ML20137R353

Correct Copy of Memorandum & Order (Denial of Reconsideration,Stay).* Denies NRC Staff Motion for Reconsideration.W/Certificate of Svc.Served on 970327

ML20137R353
Person / Time
Site:	Turkey Point, 05520726
Issue date:	03/27/1997
From:	Bloch P Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#297-18237 96-721-01-SP, 96-721-1-SP, LBP-97-06, LBP-97-6, SP, NUDOCS 9704140097
Download: ML20137R353 (8)

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• DOCKETED LBP-97-6 March 27,.1997 _!

VI ttAR 27 P1 :38  !

UNITED STATES OF AMERI ,

,- ~I NUCLEAR REGULATORY COMMI na t W h 4 ATOMIC SAFETY AND LICENSING BOARD PANEIi"H Before Administrative Judges: SERVED HAR 271997 Peter B. Bloch, Presiding Officer Peter Lam, Special Assistant'

.i In the matter of Docket No. 55-20726-SP RALPH L. TETRICK Re: Operator License

.(Denial'of Application for Reactor Operator License) ASLBP No. 96-721-01-SP l CORRECTED COPY OF MEMORANDUM AND ORDER (Denial of Reconsideration, Stay) l On March 10, 1997, the Staff of the Nuclear Regulatory.

Commission filed a motion, "NRC S_aff's Request 'or Issuance of I

l an Order Staying-the Effectiveness of the Presiding Officer's Initial Decision (LBP-97-2)" (Motion for a Stay). The Staff asked that the Presiding Officer issue an Order staying the

' effectiveness of his Initial Decision in this proceeding,1 pending the Presiding Officer's review and consideration of the Staf f's Motion for. Reconsideration (Motion for ht onsideration),

Ra.lph L. Tetrick (Denial of' Application for Reactor Operator. License),- LBP-97-2, 45 N.R.C. ,Feb. 28, 1997 i (Initial Decision). l l

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g filed simultaneously'. Ralph L. Tetrick filed his response to t% Staff motions on March 17, 1997.

Because the Motion for Reconsideration has been filed, we  ;

r7tain jurisdiction over this case. See 10 C. F.R. S 2.771; Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-235, 9 AEC 645 (1974).

have decided that the Motion for Reconsideration shall be denied because it improperly raises an argument based on e v i d er.. 'e that should have been incorporated in the record earliet in this case. The motion for a stay also shall be d m ,a d . The Motion for a Stay stated, in part, that it was pending "the Presiding Officer's review and consideration of the i Staff's Motion for Reconsideration." Upon denial of the Motion for Reco'isideration, I no longer have jurisdiction of this case, so it would be inappropriate to grant a stay "pending consider-ation by the Commission," as the Staff also requests.

With respect to the motion for reconsideration, I note that:

a motion for reconsideration should not include new argu-ments or evidence unless a party demonstrates that its new material relates to a Board concern that could not reason-ably have been anticipated.

Texas Utili ties Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-10, 19 NRC b09, 517-18 (1984).

(Emphasis added to the quoted paragraph by the Staff. See "NRC Staff's Response to Memorandum and Order of March 21, 1997," i l

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March 25, 1997 [ Staff Response] at 2). In this case, Staff-

-l opposed Mr. Tetrick's challenges to three questions on its Senior Reactor Operator's examination. It now argues that it i

could not anticipate that one of these three questions might be struck, forcing the Presiding Officer to decide whether or not a score of 79.59% should be considered passing or failing.2 NRC i Response at 3-4. We reject Staff's argument that it "did not yet-have any reason to anticipate that the Presiding Officer 4

would strike Question 96. . . .

(NRC Response at 4.) The key l question being litigated was the ~ validity of each of the challenged questions and whether or not Mr. Tetrick would pass the examination. I conclude that the Staff should have antici-pated this contingency and presented arguments about how it l l should be resolved. In the interest of finality in decision l

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making, I do not consider it appropriate to permit the Staff to raise this argument at this stage of the proceeding. ]

l In making this ruling, I recognize that Mr. Tetrick will

be granted a license while other candidates, with scores between l I

79.5% and 80.0%, were denied a license. NUREG-1021, " Operator Licensing Examiner Standards," sets forth that "80% of the questions must be correctly answered." Motion for Reconsidera-2 It was necessary to the decision in this case for the Presiding Officer to determine whether or not to round off the l examination score. The Staff suggestion that this decision was J "sua sponte"'is frivolous.

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(J J tion at 5. Only recently,-the Staff has amended its NUREG to require a passing score of "80.00" percent, changing the number ,

of significant digits in the NUREG itself from a whole percent-age to 1/100th of a percentage point. Motion for Reconsid-eration, attached Supplemental Affidavit of Brian Hughes, at 5, ,

1 10. At the time that Mr. Tetrick took his examination, the .

. t revised NUREG was not in effect and there was no published j guidance, other than the NUREG itself, concerning the number of significant digits in an examination score or how a score should  ;

be rounded. I find, as the Staff suggests, that the Staff had  !

an established practice - firs t presented to the Presiding ,

Officer only after issuance of the Initial Decision. The Staff l practice, which may be inconsistent with the use or' a whole percentage point standard ("80%") in the NUREG,3 has required applicants to achieve a grade of 80 percent or greater --

without rounding off -- in order to pass their written examina-tion. Staff Motion for Reconsideration at 5; Supplemental Affidavit of Brian Hughes at 8-10.

3There is a strong presumption that the plain language of a statute or, by analogy, of regulatory guidance expresses the intent of its drafters. Ardestani v. I.N.S., 112 S. Ct. 515, 116 L. Ed.2d 496 (1991). It is appropri ate to look to an extrinsic aid, such as Staff practice, only if the language of the regulatory guidance is unclear or if its apparent clarity leads to absurd results. Blue Cross and Blue Shield of Alabama

v. h'eitz, 913 F.2d 1544 at 1548, rehearing denied 921 F.2d 283.

M If'this matter seriously affected public safety, I would consider this evidentiary point even though it is untimely. See j Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645 (1974). However, I have no reason to believe ,

that a 0.41% difference in the score of a candidate on one  !

portion of his examination is a valid reason for concern that his performance will be inadequate.

This decision also will have little effect on the Staff's  ;

I use of a uniform passing grade. It is necessary to establish i

and consistently apply a passing grade for examinations, and the t Staff has clarified the precise passing grade by amending the NUREG. Candidates whose scores fall even a fraction of a point below the passing grade should fail, even though they are not  ;

l measurably inferior to candidates who pass by a fraction of a j l

point. In this case, I have not decided the merits of the Staff argument about the interpretation of "80%" in a NUREG that is no longer current. My decision is based on the untimeliness of the argument and does not affect future cases. There is no reason to suspect a substantial negative effect on public safety because Mr. Tetrick had a written examination score of 79.59%,

rounded off to 80% through a permissible interpretation of the language of the applicable version of NUREG-1021. I am confi-dent that Mr. Tetrick, who has capably and respectfully con-ducted himself in this proceeding, will continue to improve his

a skills and that he will not permit his marginal score on the written examination to interfere with his being an outstanding Senior Reactor Operator.

ORDER-For all the foregoing reasons and upon consideration of the entire record in this macter, it is this 27th day of March,

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1997, ORDERED, that:

1. The "NRC Staff's Motion for Reconsideration," March 10, 1997, is denied. ,

2. The "NRC Staff's Request for Issuance of an Order Staying the Effectiveness of the Presiding Officer's Initial Decision (LBP-97-2)," March 10, 1997, is denied.

3. The Staff of the Nuclear Regulatory Commission may issue to Mr. Ralph L. Tetrick a Senior Reactor Operator License for Turkey Point Nuclear Generating Plant, Units 3 and 4.

4. Because of the issuance of housekeeping stays in this case, March 27, 1997 shall be considered the date of issuance of the Initial Decision (LBP-97-2) for the pur-pose of calculating parties' rights and obligations con- +

cerning an appeal.  ;

5. Pursuant to 10 C.F.R. 5 2.1251, this initial decision constitutes the final action of the Commission thirty (30) days after March 27, 1997, unless any party petitions for Commission re"lew in accordance with 9 2.786 or the Com-mission takes review of the decision sua sponte. If there is no petition for review, the date on which this decision will become' final is Monday, April 28, 1997.

6. Pursuant to 10 C.F.R. S 2.786, a petition for review must be filed within fifteen (15) days 6fter service of this Memorandum and Order, which is considered served on  !

the date it is mailed, pursuant to 10 C.F.R. S 2.712(e). i However, since service of this decision is by mail, five

-days shall be added to the prescribed period of response, '

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pursuant to 10 C.F.R. S 2.710, which governs the computa-tion of time. Consequently, the date the petition for review must be served is Wednesday, April 16, 1997. Ser-vice of the petition for review must, pursuant to this Order, be made by express mail.

7. A petition for review and a' response to a petition for review'must meet the requirements of 10 C.F.R. S 2.786.

8. If'a petition for review is filed, the answer must be filed within 10 days. Since the petition for review shall ,

be filed by express mail, two days shall be added to the '

period of response pursuant to 10 C.F.R. S 2.710, which governs the computation of time. Consequently, the date the answer must be served is Monday, April 28, 1997.

Service of the answer must, pursuant to this Order, be  :

made by express mail.

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!! 20 F JW,o Peter B. Bloch  !

Presiding Officer Rockville, Maryland I

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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of , ,

RALPH L. TETRICK Docket No.(s) 55-20726-SP.

(Denial of Senior Reactor 0perator's i License)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB CORRECTED M&O--LBP-97-6 >

have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in acccrdance with the requirements of 10 CFR Sec. 2.712.

f.dministrative Judge Office of Cmunission Appellate Peter B. Bloch, Presid'g Ofer Adjudication Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Mitzi A. Young, Esq.

Peter S. Lam Sherwin E. Turk, Esq.

Special Assistant Office of the General Counsel Atomic Safety and Licensing Board Mail Stop 15 818 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Consnission U.S. Nuclear Regulatory Comunission Washington, DC 20555 Washington, DC 20555

• Ralph L. Tetrick 18990 SW 270 Street Homestead, FL 33031 l Dated at Rockville, Md. this 27 day of March 1997 l Office of the Secretary dT the Commission i

• Express mail J

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