr. Morabito of the right to seek review in another forum. Therefore, there is no question of the legal right to seek review of the decision.

Moreover, the Commission cxplained in its order that it could review the decision on its own motion, if such review were deemed appropriate. In addition, Mr. Morabito has already received two reviews of his examination by NRC staff, as previously explained. Therefore, no denlai of due process or review has occurred.

2. There is No Right to a Formal Hearing On Denial of an Operator License Section 189a of the Atomic Energy Act (the Act) of 1954, 43 U.S.C. 2239(a), provides that in any proceeding for the granting, suspending, revoking, or amending of any license, the agency shall grant a hearing upon the request of any person whose interest may be affected oy the proceeding. However, the type of hearing to be provided is not specified in the Act and, consequently, the formal hearing procedures set

-4/ It is a long established rule that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy is exhausted. Myers v. Bethlehem Corp. , 303 U . S . 41, 5 0-51 (1937). In regard to administrative appellate review, the Administrative Judge has interpreted the Commission's order to set aside the provision for Appeal Board review in Sections 2.1253-2.1259 of the proposed rules for informal hearings.

Memorandum and Order, supra, at 4-5.

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l forth in the . Administrative Procedure Act (APA) 5 U.S.C. 5 554, l

1 l Sections 7 and 8, 5 U.S.C. El 556, 557, are not required. Kerr-McGee Corporation} (West Chicago Rare Earths Facility), CLI-82-2,15 NRC 232, 247-255 (1982), aff'd , City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983). See also: Sequoyah Fuels Corporation (Sequoyah UF6 to UF 4 Facility), CLI-86-17, 24 NRC 489, 495 (1986). Therefore, only the Commissions's regulations provide for formal hearings concerning any Commission action.

Contrary to Mr. Morabito's belief, 10 C.F.R. 5 2.104 by its terms applies only to situations where an administrative hearirig is required , rather than permitted , by the Act , the Commission's regulations , or Commission order. Thus, this rule appiles only to the mandate in Section 189a of the Act for a hearing for certain nuclear reactor construction permit applications, regardless of whether the application is contested, or where a hearing is required by the Commission's regulations, or a finding by the Commission that the pubile interest requires a hearing. West Chicago, supra, at 245. There is no equirement for hearing for the denial of operator licenses in the Commission's regulations, (although a hearing may be requested) nor has the Commission found that the public interest requires a hearing for the denial of a senior operator's license to Mr. Morabito. Section 2.103(b) provides a right to a hearing to those whose applications for operator licenses are denied , but it does not require that a hearing be held regardless of whether a hearing is requested. Consequently, since there is no requirement for a hearing for denial of operator licenses in either the Act or the Commission's reg ulations , 10 C.F.R. 6 2.104 does not apply to this proceeding, and a formal hearing is not required. The I

Commission's regulation, 9 2.103(b) does provide a right to a hearing but I not a right to a formal hearing.

J 3. Informal Hearings Do Not Violate Due Process Rights Mr. Morabito's claim that he is denied Constitutional due 9

process by an informal, rather than a formal hearing is unfounded. The same allegation was thoroughly explored and rejected by the Commission in West Chicago, supra, at 256-262. There, the Commission pointed out that in analyzing whether a given administrative procedure conforms to l' the requirements of due process, the Supreme Court has recognized that 1

three distinct factors must be analyzed and balanced:

[First], the . private interest that will be affected by the l official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable. value, if any, of additional or l substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

West Chicago, supra, at 256-257, citing Mathews v. Eldridge, 424 U.S.

319, 335 (1976).

the private I In applying these factors to this proceeding , i I

interest affected is Mr. Morabito's application for senior operator Ilcense; d the risk of erroneous deprivation of the license is by use of informal hearing procedures, compared to the probable value of formal hearing procedures and the Government's interest is in providing Informal rather than formal hearing procedures.

In regard to the first factor, Mr. Morabito's interest is clearly a legally protected one under the Act, which provides a right to a j hearing to anyone denied a license by the Commission, as previously noted. However, consideration of the second factor reveals no apparent

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risk of erroneous deprivation of a license by presentation of Mr. Morabito's claims in an informal hearing. Under informal hearing procedures and ~ by specific provision of the Commission's Order, if written submissions by the parties are not sufficient to create an adequate record, the presiding officer may allow or require oral presentations by the parties or pose questions orally to witnesses. See:

Proposed Rule, 10 C.F.R. Part 2, Subpart L: Informal Hearing Procedures for Adjudications in Materials Licensing Proceedings, i

Section 2.1235. 52 Fed. Reg. 20,095; Order, at 2-3. In addition', the Commission provided the presiding officer the opportunity to seek authority from the Commission to implement any additional procedures necessary to ensure the full development of the agency record or to resolve any material factual issues that' cannot be resolved through the informal hearing procedures. Order, at 3. Finally, the Commission has directed that the Staff shall be a party, so the Staff's position in the matters in dispute will be pre.sented along with those of Mr. Morabito for consideration and decision.

In light of these provisions, there is no justification for a formal Subpart 2 hearing. On the other hand, Subpart G provides for trial-type hearings with formal rules of procedure and evidence which could put Mr. Morabito at a disadvantage since he is not a lawyer and .

has not indicated that he has experience with other formal proceedings.

In any event, the Commission has not ruled out additional procedures if they should be deemed necessary for a full record or resolution of material factual issues. The factual determination to be resolved in this proceeding is the validity of the denial of the senior operator license based on the data in the examination. As the Commission has previously I _ _ _ _ _ _ _ _ _ _ _ _

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stated, the determination of factual issues whose resolution lies in technical or scientific submissions usually does not require an oral, L. trial-type presentation. West Chicago, supra, at 259. In this proceeding, there is no apparent reason for a trial-type hearing.

In regard to the thlrd factor of the Government's interest in an l Informal hearing , the Commission has explained the burden of formal l hearings as follows:

In each instance that a formal hearing is convened, the

! expense for the agency, and indeed for all the parties involved , is multiplied several-fold. A three-member licensing board or administrative law judge must be appointed, and with that come all the accouterments that make the proceeding more costly in terms of the time and materials expended: e.g. , participation in a prehearing conference, preparation of transcripts, discovery, submission- of preflied testimony, a trial-type hearing at which witnesse3 are presented and cross-examined, and r the preparation of findings of fact and conclusions of law.

West Chicago, supra , at 261. Based on these considerations, the Commission concluded that where, as in this case, the factual issues are of a technical nature not requiring oral, trial-type Inquiry focusing on credibliity, there is no reason to incur the burden of a Subpart G proceeding. Id. , at 262. Thus, the Government's interest lies in an informal hearing in this proceeding.

4. Summary la summary, the Commission's prohibition of petition for review in this proceeding is correct since Mr. Morabito may seek review in the Federal Courts and thus is not deprived of an opportunity for appellate review of any decision. The procedures provided to the parties fulfill the requirements of the Commission's regulations, the Atomic Energy Act and the Due Process Clause of the Constitution. The informal procedures offer ample opportunity for Mr. Morabito to fully present his allegations

of error concerning the denial of license; to receive full consideration of the allegations by the Staff and the Administrative Judge; and to obtain a

- fair decision based on the material facts presented. Mr. Morabito's allegations to the contrary are without merit and his motion for modification of the Commission's order should be denied.

IV. CONCLUSION For the reasons stated above, the Commission should deny the Motion to Modify Order filed by Mr. Morabito.

Respect ful ly submitted, Colieen P. Woodhead Counsel for MC Staff ,3 o Dated at Bethesda, Maryland this 29th day of July,1987 9

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CXKET idtv UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.N a 30 A9 :50 BEFORE THE COMMISSION crs -

. 00Cht- g;g In the Matter of )

)

ALFRED J. MORABITO ) Docket No. 55-60755

)

(Senior Operator License for )

Beaver Valley Nuclear Power )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION FOR MODIFICATION OF COMMISSION ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of July, 1987:

Charles Bechhoefer, Esq. Alfred J. Morabito -

Administrative Judge 685 Tulip Drive Atomic Safety and Licensing Board New Brighton, PA 15066 U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Atomic Safety and Licensing Board Jay Cutierrez U.S. Nuclear Regulatory Commission Regional Counsel WacHngton, D.C. 20555* USNRC, Region I 631 Park Avenue Atomic Safety and Licensing Appeal King of Prussia, PA 19406*

Board Panel U.S. Nuclear Regulatory Commission Docketing and Service Section Washington, D.C. 20555* Office of the Secretary U.S. Nuclear Regulatory Commission Samuel J. Chilk Washington, D.Cs 20555*

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Colleen P. Woodhead ^

Counsel for NRC Staff

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