ML20136F235

NRC Staff Motion for Reconsideration Introduction.* Requests That Presiding Officer Reconsider Determination That Tetrick Passed Written Exam & Find,Instead,That Tetrick Failed Written Exam

ML20136F235
Person / Time
Site:	Turkey Point, 05520726
Issue date:	03/10/1997
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20136F239	List: ML20136F235 ML20136F272
References
CON-#197-18196 96-721-01-SP, 96-721-1-SP, SP, NUDOCS 9703140041
Download: ML20136F235 (10)

Text

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. March N,) TED UNITED STATES OF AMERICA 97 tiAR 10 P4 :49 l NUCLEAR REGULATORY COMMISSION l BEFORE THE ATOMIC SAFETY AND LICENSING BOAihh Before Administrative Judges:

Peter B. Bloch, Presiding Officer (Dr. Peter Lam, Special Assistant) l

. )

l In the Matter of ) Docket No. 55-20726-SP l

)

RALPH L. TETRICK )

) ASLBP No. 96-721-01-SP (Denial of Application for Senior )

Reactor Operator License) )

NRC STAFF'S MOTION FOR RECONSIDERATION INTRODUCTION Pursuant to 10 C.F.R. Il 2.771 and 2.1259, the NRC Staff (" Staff") hereby requests that the Presiding Officer (a) reconsider his Initial Decision of February 28, 1997, insofar as he held that Mr. Tetrick's revised written examination grade of 79.59%

should be " rounded up" to the next whole integer, resulting in a passing grade of 80%,

and (b) rescind his Order directing the Staff to issue the requested license. See Ralph L.

Tetrick (Denial of Application for Reactor Operator License), LBP-97-2, 45 N.R.C. ._

(Feb. 28,1997).'

In accordance with 10 C.F.R. Il 2.788(e) and 2.1263, the Staff is filing, simultaneously herewith, a request that the Presiding Officer stay the effectiveness of his Initial Decision, pending his review and consideration of the instant Motion for Reconsideration and the filing of any petition for Commission review which the Staff might file in the event that the instant Motion is denied.

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2-l For the reasons set forth below and in the " Supplemental Affidavit of Brian Hughes" attached hereto,2 the Staff respectfully submits that the Presiding Officer's determination to round up Mr. Tetrick's examination grade to the next integer (a)is 3

contrary to published Commission specifications that a minimum passing grade of 80%

4 j must be achieved; (b) is contrary to the Staff's established practice, in which applicants j

- 1 are required to achieve a muumum score of 80% in order to pass their written i

i examinations; (c) would result in non-uniform treatment of Mr. Tetrick as compared to  !

l other RO and SRO license applicants who achieved examination scores of between 79.5 l

. and 80 percent and were therefore found by the Staff to have failed those examinations;.

1 4 and (d) is contrary to the action taken by the Commission in approving SECY-96-206 and issuance of Revision 8 of NUREG-1021, which describe the Staff's practice of requiring a minimum passing score of 80%, without rounding up. Accordingly, the Staff

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respectfully requests that the Presiding Officer reconsider his determination that Mr.

l Tetrick has passed his written examination, and that he rescind his Order directing the Staff to issue an SRO license to Mr. Tetrick.

BACKGROUND 4 In his Initial Decision, the Presiding Officer upheld the Staff's grading of Mr. Tetrick's answers to three questions on his written examination, but found that one j

other question (Question 96) should be deleted from the examination as impermissibly ambiguous. Id., slip op. at 15. Accordingly, the Presiding Officer found that Mr.

i 2

Attached to the " Supplemental Affidavit of Brian Hughes" ("Supp. Aff.") are seven

documents or portions of documents, which are incorporated herein by reference and

, referred to by their respective Attachment numbers.

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! Tetrick had correctly answered 78 of 98 valid questions, for a score of 79.59 percent --

which the Presiding Officer rounded up to 79.6 percent. Id. The Presiding Officer then i stated

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I Staff has not addressed the question of the number of digits in the examination score that should be considered

significant. Because I haw not been directed to any 1

gowining guidance or regulation, I how decided that it l

\ is appropriate to round up the answer [ sic] to the nearest

. Integer. These tests are not so precise that tenths of a

] percent have any meaning. Consequently, Mr. Tetrick's score is 80 percent, which is a passing score. He shall, therefore, be granted a license as a Senior Reactor

Operator.

1 l Id. at 16; emphasis added. The Presiding Officer accordingly directed the Staff to issue l

a Senior Reactor Operator (SRO) license to Mr. Tetrick, for use at the Turkey Point i Nuclear Generating Plant, Units 3 and 4 (" Turkey Point"). Id. at 16-17.

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The Presiding Officer correctly observed that, heretofore, he "ha[s] not been directed to any governing guidance or regulation" concerning the question of whether "it l is appropriate to round up the [ grade] . . . to the nearest integer" (Initial Decision, at 16).

For its part, the Staff did not address this question in its " Written Presentation" because, i

l prior to the issuance of the Presiding Officer's Initial Decision, tiie Staff did not believe i

i that this issue was relevant and should be addressed in this proceeding.' Rather, this t

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3 Mr. Tetrick's examination score of 78.8%, as graded by the Staff, did not present

this issue, nor was the issue raised by Mr. Tetrick. Further, the Staff did not yet have

! any reason to anticipate that the Presiding Officer would strike Question 96, resulting in j a revised grade for Mr. Tetrick.

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issue only arose upon the Presiding Officer's determination to strike Question 96 ,

resulting in a score of 78 correct answers on 98 questions, for a revised acore of 79.59%.

In view of the Presiding Officer's determination to strike Question 96, resulting in an examination grade of 79.59%, and the Presiding Officer's determination that this score should be rounded up to 80%, the information referred to by the Presiding Officer

! has become relevant in this proceeding. Accordingly, that information is provided

! herewith, for consideration by the Presiding Officer. .

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DISCUSSION i

t 3

In the " Written Presentation of NRC Staff" (" Staff Presentation"), filed on l January 23,1997, the Staff noted that Section 10"' of the Atomic Energy Act,42 U.S.C.

i j i 2137, requires the NRC to determine the qualifications of individuals applying for a reactor operator license, and authorizes the NRC to promulgate such regulations as are necessary to establish uniform conditions for licensing such individuals. Part 55 of Title 10 of the Code of Federal Regulations (10 C.F.R. Part 55) contains the NRC l l regulations implementing Section 107 of the Atomic Energy Act. In particular, with  !

I i j respect to SRO licenses,10 C.F.R. I 55.43 requires that applicants for such licenses pass I

< both a written examination and an operating test, and specifies the content of written i

examinations for SRO applicants. See Staff Presentation, at 3-6.

l As further noted in the Staff's Written Presentation, guidelines for developing, l administering and grading written examinations is provided in NUREG-1021, " Operator i

Licensing Examiner Standards." Those standards specify that applicants must achieve l a score of 80% or greater to pass their written examinations:

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i Topromote unifonnity in the content and grading

. of written examinations and operating tests taken at  !

l different nuclear facilities, the Stqf has previously l j

published NUREG-1021, " Operator Licensing Examiner i Standards," which contains specific instructions and I 1

guidelines for developing, administering, and grading

reactor operator examinations and tests. As set forth j therein, in order to pass the written examination, at least

, 80% of the questions must be correctly answered. See NUREG-1021, " Operator Licensing Examiner i Standards," section ES-402, page 5 of 6.

l Staff Presentation, at 6; emphasis added.'

l As set forth in the Supplemental Affidavit of Brian Hughes attached hereto, in i

l implementing N1JREG-1021, the Staff has an established practice of requiring applicants to achieve a grade of 80 percent or greater - without rounding off - in order to pass

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their written examinations. As discussed infra at 8-10, in accordance with this practice, a grade of at least 80.00% be achieved by RO and SRO applicants.

In his Initial Decision, the Presiding Officer expressed the view that "[t]hese tests are not so precise that tenths of a percent have any meaning," explaining his decision to I

Initial Decision, at 16. This round up Mr. Tetrick's score to the next integer.

determination, however, did not consider or reflect the NRC's experience and practices in administering and grading the written examinations. 1 In this regard, the Staff notes that the Commission's responsibility for preparing, coordinating and grading the written examinations of RO and SRO applicants is

• The requirement of " uniformity" in the grading of written examinations is an important one - and, indeed, is required by statute: Section 107 of the Act requires the Commission to " prescribe uniform conditions for licensing individuals as operators."

42 U.S.C. l 2137(a).

1 1-performed by the Office of Nuclear Reactor Regulation, in conjunction with the NRC l Regional Offices. The Staff has routinely reviewed the written examination grades

, achieved by RO and SRO license applicants, and has awarded such licenses to applicants

! who achieve a written examination grade of at least 80% and satisfy all other applicable i

i requirements (Supp. Aff.15).5 The specification that applicants "must achieve a grade of 80 percent or greater" on the written examination was incorporated in NUREG-1021,

" Operator Licensing Examiner Standards," cited by the Presiding Officer (Initial Decision, at 3). See NUREG-1021, Rev. 7 Supp.1, ES-402, page 5 of 6; Id., ES-401, page 6 of 7; Id., ES-501, page 3 of 24 (Supp. Aff.16; Attachment 2).

Each year, the NRC administers hundreds of written examinations to applicants l

for RO and SRO licenses. The great majority (generally 90% or more) of these applicants pass their written examinations with a score of 80% or greater. For example, since 1990, between 93 and 98 percent of all SRO applicants have passed their written examinations. (Supp. Aff.17; Attachment 3, at 4).

While most applicants pass their written examinations, those applicants who fail the examinations generally score above 75% - and often achieve grades within one or l l

two points of the minimum passing grade of 80%. Thus, the difference between a l l

l 5

Following the accident at Three Mile Island, Unit 2 ("TMI") in March 1979, the l Commission raised the minimum passing score for RO and SRO applicants to 80%, from l the previously specified minimum grade of 70% (Supp. Aff.16, and Attachment 1). See i also, NUREG-0737, " Clarification of TMI Action Plan Requirements (Nov.1980),

Enclosure 1 at 1-3 (noting that for Item I.A.3.1, " Revise scope & criteria for licensing l exams," the task to "[i]ncrease passing grade" was fulfilled by the issuance of requirements on March 28,1980). See generally, Regulatory Guide 1.8, " Qualification and Training of Personnel for Nuclear Power Plants," (Rev. 2, April 1987), at 1.8-2.

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successful and unsuccessful applicant often involves a difference of one or two incorrect 1

answers on the 100-question examination. (Supp. Aff.18).

i Significantly, because the examination process permits applicants to challenge the s

grading of their examination answers, where the Staff concludes that one or more

, questions should be deleted from the examination as invalid, fractional scores have

! resulted (reflecting the number of correct answers as a ratio of the total number of valid i

questions). In this manner, some applicants have been found to have achieved a final grade of between 79 and 80 percent. Where this has occurred, the Staff's established

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practice is to deny their license applications for failing to achieve the minimum passing grade of 80% specified in NUREG-1021. Three examples of this established practice -

among other such examples which could be cited - are provided as attachments to the Supplemental Affidavit filed herewith, in which the Staff denied the license applications j

of persons who achieved a final grade of 79.6%,79.7%, and 79.8%, without rounding

{ up to the next highest integer (Supp. Aff.19; Attachment 4).*

The Staff recently discussed the matters described above in SECY-96-2%,

"Rulemaking Plan for Amendments to 10 CFR Part 55 to Change Licensed Operator

Examination Requirements" (Sept. 25,1996), upon seeking Commission approval of the f Staff's plans for a revised operator license rulemaking and of proposed Revision 8 to 1

, NUREG-1021. Therein, the Staff reported that in a six-month period from October 1, 1995 to April 5,1996, a passing grade of at least 80% was achieved by 49 of 54 RO 4

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• To protect the privacy of the individuals involved, the Staff has redacted the names and other personal identifying information from these documents.

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) applicants, and by 86 of 92 SRO applicants, on a pilot examination. Further, the Staff j noted that "[h]istorically, even those applicants who fail the NRC written examination j generally score above 75 percent" - and "[t]he average grade for the 11 applicants who i

[ failed [the] pilot examination was 76.3%." Id., Enclosure 2 at 27,29. (Supp. Aff.1 10; j Attachment 5).

More specifically, with respect to fractional scores between 79 and 80 percent,

the Staff, in SECY-96-206, stated as follows

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Whenever a grade is deleted from the 100-point written examination, it results in fractional grades. When the grade is above 79.5%, it raises a question reganting the i stafs policy on rounding-of because it means the

} diference between receiving a license or a denial. To j address this problem, the staff has revised NUREG-1021 l to indicate that the passing grade on the written j examination is 80.00 percent.

Id., Enclosure 2 at 24; emphasis added. (Supp. Aff.110; Attachment 5).

In a Staff Requirements Memorandum (SRM) dated December 17,1996, the i

! Commission approved the Staff's rulemaking plan, and " approved implementation of Revision 8 of NUREG-1021 on a voluntary basis until the rulemaking is complete" (Attachment 6, at 1). In doing so, the Commission thereby approved the Staff's preposed clarification, consistent with the Staff's established policy, that the minimum 80% passing grade specified in NUREG-1021 is 80.00 percent. (Supp. Aff.111; Attachment 6).

In accordance with the Commission's SRM, in January 1997 the Staff published Interim Revision 8 to NUREG-1021, which continues to specify a minimum passing grade (" cut score") of 80%, and clarifies that this 80% minimum passing grade requires a minimum grade of 80.00%. See NUREG-1021, Interim Rev. 8, ES-401, page 4 of 39 O

j (80%), page 39 of 39 (80.00%); Id., Appendix A, page 6 of 10 (80%), page 7 of 10 (80%); Id., Appendix E, page 1 of 5 (80.00%) (Supp. Aff.112; Attachment 7).

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The Staffis aware, as noted by the Presiding Officer, that written examinations may sometimes be viewed as imprecise. Nonetheless, the Commission's guidance for l preparing written examinations helps to assure that the examinations are of good quality; )

and the Commission's post-examination review process, which is available to applicants whr are concerned about the grading of their examinations, helps to assure that their e neerns are considered fairly and in depth. Further, in accordance with NUREG-1021, the Staff reviews the grading in detail where an applicant scores between 78 and 82 percem See, e.g., NUREG-1021, Rev. 7, Supp.1, ES-403, page 3 of 5, page 5 of 5 (Attachment 2); NUREG-1021, Rev. 8, ES-403, page 4 of 5, page 5 of 5 (Attachment 7).

This was done in the case of the Turkey Point written examination administered to Mr. Tetrick (Hearing File item 8). Accordingly, the Staff considers that the denial of applications for persons, like Mr. Tetrick, who fail to achieve the minimum score of 80 %

specified in NUREG-1021, is neither unfair nor inappropriate. (Supp. Aff.113).

Moreover, there is no reason to modify the 80% minimum score specification in this case. The written examination administered on June 14, 1996 at Turkey Point clearly informed Mr. Tetrick and the other SRO applicants that in order to pass the examination, they "must achieve a grade of 80% or greater" (Affidavit of January 23, 1997, at i 8; Hearing File Item 9, at 7; Supp. Aff.14). To allow Mr. Tetrick to pass the examination with a score ofless than 80% would be contrary to NUREG-1021 and to the Staff's established practice of requiring a score of "80% or greater" - and would

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result in non-uniform treatment of Mr. Tetrick as compared to all the other RO and SRO

applicants who were determined to have failed their written examinations upon achieving 4

a grade ofless than the 80% specified in NUREG-1021.

4 l For these reasons, Mr. Tetrick's final grade of 79.59 or 79.6 percent, as modified in the Presiding Officer's Initial Decision, remains below the minimum passing I

grade of 80 percent. Accordingly, the Staff has concluded that, even with this revised j score, Mr. Tetrick has failed his written examination (Supp. Aff.114). It would i

therefore be improper to issue an SRO license to Mr. Tetrick at this time.

CONCLUSION For the reasons set forth above and in the attached Supplemental Affidavit of Brian Hughes, the Staff respectfully submits that Mr. Tetrick's written examination grade of 79.6%, as revised by the Presiding Officer, does not constitute a passing grade.

Accordingly, the Staff respectfully requests that the Presiding Officer (a) reconsider his ,

determination that Mr. Tetrick passed his written examination and find, instead, that Mr. Tetrick failed the written examination, (b) sustain the Staff's denial of Mr. Tetrick's application for an SRO license, and (c) rescind his Order directing the Staff to issue an SRO license to Mr. Tetrick.

Respectfully submitted,

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,.dbuaw Ei d Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 10th day of March,1997