ML20238D467
| ML20238D467 | |
| Person / Time | |
|---|---|
| Site: | 05560755 |
| Issue date: | 08/25/1987 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | MORABITO, A.J. |
| References | |
| CON-#188-5206 87-551-02-SP, 87-551-2-SP, LBP-87-23, SP, NUDOCS 8801040269 | |
| Download: ML20238D467 (7) | |
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N LBP-87-23 UNITED STATES OF AMERICA NUCLEAR REGULATORY CO MISSION
+87 AUG 26 P1 :34 ATOMIC SAFETY AND LICENSING BOARD PANEL g;
k Before Administrative Judge:
Charles Bechhoefer SERVED AUG 26 ggy In the Matter of Docket No. 55-60755 ALFRED J. MORABIT0 ASLBP No. 87-551-02-SP
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Senior Operator License for
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Beaver Valley Power Station, Unit 1 )
August 25, 1987
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MEMORANDUM AND ORDER (Ruling on Various Motions)
Pending before me are three motions, each dated July 20, 1987, submitted by Mr. Alfred J. Morabito, the Applicant in this proceeding.
On August 10, 1987, the NRC Staff submitted a combined response to all three motions.
For reasons set forth below, I must deny each of the motions.
1.
In his first motion (supplemented by a July 21, 1987 filing, which I have taken into account), Mr. Morabito seeks a ruling that he has satisfied his burden of proof in seeking reversal of the NRC Staff's denial of his senior operator license. He reasons that he received a i
certification from Duquesne Light Co., his employer, to the effect that he had met the license requirements of 10 C.F.R. Part 55 and that, pursuant to 10 C.F.R. 6 55.10(a)(6), this certification should be accepted by the Commission as " proof" that "he has learned to operate the controls in a competent and safe manner." Mr. Morabito believes 8801040269 870825 SECY LIC55 05560755 PDR 0y
2 that the NRC Staff should have the burden to prove that the candidate's
" actions and answers are incorrect."
In my opinion, Mr. Morabito is misreading the provisions of 10 C.F.R. 6 55.10(a)(6).1 Under 10 C.F.R. 5 55.10, the Comission sets forth a number of discrete items which must be submitted as part of an application for an operator or senior operator license. One of those items is "[e]vidence that the applicant has learned to operate the controls in a competent and safe manner." To fulfill this requirement of the application, the Commission may accept the certification of the facility licensee as proof. As far as I can determine, the Commission followed this practice in this proceeding.
The rules further require, as a condition for a license, that the Applicant pcss a test (10 C.F.R. 9 55.11(b)). Thus, the successful fulfillment of the application requirements set forth in 10 C.F.R. 6 55.10 only permits the applicant to take the test required by 10 C.F.R. G 55.11(b). This sequence is made clear by another of the application requirements, a written request by the facility licensee I
Effective May 26, 1987, the Commission amended the provisions of 10 C.F.R. Part 55. The requirement formerly set forth in 10 C.F.R. 655.10(a)(6)nowappears(withrevisions)innew10C.F.R.
5 55.31(a)(4).
Since Mr. Morabito's examination was conducted under the old rules, and since his appeal was filed under those rules, I will apply those rules in this proceeding. The i
l certification in the new rules appears to have a comparable effect l
to that under the old rules.
References to 10 C.F.R. Part 55 in l
this Memorandum and Order refer to the old rules, unless otherwise i
specified.
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"that the operating test be administered" (10 C.F.R. 9 55.10(a)(5)).
Thus, as part of the application, the written request of and the certification by the facility licensee are comparable:
they both are i
requisites for taking the test and have no bearing on whether the j
applicant has passed or failed the test.
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In these circumstances, no basis has been supplied for altering the normal burden-of-proof rule for licensing proceedings.
In proceedings subject to 10 C.F.R. Part 2, Subpart G, the burden is placed on a licerae applicant unless otherwise ordered by the presiding officer.
10 C.F.R. 5 2.732; see also Consumers Power Co. (Midland Plant, Units 1 and 2),ALAB-123,6AEC331,345(1973). No explicit allocation of burden of proof is set forth in 10 C.F.R. Part 55, or in the Commission's 1
proposed rules in 10 C.F.R. Part 2, Subpart L, which I am following for guidance. But in.show-cause proceedings, where the Staff is seeking to imnose conditions on a construction permit, the licensee (who will eventually become an operating license applicant) still has the burden of proof. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-283, 2 NRC 11, 17-18 (1975), clarified and affirmed on reconsideration, ALAB-315, 3 NRC 101 (1976). This allocation of burden of proof rests on the Atomic Energy Act as interpreted by the Commission. Midland, ALAB-315, supra, 3 NRC at 103.
Although, under 10 C.F.R. 6 2.732, the presiding officer may determine that a party other than the applicant has the burden of proof, I have been presented no persuasive reason for changing the normal burden of proof in this case. As explained above, the provisions of 10
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C.F.R. 6 55.10(a)(6) cited by Mr. Morabito do not constitute an adequate reason for shifting the burden, and Mr. Morabito has advanced no other reasons for my doing so. Accordingly, the burden of proof that the examination has been incorrectly graded or administered in this case, and that he is entitled to a license, must fall on Mr. Morabito, and his motion requesting a ruling to the contrary must be denied.
As the Staff observes, however, the burden of proof must be
' differentiated from the burden of going forward with evidence. Once Mr.
Morabito has established a prima facie case that the Staff's grading or administration of the SR0 examination was incorrect, the burden of going forward with evidence shifts to the Staff. Midland, ALAB-315, supra, 3 NRC at 110-12; Midland, ALAB-123, supra; cf. Metropolitan Edison Co.
i (Three Mile Island Nuclear Station Unit 1), ALAB-772,19 NRC 1193,1245 (1984). Since the certification under 10 C.F.R. 9 55(a)(6), referenced by Mr. Morabito, has no bearing on the examination, it would not shift the burden of going forward with evidence with respect to the examination. However, Mr. Morabito, through his Specification of Claims, has set forth substantial reasons why the Staff's examination process may have been deficient in certain respects. The Staff must now go forward with responding to Mr. Morabito's claims and it is in the process of doing so. See my Memorandum and Order (Extension of Time),
dated August 19, 1987 (unpublished), granting the Staff an extension of time for this purpose.
My decision will consider all of the filings, together with any other information I find necessary and ask the parties to provide, i
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Although the ultimate burden of proof rests on Mr. Morabito, that allocation becomes pertinent "only where the evidence on an issue is 1
evenly balanced or if the trier is in doubt about the facts." Midland, ALAB-315, supra, 3 NRC at 107.
Please be assured that, in reaching my decision, I will give due consideration to all the pertinent information advanced by Mr. Morabito and the Staff so that my decision will reflect a full and fair resolution of the issues which Mr. Morabito is raising.
2.
Mr. Morabito's second motion seeks revision of the operator license process with five specified measures. However, I do not have i
authority to put such measures into effect. My jurisdiction is limited by the Commission's July 1,1927 Order granting Mr. Morabito a hearing, as well as by 10 C.F.R. 9 2.103(b), to determining whether Mr. Morabito j
should have been granted the license for which he applied. As the Staff points out, if Mr. Morabito wishes to change the methods and procedures for examining and licensing nuclear power plant operators, or senior operators, he can petition for such a change under the procedures of 10 l
I C.F.R. 5 2.800 et seq.
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I note, however, Mr. Morabito's argument that, if this proceeding were to lead to a ruling that he passed either the written or the simulator examination, then sufficient proof would have been given that the license examination process is faulty and in need of revision.
In
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determining whether Mr. Morabito passed those examinations, I will of course take into account all arguments presented to me on that subject.
Mr. Morabito then may use my decision in any way he finds useful if he should determine that general rule changes art.- still warranted.
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6 3.
Mr. Morabito's third motion asks me to issue my final ruling in this proceeding only after charges of improper conduct by NRC officials, which Mr. Morabito filed on April 16, 1987 with the NRC Office of Inspector and Auditor (01A), are resolved. Mr. Morabito asserts that his letter of April 16, 1987 to 01A (of which I have not received a copy or otherwise had access) stated that actions of NRC officials on March 20, 1987 in holding a telephone conference with officials of Duquesne Light Co. violated 10 C.F.R. 9 2.780 and/or various sections of 10 l
C.F.R. Part 0, especially 50.735-20(a). He adds that, until those charges are resolved, he has no confidence that the NRC can render an impartial decision on his appeal.
Resolution by OIA of the charges with respect to the March 20, 1987 telephone conversation can have no bearing upon this proceeding. As the Staff points out, 01A reports directly to the Commission and is not technically involved in licensing proceedings of the type before me.
1 See Houston Lighting and Power Co. (South Texas Project, Units 1 and 2),
LBP-84-13, 19 NRC 659, 717 (1984), aff'd on other grounds, ALAB-799, 21 NRC360,381(1985). My review of Mr. Morabito's claims is completely
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independent of both OIA and the NRC Staff. The timing of my completion H
of this proceeding, and of the resolution of the matter before OIA, is thus entirely fortuitous.
My only knowledge of a telephone conversation of March 20, 1987
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between representatives of the NRC Staff and Duquesne Light Co. comes from the assertions (1) in Mr. Morabito's motion and (2) in the response of the NRC Staff, which attached a copy of a letter dated April 8,1987,
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ii decm a representative of the NRC Office of t(e General Counsel to Mr.
4 C M rabito. The April 8 letter advised Mr. Morabito of the subject of the
/tpnversation (i.e., that Duquesne Oght was advjted that Mr. Morabito i {\\
was contesting the result $ of his senior o erator license examination andthatitsh6uldpresrveanymemorand(ornotesitmayhave t
concerning the ex$sinatie) and also that Duquer.ne would probably "
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participateatth'e.hearingandthatconversations}etweenDuquesneand the NRC Staff on varioua matters were in effect n\\nnal practice and
-- routine.
I take no position with respect to the accuracy or propriety-ofa'nyofthesecomknications.
s, a37 1)lght ad? t' hat any sub tant'ive connunicEtions which I may make to
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cdated July 1, 1987, at P.-3; 10 C.F.R. s 2.719; and my Memorandum and t
Order (RequestingSpecificationofC3 aims),datedJuly 15, 1987 (unpublished), at 2.
by.
< Based on the foregoing, it is, this 25th day of August, 1987, /
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'w ORDERED
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That the ihree motions submitted by Mr. Morabito on July 20, 1987 m
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b6 denied.
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t PRESIDING 0FFICER y.; \\
Ml M_
mJ ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland
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this 25th day of August, 1987.
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