ML20238D314

NRC Staff Response to Three Motions Filed by Aj Morabito.* Motions Should Be Denied Based on Listed Reasons

ML20238D314
Person / Time
Site:	05560755
Issue date:	08/10/1987
From:	Woodhead C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5175 SP, NUDOCS 8801040199
Download: ML20238D314 (11)

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EhJb 11 P2 :21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION [rf ow., ,..

BEFORE THE ADMINISTRATIVE JUDGE h l:

in the Matter of '

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ALFRED J. MORABITO ) Docket No. 55-60755

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-(Senior Operator License for )

Beaver Valley Nuclear Power )

Station, Unit 1) )

NRC STAFF RESPONSE TO THREE MOTIONS FILED BY ALFRED J. MORABITO

1. INTRODUCTION On July _20, 1987, Alfred J. Morabito filed three motions with the Presiding Officer in this proceeding. For the reasons set out below the motions must be denied.

11. THE MOTIONS k The three motions filed by Mr. Morabito concern (a) the burden of proof in 10 C.F.R. Part 55 proceedings (hereinafter termed " Motion A"); j i

(b) revision of reactor operator licensing procedures (hereinafter termed

" Motion B"); and (c) a request that the decision in this proceeding be held in abeyance until action is taken by the Office of Inspector and Auditor (OIA) on a complaint filed with that Office by Mr. Morabito (hereinafter termed " Motion C"). For the reasons set forth below the three motions should be denied.

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.' - l Ill. DISCUSSION

1. " Motion A" in " Motion A" Mr. Morabito asserts that he "has satisfied the requirements for Burden of Proof regarding the Matter at issue." He further asserts that the burden of proof in this proceeding must lie on the l NRC staff (Staff), since Mr. Morabito was certified pursuant to 10 C.F.R.

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5 55.10(6) by training and experience to qualify for NRC examination for a j senior operator license. In Mr. Morabito's view the fact of certification put the burden on the Staff to prove that the grading of Mr. Morabito's examination was correct. Section 55.10(a)(6) O entitled " Contents of i

Applications" in pertinent part, states:

[E]ach application. . .must contain the following information.

Evidence that the applicant has learned to operate the controls in a competent and safe manner and has need for an operator or a senior operator license in the performance of his duties. The Commission may accept as proof of this a certification of any authorized representative of the facility licensee where the applicant's services will be utilized. This certification must include details on courses of instruction administered by the facility licensee, number of course hours, number of hours of training and nature of training received at the facility, and for reactors, the startup and shutdown experience received.

Compliance with this section of the regulations merely denotes that the facility licensee considers the applicant for operator license to be prepared to take the written and operating examinations described in 69 55.20-23. It

-1/ Staff notes that on May 26, 1987, 10 C.F.R. Part 55 of the Commission's Rules were revised. Since Mr. Morabito's request for a hearing was filed before the revisions to Part 55 became effective, his request for a hearing will be conducted under the old rules.

However, there is nothing in the new rules that would cause the Staff to change its position in this matter.

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l does not demonstrate that the applicant has met the requirements for passing the examinations described in 6 55.11(b). 2_/

Therefore, the claim regarding 6 55.10(6) is incorrect. In an NRC licensing proceeding the burden of proof lies on the applicant for the license. Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-123, 6 AEC. 331, 345 (1973). Although this proceeding is not being conducted pursuant to Subpart G of the Commission's Regulations (10 CFR Part 2, Subpart G), the Staff submits that the Commission's views on burden of proof in a formal licensing proceding also provide guidance for this proceeding. Accordingly, in Section 2.732 of the Commission's regulations, it is clearly set out that: 1 Unless otherwise ordered by the presiding officer, the applicant or the proponent of an order has the burden of proof.

or Although the burden of proof lies on the applicant for a license, the burden of going forward with evidence will be on the Staff if Mr. Morabito establishes a prima facie case that he should be issued an SRO license.

See, eg. General Public Utliities Nuclear Corporation (Three Mile island Nuclear Station), CLi-86-9, 23 NRC 465, 472 (1986): Metropolitan Edison

-2/ 10 C.F.R. 6 55.11(b) states:

An application for a license pursuant to the regulations in this part will be approved if the Commission finds that:

(b) The applicant has passed a written examination and operating test or simulated operating test as may be prescribed by the Commission to determine that the applicant has learned to operate and, in the case of a senior operator, to operate and to direct the licensed activities of licensed operators in a competent and safe manner.

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< _ Company et al. (Three Mile Island Nuctriar Station, Unit 1), A'.AB-772,19 i NRC 1193,1245 (1984).

Since Mr. Morabito is the applicant for a senior operator ilcens,e. the burden is on him to prove that he is entitled to the license by demonstrating compliance with the requirements concerning senior operatcr licenses in 10 C.F.R. 6 55.11. This was previously explained in a letter to Mr. Morabito dated February 26, 1987 from J. Goldberg, Office of General Counsel (attached). Accordirigly, ee motion requesth.3 that the burden of

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proof be placed on the Staff must be tienied.

2. " Motion B" ' ' "

'- Mr. Morabito sets out several revisions he wishes to be made to the ,

Commission's operator licensing procedures in " Motion B". Specifically, the 3

motion asky for (1) professional review and validation of examination questions, (2) implementatRn w

of the quality assurance techniques and {

y, criteria in NUREG-1021, (3) research of candidate answers when they do not match the answer key, (4) qualification of NRC examiners to determine i correct answers when words different from the unmer key are used, (5) conduct and grading of the simulator examination by certified simulator l staff using NRC scenarios with o'/erview and final , grading 'by NRC.

This matter was addressed in the "NRC ' Staff Response to Motion for Modification of Commission Order" July 29, 1987, (n. 3. Staff's response is I

incorporated herein by reference. As stated there, if Mr. Morabito wishes to change the methods and procedures forhxamining and licensing nuclear, a.

power plant operators, he should pursue his goal by petition for rulemaking

' as set forth in 10 C.F.R. 6 2.800 et seq. This proceeding is limited both tw the Commission's July 1, 1987 order for hearing and by 10 C.F.R.

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C 16 2.103(b) to the consideration of Mr. Morabito's application for license. ,

' Consequently, the motion concernMg licensing procedures must be denied e ,

3. " Motion C" The third met!an, whish. asks that the Presidinej Officer suspend {

isst,tance of hd ' decision unt)1 actin,0 by OIA(sm a complaint filed by' r

Mr. Morabito,- is' also whhoutf ttsWc. -3/ 0lN reports directly to the Commission and is not technically istohred in licensing [ proceedings. Serf.

,e.g.: Houston Lighting and PowggCompanq, et s(., (South Texas Project, Units.1 and 2), LB P-84-13, 19 NRC /iS9, 717 (1984). It is not known at thls thne whether the hearing will, be completed and a decision prepared

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prior to completion of the investigation, so that the motion rests on speculation about future events. The fact that Mr. Morabito does not have confidence that an impartial decision will be rendered in this matter does not provide a basis for delaying this matter. More important, Mr. Morabito's motion offers no nexus between the request for OIA investigation and the matter at issue, i.e. , whether or not Mr. Morabito {

I passed his examinations. Thus, this motion also lacks factual and legal '

" .!s and must be denied.

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Mr. Meabito fi'ed a complaint with OIA on Aprl! 16, 1987 alleging that a teleconference between NRC staff and Duquesne Light Company persont.el was improper. The telephone discussion concerned the necessity to preserve documents related to Mr. Morabito's examination in view of his request for hearing. By letter dated April 8, 1987 (attached) , B. Vogler of the Office of General Counsel advised Mr. Morabito of the subject of the telephone conference and that it is normal practice for NRC examiners and licensees to discuss results of examinations for operator licenses.

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, -C-lil. CONCLUSION

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H- - For the' reasons stated above, the three motions filed by Mr. Morabito on July 20, 1987 should be denied.

Respectfully sutmltted, 9

Colieen P. Woodhead CounseI for t0C Staff' Dated at Bethesda, Maryland this 10th day of August,1987 y...,.

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UNITED STATES

" NUCLEAR REGULATORY COMMISSION

'l WASHINGTON, D. C. 20555

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February 26, 1987 Docket No. 55-60755 Mr. Alfred J. Morabito 6G5 Tulip Drive New Brighton, PA 15066

Dear Mr. Morabito:

On November 12, 1986, Mr. W. F. Kane of NRC Region I informed you that Region I did not find a sufficient basis for overturning the August 27, 1986 denial of your application for a senior reactor operator's license for Beaver Valley Unit 1. The dental was based on your failure of the written and simulator examinations administered to you. As indicated in Mr. Kane's letter an additional review of your examinations would be undertaken by the Division of Human Factors Technology of the Office of Nuclear Reactor Regulation in Washington, D.C. at your request.

On December IG,1986, in a letter to Mr. W. T. Russell, Director, Division of Human Factors Tech nology, you requested a further February 2, 1987, Mr. Russell informed you that his Divisionreview. On reviewed the grading of the written examination administered to you on July 22, 1986 and

1. ' the simulator examination administered to you on July 23, 1986 and your comments but had not found an adequate basis for reversing the denial of your application.

Your letters to the NRC indicate that you desire a hearing on the denial of your application. In a telephone conversation on February 24, 1987 with Mr.

Hoofling of this office, you repeated your request for a hearing. Steps will be taken to initiate a hearing. A Notice of Hearing will be sent to you as coon as it is issued. You should understand th a t, as an applicant for a license, you would have the burden of proof to demonstrate that you have met the requirements of 10 C.F.R. 5 55.11(b) and are, therefore, entitled to a license. The NRC staff would be a party to the proceeding and would be prepared to introduce evidence in support of its position that your application should be denied.

CERTIFIED MAIL hETURN RECEIPT REQUESTED l

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Jack H. Goldberg, Esq.

Office of the General Counsel tf -

U.S. Nuclear Regulatory Commission Washington, DC 20555 (301) 492-7619 Sincerely,

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Jack R. Ocidberg, Deputy Assistant General Counsel for Enforcement

. Office of the Generk1 Counsel cc: V. Russell, NRR bec: B. Boger, NRR W. Kane, RI H. Kister, RI J. Gutierrez, R1 i

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April 8,1987 Alfred J. Morabito j

- 685 Tulip Drive '

New Brighton, PA 15066

Dear Mr. Morabito:

i This will acknowledge the receipt of your letter of March 22, 1987, that was addressed to Jack R. Goldberg, Esq., Office of the General Counsel, and to advise that your request for a hearing on the denial of your senior reactor operator's : license has' been referred to me for further processing and responsibility for hearing. Accordingly, on March 23, 1987 I forwarded your request for a hearing to the appropriate personnel for action.

As you know, your request for documents under the Freedom of Information Act has been processed. With regard to the comments set forth in your letter suggesting that it was inappropriate for officials of the NRC to contact representatives of_ - Duquesne concerning your request for a hearing, you oe should be advised that after each operator licensing exam the NRC examiners and the Licensee meet to discuss the exam that was given. In that regard, Duquesne was called and advised that the results of the exam were being contested - that .a hearing had been requested and therefore Duquesne should preserve any memoranda or notes it may have concerning the exam. In addition, as your employer, Duquesne, wib probably be called upon to participate at the hearing. Finally, the Duquesne Light Company is the holder of NRC licenses and permits and it is quite normal to have contact with Duquesne Light by the NRC staff on a regular basis. If you have any qut.stions concerning this aspect of the proceeding please call me.

With regard to the other comments in your letter, please be advised that a

' Notice of Hearing will be sent to you as soon as it is issued and that as an applicant for a senior reactor operator's Ifeense you have the burden of proof to establish that you have satisfled the requirements of 10 C.F.R. 8 55.11(b) and are therefore entitled to a Ifeense. As you know, the NRC staff will be a party to this proceeding and will be prepared to present testimony and documentary evidence in support of its position that the results of your examination indicate that your application should be denied.

In the event you desire to discuss this matter further please contact me at the following address and telephone number.

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Benjamin H. Vogler, Esq.

Office of the General Counsel U.S. Nucicar Regulatory Commission Wcshington, D.C. 20555 (301) 492-7018 Sincerely, i AWN .

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enjamin H. Vogler 7 Senic Supervisory Trial Attorney ec w/enclo. : W. Russell, NRR J. Gutierrez, RI I

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 MS 11 P2 :21 BEFORE THE ADMINISTRATIVE JUDGE 6a>.

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E n t te In the Matter of )

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ALFRED J. MORABITO ) Docket No. 55-60755

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(Senior Operator License for )

Beaver Valley Nuclear Power )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO THREE MOTIONS FILED BY ALFRED J. MORABITO" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 10th day of August,1967 :

Charles Bechhoefer, Esq. Alfred J. Morabito Administrative Judge 685 Tulip Drive Atomic Safety and Licensing Board New Brighton, PA 15066 U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Atomic Safety and Licensing Roard Jay Gutierrez U.S. Nuclear Regulatory Commission Regional Counsei

"'nshington, D.C. 20555* USNRC, Region i 631 Park Avenue Atomic Safety and Licensing Appeal King of Prussia, PA 19406*

Board Panel U.S. Nuclear Regulatory Commission Docketing and Service Section Washington, D.C. 20555* Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

l Colleen P. W6odhead Counsel for NRC Staff i l

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