ML20238D230

Memorandum & Order (Motion Requesting Judicial Review of Records).* Denies Aj Morabito Motion to Seek Further Authority from Commission & to Review FOIA Determinations. Served on 871019

ML20238D230
Person / Time
Site:	05560755
Issue date:	10/16/1987
From:	Bechhoefer C Atomic Safety and Licensing Board Panel
To:	MORABITO, A.J.
References
CON-#188-5190 87-551-02-SP, 87-551-2-SP, LBP-87-28, SP, NUDOCS 8801040163
Download: ML20238D230 (8)

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UNITED STATES OF AMERICA '5'f gy jg g0*i9 NUCLEAR REGULATORY COMMISSION . . ,

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Before Administrative Judge: ' ,4 Charles Bechhoefer SERVED OCT 191987 l

In the Matter of Docket No. 55-60755 ALFRED J. MORABITO ) ASLBP No. 87-551-02-SP l )

Senior Operator License for ) l Beaver Valley Power Station, Unit 1 October 16, 1987 q i

l MEMORANDUM AND ORDER (Motion Requesting Judicial Review of Records) 1 On September 14, 1987, Mr. Alfred J. Morabito filed a motion requesting that I review certain documents which had been denied him by the NRC Staff in response to a Freedom of Information Act (FOIA) request. On October 5, 1987, the Staff filed a response opposing the motion. As explained below, I find the motion (insofar as it seeks access to documents under the FOIA) beyond my current authority and accordingly deny it.

Because Mr. Morabito may have a right to certain of the documents on a basis other than the F0IA, I am asking the Staff its opinion relative to those documents (or, alternatively, to provide them to Mr.

Morabito). I am deferring action on those documents pending receipt of the Staff's response and (as applicable) Mr. Morabito's reply.

Furthermore, I am denying Mr. Morabito's request for me to seek further S M U ns !sifs933 PDR 5W

2 authority from the Commission to examine all of the withheld documents, for lack of an adequate basis for me to seek such authority.

1. On June 5,1987, Mr. Morabito requested that certain Staff documents which assertedly related to his appeal of the Staff's denial of his senior operator license be released to him under the F0IA. On September 3,1987, the Staff denied his request on the ground that all of the requested documents to which Mr. Morabito had not already been given access were being withheld under exemptions (5) and (6) of the FOIA.1 AccordingtotheStaffdenial(atAppendixA),thedocumentsto which the exemptions apply fall into the following categories:

1. Documents reflecting the certification as operator licensing examiners of two individuals who administered the senior operator license examination to Mr. Morabito.

2. The Qualification Notebook and Qualification Manual for the same two examiners.

-1 I Those exemptions, set forth in 10 C.F.R. 6 9.5(a)(5) and (6), cover (5) Interagency or intraagency memorandums or letters which would not be available by law to a private party in litigation

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with the NRC. ***

(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion )

of personal privacy. ***

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3. The NRC Region I " Written Examination Quality Assurance Checkoff Sheet" and the NRC Region " Examination Grading Quality Assurance Checkoff Sheet".

On September 11, 1987, Mr. Morabito appealed the denial to the NRC Executive Director for Operations (ED0). Insofar as I am aware, that

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appeal has not yet been decided.

In his motion before me, Mr. Morabito claims that the withheld

' documents will reveal that an inadequate quality assurance (QA) review was administered to him in connection with his examination and that, if an adequate QA review had been performed (both pre-examination and post-examination), he would not have been denied his senior operator.

license. He also claims that the documents relate to the integrity of the entire operator examination process, a claim he is attempting to raise in this proceeding. Although he recognizes my earlier ruling that I lack authority to rule on this claim,2 he views the substance of the information set forth in his motion and his claims as sufficient to cause me to seek additional authority from the Commission. See Commission Order (granting Mr. Morabito's request for a hearing), dated July 1, 1987, at 3.

2. For its part, the Staff would have me deny the motion based on my lack of authority to consider F0IA requests. The Staff asserts that NRC's Division of Rules and Records, Freedom of Information and Privacy 2 LBP-87-23, 26 NRC , (August 25, 1987) (slip op., p. 5).

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4 l Act Branch, implements (inter alia) the provisions of the F0IA and implementing regulations, all of which are legally binding on all Commission employees, including Administrative Judges such as myself.

The Staff notes that Mr. Morabito has already instituted the proper method of seeking access to the withheld records, through his pending appeal to the ED0; and that if the appeal is denied Mr. Morabito may seek judicial review of the denial. The Staff further notes that Mr.

Morabito has taken proper steps to discuss a rulemaking petition which could address his concerns about the operator license procedure.

3. It is clear, as the Staff observes, that I have no authority to review procedures followed or results reached by other NRC offices on F0IA requests. On that ground alone I could dismiss Mr. Morabito's motion. In addition, Mr. Morabito's request could also be deemed a discovery request, for which no procedures are available in an informal proceeding of this type. Seeproposed10C.F.R.%2.1231(d). On that basis as well, I would have to deny his motion.

Although I lack authority to review a F0IA request, I do have responsibility to request and receive from a party whatever documents I deem necessary for an adequate developent of the record. Comission Order dated July 1,1987, supra, at 2, 3; see proposed 10 C.F.R. 52.1231(b). In exercising these responsibilities, and apart from Mr.

Morabito's FOIA request, it is not clear to me that Mr. Morabito should not have access to one of the categories of documents he requests--not by virtue of the F0IA bat, rather, as a direct requirement of the standards governing operator licensing examinations, NUREG-1021 (Rev. 2,

5 April 1986). That category (numbered 3 above) consists of two )

documents: the " Written Examination Quality Assurance Checkoff Sheet" 1

- and the " Examination Grading Quality Assurance Checkoff Sheet".

Under Standard ES-107D of NUREG-1021 (Rev. 2), the completed j

" Written License Examination Quality Assurance Checkoff Sheet" for an examination must be " filed with the record copy of the examination".

Under Standard ES-108D, the completed " Examination Grading Quality Assurance Checkoff Sheet" must also be " filed with the record copy of 4

the examination". Under Standard ES-104D, a copy of the examination is to be forwarded to the examination candidate (here, Mr. Morabito).3 My tentative understanding of these standards is that the complete examination package includes the two checkoff sheets, and that copies of the entire package must be furnished to the Applicant. In that connection, in at least one instance where a document associated with an examination is not to be made available publicly or to the candidate, the standards explicitly so provide. See NUREG-1021 (Rev. 2), Standard ES-104C.1 (results summary sheet). Because parties have not briefed 3 These standards have remained in effect in subsequent revisions of NUREG-1021 (Rev. 3, Sept. 1, 1986; Rev. 4, May 1987). Because Mr.

Morabito took his examination in July 1936, the provisions of NUREG-1021 (Rev. 2) are generally applicable to his appeal.

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6 this question, however, I will give them an opportunity to do so before reaching any final conclusion on whether the two checkoff sheets should be made available to Mr. Morabito. (Mr. Morabito apparently has received the rest of his examination.)

Within 15 days of service of this Memorandum and Order, the Staff may file a brief on this question. Alternatively, if the Staff agrees that the documents should be made available to Mr. Morabito, it should provide copies to him (and include them in the " hearing file" authorized by proposed 10 C.F.R. s 2.1231). (The Staff may impose a protective order to prevent dissemination to other than Mr. Morabito or named advisors, if it deems such protection to be warranted for any of the reasons it relied on in denying Mr. Morabito's FOIA request.) If the Staff files a brief opposing the furnishing of the reports to Mr.

Morabito, Mr. Morabito may reply within 10 days of service of the Staff's brief.

4. With respect to the other documents denied to Mr. Morabito, those dealing with the examiners' certifications seem to relate solely to Mr. Morabito's challenge to the examination process rather than to whether Mr. Morabito passed his examination. All that is relevant to the legal adequacy of the examination administered to Mr. Morabito is whether the individual examiners were in fact certified with respect to the particular type of reactor for which a license is sought, as requiredbyNUREG-1021(Rev.2),StandardES-105. In its response to Mr. Morabito's Specification of Claims, filed on October 9,1987, the Staff has provided (by affidavit) information concerning the

7 certifications of the two examiners in question. Mr. Morabito has not shown a need for any further information on this subject.

I am not aware of the relevance of the Qualification Notebook or Qualification Manual to Mr. Morabito's examination, as distinguished from the examination process generally. Nor am I aware of any requirement or standard that would mandate the furnishing of these documents to Mr. Morabito (except as may be required by the FOIA, which I am not reviewing). I therefore take no action with respect to these documents.

I note, however, that if this were a proceeding subject to 10 C.F.R. Part 2, Subpart G, the Presiding Officer would .have authority, in certain narrowly defined circumstances, to order the production to Mr.

Morabito of all the documents which he is seeking. See 10 C.F.R. 62.744(d). I express no opinion at this time whether my general authority to request and obtain documents (see p. 4, supra) encompasses the authority provided by 10 C.F.R. s 2.744. Although I may ask the Consnission to provide me additional authority, including (to the extent necessary) that contemplated by 10 C.F.R. 9 2.744, I have thus far been presented with no adequate basis for making such a request, at least in the context of determining whether Mr. Morabito has passed his senice operator license examination.

For the foregoing reasons, it is this 16th day of October,1987 um_______.__ _. _ _ _ ____

8 ORDERED:

1. Insofar as it seeks review of NRC's FOIA determinations, Mr.

Morabito's motion is denied.

2. As' described in 13 of this Memorandum and Order, the Staff is directed (on the schedule prescribed) either to furnish Mr. Morabito (and include in the hearing file) the two described checkoff sheets or, alternatively, to brief why they should not be available under Standards ES-107D, ES-108D, and ES-104D of NUREG-1021 (Rev. 2). As appropriate, Mr. Morabito may reply to the Staff's filing.

3. Mr. Morabito's motion for me to seek further authority from the Commission is denied.

PRESIDING OFFICER l

.A. kw &

Charles Bechhoefer /

ADMINISTRATIVE JUDGE i

Dated at Bethesda, Maryland this 16th day of October, 1987.

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