ML20217J432

Memorandum & Order.* Grants Staff Petition for Review & Reverses Presiding Officer Decision Requiring Staff to Issue Tetrick SRO License.Order Disapproved by Commissioner Diaz. W/Certificate of Svc.Served on 970807

ML20217J432
Person / Time
Site:	Turkey Point, 05520726
Issue date:	08/07/1997
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#397-18428 CLI-97-10, SP, NUDOCS 9708140223
Download: ML20217J432 (11)

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DOCKETED UNITED STATES OF AMERICA (JSNRC NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

W E -7 N1 :21 l- Shirley Ann Jackson, Chairman Greta J. Dicus OFFICE OF SECRETARY Nils J. Diaz DOCKETING & SERVICE 5dward McGaffigan, Jr. BRANCH

) SERVED AUG -71997 In the Matter of- )

)

RALPH L. TETRICK ) '

) Docket No. 55-20726-SP  :

(Denial of Application )

for Reactor Operator )

License) )

)

CLI-97-10 MEh0RANDUM AND ORDER On February 28, 1997, tr.e Presiding Officer issued an Initial Decision in this proceeding concluding that Ralph L.

Tetrick, who is curretly a reactor operator at the Turkey Point Nuclear Generating Plant (Units 3 and 4)', had anewered 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 Pres'iding 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 evamination. LBP-97-2, 45 NRJ 51, riconsid'n denied, LBP-97-6, 45-NRC 130 (1997). The Presiding Officer accordingly ordersd issuance of an SRO license

- to P . Tetrick. The NRC Staff has filed a petition for uview seening Commission reversal of the_ Presiding Officer's decision.

9708140223 970807 PDR ADOCK 05000250 Q PDR

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2 Mr. Tetrick, in addition to supporting the Presiding Offi-cer's ruling on the a rounding" issue, also asserts as an alterna-tive ground for affirmance that he should be given credit for a

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J correct answer to Question 63 of the written SRO examination.2 (The Presiding Officer had found that Mr. Tetrick's answer was incorrect. Egg 45 NRC at 53-55.) Recently, because of new information submitted to the Commission, we remanded the Question

}y 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.

i Tetrick's answer to Question 63 was incorrect. LBP- 9 /-11, 45 NRC (June 25, 1997).

For the reasons set forth below, we agree with the staff's pcsitions regarding both the rounding issue and Question 63. We

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therefore grant the staff's petition for review and reverse the Prt.ciding Officer's decision requiring the staff to issue Mr.

Tetrick an SRO license.2 BACKGROUND Pursuant to Part 55 of our regulations, an applicant for a

. SRO license must pass bcth a written and an operating examina-tion. The passing score for the written examination is 80 1

Seg Yankee 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").

2 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," NUREC 1021.

Mr. - Tet rick passed the operating exam but received an initial score of only 78 percent on his 100-question written test, taken on June 14, 1996.

l 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 questions but agreed with Mr. Tetrick that the 1 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 Lefore 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 examira-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,

l 4 thereby giving him a passing grade'on the written examination.

LBP-97-2,145 NRC at 60.

On March 10, 1997, the staff sought reconsideration of the Initial Decision. The staff challenged the Presiding Officer's o

authority to round up Mr. Tetrick's score and submitted support-ive evidence showing a staff practice not to round scores upwards 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 nct) submitted during the hearing stage of the 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. Injustifhinghis. 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 thar. 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 '. amission 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 i

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5 staff's petition for review, Mr. Tetrick asserted that, if the .

Commission were to review the Presiding Officer's decisions on l-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

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.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 i 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-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 1 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),

reaffirming his earlier determination that Mr. Tetrick had

' incorrectly answered Question r3. The Presiding Officer reasoned that Mr. Hovey's support of' Mr. Tetrick's answer was based on the

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g erroneoun' assumption that the question posited only one annuncia-tor. The Presiding Officer also found that Mr. Tetrick's pro-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 what would persuade him 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 staff's petition for review challenging the Presiding Officer's decision that Mr. Tetrick should receive his SRO license.

DISCUSSION We are faced with three issues in this proceeding: (1) 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 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 "Roundino" Issues We cannot accept the Presiding Officer's conclusion that the staff should have anticipated et 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.

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7 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 wl.y the staff should have further anticipated that the Presiding Officer would then round the revised score upwards to the next integer.

The version of.NUREG-1021 in effect at the time Mr. Tetrick

-took his exam (Revision 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.2 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 The Oxford Enolish Dictionary which defines this two-word phrase as "a qualifying phrase,

. attached to a quantitative designation to indicate that-tha amount is the smallest admissible."' See also Febster's Third New International Dictionarv (G. & C. Merriam Co. 1976) at 1287

("at-least" means "at the 3cwest estimate").

3 NUREG-1021 (Revision 7, Supp. 1, June 1994), Examiner Standards.(ES) 401 at p. 6 of 71(Form ES-401)~.

• The Comoact Edition of the Oxford Enolish Dictionarv, 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." Egg 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."

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8 The staff's consistent prior practice confirms our under-standing of the "at least 80 percent" standard. The staff has l

l 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.5 " Agency practice, of

-course, is one indicator of how an agency interprets its regula-tions." ' Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), i CLI-96-6, 43 NRC 123, 129 (1996). Given that the staff itself set the 80-percent threshold in the first place,5 we are disin-clined to disturb its consistently-held view.'

f -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 to1 set aside the 5

Ega Staff's Request for Stay, dated April 11, 1999, at 4 and supporting evidence cited therein (including three other recent instences 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 recently revised NUREG-1021 to replace the minimum passing grade of "80. percent" with "80.00 percent." Egg

-NUREG-1021--(Interim Rev. 8), ES-401 at p. 39 of 39 (Form ES-401-7) and Appendix E st p. 1 of 5 (Jan. 1997). But this revision does not support-an implication that the former term permitted rounding and the efore needed correction. Rather, the revision-was akin both to the clarifying regulatory amendments that this Commission and other agencies regularly promulgate and to the clarifying legislation that Congress regularly enacts.

Sag, e,q , Final Rule, " Preparation, Transfer for Commercial

. Distribution, and Use of Byprod'ut 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).

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9 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. .Q1 Rockwell International Coro.

(Rockctdyne. Division), ALAB-925, 30 NRC 709, 722 n.15 (1989),

l aff'd, CLI-90-5, 31 NRC 337 (1990). . In our view, when the Presiding Officer ordered rounding up on the ground that the SRO l

written examinations "are not so precise that tenths of a percent have any meaning" (LBP-97-2, 45 NRC at 60) and essentially- q reduced the passing score from 80 percent to 79.5 percent, he l stepped into a staff area of responsibility.'

B. Question 63 Mr. Tetrick raises with the Commission the issue whether he correctly answered Question 63 of his written SRO examination.

That question read as follows:

i Plant conditions:

Preparations are being made for refueling opera-tions The refueling-cavity is filled with the transfer tube gate valve open.

Alarm annunciators H-1/1, SFF LO LEVEL and G-9/5, 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~

Borouch 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); Marcuez 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. Sea Ash v.

Police Comm'r of 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.

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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 1st 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" issue differently from Mr.

Hovey. In our view, we agree with the Presiding Officer that Mr.

Hovey bases his conclusion on the erroneous assumption that Question 63 asked for~an immediate action in response to "an" annunciator alarm. The question instead asked for the immediate

-action in response to twg annunciator alarms under the soecific olant conditions soecified in the cuestion.

11 CCNCLUSION l We grant the staff's petition for review and reverse the Presiding Officer's rulings in both LBP-97-2 and LBP-97-6 regard-ing the " rounding" of Mr. Tetrick's written examination score.

Commissioner Diaz disapproved this order.

IT IS SO ORDERED.

480p For the Commission f '

o i i h 4 ggg y ,o fJohn C. Hoyle Secretary of the Commission l

Dated at Rockville, Maryland, this '70.- day of August , 1997.

l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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, exce)pt as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

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

i Special Assistant Sherwin E. Turk, Esq.

! Office of the General Counsel Atomic Safety and Licensing Board Mail Stop 15 B18 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 7 day of August 1997 Office of the Secretary of the Commission

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