ML20128K508
| ML20128K508 | |
| Person / Time | |
|---|---|
| Issue date: | 10/03/1996 |
| From: | Hull J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#496-17955 OT, NUDOCS 9610110092 | |
| Download: ML20128K508 (9) | |
Text
,
/7955 o October 3,1996 DOCKETED UNITED STATES OF AMERICA USHf?C NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of 0FFICE Of SECPE fARY
)
) Docket No. 55-2184hEh'dhER'llCE EMERICK S. MCDANIEL )
) ASLBP No. 96-716-01-0T (Denial of Application )
for Reactor Operator License) )
NRC STAFF ANSWER OPPOSING COMMISSION REVIEW INTRODUCTION By letter dated September 11,1996, Emerick McDaniel (" Petitioner") petitioned the Commission, pursuant to 10 C.F.R. I 2.786, for review of LBP-96-17 (" Initial Decision"). In this Initial Decision, the Presiding Officer sustained the NRC Staff's denial of Petitioner's application for a reactor operator license at Plant Vogtle.2 BACKGROUND As discussed more fully in the Initial Decision, the Staff had found that Petitioner failed to pass the December 15, 1995 written examination, required by 10 C.F.R. Part 55, in that he correctly answered only 77 of the 100 multiple choice
' Proceedings involving such licenses are governed by the informal hearing procedures set forth in 10 C.F.R. Part 2, Subpart L. See 10 C.F.R. I 2.1201(a)(2).
Pursuant to 10 C.F.R. I 2.1231, the NRC Staff submitted a Hearing File by letter dated July 3,1996. Pursuant to 10 C.F.R. I 2.1233, Petitioner and the Staff then filed written presentations by submittals dated July 30,1996 ("McDaniel Presentation"), and August 27,1996 (" Staff Presentation"), respectively.
01 2 961003 R M
9610110092 PDR
questions.2 By letter dated April 28,1996, Petitioner requested a hearing, asserting that the Staff's grading of his responses to examination questions 7, 8, and 16 was in error. I Following written presentations by the parties, the Presiding Officer issued the Initial Decision on September 3,1996.
As discussed below, Petitioner's September 11,1996 letter, and the six exhibits attached thereto (" Petition"), does not meet any of the requirements set forth in 10 C.F.R. I 2.786. Accordingly, the Petition should be denied.
DISCUSSION 2
The factors governing whether to grant a petition for Commission review of initial decisions are set forth in 10 C.F.R. I 2.786.8 Section (b)(1) of the regulation
. directs a petitioner seeking Commission review to address the grounds specified in 10 C.F.R. I 2.786(b)(4), which states:
The petition for review may be granted in the discretion of the Commission, giving due weight to the existence of a substantial question with respect to the following considerations:
(i) a finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) a necessary legal conclusion is without governing precedent or is a departure from or contrary.to established law; 2
His score of 77% did not satisfy the 80% grade considered necessary to pass the written examination. See NUREG-1021, " Operator Licensing Examiner Standards,"
section ES-402. NUREG-1021 contains specific instructions and guidelines for developing, administering, and grading reactor operator examinations. The later deletion of one of the December 15, 1995 examination questions raised Petitioner's score to 77.8%.
5 These standards apply to Subpart L proceedings such as this one, pursuant to 10 C.F.R. I 2.1253. See Babcock and Wilcox (Pennsylvania Nuclear Service Operations, Parks Township, Pennsylvania.), CLI-95-4,41 NRC 248,249 (1995).
(iii) a substantial and important question of law, policy or discretion has been raised; (iv) the conduct of the proceeding involved a prejudicial procedural error; or (v) any other consideration which the Commission may deem to be in the public interest.
Although the Petitioner cites 10 C.F.R. I 2.786, he does not address any of the l above grounds upon which discretionary Commission review may be warranted. The l
Petitioner does not identify or discuss any public interest considerations which would be served by Commission review, nor does the Petitioner allege there were any procedural errors in the proceeding. The Petitioner fails to show that with respect to the Initial ,
Decision: (1) a finding of material fact is clearly erroneous; (2) a necessary legal conclusion is without precedent or is contrary to established law; or (3) a substantial and important legal or policy question is raised. The Petition is substantively deficient and should, therefore, be denied.d A further reason to deny the Petition is that it relies on matters that could have been raised below to the Presiding Officer, but were not. See 10 C.F.R. l 2.786(b)(5).
The Petitioner's specific arguments are based on the six exhibits attached to the Petition.
Five of the six exhibits are generally accessible documents generated at Vogtle. The sixth exhibit is an NRC document previously sent to Petitioner.
Exhibit 1 is Vogtle Procedure 00930-C, which Petitioner submitted to the Staff on January 29,1996, as part of his initial challenge to the examination grading. This
- The Petition is also procedurally deficient in that it does not contain: (1) a concise summary of the Initial Decision; (2) citations to the record below as to whether matters were previously raised; (3) h concise statement as to why Petitioner believes the Initial Decision was erroneous; and (4) a concise statement as to why Commission review should be exercised. See 10 C.F.R. I 2.786(b)(2).
procedure was made part of the Hearing File Otem 14 N) and was cited below by j Petitioner. See .McDaniel Presentation, at 1. Exhibit 2 is a Vogtle badge retraining l
handbook, also cited below by Petitioner. See McDaniel Presentation, at 1. The handbook's relevant excerpts (pages 67-8 of Exhibit 2) contain precisely the same material as was previously made part of the Hearing File (Item 17, Attachment 2).
]
] Exhibit 3 is Vogtle Procedure 46017-C, a type of procedure alluded to generally in i
Petitioner's contention that an examination question was "not procedurally driven in the 4
plant's administrative procedures or in the health physics operating procedures." See J
i McDaniel Presentation, at 1; see also Staff Presentation, at 12-13. Exhibit 4 is an August 1996 version (Revision 9) of Vogtle Training Lesson Plan LO-LP-63930.
l Petitioner submitted to the Staff on January 29,1996 an earlier version of this plan, i
which was made part of the Hearing File (Item 14 M) and was cited below by Petitioner.
l See McDaniel Presentation, at 1. Exhibit 5 is Vogtle Procedure 13003-1, which was cited below by Petitioner (see McDaniel Presentation, at 2) and was made part of the
! Hearing File (Item 25).5 Exhibit 6 is an NRC Region Il report to Georgia Power Company regarding the December 1995 examinations at Vogtle, and was previously made part of the Hearing File (part ofItem 13).
The information in these exhibits was thus available to Petitioner prior to the l
filing of the McDaniel Presentation. The Petitioner's assertions are variants of matters
]
raised below, which now, for the first time, raise new arguments in an effort to rebut the i
s 5
During a July 17, 1996 teleconference, the Presiding Officer designated this procedure as Item 25 of the Hearing File. See Tr. at 4.
. 4 Staff's Presentation, rather than attempting to show why the Initial Decision was clearly 4
erroneous.
l Moreover, the effort to rebut the Staff's Presentation is misguided. Even to the
. extent that the Petitioner may be arguing that the findings made in the Initial Decision are 1'
in error, the Petitioner demonstrates only that his view of the evidence differs sharply from that of the Presiding Officer. In the context of whether to review initial decisions pursuant to 10 C.F.R. I 2.786, meeting the " clearly erroneous" standard requires a showing that the Initial Decision's findings "were not even plausible in light of the record viewed in its entirety." In re Kenneth G. Pierce (Shorewood, Illinois), CLI-95-6, 41 NRC 381, 382 (1995), citing Anderson v. Bessemer City, 470 U.S. 564, 573-76 (1985). The Staff submits that a mere showing that plant procedures and other Vogtle documents are subject to varying interpretations does not .<atisfy the " clearly erroneous" standard of 10 C.F.R. I 2.786.
Even had the Petitioner met the requirements of 10 C.F.R. I 2.786, his arguments are without merit. The Petitioner's rebuttal of the Staff Presentation is prefaced by a reference to the question the Presiding Officer's technical assistant, Dr. Peter Morris, asked Petitioner during a July 17,1996 teleconference, as to whether he had received training on the information contained in Plant Vogtle's Badge Retraining Handbook. See Petition at 1, paragraph 2. Petitioner states that he " misinterpreted" the question, and only realized that he had failed to answer it after reviewing the Staff Presentation. Id.' Petitioner does not deny that he received training on the handbook
- The transcript of the July 17, 1996 teleconference shows that the question was repeated, that Petitioner heard the question, and that he understood the need to answer it as part of the McDaniel Presentation. S'c Tr. at 29-30. The Staff verified that (continued...)
- _ - . - . -_- _ . _ . __. . - . - - . _ ~ _ _ - - - -.
.1 4
4 in January 1995 (and still fails to directly answer Dr. Morris' question) in stating that "I have not received training in this area since before I began the [ reactor operator] license program." Petition at 2, paragraph 2.
Petitioner does not address any of the grounds specified in 10 C.F.R.
I 2.786(b)(4), and the Petition lacks the elements required by 10 C.F.R. 6 2.786(b)(2).
Contrary to 10 C.F.R. I 2.786(b)(5), the Petitioner relies on matters that could have been raised below. In short, Petitioner has failed to show any error oflaw, fact, or procedure which might warrant review by the Commission. For these reasons the Petition should be denied.
Petitioner requests the Staff to clarify the consequences that will result if the Staff's denial of his license application is sustained. See Petition, at 3. Petitioner states he was told:
that I am eligible for a retest in six weeks [following final denial of license application] and that either myself or the [ Georgia Power Company] Training Department may request one at which time one will be promptly prepared.
Id. The only written statements made by the Staff to Petitioner pertaining to license reapplication are contained in Staffletters to Petitioner dated January 10,1996 (Hearing File Item 12) and April 4,1996 (Hearing File Item 22).7 Neither of these letters supports the contention that Petitioner would now be eligible to re-take the written examination in six weeks. Both letters state that another examination "will be scheduled,
'(... continued)
Petitioner had indeed received training on the handbook in January 1995, prior to the December 1995 written examination, and noted that Petitioner had failed to answer Dr. Morris' question. See Staff Presentation, at 9-10 and n.11.
' The Staffis aware of no other written statements concerning license reapplications that may have been made to the Petitioner.
upon request by you or your facility management, shortly after your reapplication is i
. received" (Hearing File Items 12 and 22, at 1), and both letters further state that license reapplication is governed by the requirements of 10 C.F.R. I 55.35. See id., at 1-2.
l The license reapplication provision states, in part, that when a license application i has been denied due to failure to pass the written examination, the applicant: ;
) may file a new application two months after the date of denial. The )
! application must be submitted on Form NRC-398 and include a ;
statement signed by an authorized representative of the facility licensee l i by whom the applicant will be employed that states in detail the extent
! of the applicant's additional training since the denial and certifies that l the applicant is ready for re-examination.
4 10 C.F.R. 6 55.35(a). The application must be signed by an authorized representative of the facility licensee, certifying that the licensee supports the administration of an examination to the applicant. See 10 C.F.R. I 55.31(a)(2-4).
l Petitioner states that Georgia Power Company ("GPC") does not support any further attempts on his part to obtain a reactor operator's license. See Petition at 3. If j this is so, Petitioner will not be able to meet the requirements of 10 C.F.R. I 55.35(a).
~!
Finally, Petitioner states that GPC's training department has "some concerns that their support of my attempts [to obtain a reactor operator's license] could provide negative repercussions from the NRC." Petition at 3. The Staff plays no role in facility licensee determinations of which employees should be allowed to reapply for a reactor operator's license, or which employees should be allowed to retake NRC examinations. l The Staff is not aware of any statements it made to anyone at GPC which could be construed as threats or repercussions if Petitioner is allowed to retake the written !
_ _. .-- - _- .. _ - - - _ - _ . _ _ _ = _ . - _ . . . ._
j .g.
j examination.' Although the Staff believes Petitioner's vague assertion to be groundless,
[
___..the Staff is nonetheless referring the matter to the Office of the Inspector Genersi for such action as may be appropriate..
4 CONCLUSION l As discussed above, the Petition does not raise any substantial question oflaw, '
i fact, or policy that would warrant Commission review under the standards set forth in l 10 C.F.R. l 2.786. The Petition should, therefore, be denied.
1 Respectfully submitted, i
i k[
! John T. Hull l Counsel for NRC Staff i Dated at Rockville, Maryland this 3rd day of October 1996 f
i 1
4 1
4 i
9
- Petitioner's statement may relate back to an earlier statement he made in his letter to the Staff dated January 29,1996 (Hearing File Item 14), which referenced an exit i interview involving the Staff and GPC's training department manager. See Hearing File Item 14, at 3. The referenced interview took place on December 15,1995, the same day Petitioner took the written examination and well before that examination was graded.
l 4
The Staff criticized GPC's training department that day regarding the development of the written examination, but there was no discussion about reapplications for reactor operator
' licenses. See Hearing File Item 13, Enclosure 1, at 2-3. As this information was made available to Petitioner prior to the filing of the McDaniel Presentation, the issue could
- have been raised below to the Presiding Officer, but was not. This matter, therefore, should not be considered now. See 10 C.F.R. I 2.786(b)(5).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED BEFORE THE COMMISSION USNRC In the Matter of ) '96 CCT -3 P3 :45
) Docket No. 55-21849-OT EMERICK S. MCDANIEL ) -
) ASLBP No. 9hhg lrO 7h[,')h, (Denial of Application for ) BRtNCH 1 Reactor Operator License) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER OPPOSING COMMISSION REVIEW" in the above-captioned proceeding have been served on the following by i 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 3rd day of October 1996.
Peter B. Bloch, Esq.* Office of Commission Appellate Presiding Officer Adjudication
- Atomic Safety and Licensing Board Mail Stop: 0-16 G15 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission i U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Atomic Safety and Licensing Board Dr. Peter A. Morris Panel
- Administrative Judge Mail Stop: T-3-F23 l
10825 South Glen Road U.S. Nuclear Regulatory Commission j Potomac, MD 20854 Washington, D.C. 20555 Emerick S. McDaniel Adjudicatory File
- 417 McIntosh Drive Atomic Safety and Licensing Board Waynesboro, GA 30830 Mail Stop T-3-F23 U.S. Nuclear Regulatory Commission Office of the Secretary * (2) Washington, D.C. 20555 Attn: Docketing and Service Mail Stop: 0-16 G15 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 4
2 n'T'. Hull
< [ Counsel for NRC Staff
, .