GO2-98-168, Requests That Severity Level of Wpps NOV (EA 97-138) Be Decreased to Either Severity Level IV or non-cited Violation.Util Would Like NRC to Provide Full Explanation If Such Action Is Not Warranted

Requests That Severity Level of Wpps NOV (EA 97-138) Be Decreased to Either Severity Level IV or non-cited Violation.Util Would Like NRC to Provide Full Explanation If Such Action Is Not Warranted

ML20151Z632
Person / Time
Site:	Columbia
Issue date:	09/11/1998
From:	Parrish J WASHINGTON PUBLIC POWER SUPPLY SYSTEM
To:	Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
EA-97-138, GO2-98-168, NUDOCS 9809220054
Download: ML20151Z632 (3)

Text

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WASHINGTON PUBLIC POWER SUPPLY SYSTEM

. P'.O. Box 968

• Rkhland, Washington 99352-0968 9

September 11,1998 GO2-98-168 L

, Docket No. 50-397 '

4 Mr. L. J. Callan Executive Director for Operations U.S. Nuclear Regulatory Commission

' Washington, D.C. 20555 .

Subject:

WNP-2, OPERATING LICENSE NPF-21 REQUEST FOR RECONSIDERATION OF ENFORCEMENT ACTION (EA 97-138)

. On February .20, 1998, the Washington Public Power-Supply System (" Supply System")

- received a Notice of Violation ("NOV") concerning changes made to its instrument response- i time testing ("RTT") program. .Four of the five violations cited in the NOV (EA 97-138) were classified together as a single Severity Level III problem. The NRC's February 20th letter acknowledged that these violations did not adversely affect plant safety. Nevertheless, '

the Severity I.evel III violation was based.on process failures related to the Supply System's implementation of 10 CFR 50.59. /

O

- A civil penalty was not assessed in this case principally because the NRC Staff recognized that the process failures resulted from the " apparent misinterpretation of NEDO-32291 guidance, which the NRC had approved ' generically and which appears to have resulted in three other boiling water reactor licensees making the same series of mistakes." It is the acknowledgment that these cases are essentially the same that is the subject of this letter and our request for

' reconsideration of EA 97-138.

9 Specifically, at the time of the Staff's February 20th letter, we fully expected that the NRC position was generally to be applied equally to all applicable licensees. However, it has come to our e.ttention that, in fact, this is not the case. One of the licensees has received a Severity

. Level IV violation and, as we understand it, the others have received (or will receive) non- l cited violations. We have thoroughly reviewed the facts related to each of these cases and,

'9909220054 990911 1 PDR ADOCK 05000397 G PDR o ,. -

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' ' REQUEST FOR RECONSIDERATION OF ENFORCEMENT ACTION (EA 97-138)

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'like the Staff's position qtioted above, agree that there effectively is no difference in how these

- other licensees -implemented the NEDO-32291 guidance and applied 10 CFR 50.59.

Moreover, we believe that the level of enforcement received (or to be received) by these licensees is commensurate.with both the actual and regulatory significance of the common circumstances.

We continue to acknowledge, as we did in our January 20th letter, that our actions constitute violations of NRC requirements. Notwithstanding, we are concerned with what appears to be disparate treatment, particularly when the difference in . treatment seems only related to the timing of when the various cases came up for enforcement consideration. For example, it was only about one month after our NOV was issued that the Commission stated its preference for exercising enforcement discretion on 10 CFR 50.59 issues arising under circumstances the are l" clearly not safety significant." (Reference Staff Requirements Memorandum regardag SECY-97-205, dated March 24, 1998). This preference apparently will be continued during the 10 CFR 50.59 rulemaking time period as stated in SECY-98-171. We believe that our circumstances fall within the conditions of the Commission's stated preference. .

Under the circumstances, we respectfully submit that the severity level of our enforcement action should be reconsidered and made consistent with the other licensees referred to above.

Section 7.13 of the NRC's Enforcement Manual (NUREG/BR-0195) provides for reopening of closed enforcement actions as follows:

If significant new information a received or obtained by NRC which indicates that an enforcement sanction was incorrectly applied, consideration may be given, dependent on the circumstances, to reopening a closed enforcement action to increase or decrease the severity of a sanction or to correct the record.

Reopening decisions will be made on a case-by-case basis, are expected to occur rarely, and require the specific approval of the Deputy Executive Director.

We believe that our case warrants reopening and reconsideration for several reasons.

First, we were informed by several NRC Staff members (including management in Region IV) prior to issuance of the February 20th enforcement action that the Supply System would be i treated consistently with the other licensees. In part, our decision to respond to the apparent '

violation in writing without a pre-decisional enforcement conference was based on this understanding.

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Second, we believe that the disparate treatment of the Supply System is inconsistent with the stated goals of the "50.59 Review Panel" established in October 1997. Specifically,

- Enforcement Guidance Memorandum 97-019, dated October 24, 1997, provides that the I purposes of the Panelinclude: (1) " treating violations of 10 CFR 50.59 with an agency-wide

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perspective" and (2) " exercising enforcement judgment and discretion in a consistent manner."

These goals have not been met if several licensees have the same factual circumstances, yet their enforcement results differ.

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• REQUEST FOR RECONSIDERATION OF ENFORCEMENT ACTION (EA 97-138) l

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, , Third, from an equitable s'tandpoint, disparate treatment creates a number of adverse impacts. l i It contributes to an inappropriate diminishing of public confidence in the Supply System's ability to safely operate WNP-2. Similarly, disparate treatment creates unnecessary and unfounded concern (s) on behalf of the Supply System Board of Directors, Executive Board, the Bonneville Power Administration, and the financial community. Likewise, it lowers employee morale and undermines their confidence in the regulatory process. In addition, disparate treatment results in unfair implications during NRC review processes, such as the Systematic Assessment of Licensee Performance ("SALP").

1 Finally, disparate treatment raises questions as to whether the NRC is acting in an arbitrary  !

j and capricious manner. Consistency in practice and avoidance of unexplained discrimination ]

are key " rules of thumb" in assuring that an agency avoids such activity. See e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co. ,463 U.S. 29,43,103 S. Ct. 2856,2866 i

(1983).  !

! We greatly appreciate that the NRC Staff works diligently to ensure consistency in '

enforcement matters. Nevertheless, this case is one of those rare enforcement actions which

! warrants reopening. We believe that treating similarly situated licensees differently constitutes a the kind of "new" information of an " incorrectly applied" enforcement sanction that warrants

reopening and reconsideration under the NRC's Enforcement Policy.

, Therefore, we respectfully request that the severity level of our NOV (EA 97-138) be

decreased to either a Severity Level IV or a non-cited violation. If you conclude that such action is not warranted, we respectfully request that you provide a full explanation as to how ,

j our case would be treated today and why you believe that our request for relief is not -  :

j warranted.

i

) - Respectfully, l J. V. Parrish l' Chief Executive Officer Mail Drop 1023 cc: EW Merschoff- NRC RIV J Lieberman, NRC-OE

DF Kirsch - NRC RIV WCFO 3

C Posiusny, Jr. - NRR NRC Sr. Resident Inspector- 927N i DL Williams - BPA/1399 i PD Robinson - Winston & Strawn l

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