ML20217H060
| ML20217H060 | |
| Person / Time | |
|---|---|
| Issue date: | 08/07/1997 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| REF-10CFR9.7 M970807B, SECY-97-165-C, NUDOCS 9708080195 | |
| Download: ML20217H060 (18) | |
Text
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o, f IN RESPONSE, PLEASE
's , 'e..../ REFER TO: M970807B August 7. 1997 ottict or int SICRtTAHY MEMORANDUM FOR THE FIL-i LA ,
FROM: Jp n C. Hdyle, Secretary
SUBJECT:
STAFF REQUIREMENTS - AFFIRMATION SESSION, 11:00 A.M., THURSDAY, AUGUST 7, 1997, COMMISSIONERS' CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)
L ell ('Y-97-165 - Ralch L. Tetrick, Atomic Safety and Liceneing il2Drd Initial Decision, Memorandpm and Order Denyino Reconsideration and Stay, and Order on Remand LBP-97-2, LBP-97-6, LBP-97-11 .
The Commission approved an order responding to the staff's petition for review of LDP-97-2 and LBP-97-6. The order grants the petition for review and reverses the Presiding Officer's decision requiring issuance of an SRO license to Mr. Tetrick.
The Commission disagreed with the Presiding Officer's conclusion that the the staff should have anticipated the need to present evidence and agruments on the rounding issue at the hearing bars it from reconsideration. Further, the Commission disagreed with the rounding of an examination score, but agreed that Mr. Tetrick incorrectly answered Question 63.
1 COMSECY-97-017 - 7/30/97 Letter from Nefive American Petitioners in the Matter of Energy Fuels Nuclear, Inc.
(International Uranium (USA) Corporation (White Mesa Uranium Millt Al_ ternate Feed Material))
The Commission approved an order responding to the Native American Petitioners " appeal" of the Presiding Of ficer's Order (LBP-97-12) rejecting their claims of standing.
The Commission has voted to instruct the Presiding Officer to pass upon the motions to (1) recc.nsider his decision and (2) to reopen the record. The Commission believes the Presiding Officer's greater familiarity with the prior proceeding and pleadings in this case renders him better equipped than the Commission to make prompt initial rulings on the merite of the .
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motions. Further, the Commission disapproves of the practice of simultaneously seeking reconsideration of a Presiding Officer's 9708080195 970007 \
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decision and filing an appeal of the same ruling because taking that approach would call for rulings on the same issues at the same time from Loth-a trial and appellate forum.
(Subsequently, on August 7, 1997, the Secretary signed the Orders.)
Attachments:
As stated cc Chairman Jackson Commissioner Dieus Commissioner Diaz Commissioner-McGaffigan-EDO _ _
. Office Directors, Regions,-ACRS, ACNW, ASLBP (via E-Mail)
PDR:- Advance DCS - P1-17 c
a DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION COMMISSIOh t.S: '97 AW -7 A11 :21 Shirley Ann Jackson, Chairman Greta J. Dieus OfflCE Of SECRETARY Nils J. Diaz 00CKEilNG & D:hVICE Edward McGaffigan, Jr. BRANCH
) SERVED AUG -71997 In the Matter of )
j )
RALPH L. TETRICK )
) Docket No. 55-20726-SP (Denial of Application )
a for Reactor Operator )
License) )
)
I CLI-97-10 4
MEMORANDUM AND ORDER On February 28, 1997, the Presiding Officer issued an Initial Decision in this proceeding concluding that Ralph L.
Tetrick, who is currently a reactor operator at the Turkey Point Nuclear Generating Plant (Units 3 and 4), had answered correctly 78 out of 98 valid questions on his Senior Reactor Operator (SRO) written examination. As a result of this ruling, the Presiding Officer revised Mr. Tetrick's score upwards to 79.59 percent.
The Presiding Officer then rounded Mr. Tetrick's revised score upwards still further -- to the nearest integer, 80 -- thereby giving him a passing grade on the written examination. LBP-97-2, 45 NRC 51, reconsid'n denied, LBP-97-6, 45 NRC 130 (1997). The Presiding Officer accordingly ordered issuance of an SRO license to Mr. Tetrick. The NRC Staff has filed a petition for review seeking Commission reversal of the Presiding Officer's decision.
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Mr. Tetrick, in addition to supporting the Presiding Offi-cer's ruling on the " rounding" issue, also asserts as an alterna-tive ground for affirmance that he should be given credit for a correct answer to Question 63 of the written SRO examination.*
(The Presiding Officer had found that Mr. Tetrick's answer was itacorrect. Egg 45 NRC at 53-55.) Recently, because of new information submitted to the Commission, we remanded the Question 63 issue for further consideration by the Presiding Officer.
CLI-97-5, 45 NRC 355 (May 20, 1997). On remand, the Presiding Officer issued a Memorandum and Order again concluding that Mr.
Tetrick's answer to Question 63 was incorrect. LBP-97-11, 45 NRC (June 25, 1997).
For the reasons set forth below, we agree with the staff's positions regarding both the rounding issue and Question 63. We therefore grant the staff's petition for review and reverse the Presiding Officer's decision requiring the staff to issue Mr.
Tetrick an SRO license.'
BACKGROUND Pursuant to Part 55 of our regulations, an applicant for a SRO license must pass both a written and an operating examina-tion. The passing score for the written examination is 80 1
Sgg Ypnkee Atomic Elec. Co. (Yankee Nuclear Power Sta-tion), CLI-96-7, 43 NRC 235, 247 n.6 (1996) ("the prevailing party below (may) argue any ground that would defend the ultimate result reached by the Board -- including arguments that the Board had rejected").
8 In our view, our disposition of this case would not bene-fit from requiring full briefing,
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percent. " Operator Licensing Examiner Standards," NUREG-1021.
Mr. Tetrick passed the operating exam but received an initial score of only 78 percent on his 100-question written test, 'aken -
on June 14, 1996.
On July 30, 1996, he sought an informal staff review of his score on the latter exam, challenging the grading of four ques-tions. On September 12, 1996, the staff upheld the grading of
- three contested questicns but agreed with Mr. Tetrick that the fourth was invalid and should be deleted. The staff therefore raised Mr. Tetrick's score to 78.8 percent (78 out of 99).
On September 25, 1996, Mr. Tetrick sought a hearing before a .
. Presiding Officer. Mr. Tetrick continued to challenge the grading of the remaining three questions, and also contested the scoring of another question. Following an informal hearing under 10 C.F.R. Part 2, Subpart L, the Presiding Officer issued LBP-97-2, ruling that one of the challenged questions (Number 96) was ambiguous and should be stricken from the written examina-tion, but holding that Mr. Tetrick's answer to the other three challenged questions (Numbers 63, 84 and 90) were indeed incor-rect. 45 NRC at 53-58.
This ruling had.the effect of raising Mr. Tetrick's score to 79.59 percent (78 out of 98 questions). Because the Presiding Officer concluded that the written SRO tests were "not so precise that tenths of a percent have any meaning," he rounded Mr.
Tetrick's revised score of 79.59 to the nearest integer, 80,
i t 4 thereby giving him a passing grade on the written examination.
LBP=97-2, 45 HRC at 60.
On March 10, 1997, the staff sought reconsideration of the Initial Decision. The staff challenged the Presiding Officer's authority to round up Mr. Tetrick's score and submitted support-ive evidence showing a staff practice not to round scores upwards
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to the nearest integer On March 27, 1997, the Presiding Officer' denied the staff's request on the ground that the staff had improperly raised an argument-based on evidence that the staff could have- (but had not) submitted during the hearing stage of th'e proceeding.
According to the Presiding Officer, the staff should have antici-pated the possibility that he would rule in Mr. Tetrick's favor regarding one of the four contested questions and that the rounding issue would therefore arise. In justifying his prior ruling regarding rounding, the Presiding Officer explained that the staff's recent amendment of NUREG-1021 to require a passing score of "80 22 percent" rather than simply "80 percent" was not yet in effect at the time Mr. Tetrick took his written exam, and that there was no other published guidance concerning either the number of significant digits in an examination score, or whether and how the score should be rounded. LBP-97-6, 45 NRC 130, 131-32.
The staff filed with the commission both a request for. stay and a petition for review of the Presiding officer's rulings in LBP-97-2 and LBP-97-6 on the rounding issue. Responding to the
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)
l 5 i staff's petition for review, Mr. Tetrick asserted that, if the Commission were to review the Presiding Officer's decisions on !
the rounding issue, it should also examine ~whether the Presiding Officer was correct in ruling that Mr. Tetrick had incorrectly answered Question 63 of the written SRO examination.
Shortly thereafter, the staff submitted to the Commission a May 1, 1997 letter in which Mr. R. J. Hovey, the utility's Vice- ;
President at Turkey Point stated his belief that Mr. Tetrick's answer to Question 63 was a correct one. The staff, however,
- continued to maintain otherwise.
The Commission concluded in CLI-97-5, 45 NRC 355 (May 20, ,
1997), that the Question 63 issue appeared to turn ultimately on the interpretation of language in a number of technical docu-i ments, some of which might not be in the record. The Commission therefore remanded the issue to the Presiding Officer and direct-ed him to reconsider his prior ruling. The Commission also retained jurisdiction over the staff's petition for review of the
. Presiding Officer's rulings on the rounding issue; deferred ruling on that issue; and granted a temporary stay of LBP-97-2 and LBP-97-6.
! - On remand, the Presiding Officer sought further information
- from the parties (May 27, 1997 unpublished order) and, based on that information, issued LBP-97-11, 45 NRC (June 25, 1997),
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reaffirming his earlier =determinatioi. that Mr. Tetrick had
- incorrectly answered Question 63. The Presiding Officer reasoned that Mr. Hovey's support of Mr. Tetrick's answer was based on the 4
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6 erroneous assumption that the question posited only one annuncia-tor. The Presiding Officer also found that Mr. Tetrick's pro-3 posed verification of the two consistent annunciators was unnec-
! essary, given that they verified each other. In addition, the Presiding Officer was influenced by Mr. Tetrick's failure to respond directly to the questions regarding what specific steps Mr. Tetrick would take to verify the validity of the alarms and 1
what would persuade hita not to take the required IMMEDIATE ACTION after he had taken those steps. Slip op. at 8-11.
The case is now back before the Commission to decide the 1
, staff's petition for review challenging the Presiding Officer's j decision that Mr. Tetrick should receive his SRO license.
DISCUSSION (1)
We are faced with three issues in this proceeding whether the Presiding Officer erred in concluding that the staff's failure to present its rounding arguments at the hearing bars it from raising it on reconsideration; (2) if so, is the
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staff's argument on rounding correct; and (3) is the Presiding Officer correct that Mr. Tetrick incorrectly answered Question
- 63. We answer all three questions "yes."
A. The "Roundina" Issues We cannot accept the Presiding Officer's conclusion that the staff should have anticipated at the hearing that it would need to present its evidence and arguments on the rounding issue.
Although we agree with the Presiding Officer that the staff could reasonably have anticipated both that he might rule in Mr.
t 7 l
Tetrick's favor on one of the exam questions and that such a ruling would raise his score to either a 79.59 (question deleted) or 79.80 (question graded in Mr. Tetrick's favor), we see no reason why the staff should have further anticipated that the Presiding Officer would then round the revised score upwards to the next integer.
The /ersion of NUREG-1021 in effect at the time Mr. Tetrick took-his exam (Revinion 7, Supp. 1 (June 1994)) did not address rounding directly but did state that a successful applicant must answer correctly "at least 80 percent" of the questions on the written examination.8 We believe that the phrase "at least" on its face suggests strongly that 80 percent is the minimal accept-able score and that rounding up lower scores is impermissible.
Our conclusion is supported by Ihg_Qxford Enolish Dictionarv e
which defines this tw -word phrase as "a qualifying phrase, attached to a quantitative designation to indicate that the amount is the smallest admissible."' See also Webster's Third New International Dictionary (G. & C. Merriam Co. 1976) at 1287
("at least" means "at the lowest estimate").
-3 NUREG-1021 (Revision 7, Supp. 1, June 1994), Examiner Str.ndards (ES) 401 at p. 6 of 7 (Form ES-401) .
- The Comcact Edition of the Cxford Enolish Dictionary, Vol.
I, Letter L, p. 160, col. 2 (Oxford Univ. Press 1979) (emphasis added). Other portions of the same version of NUREG-1021 use the synonym phrase "80 percent or greater." Sag ES-401 at p. 1 of 7; ES-402 at p. 5 of 6; ES-501 at p. 3 of 24. We construe this quoted phrase to have a meaning identical to "at least 80 per-cent."
8 The staff's consistent prior practice confirms our under-a standing of the ct least 80 percent" standard. The staff has refused in the past to "round up" almost-passing scores and has considered the 80-percent cutoff score as the grade below which a candidate will not pass the written exam.B " Agency practico, of course, is one indicator of how an agency interprets its regula-tions." Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),
CLI-96-6, 43 NRC 123, 129 (1996). Given that the utaff itself set the 80-percent threshold in the first place,' we are disin-l clined to disturb its consistently held view.' -
At bottom, the decision whether to round up near-passing scores requires a policy choice. Either option is plausible.
Here, in the adjudicatory setting, we decline to set aside the 5
Sgg Staff's Request for Stay, dated April 11, 1997, at 4 and supporting evidence cited therein (including three other recent instances in which the staff refused to license an appli-cant with a written exam score between 79.50 and 80.00).
Egg Memorandum to All Power Reactor Applicants and Licensees from Harold R. Denton, Director, NRC's Office of Nuclear Reactor Regulation, dated March 28, 1980, appended as Attachment 1 to Staff's Motion for Reconsideration, dated March-10, 1997.
The NRC lecently revised NUREG-1021 to replace the minimum passing grade of "80 percent" with "80.00 percent." San NUREG-1021 (Interim Rev. 8), ES-401 at p. 39 of 39 (Form ES-401-7) and Appendix E at p. 1 of 5 (Jan. 1997). But this revision does not support an implication that the former term permitted rounding and therefore needed correction. Rather, the revision was akin both to the clarifying regulatory amendments that this Commissica and other agencies regularly promulgate and to the clarifying legislation that Congress regularly enacts, Egg, e.o., Final Rule, " Preparation, Transfer for Commercial Distribution, and Use of Byproduct Material for Medical Use," 59 Fed. Reg. 61,767, 61,776 (Dec. 2, 1994); Wono Yono Suna v.
McGrath, 339 U.S. 33, 47, modified, 339 U.S. 908 (1950).
9 i
NRC staff's policy judgment, supported by the language'of !
NUREG-1021, to draw the pass-fail line at 80-percent minimum, without rounding up. C12 Rockwell International Corn.
. (Rocketdyne Division), ALAB-925, 30 NRC 709, 722 n.15 (1989),
aff'd, CLI-90-5, 31 NRC 337 (1990). In our view, when the 4
Presiding Officer ordered rounding up on the ground that the SRO 4
written examinations "are not so precise that-tenths of a percent have any meaning" (LBP-97-2, 45 NRC at 60) and essentially
! reduced the passing score from 80 percent to 79.5 percent, he stepped into a staf f area of responsibility.'
B. Ouestion 63 l Mr. Tetrick raises with the Commission the issue whether he correctly answered, Question 63 of his written SRO examination.
That question read as follows:
Plant conditions Preparations are being made for refueling opera-tions The refueling cavity is filled with the transfer j tube gate valve open.
- Alarm annunciators H-1/1, SFF LO LEVEL and G-9/5, J CNTMT SUMP HI LEVEL are in alarm.
' Our research has identified several cases from around the country where the judiciary declined to disturb testing authori-ties' refusal to "round up" almost-passing scores. Sag Reilly v.
Levitt, 1988 WL 49187 at *4 (S.D.N.Y. May 6, 1988); McIntosh v Dorouch of Manhattan Community Coll , 78 A.D 2d 839, 433 N.Y.S.2d 446, 447 (1st Dept. 1980), aff'd, 55 N.Y.2d 913, 915, 433 N.E.2d 1274, 1275, 449 N.Y.S.2d 26, 27 (1982); Marcuei v. University of Washincton, 32 Wash. App. 302, 309, 648 P.2d 94, 98 (1982).
Similarly, another decision deferred to the testing authority's determination'to follow a " rounding up" policy. San Ash v.
Police Comm'r cf Boston, 11 Mass. App. 650, 653, 418 N.E.2d 622, 624 (1981). This line of cases supports our view that the decision to "round up" or not is for the testing authorities, not the adjudicators, to make.
10 Which ONE of the following is the required IMMEDIATE ACTION in response to these conditions?
- a. Verify alarms by checking containment sump level recorder and spent fuel level indication.
- b. Sound the containment evacuation alarm.
- c. Initiate containment ventilation isolation.
- d. Initiate control room ventilation isolation.
All parties, including Mr. Tetrick, recognize that answer "b" is correct. Therefore, the only issue before us on appeal regarding Question 63 is whether Mr. Tetrick's answer of "a" is also correct. For the reasons set forth in both LBP-97-2 and LBP-97-11, we conclude that answer "a" is incorrect.' We there-fore cannot use Mr. Tetrick's answer to Question 63 as a ground to affirm the Presiding Officer's result in this case.
' In remanding this issue to the Presiding Officer, we relied in large part on Mr. Hovey's May let letter arguing that both "a" and "b" are adequate responses to Question 63. We
- therefore believe that a brief explanation is appropriate as to why we resolve the " Question 63" isare differently from Mr.
Hovey. In our view, we agree with the Presiding Officer that Mr.
Hovey bases his conclusion or the erroneous assumption that Question 63 asked for an immediate action in response to "an"
. annunciator alarm. The question instead asked for the.3mmediate action in response to Iw2' annunciator alarms under the soecific olant conditions soecified in the cuestion.
1 11 CONCLUSION We grant-the staff's petition for review and reverse the Presiding Officer's rulings in both LBP-97-2 and LDP-97-6 regard-ing the " rounding" of Mr. Tetrick's written examination score.
Commissioner Diaz disapproved this order.
Assy For the Commission dur; be D Hoyle gg,* Secre(/
taryJohn C.
of the Commission Dated at Rockville, Maryland, this J/ A day of August, 1997.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
In the Matter of RALPH L. TETRICK Docket No.(s) 55-20726-SP (Denial of Senior Reactor Operator's License)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMM MEMO & ORDER (CLI-97-10) have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Office of Comission Appellate Peter B. Bloch, Presid'g Ofer Adjudication Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Mail Stop - T 3 F23 Washington, DC- 20555 U.S. Nuclear Regulatory Comission 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 Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Ralph L. Tetrick 18990 SW 270 Street Homestead, FL 33031 Dated at Rockville, Md. this
/ day of August 1997 p
Office of the Secrsitary of the Comission
. . a
I I
UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION U$yR(;
COMMISSIONERS.
Shirley Ann Jackson, Chairman Greta J. Dieus Nils J. Diaz OfflCE Of SECCfiARY Edward McGaffigan, Jr. 00CKEilO & iE % ICE BRAklM In the matter of ) .
) SERVED AUG -71997 INTERNATIONAL URANIUM IUSA) )
COTtPORATION )
) Docket No. 40-8601-MLA (White Mesa Uranium Milli )
Alternate F2ed Material) )
)
CLI-97-9 MEMORANDUM AND ORDER On July 30, IS97, three petitioners jointly submitted a 3etter to Chairman Jackson 2 styled as an " appeal" of the Presiding Of ficer's order (LDP-97-12) re]ecting their claims of standing. The same letter also asked the Presiding Officer to reconsider his decision and to reopen the record.
The Commission disapproves of the practice of simultaneously seeking reconsideration of a Presiding Of ficer's decision and filing an appeal of the same ruling, Houston Lichtina & Power Co. (Allens Creek Nuclear Generating Station, 2
Along with this order, we are serving copies of the appeal letter on the Presiding Of ficer and on the other parties to the adjudication. All pleadings in Commission adjudications, even in informa.1 Subpart L proceedings, must be accompanied by an appropriate certificate of service. See 10 C.F.R.
S S 1203 (e) , 2.712. This letter contained no certificate of service and apparently was not actually served. We caution the parties to pay heed to the, certificate of service requirements in the future.
2 Unit No.1) , ALAB-630,13 NRC 84, 85 (1981) , because taking that approach would coll for rulings on the same issues at the same time from both a trial and appellate forum.
Here, the Presiding Of ficer's greater f amiliarity with the prior proceeding and pleadings in this case renders him better equipped than the Commission to make prompt initial rulings on the merits of the motions for reconsideration and reopening of the record, sag curators of the University of Missouri, CLI-95-1, 41 NRC 71, 94 (1995). We therefore instruct him to pass upon the two motions on their merits expeditiously, notwithstanding the pendency of the appeal. s.es Portland
) General Elec. Co. (Trojan Nuclear Plant), A1AB- 6 2 7, 13 NRC 20, 21 n.6 (1981). We will take appropriate action on the appeal af ter the Presiding Of ficer decides whether to grant or deny the requests for roconsid. oration and reopening.
gS #880 For the Commission k+ 9 4***V
' Dated at Rockville, Maryland, A
// John C/ Hoyle Sedretary of the Commission this 7th day of August, 1997.
UNITED STATES OF APERIC4 NUCLEAR REGULA10RY Cor.NISSION In the Matter of INTERNATIONAL URANIUM (USA) Docket No.(s) 40-8681-MLA CORPORATION (White Mesa Uranium Mill Alternate Feed Material)
CERTIFICATE OF SERVICE
- hereby certify that copies of the foregoing COMM MEMO & GRDER (CLI-97-9) have been served upon.the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirementt of 10 CFR Sec. 2.712.
Administrative Judge Office of Comission Appellate Peter B. Bloch Adjudication Presiding Officer U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Washington, DC 20555 Mail Stop - T-3 F2' U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Robert R. Pierce Charles N. Kolber Senior Attorney Special Assistant Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 John T. Hull, Esq.
Sherwin E. Turk, Esq. Richard A. Punson, Esq.
Office of the General Counsel One Tabor Cencer, suite 1000 Mail Stop 15 B18 1200 Seventer.ith Street U.S. Nuclear Regulatory Comission Denver, CO 80202 Washington, DC 20555 Michelle R. Rehmann Environmental Manager Norman Begay International Uranium (USA) Corp. White Mesa Ute Citizen Independence Plaza, Suite g50 Box 1138 1050 Seventeenth Street White Mesa, UT 84511 Denver, CO 80265 i
i l
Docket No.(s)40-8681-MLA COMM MEM0 & ORDER (CLI-97-9)
G. Leah Dever, Asst. Manager for Environmental Management Lula J. Katso Department of Energy Westwater Navajo Connunity Nevada Operations Office l c/o M. Hutchins .
P.O. Box 96518 264 West 100 North l Las Vegas, NV 89193 Blanding, UT 84511 l 1
Winston M. Mason Great Avikan House Native American Peoples Historical Foundation
- 3 East Center Street, Box AVIKAN j Blanding, UT 84511 ,
i Dated at Rockville, Md. this 7 day of August 1997 4
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DTTice of ine 5ecretnry of the Connission j
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