ML20137X592

NRC Staff Petition for Commission Review of Presiding Officer Decisions in Proceeding (LBP-97-2 & LBP-97-6).* Commission Should Undertake Review of Presiding Officer Decisions in Proceeding.W/Certificate of Svc

ML20137X592
Person / Time
Site:	Turkey Point, 05520726
Issue date:	04/16/1997
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Sherwin Turk NRC COMMISSION (OCM)
References
CON-#297-18261 LBP-97-02, LBP-97-06, LBP-97-2, LBP-97-6, SP, NUDOCS 9704220090
Download: ML20137X592 (12)

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00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 77 APR 16 P5 :08 -

0FFICE OF SECRETARY  !

00CKETING & SERVICE  :

' BRANCH l In the Matter of )

) I RALPH L. TETRICK ) Docket No. 55-20726-S,P  ;

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(Denial of Application for Senior )  :

Reactor Operator License) )  !

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NRC STAFF'S PETITION FOR COMMISSION REVIEW  !

OF THE PRESIDING OFFICER'S DECISIONS '

IN THIS PROCEEDING (LBP-97-2 AND LBP-97-6) l i

l Sherwin E. Turk Counsel for NRC Staff  !

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. April 16,1997 i

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9704220090 970416 O fy0 DR ADOCK O

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of - )

)  !

RALPH L. TETRICK ) Docket No. 55-20726-SP  ;

)

(Denial of Application for Senior )-

Reactor Operator License) )  ;

NRC STAFF'S PETITION FOR COMMISSION REVIEW  !

OF THE PRESIDING OFFICER'S DECISIONS IN THIS PROCEEDING (LhP-97-2 AND LBP-97-6)  !

INTRODUCTION Pursuant to 10 C.F.R. (( 2.786 and 2.1253, the NRC Staff (" Staff") hereby requests that the Commission undertake review of the Presiding Officer's decisions in this proceeding, LBP-97-2 and LBP-97-6.' As more fully set forth below, Commission review of these decisions is required, pursuant to 10 C.F.R. f 2.786(b)(4)(ii) and (iv),

in that the Presiding Officer: (a) incorrectly decided a question of law -- without governing precedent, and contrary to Commission guidance and established Staff practice

-- in determining that the revised score of 79.59% achieved by Ralph L. Tetrick on his

~ Senior Reactor Operator (SRO) license written examination, should be rounded up to the next highest integer, resulting in a passing grade of 80 percent; and (b) committed a 1 Ralph L. Tetrick (Denial of Application for Reactor Operator License), LBP-97-2,  !

45 N.R.C. (Feb. 28,1997) (Initial Decision); Id., LBP-97-6, 45 N.R.C. '

(Mar. 27,1997) (Corrected Copy of Memorandum and Order (Denial of Reconsideration,

' Stay)). On April 11,1997, the Staff filed, before the Commission, a request to stay the  :

effectiveness of these decisions.

prejudicial procedural error, in declining to consider the Staff's motion for reconsideration of his decision to round up Mr. Tetrick's score, on the stated basis that the Staff should have anticipated that the Presiding Officer would reach and independently decide this issue in his Initial Decision, absent any prior inquiry or notice to the parties.

BACKGROUND The background of this proceeding is set forth in the Staff's stay request of April 11.1997, and will nu be recited at length herein. Briefly stated, Mr. Tetrick is a reactor operator at Turkey Point Nuclear Generating Plant, Units 3 and 4 (" Turkey i

Point"), operated by Florida Power & Light Company ("FP&L"). Mr. Tetrick applied l l

for an SRO license, took the required operating test and written examination, and was determined by the Staff to have achieved a revised score of 78.8% on his written l l

examination. The Staff concluded that this score was "below the minimum passing grade of 80%," and denied Mr. Tetrick's SRO license application (HF Item 26, at 1,5).2 ]

At Mr. Tetrick's request, an informal proceeding was initiated under 10 C.F.R. Part 2, Subpart L, to consider the Staff's denial of his license application. In his written prescritation, Mr. Tetrick challenged the grading of four questions: Questions 63, 84, 90, and 96.3 The Staff duly responded to these assertions in its written presentation, filed on January 23, 1997.4 2

The Hearing File was submitted by Letter from Sherwin E. Turk to the Presiding Officer, dated November 7,1997, in accordance with 10 C.F.R. Q 2.1231.

3 See Letter from Ralph L. Tetrick to Sherwin E. Turk, dated December 30,1996.

See " Written Presentation of NRC Staff," and the attached " Affidavit of Brian Hughes and Thomas A. Peebles," dated January 23,1997.

i On February ~28, 1997, the Presiding Officer issued his Initial Decision (LBP-97-2, supra), in which he upheld the Staff's grading of Questions 63, 84, and 90, but struck Question 96 as ambiguous -- resulting in a finding that Mr. Tetrick had correctly answered 78 of 98 questiot.s, for a revised score of 79.59%. Id., slip op.

at 15. The Presiding Officer then 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 governing guidance or regulation, I have decided that it is appropriate to round up the answer 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.  :

l Id. at 16; emphasis added.  ;

I On March 10,1997, the Staff filed a motion for reconsideration of the Presiding l l

Officer's Initial Decision, which was narrowly directed to the Presiding Officer's determination to round up Mr. Tetrick's score from 79.59% to a passing grade of 80%.5 The Staff's motion was supported by affidavit and extensive documentation,6 which i together demonstrated, inter alia, that the Presiding Officer's determination (a) was )

l contrary to the "80% or greater" standard specified in Commission guidance, (b) was contrary to an established Staff practice implementing this standard (recently approved 5

See "NRC Staff's Motion for Reconsideration," and the attached " Supplemental Affidavit of Brian Hughes," dated March 10, 1997.

• Attached to the Staff's Motion was the " Supplemental Affidavit of Brian Hughes"

("Supp. Aff "), and seven documents'or portions of documents, which provide pertinent guidance and authority with respect to this issue. ,

implicitly by the Commission), and (c) would result in non-uniform treatment of Mr.

Tetrick as compared to numerous other persons who scored between 79.5% and 80%,

whose license applications were denied by the Staff for failure to achieve the specified minimum grade of 80%.7 On March 21, 1997, the Presiding Officer directed the Staff to respond to a question as to whether it should have addressed the issue of rounding up prior to the issuance of his Initial Decision,8 to which the Staff responded on March 25, 1997.'

Then, on March 27,1997, the Presiding Officer issued his decision denying the Staff's Motion for Reconsideration (LBP-97-6) -- in which he declined to consider. the merits of the Staff's Motion, on the grounds that the Staff "should have anticipated this contingency [i.e., that he would strike one question and reach the issue of " rounding up"]

and presented arguments about how it should be resolved." Id. at 3. Even more significantly, the Presiding Officer " recognize [d] that Mr. Tetrick will be granted a l l

7 Such uniformity is required by statute: Section 107 of the Atomic Energy Act, as amended, requires the Commission to " prescribe uniform conditions for licensing individuals as operators." 42 U.S.C. { 2137(a).

8 See " Memorandum and Order (Grant of IIousekeeping Stay)," dated March 21, 1997, at 2 (extending a previous housekeeping stay until March 26,1997).

' Sec "NRC Staff's Response to Memorandum and Order of March 21,1997," dated March 25,1997. The Staff's response indicated, inter alia, that prior to its receipt of the Initial Decision, it had no reason to believe that the Presiding Officer would raise and decide the question of " rounding up" or that this issue was relevant in this proceeding, since the issue had not been raised previously by Mr. Tetrick, by his examination score of 78.8% (as graded by the Staff), or by the Presiding Officer. Id. at 3-5.

See " Corrected Copy of Memorandum and Order (Denial of Reconsideration, Stay), LBP-97-6,45 NRC _ (March 27,1997) (" Corrected Decision). The Corrected Decision supersedes a previous " Memorandum and Order (Denial of Reconsideration, Stay)," dated March 27,1997, and extensively revises page 5 of that prior issuance.

I license while other candidates, v.ith scores between 79.5% and 80%, were denied a ,

1 license," Id. at 4 -- but found this to be of little consequence in that (a) "a 0.41%

difference in score" is unlikely to affect public health and safety, and (b) the .Luture i

grading of examinations will be governed by Revision 8 of NUREG-1021. Id. at 5. I 1

DISCUSSION The Staff respectfully submits that the Presiding Officer (a) incorrectly decided a question of law, without gover :ng precedent and contrary to established Staff practice, j as to how to interpret the "80% or greater" standard established in Commission guidance," and (b) committed a prejudicial procedural error in declining to consider the merits of the Staff's motion for reconsideration concerning this matter.

I A. The Presiding Officer's Determination to "Round Up" Mr. Tetrick's Revised Examination Score from 79.59% to 80%, Resulting in a Passing Grade Is Without Governine Precedent and Is Contrary to Established Staff Practice.

The Presiding Officer's detennination to round up Mr. Tetrick's revised examination grade from 79.59% to 80% is without precedent in Commission case law. ,

Although other reactor operator licensing decisions have been issued, no cases have arisen heretofore in which this issue was presented. Moreover, as discussed at length in the Staff's Motion for Reconsideration (and in the Supplemental Affidavit and documents submitted therewith), the Presiding Officer's Initial Decision is at odds with Commission standards and guidance and with established Staff practice, in that:

" In this respect, the Initial Decision could also be viewed as raising "a substantial and important question of law, policy or discretion" (see 10 C.F.R. f 2.786(b)(iii)),

pertaining to the implementation of the Commission's operator licensing program.

(a) Pursuant to Commission guidance in NUREG-1021, reactor operator (RO) and SRO applicants must achieve a minimum grade or " cut score" of "80% or greater" to pass the written examination;"

(b) the Staft has historically interpreted and applied this standard to require a minimum grade or " cut score" of 80%, without rounding up -- and has denied RO and SRO license applications where examination scores of 79.6%,79.7% and 79.8% had been achieved;"

(c) the Commission, in broad tenus, recently provided implicit approval of the Staff's existing policy of denying applications where traedcnal scores below 80% have been achieved, in approving a proposed revision of NUREG-1021 which clarifies, among other matters, that the "80% or greater" standard stated therein equates to a score of "80.00% ";" and

" See NUREG-1021, Rev. 7, Supp.1, " Operator Licensing Examiner Standards" (June 1994), ES402, page 5 of 6; Id., ES-401, page 6 of 7; Id., ES-501, page 3 of 24 (Motion for ReconsWration, Attachment 2; Supp. Aff.16). The minimum passing score was raised 1: .,0%, from the previously specified minimum grade of 70%,

following the accident at Three Mile Island, Unit 2. See Motion for Reconsideration, Attachment 1; see also NUREG-0737, " Clarification of TMI Action Plan Requirements (Nov.1980), Enclosure 1 at 1-3; Regulatory Guide 1.8, " Qualification and Training of Personnel for Nuclear Power Plants," (Rev. 2, April 1987), at 1.8-2.

" See Motion for Reconsideration, Attachment 4, and Supp. Aff. i 9 (providing specific examples in which the Staff drnied operator license applications where such scores were attained).

" See SECY-96-206, "Rulemaking Plan for Amendments to 10 CFR Part 55 to Change Licensed Operator Examination Requirements," Enclosure 2 at 24 (Sept. 25, 1996) (Motion for Reconsideration, Attachment 5); and the related Staff Requirements Memorandum (SRM)of December 17,1996(MotionforReconsideration. Attachment 6).

Cf. Supp. Aff. 11 10, 11).

i (d) in accordance with the Commission's SRM, the Staff has now published Interim Revision 8 to NUREG-1021, which continues to specify a minimum passing grade (" cut score") of "80% or greater," and clarifies that this standard requires a minimum score of 80.00%."

While the Presiding Officer opined that his decision will have little prospective effect, since NUREG-1021 has now been revised to indicate that, in the future, a passing grade will be 80.00%, he fails to recognize that the Staff's established practice of requiring a minimum score of 80% is based upon the explicit specification in NUREG-1021 that a " cut score" of "80% or greater" must be achieved -- and that the 80.00% clarification provided in NUREG-1021, Interim Rev. 8, did not alter this standard. Indeed, Interim Rev. 8 alternately specifies in numerous places that a score of "80%" or "80.00%" must be achieved, thus equating these standards. See n.15, supra.

Further, the Presiding Officer's decisions have the unfortunate effect of calling into question the correctness of the Staff's existing interpretation of NUREG-1021, as it has been applied in numerous instances -- suggesting that the Staff's interpretation and practice "may be inconsistent with the use of a whole percentage point standard (80%)

in the NUREG." LBP-97-6, slip op. at 4. Thus, even if the Presiding Officer is correct that his decision will not affect future examinations which rely upon an 80.00% standard, i he has effectively called into question the correctness of the Staff's previous denials of

" See NUREG-1021, Interim Rev. 8, at ES-401, pages 4 of 39 (80%) and 39 of 39 (80.00%); /d., Appendix A, pages 6 of 10 (80%) and 7 of 10 (80%); Id., Appendix E, page 1 of 5 (80.00%) (Motion for Reconsideration, Attachment 7; Supp. Aff.112).

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operator license applications where scores of between 79.5% and 80% had been achieved.

Further, while the Staff's policy and practice was clear in the past, the Presiding Officer's decisions introduce confusion as to the precise grade that individuals are and have been required to achieve in order to pass an NRC written examination and thereby l 1

qualify for an NRC license. Finally, his decisions (which are admittedly inconsistent l with existing Staff practice) result in the non-uniform treatment of license applicants contrary to the statutory instruction in section 107 of the Atomic Energy Act, as amended, that the Commission is to " prescribe uniform conditions for licensing" reactor  !

l operators. See n.7, supra.

B. The Presiding Officer's Refusal to Consider the Merits of the Staff's i Motion for Reconsideration Constitutes A Preiudicial Procedural Error.

The Presiding Officer's procedural rulings with respect to this matter are plainly erroneous. At no time prior to the issuance of the Initial Decision did the Presiding Officer ever request the parties' views as to whether it is appropriate to round up an examination score to 80%. Although the Initial Decision reflects the Presiding Officer's wish that he had received such information 9t no time did the Presiding Officer ask the parties to address "the question of the number of digits in the examination score that should be considered significant," or to " direct [him] to any governing guidance or regulation." LBP-97-2, slip op, at 16. Moreover, this issue was never mentioned in Mr. Tetrick's written presentation, nor did his score of 78.8% (as previously determined by the Staff) present this question. Rather, Mr. Tetrick's written presentation challenged

9 his revised score of 78.8% -- a score that fell below 79.5% and did not present any issue

. as to whether other scores (falling above 79.5 % but below 80%) should be rouncted up.

Thus, until the Presiding Officer determined, in LBP-97-2, to strike Question 96 from the examination, resulting in a score of 79.59%, it was unnecessaiy (and would have been premature) for the parties to address the issue of " rounding up " Only upon issuance of the Initial Decision did the parties first receive notice that the issue of

" rounding up" was potentially relevant in this proceeding."

Upon issuance of the Initial Decision, the Staff promptly sought to present to the Presiding Officer "the governing guidance or regulation" which he overlooked in his independent resolution of this matter -- but to no avail." Upon receipt of the Staff's motion for reconsideration, the Presiding Officer hinted at this outcome, asking, "Is it appropriate to introduce new authority in a motion for reconsideration when that authority might have been introduced into the proceeding prior to my first decision?" (Order of March 21,1997). The Presiding Officer then rejected the Staff's explanation that it could not reasonably have anticipated a need to address the issue in this proceeding, and he declined to consider the merits of the motion for reconsideration -- on the stated basis that "the Staff should have anticipated this contingency [i.e., that the Presiding Officer would

" It is therefore not surprising, as remarked by the Presiding Officer in his Initial

' Decision, that the Staff had not addressed the question of the number of digits in the examination score that should be considered significant, and had not " directed [him] to any governing guidance or regulation" on this issue.

" While the Presiding Officer denies having raised and resolved this issue sua sponte (see LBP-97-6, slip op at 3 n.2), it is beyond dispute that neither Mr. Tetrick nor the Presiding Officer had ever mentioned this issue prior to issuance of LBP-97-2.

y . . . . . . . _ . . _ . . . . . . . _ _ _ . _ _ _ . - _ . - . . _. __..

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strike a single question, resulting in a score of 79.59%] and presented arguments about how it should be resolved." LBP-97-6, slip op. at 3. 8 Inasmuch as the issue of " rounding up" was never raised in the proceeding prior

' to issuance of the Initial Decision, it was plainly erroneous for the Presiding Officer to refuse to consider the Staff's motion for reconsideration. That motion - promptly

. presented within 10 days after issuance of the Initial Decision in accordance with 10 C.F.R. %f 2.771 -- provided relevant guidance and authority which was altogether )

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lacking in the Presiding Officer's initial resolution of this matter, and should have been considered by the Presiding Officer at that time. That refusal constitutes a prejudicial l procedural error which should be corrected upon Commission review of these decisions.

CONCLUSION For the reasons set forth above, the Staff respectfully submits that the Commission should undertake review of the Presiding Officer's decisions in this

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- proceeding, LBP-97-2 and LBP-97-6.

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. Respectfully submitted o

lSherwin E. Turk i1 Counsel for NRC Staff Dated at Rockville, Maryland this 16th day of April,1997

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'81 The Presiding Officer provided no explanation as to (a) why the Staff, alone,

, should have anticipated that this. question would arise;-.(b) why.the Staff should have anticipated that he would reject a single question - for the " rounding up" issue would not have arisen if he had rejected 0, 2, 3, or 4 questions; or (c) why the Staff should have anticipated that he would round up Mr. Tetrick's grade, without reference to or benefit  !

- of governing authority; when this issue had never before been raised by the Presiding Officer or by Mr. Tetrick.

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T 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l BEFORE THE COMMISSION 00CKETED USNRC-1 In the Matter of- )

RALPH L. TETRICK )

Docket No. 55-20726-Sp7 APR 16 P5 :08.

. )

I (Denial of Senior Reactor - )' 0FFICE OF SECRETARY Operator License) ) 00CKETggEftVICE CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S PETITION FOR COMMISSION

' REVIEW OF THE PRESIDING OFFICER'S DECISIONS IN THIS PROCEEDING (I.BP-97-2 AND LBP-97-6)" 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 asterisk through deposit in the Nuclear Regulatory Commission's internal mail system this 16th day of April 1997. )

Peter B. Bloch, Presid'ng 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 l U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission  !

Washington, D. C. 20555 Washington, D. C. 20555  ;

i 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 j '

Docketing and Service Branch Mr. Ralph L. Tetrick Office of the Secretary * (16) 18990 S.W. 270 Street Mail Stop: OWFN-16 G15 IIomestead, Florida 33031 U.S. Nuclear Regulatory Commission

. Washington, D. C. 20555

. Office of Commission Appellate Adjudication

• l Mail Stop: OWFN-16 G15 U.S. Nuclear Regulatory Commission Washington, D.- C. 20555

{

4- Sherwin E. Turk Counsel for NRC Staff i e *v , ,-