ML20136F341

NRC Staff Request for Issuance of Order Staying Effectiveness of Presiding Officers Initial Decision LBP-97-2.* Staff Submits That Presiding Officer Should Stay Effectiveness of Initial Decision.W/Certificate of Svc

ML20136F341
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
References
CON-#197-18197 96-721-01-SP, 96-721-1-SP, LBP-97-02, LBP-97-2, SP, NUDOCS 9703140065
Download: ML20136F341 (8)

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DOCKETED March 10. @%HRC UNITED STATES OF AMERICA Y/ liar 10 ' P4 :49 NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY BEFORE THE ATOMIC SAFETY AND LICENSING BOARE!0CKETlHG & SERVICE  ;

BRANCH Before Administrative Judges:

Peter B. Bloch, Presiding Officer (Dr. Peter Lam, Special Assistant) l In the Matter of ) Docket No. 55-20726-SP l

)

RALPH L. TETRsCK )

) ASLBP No. 96-721-01-SP (Denial of Appl;. cation for Senior )

Reactor Operator License) )

NRC STAFF'S REQUEST FOR ISSUANCE OF AN ORDER STAYING THE EFFECTIVENESS OF THE PRR9IDING OFFICER'S INITIAL DECISION (LBP-97-2) l INTRODUCTION Pursuant to 10 C.F.R. Il 2.788 and 2.1263, the NRC Staff (" Staff") hereby requests that the Presiding Officer issue an Order staying the effectiveness of his Initial Decision in this proceeding,8 pending the Presiding Officer's review and consideration of the Staff's Motion for Reconsideration (" Motion") filed simultaneously herewith (and pending consideration by the Commission of any petition for review which might be filed by the Staff in the event the Staff's Motion is denied).

8 Ralph L. Tetrick (Denial of Application for Reactor Operator License), LBP-97-2, 45 N.R.C.__ (Feb. 28, 1997).

9703140065 970310 PDR ADOCK 05000250 Q PDR

• ~. , As more fully set forth herein and in the attached Motion for Reconsideration, l

' l the Presiding Officer's determination to round up Mr. Tetrick's revised examination l

j i grade, from 79.59% to 80%, is contrary to published Commission specifications and

established Staff practice - approved by the Commission - which requires a minimum l passing grade of 80% or greater. Further, the Initial Decision would result in non-i

{ uniform treatment of Mr. Tetrick as compared to other persons whose applications for

, reactor operator (RO) or senior reactor operator (SRO) licenses were denied upon their j receipt of examination scores of more than 79.5 but less than 80 percent. As set forth j below, a stay of the effectiveness of the Initial Decision is appropriate to facilitate the proper resolution of this issue.

DISCUSSION i

A. Legal Standards Governine the Issuance of A Stav

Pursuant to 10 C.F.R. 2.788(e), in detennining whether to grant an application

! for a stay, the Presiding Officer or Commission is to consider:

(1) Whether the moving party has made a strong l showing that it is likely to prevail on the merits;

, (2) Whether the party will be irreparably injured l unless a stay is granted; 1

(3) Whether the granting of a stay would harm other parties; and i

4 (4) Where the public interest lies.

It is well established that in the absence of a showing ofirreparable harm, a movant must make a strong showing on the other factors in order to obtain the requested stay. See, i e.g., Sequoyah Fuels Corp (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1,6 (1994);

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m Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC 219, 257 (1990); a.f'd on other grounds sub nom. Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert. denied,112 S. Ct. 275 (1991).2 In accordance with these standards, a stay of the Initial Decision, pending consideration of the Staff's Motion for Reconsideration (and any petition for Commission review which might be filed if that Motion is denied), should be granted for the following reasons.

1. Likelihood of Success on the Merits As set forth in detail in the Staff's Motion for Reconsideration filed herewith, and in the " Supplemental Affidavit of Brian Hughes" ("Supp. Aff.") attached thereto, the Presiding Officer's determination to round up Mr. Tetrick's revised examination grade from 79.59% to 80% (a)is contrary to governing Commission specifications, set forth in a letter to licensees dated March 28,1980, and in NUREG-1021, " Operator Licensing Examiner Standards," which specify that a minimum passing grade of at least 80 percent must be achieved on the written examination; (b) is contrary to established Staff practice

-- as described in SECY-96-206, "Rulemaking Plan for Amendments to 10 C.F.R. Part 55 to Change Licensed Operator Examination Requirements" (Sept. 25, 1996) --

whereby the Staff routinely determines that applicants have failed their examinatior.s where they achieve less than the minimum " cut score" of 80 percent (including those 2

, These standards incorporate the criteria for granting a stay set forth in Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir.

1958). See, e.g., Sequoyah Fuels, supra: Seabrook, supra. As stated in 10 C.F.R.

I 2.1263, the standards in 6 2.788(e) are applicable in informal adjudicatory proceedings conducted under 10 C.F.R. Part 2, Subpart L.

Jf 4 1 instances in which an applicant's score is between 79.5 and 80 percent); (c) is contrary to Revision 8 of NUREG-1021 (issuance of which was approved by the Commission in a Staff Requirements Memorandum (SRM) dated December 17,1996), which clarifies that the minimum grade of 80% specified in NUREG-1021 requires a minimum score of l 80.00%; and (d) would result in non-uniform treatment of Mr. Tetrick as compared to l the other RO and SRO applicants whose license applications have been denied by the i

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Staff for failing to achieve the required minimum score of 80% on their written i

i examinations.

l For these reasons, as more fully set forth in the Staff's Motion for i

Reconsideration filed herewith (at 5-10), the Staff respectfully submits there is a strong likelihood that the Staff's motion for reconsideration will succeed on the merits, in that I

Mr. Tetrick's revised grade of 79.59% does not constitute a passing grade under the Commission's published specifications and established NRC policy. Moreover, inasmuch j as the Presiding Officer rained and resolved the issue of whether it is appropriate to round l up scores from 79.59% to 80%, sua sponte, without benefit of the parties' views on this i

[ issue, it is appropriate that a stay be entered at this time to allow for proper consideration 2

of the parties' views. Accordingly, this factor supports the issuance of a stay.

!' 2. Irreoarable Iniury in the Absence of A Stav j

The Staff's Motion for Reconsideration seeks, in essence, a determination by the j Presiding Officer that Mr. Tetrick's examination score should not be rounded up from

) 79.59% to 60%, and that Mr.. Tetrick's score does not constitute a passing grade. The i

i Staff has in place an established program for implementing the Commission's reactor 1

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. l operator licensing program, which includes the policy of denying license applications where an examination grade ofless than 80.00% has been achieved. In the absence of -

a stay pending the orderly resolution of the issue raised by the Presiding Officer, the Initial Decision stands in conflie,t with the Staff's established practice of requiring RO and 1

SRO applicants to achieve a minimum score of 80.00% and is likely to disrupt the  ;

l continued implementation of this policy. Accordingly, this factor supports the imposition q of a temporary stay, to permit further consideration of the Initial Decision by the Presiding Officer (and the Commission, if the Motion for Reconsideration is denied), so as to avert any disruption of the Staff's program implementing the Commission's reactor operator licensing program.

3. Harm to Other Parties The only other party to this proceeding is Mr. Tetrick. While Mr. Tetrick is certainly interested in the outcome of the proceeding, he will not be substantially harmed by the imposition of a stay pendente lite. Further, even if the Initial Decision is upheld on reconsideration by the Presiding Officer (and review by the Commission, if necessary), any delay in the issuance of a license to Mr. Tetrick pending the completion of this review of this narrow issue is likely to be of short duration and will not result in significant or irreparable harm to him. Indeed, the opposite is true: If the Staff is required to comply with the Iresiding Officer's Order directing the Staff to issue a license to Mr. Tetrick prior to the issuance of a final decision in this matter, any subsequent decision by the Presiding Officer or Commission to rescind that Order could

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cause a disruption in Mr. Tetrick's assigned responsibilities and in the performance of his duties at Turkey Point. Accordingly, this factor supports the issuance of a stay.

4. Where the Public Interest Lies In the absence of a stay, the Initial Decision may introduce confusion on %e part

, of persons who apply for an RO or SRO license, as to the precise 'grade they are required i

to achieve on thir written examinations in order to qualify fo - an NRC license - 79.5 %

as specified in the Presiding Officer's Initial Decision, or 80.00% as specified in a

Revision 8 of NUREG-1021. This is not a matter of mere theoretical interest. As set i

forth in the Supplemental Affidavit of Brian Hughes (at 17), each year the Staff i administers hundreds of written examinations to persons seeking an RO or SRO license.

Each of those persons is instructed that a minimum grade of 80% must be achieved in order to pass the examination (see Attachment 7, attached to Motion for Reconsideration,

! Appendix E, page 1 of 5).

Further, as stated above, pending the Presiding Officer's reconsideration of the Initial Decision, the Staff's implementation of the Commission's statutory responsibility l to administer operator license requirements on a uniform basis may well be disrupted.

The public interest clearly favors the continued orderly implementation of the

Commission's reactor operator licensing program. Accordingly, the public interest favors the issuance of a stay, pending completion of the Presiding Officer's review of the Staff's i

Motion for Reconsideration (and, if necessary, the Commission's consideration of any

! petition for review which might be filed in this matter), in order to facilitate the 3

4 continued orderly implementation of the reactor operator licensing program.

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2' CONCLUSION

! For the reasons set forth above and in the Motion for Reconsideration filed herewith, the Staff respectfully submits that the Presiding Officer should stay the effectiveness of his Initial Decision in this proceeding, pending the completion of his review of the Staff's Motion for Reconsideration (and Commission consideration of any petition for review which might be filed by the Staffif that Motion is denied).

Respectfully submitted,

/ o s.- (

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

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00CKETED V5gpC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l -

97 MAR 10 P4 :49 In the Matter of )

)

I RALPH L. TETRICK i

)

)

Docket No. 55-20726-S$FFIC BRANCH i

(Denial of Senior Reactor )

Operator License) ) i

CERTIFICATE OF SERVICE

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I hereby certify that copies of (1) "NRC STAFF'S MOTION FOR i

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RECONSIDERATION" and (2) "NRC STAFF'S REQUEST FOR ISSUANCE OF AN .

ORDER STAYING THE EFFECTIVENESS OF THE PRESIDING OFFICER'S INITIAL DECISION (LBP-97-2)" in the above-captioned proceeding have been served 7

- on the following by deposit in the United States mail, first class, or as indicated by an l asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, j this 10th day of March 1997.  ;

Peter B. Bloch, Presiding Officer

• Adjudicatory File * (2)

Administrative Judge ' Atomic Safety and Licensing Board '

j Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555  ;

i

• Fax: 301-415-5599 i j Atomic Safety and Licensing Board Dr. Peter S. I.am* Panel

• i Administrative Judge Mail Stop: T-3 F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D. C. 20555

U.S. Nuclear Regulatory Commission i Washington, D. C. 20555 Office of the Secretary * (2)

! Attn: Docketing and Service Branch 4 Mr. Ralph L. Tetrick Mail Stop: OWFN-16/G15 18990 SW 270 Street U.S. Nuclear Regulatory Commission Homestead, FL 33031 Washington, D. C. 20555 Office of Commission Appellate i Adjudication * /

l Mail Stop: OWFN-16/G15 m 6/M j U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Sherwin E. Turk

Counsel for NRC Staff 4

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