ML20137F555

NRC Staff Response to Memorandum & Order of 970321.* Presiding Officer Should Grant Staff 970310 Motion for Reconsideration.W/Certificate of Svc

ML20137F555
Person / Time
Site:	Turkey Point, 05520726
Issue date:	03/25/1997
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#297-18230 96-721-01-SP, 96-721-1-SP, SP, NUDOCS 9704010134
Download: ML20137F555 (10)

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, DOCKETED March 25,hW W MAR 25 P3 :10 l UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY 00CKETING & SERVICE BEFORE THE ATOMIC SAFETY'AND LICENSING BOARD BRANCH Before Administrative Judges.  ;

Peter B. Bloch, Presiding Officer i (Dr. Peter Lam, Special Assistant) t In the Matter of ) Docket No. 55-20726-SP '

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RALPH L. TETRICK )  ;

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

Reactor Operator License) )

NRC STAFF'S RESPONSE TO l MEMORANDUM AND ORDER OF MARCH 21.1997  ;

i On March 21, 1997, the Presiding Officer issued a " Memorandum and Order (Grant of Housekeeping Stay)," in which he (a) directed the NRC Staff (" Staff") to respond to two questions pertaining to the Staff's pending stay request and motion for ,

reconsideration,' and '(b) extended the existing temporary housekeeping stay until

- March 26,1997, pending his determination whether to grant the Staff's stay request. In particular, the Presiding Officer directed the Staff to respond to the following questions:

See "NRC Staff's Request for Issuance of an Order Staying the Effectiveness of the Presiding Officer's Initial Decision (LBP-97-2)," and "NRC Staff's Motion for Reconsideration," filed on March 10,'1997.

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1. Is it appropriate to introduce new authority in a j motion for reconsideration when that authority might  ;

have been introduced into the piding prior to my J first decision? i i

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2. Is Mr. Tetrick correct that the guidance contained in NUREG-1021 Revision 8 is not applicable to the facts of this case?-

" Memorandum and Order (Grant of Housekeeping Stay)," dated March 21,1997, at 2.

The Staff's response to these questions is provided below.  !

1. New Authority Cited for the First Time in a Motion for Reconcirleration.

The answer to the Presiding Officer's first question, simply stated, is "no" --

a litigant should avoid introducing new facts or arguments in a motion for reconsideration l where those matters could have and reasonably should have been introduced prior to the close of the record or the issuance of an initial decision. This rule has been summarized as follows:

Applicant's Reconsideration requests changes in factual 1 findings, based at times on entirely new arguments and  !

evidence concerning matters that have been litigated. i This is not proper in a Motion for Reconsideration, which is an extraordinary filing alleging error in a ,

decision of the Board. A motion for reconsideration  ;

should not include new arguments or evidence unless a party demonstrates that its new material relates to a Board concern that could not reasonably have been anticipated. l 1

Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),

LBP-84-10,19 NRC 509, 517-18 (1984) (emphasis added).

Although the Presiding Officer did not explain why he posed this question, it may be that he is concert.ed t >ut the Staff's inclusion of certain factual and legal arguments l

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l l i L in its Motion for Reconsideration of March 10,1997, relating to the Presiding Officer's L

I sua sponte decision to "round up" Mr. Tetrick's written examination grade to the next highest integer, from 79.59% to 80%.2 In this regard, the Staff wishes to note that it directly addressed this issue in its Motion for Reconsideration. There, the Staff observed that the issue of " rounding up" was first raised in the Initial Decision, where the Presiding Officer stated as follows:

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

significant. Because I have not been directed to any j governing guidance or regulation, I have decided that it j 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. . . .

Motion for Reconsideration at 3, quoting LBP-97-2, slip op. at 16. The Staff further explained that it had received no prior notice that this issue was of concern to the Presding Officer, nor did it have any reason to believe that it was a relevant issue in the proceeding. The Staff stated:

1 The Presiding Officer correctly observed that, l heretofore, he "ha[s] not been directed to any governing I guidance or regulation" concerning the question of whether "it 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 i " Written Presentation" because, prior to the issuan:e of the Presiding Offiar's Initial Decision, the Staff did not

- believe that this issue was relevant and should be l ' addressed in this proceeding._3/ Rather, this issue only

! arose upon the Presiding Officer's determination to strike s- 4 i

2 l Ralph L. Tetrick (Denial of Applitdon for Reactor Operator License), LBP-97-2,

45 N.R.C. __ (Feb. 28, 1997), slip op. at 16.

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

In view of the Presiding Officer's determination to strike Question %, 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.

J f . _ Mr. Tetrick's examination score of 78.8%, as ded by the Staff, did not present this issue, nor was une 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 a revised grade for Mr. Tetrick. ,

- NRC Staff's Motion for Reconsideration, dated March 10,1997, at 3-4.

The Staff reiterates and incorporates these statements in this response. Further, the Staff notes that it would have addressed the issue of rounding up, and would have provided the appropriate references to " governing guidance or regulation" (LBP-97-2, supra), if either Mr. Tetrick or the Presiding Officer had raised this issue prior to the issuance of the Initial Decision, or if Mr. Tetrick's examination score (as previously graded) had fallen between 79.5% and 80%. However, because this issue did not arise until the Presiding Officer, acting sua sponte, raised and resolved the issue in his Initial Decision, the matters presented in the Staff's Motion for Reconsideration could not have been reasonably anticipated to be relevant prior to that time. In other words, the material included iii the Staff's Motion for Reconsideration " relates to a Board concern that could not reasonably have been anticipated." Texas Utilities Electric Co. (Comanche' Peak

- Steam Electric Station, Units I and 2), LBP-84-10,19 NRC 509, 517-18 (1984).

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Accordingly, the Staff was required to present these matters for consideration by the Presiding Officer in a motion for reconsideration - and, indeed, the Staff would have been remiss if it had failed to bring these matters to the Presiding Officer's attention at that time.8 1

2. Applicability, in This Proceeding, of the  :

Guidance Contained in NUREG-1021. Revision 8.

l In his response to the Staff's request for a stay, Mr. Tetrick essentially asserts i

that Revision 8 of NUREG-1021 does not apply to the grading of his written examination.

Thus, he states that "NUREG-1021 Kevision 8 has not become effective at this time," and i

further states as follows:  !

The Staff contends that unless a stay is issued, the continued practice of requiring an 80% to pass will ,

be disrupted. In response, I contend that the future '

issuance of NUREG-1021 Revision 8 will clarify any l concern the Staff has. As mentioned previously, Revision 8 of NUREG-1021 is not applicable at this I time. I The Staff contends that the NRC's ability to administer operator license exams will be disrupted.

My contention is that the Staffs [ sic] ability to administer exams will not change. Since in the future 8

In contrast, the Staff notes that Mr. Tetrick included in his response to the Staff's Motion for Reconsideration what appears, in essence, to be a separate request for reconsideration'of the Initial Decision, relating to the grading of Question 63 -- in which he relies upon arguments which could have been, but were not, raised earlier. See Letter from Ralph L. Tetrick to Peter B. Block [ sic), "

Subject:

NRC Staffs' [ sic] motion for reconsideration in the matter of Ralph L. Tetrick," submitted March 17,1997, at 1. In the event the Presiding Officer determines to consider that request as a motion for reconsideration, the Staff hereby requests an opportunity to respond thereto.

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1 the issuance of NUREG-1021, Revision 8 will clarify  !

any areas of confusion.' )

l Similarly, in his response to the Staff's Motion for Reconsideration, Mr. Tetrick asserts: l I contend that as NUREG-1021 revision 8 has not been implemented, it does not apply and therefore the presiding officers [ sic] decision to round up is valid and should stand and I should be issued a SRO license.5 While Mr. Tetrick is correct in his understanding that NUREG-1021, Revision 8, is 'not yet effective, he is incorrect in his assertion that it has not yet been issued -- and he is incorrect in his suggestion that the "80%" clarification contained in Revision 8 (i.e. ,

that the minimum passing grade of 80% equates to 80.00%) does not apply to the grading of his examination.

NUREG-1021, Interim Rev. 8, was. submitted for publication in January 1997 (see Attachment 7 to Staff Motion for Reconsideration). The status ofInterim Rev. 8, as of its promulgation in January 1997, is described in the abstract to that document, as follows: .

For examinations prepared by the NRC, this revision will become effective 60 days after its publication is noted in the FederalRegister. The corporate notification letters issued after the effective date will give facility licensees at least 120 days of advance notice that'the l examinations will be administered in accordance with the revised procedures. Facility licensees that volunteered ,

• Letter from Ralph L. Tetrick to Peter B. Block [ sic], "

Subject:

NRC Staffs' [ sic] l motion for Issuance of Stay," filed March 17,1997, at 1, 2. l 5

letter from Ralph L. Tetrick to Peter B. Block [ sic), "

Subject:

NRC Staffs' [ sic] '

motion for reconsideration in the matter of Ralph L. Tetrick," submitted March 17,1997, at 1. ,

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J to prepare their examinations before the date of the Federal Register notice (FRN) are expected to prepare ,

the examinations based on the guidance herein or the l pilot examination guidance in Generic Letter 95-06, i

" Changes in the Operator Licensing Program," dated August 15, 1995. Facility licensees that volunteer after the date of the FRN are expected to prepare the examinations based on the guidance herein.

Id., at iii. A notice announcing the availability of Interim Revision 8 was published in the Federal Register on February 25,1997. See Notice of Availability, " Operator Licensing Examination Standards Interim Revision," 62 Fed. Reg. 8462 (Feb. 25,1997).

Thus, Interim Rev. 8 was issued earlier this year, and will be fully effective for NRC-prepared examinations on or about April 26,1997.

l The fact that Interim Rev. 8 was published in early 1997, several months after i Mr. Tetrick took his examination, and the fact that it does not become fully effective until April 1997, provide no relief to Mr. Tetrick. The 80% minimum grade (or " cut score" as defined in NUREG-1021) was first specified in March 1980 by the Director of the Office of Nuclear Reactor Regulation (NRR) (see Motion for Reconsideration, l l

Attachment 1), and was reiterated in various iterations of NUREG-1021, " Operator 4

Licensing Examiner Standards." Thus, at the time Mr. Tetrick took his written examination, NUREG-1021, Revision 7, specified that in order to pass the written examination, a grade of "80% or ereater" must be achieved. See Motion for l Reconsideration, Attachment 2, section ES-402, page 5 of 6.

As set forth in the Staff's Motion for Reconsideration and the Supplemental Affidavit of Brian Hughes attached thereto, the Staff has long interpreted and applied the 80% standard, in practice, as equating to a score of at least 80.00%. See Motion for

Reconsideration at 5,7; Supplemental Affidavit at 4. The Staff attached to its Motion for Reconsideration several examples ofinstances in which scores of 79.6%,79.7%, and 79.8% were determined to constitute failing grades, without rounding up to the next highest integer. All of these examples precede the issuance of Interim Rev. 8; indeed, one of them dates back to January 1991. See Motion for Reconsideration at 7, and Attachment 4. Moreover, as the Staff pointed out, it brought this established policy to the Commission's attention in September 1996, and the Commission implicitly approved this interpretation in a Staff Requirements Memorandum (SRM) dated December 17, 1996, when it approved the issuance of NUREG-1021, Interim Rev. 8, which includes the 80.00% clarification. See Motion for Reconsideration at 7-8, and Attachments 5 and 6.

Thus, the fact that Interim Revision 8 is not yet fully effective does not alter the fact that at least one aspect of that document - f.c., its clarification that the 80%

minimum passing score equates to a score of 80.00% - merely recites a long-established and existing interpretation of this specification. No change in the Staff's existing practice and interpretation was effected by NUREG-1021, Interim Rev. 8. The fact that Revision 8 is not yet fully effective, in other respects, does not render the Staff's long-established interpretation and policy any less applicable to Mr. Tetr.ick's examination score. See Motion for Reconsideration at 8-10.

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CONCLUSION For the reasons set forth above, the Staff respectfully submits that Mr. Tetrick's written examination grade of 79.59%, as revised by the Presiding Officer, does not constitute a passing grade; rather, the " cut score" or passing grade of "80% or greater" specified by the Director of NRR in 1980 and reiterated in NUREG-1021, Revision 7, requites a score of at least 80%, and equates to a minimum score of 80.00% under established Staff policy. Accordingly, the Presiding Officer should grant the Staff's Motion for Reconsideration.

Respectfully submitted,

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l&o~u $ l Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 25th day of March,1997 l

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UNITED STATES OF AMERICA 00CKETE0 NUCLEAR REGULATORY COMMISSION USHRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

, vt t%R 25 P3 :10 In the Matter of )

) 0FFICE OF SECRETARY 4

RALPH L. TETRICK ) Docket No. 55-2072600 METING & SERVICE

BRANCH

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(Denial of Senior Reactor )

Operator License) )

i CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO MEMORANDUM AND ORDER OF MARCH 21,1997" 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 I

i asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by a double asterisk, by personal delivery, this 25th day of March 1997.

Peter B. Bloch, Presiding Officer ** Adjudicatory File * (2)

Administrative Judge Atomic Safety and Licensing Board 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 Dr. Peter S. Lam

• Atomic Safety and Licensing Board Administrative Judge Panel

• Atomic Safety and Licensing Board 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 Office of the Secretary * (2)

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

• Mail Stop: OWFN-16/G15 U.S. Nuclear Regulatory Commission , {j Washington, D. C. 20555 Sherwin E. Turk Counsel for NRC Staff