ML20040F380
| ML20040F380 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/05/1982 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| NUDOCS 8202090137 | |
| Download: ML20040F380 (6) | |
Text
i Bd 2/5/82 s
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00 W T s
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ivan W. Smith, Chairman 82 FEB -8 N0:23 Dr. Walter H. Jordan Dr. Linda W. Little ue
. E r..
00c-lUgpgi SERVEDTE8 8 1982 In the Matter of
)
)
. METROPOLITAN EDISON COMPANY )
Docket No. 50-289
)
(Three Mile Island Nuclear
)
(Restart)
Station, Unit No.1)
)
(Reopened Proceeding)
February 5, 1982 MEMORANDUM AND ORDER DENYING STAFF'S NOVEMBER 9,1981 MOTION FOR REVIEW OF SPECIAL MASTER'S RULING WITH RESPECT TO " STAFF ATTITUDE" The Sp'ecial Master, Judge Gary L. Milho111n, required a special evi-dentiary presentation on the possible. relationship between any defeata-bility of the NRC operator-examinations and the NRC Staff's " attitude".'
In his order of October 8,1981 he stated the scope and basis for this requirement:
(2)
Ia general, are the NRC examinations administered in such a way as to assure that operating personnel are qualified for their positions?
(f)
Attitude of the NRC Staff.
The Kemeny Commission found that operator training was greatly deficient:
that the depth of understanding was far too shallow.
It also found that the branch of NRC that monitored operator training was " weak and understaffed" and that NRC limited itself to "giving routine exams".
It concluded that no quantity of " fixe "...
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- procedures are relevant to Issue 10 of the reopened proceeding,2/
but continues to. maintain that Staff's respective attitude has no rele-vance.
Id_. at 5-6.
It makes the demurrable argument that there is no in-herent correlation between the attitude of the Staff and its ability to e
I properly develop and implement its procedures, and that even a good l
attitude could produce poor test procedures.
Id. at 6.
As far as we can discern from its pleadings, the Staff seems not to understand Judge Milhollin's definition of Staff " attitude". We sutpect that the use of the word " attitude" and the reference to the Kemeny Report was an irritant to the Staff.
But we do not believe Judge Milhollin intended any pejora-tive meaning such as personal indifference to the importance of the NRC examinations.
Instead, his explanation of the relevance of the " attitude" question indicates that he was particularly interested in the resources committed and the care taken in administering the examinations.
The Staff agreed at the beginning of the reopened hearing that Issue 10 was appropriate for hearing.
That issue expressly centers on the "ade-quacy of the administration" of the NRC licensing examinations. Thus, Issue 10 is not limited to a review of the stated procedures for the NRC 2/
Issue 10 states:
The adequacy of the administration of NRC licensing examinations l
for TMI-l personnel, including proctoring, grading and safe-(
guarding the integrity of examination materials; in addition, I
the adequacy of the Staff's review of the administration of Licensee's Category T examinations; also the adequacy of the Staff's plan for retesting operators and monitoring its NRC examinations to assure proper adherence to NRC testing require-
,.ments and to provide reasonable assurance that TMI-l can be operated safely.
1 Bd 2/5/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cc.n:=-
IP ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
02 E ~0 N 23 Ivan W. Smith, Chairman Dr. Walter H. Jordan Dr. Linda W. Little
- w. c r x 1
lbf;:ll DCV SERVED FE6 g 1982 In the Matter of
)
)
METROPOLITAN EDISON COMPANY )
Docket No. 50-289
)
(Three Mile Island Nuclear
)
(Restart)
Station, Unit No.1)
)
(Reopened Proceeding)
February 5, 1982 MEMORANDUM AND ORDER DENYING STAFF'S NOVEMBER 9, 1981 MOTION FOR REVIEW 0F SPECI AL MASTER'S RULING WIT}i RESPECT TO " STAFF ATTITUDE" The. Sp~ecial Master, Judge Gary L. Milhollin, required a special evi-dentiary presentation on the possible relationship between any defeata-bility of the NRC operator examinations and the NRC Staff's " attitude".
In his order of October 8,1981 he stated the scope and basis for this requirement:
(2)
In general, are the NRC examinations administered in such a way as to assure that operating personnel are qualified for their positions?
(f)
Attitude of the NRC Staff.
The Kemeny Comission found that operator training was greatly deficient:
that the depth of understanding was far too shallow.
It also found that the branch of NRC that monitored operator training was " weak and understaffed" and that NRC limited itself to "giving routine exams".
It concluded that no quantity of " fixe "t.
ure the j
.;h T /
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-2 basic problem, which it found to be the attitude of the people who were involved.
Because the cheating incident occurred after the Staff had responded to the Kemeny Commission and promised to improve, what does the possibility of laxity in the Staff's procedures indicate about the Staff's attitude?
The Staff believed that the special question was irrelevant in that
~
it raised an issue of the Staff's attitude qua attitude.
The Staff requested Judge Milhollin to remove the question from the list of special evidentiary presentations. /
1 In his October 27, 1981 Memorandum and Order denying the Staff's request, Judge Milhollin stated that the Staff's attitude as such was not the issue.
Rather, he explained, the Staff's attitude would be considered only as evidence of how the Staff's testing procedures might be adminis-tered.
He gave as examples of how attitude and its effect upon procedures might be measured the resources committed, the extent to which procedures are followed, and the instructions giveh ta proctors and graders.
Id. at
[
l 2-3.
l 1
l On November 9,1981 the Staff filed with this Board its motion for l
review of Judge Milhollin's ruling.
In its discussion of the relevancy of the " attitude" question, the Staff recognizes that the Staff's testing
-1/
Staff October 15, 1981 Motion for Reconsideration or in the Alternative Motion for Directed Certification.
i
- procedures are relevant to Issue 10 of the reopened proceeding,2/
but continues to Inaintain that Staff's respective attitude has no rele-vance.
Id. at 5-6.
It makes the demurrable argument that there is no in-herent correlation between the attitude of the Staff and its ability to properly develop and implement its procedures, and that even a good attitude could produce poor test procedures.
Id. at 6.
As far as we can discern from its pleadings, the Staff seems not to understand Judge Milhollin's definition of Staff " attitude". We suspect that the use of the word " attitude" and the reference to the Kemeny Report was an irritant to the Staff.
But we do not believe Judge Milhollin intended any pejora-tive meaning such as personal indifference to the importance of the NRC examinations.
Instead, his explanation of the relevance of the " attitude" question indicates that he was particularly interested in the resources committed and the care taken in administering the examinations.
The Staff agreed at the beginning of the reopened hearing that Issue 10 was appropriate for hearing.
That issue expressly centers on the "ade-quacy of the administration" of the NRC licensing examinations. Thus, Issue 10 is not limited to a review of the stated procedures for the NRC 2/
Issue 10 states:
The adequacy of the administration of NRC licensing examinations for TMI-l personnel, including proctoring, grading and safe-guarding the integrity of examination materials; in addition, the adequacy of the Staff's review of the administration of Licensee's Category T examinations; also the adequacy of the Staff's plan for retesting operators and monitoring its NRC examinations to assure proper adherence to NRC testing require-
..ments and to provide reasonable assurance that TMI-l can be operated safely.
i
-g.
examinations -- the actual administration of them is in issue. The ques-tion is relevant, perhaps even necessary to a proper resolution of Issue 10.
In view of the preliminary information then available to Judge Milhollin co'ncerning alleged voids in the Staff's monitoring of the April f
1981 licensing examination, he acted prudently and had a sound basis for raising the question.
For these reasons alone we deny the motion for review of his order.
There is another independent reason why the motion must be denied.
Citing Public Service of Indiana (Marble Hill, Units 1 and 2), ALAS-405, 5 NRC 1190, 1192 (1977), the Staff acknowledges that we should, under the procedures established at the beginning of the reopened hearing, under-take interlocutory review of Judge Miltollin's ruling only where there is (1) either a threat of immediate and serious irreparable impact to the Staff which, as a practical matter could not be alleviated in a later ap-peal, or (2) where the issue sought to be reviewed affects the basic structure of the proceeding in a pervasive or unusual manner. Motion at 13.
The asserted immediate, serious and-irreparable impact offered by the Staff is that it already had been required to prepare " attitude" testimony and the Staff would thereaf ter be required to present the testimony.
Motion at 14.
At the time the mo',4n was filed (on November 9), the testimony had already been prepa ad (by November 3).
The hearing was scheduled to begin and did begin the following day (November 10).
Allow-ing time for o.ther parties to answer the Staff's motion, the motion would
,s e
', not have been ripe for ruling until November 24 at the earliest.
But by then some of the. cognizant Staff witnesses had already testified.
The remaining Staff witness had testified by December 2.
There was scant time for the Board, if it had been so inclined, to grant any of the relief
/
sought by the Staff.
In short, the motion was moot or perishingly moot by' the time it was filed.
Yet the Staff requested no special expedition.,
The Staff continued to press the issue in its January 15, 1982 pro-posed findings on the reopened proceeding (at 2-3) and asserts that the Staff, while preserving its position, did indeed introduce testimony on the subject of Staff attitude.
But still there is no request to this Board for relief except for the original Staff prayer that the Special Master's ruling be reversed.
What would be the consequence of that reversal? The Staff identifies-nothing that it wants struck from the record.
Nor does the Staff admit to having introduced irrelevant evidence; nor can we identify any of the Staff's proposed findings on " attitude" (PF 11 211-16) which urge the Board to make findings patently irrelevant to the issues before us and the Special Master.
Now that the matter is fait accompli the Staff in its proposed findings should have, but did not identify how Judge Milhollin's ruling actually and improperly affected the reopened proceeding.
Accordingly, the Staff's motion for review is denied both as an interlocutory matter and on the merits as if on post-hearing review.
This
6-ruling means only that the quettion was properly raised at the hearing.
We have not yet decided
'e factual merits of that question.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/
Chairman ~
Ivan W. Sfnith ADMINISTRATIVE LAW JUDGE Bethesda, Maryland February 5, 1982 e
0
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