ML022740467

Background

ML022740467
Person / Time
Site:	Turkey Point
Issue date:	05/31/2002
From:	NRC/RGN-II
To:
References
FOIA/PA-2002-0361
Download: ML022740467 (3)

Text

Background-In his DPI akes exception with the processing of a violation of 10 CFR.50.70 observed by theTTfurey-Point Resident Inspector on January 28, 2002, as an NCV.

He contends that the issue, which involved announcing an inspector's presence contrary to the I regulation, wouldshouldhave been efter--1e dprocessed as a violation. In the discussion contained in the DPV m

akes the following major points:

Processing this issue as an NCV has generic or broad implications o6_ the ability of the inspectors to monitor licensee activities as they normally occur.

The licensee's investigation concluded 1hat the event did not happen as described by the NRC.

gtiuggests that this different conclusion regarding what happene-d, allowed the licensee to downplay the issue, thereby stopping any enforcement action.

Processing an issue as an" NCV based on entering the issue into the corrective action program, allows the licensee to take only token corrective actions and not address the underlying root cause or organizational culture which fostered the violation.

As a remedy, he suggests that the enforcement process be modified to require that the licensee address the issue.

I Documentation-.The teampanel reviewed the DPV filed I ufkey Point m m which documented the NCV in question, and the meeting minutes for I the ARB of February 5,2002, wheieduring which the issue was presented for 01 consideration.

Additional NRC documentation such as the management directive associated with DPVs, the statements of consideration for 10 CFR 50.70 and 10 CFR 50.5, the Enforcement Policy, and selected regional office instructions was also reviewed by members of the panel. The panel also reviewed the licensee's corrective action document which captured the issue.

I tervews-The following ersons were interviewed by members of the panel:

Carol-yn Ev-ans -

egional CounseVEnfo-rcemen~t Officer Randy Musser-Acting Branch Chief Son Ninh-Project Engineer/Acting Branch Chief Victor McCree-Deputy Division Director DRP Len Williamson-Acting 01 Director Findings

1.

The panel agrees that announcing the presence of NRC inspectors can impact the ability of the inspectors to monitor licensee activities as they normally occur. However, based on the information reviewed during its

,eview, the panel does not agree that processing this issue as an NCV had broad programmatic implications. The panel believes that a licensee should be able to effectively resolve issues such as this if thisits corrective action program is sound. The panel did not review any information to suggest infornatiMebtsTrY7Poi tCwrective action program is not sound.

in accordance withhe Freedom of Information Act, exempt.o.s SOIA-. ____

2.

The panel agrees that the licensee's investigation arrived at a different conclusion as to what happened than did the residents. However, the team did not find any evidence to suggest that this significantly impacted the outtcomeresolution of the issue.

-Specifically, the team believed that the licensee's corrective actions were sufficient.

Further, the team considered that the licensee's actions to conduct an independent investigation (though it did not initially include interviews of the residents) and a phone call made to the Regional Administrator by the Site Vice President, do noLsupport the contention that the licensee downplayed the issue. In addition, the panel rioted that "enforcement action was taken when the NCV was issued. (The panel noted that this sent a clear message to the licensee that the NRC concluded that the event occurred as described by the residents.)

1 3.

The teampanel agrees that the NCV criteria which requires only that an item be entered into the licensee's corrective action program, can lead to situations of inappropriate or I

marginal corrective actions. However, the tearnpanel believes that the ROP addresses this issue through the p,, bl, idntfieat,,, and resolutio.n i,,spee o..

If an inspector.

feels strongly that the licensee has somehow missed the mark on an issue, this-shoud I b revealed by the P"&,lthe issue can be included as the subject of the identification I

and resolution of problems portion of the appropriate baseline inspection procedure or I

as part of a formal problem identification and resolution inspection. In addition, if warranted, a violation for inadequate corrective actions can be issued. While not directly applicable to this issue, the panel also noted that the Enforcement Policy requires that compliance be restored as a condition of issuing an NOV. This helps decrease the likelihood of corrective actions wide of the mark.

4.

Though not part of the DPV, the panel reviewed the handling of this issue against the NCV criteria identified in the NRC's Enforcement Policy. Foi the,,o*st part, the pa, '

determin ed th&tWith respect to the NCV criteria were satisfied. 1 loweve'related to willfulness, the team had difficulty in following the decision-making process used by the NRC to determine that the violation was not willful. The interviews conducted by the panel revealed that a consistent decision-making process was not applied by key personnel in arriving at this decision. The panel felt that the nature of the violation and I

the fact that a supervisor was involved warranted the NRC having a clear basis to make I

the call regarding willfulness.

In addition, the panel noted that when this issue was taken to the ARB, it was done before the completion of the licensee's investigation. Hence, it was not clear to the panel that the impact of the licensee arriving at a direetdifferent conclusion as to what happened, was available for consideration by the ARB. The panel believes that this had the potential to impact the deliberations of the ARB.

In response, the panel recommends the following actions be taken:

A.

The Enforcement Officer provide amplifying information to the Region II staff on what constitutes a willful violation. It is also recommended that this guidance address what mechanism should be used to determine if willfulness is involved in a violation.

I

I' B.

The ARB reconvene and review the licensee's investigation of this issue to deterrninediscem if additional infor'mation is required by the NRC to determ ieestablish if this violation was willful.

5.

During its review, th tearted that the concurrence page for the inspection report, annotated by t reflect his concerns with the processing of this issue as an NCV was not included in the ADAMS version of the report. The provisions of ROI 2210 were not invoked since he did concur with the report. Further, it does not appear that the-practice of retaining comments recorded during the concurrence pr__ess is explicitly required by existing Region II procedures. However, the panel felt that not including this information could result in losing information associated with the concurrence process for a report. The panel recommends that an existing ROI be modified to identify the need to include comments on the concurrence page (as appropriate) in ADAMS.

6.

From its review of the Enforcement Policy, the panel also believes that the issue should have been processed through traditional enforcement as an issue that impacted the regulatory process as a Severity Level IV issue instead of as a No Color issue.

Conclusion-The teampanel does not suppo.-V-snd, in that it does not believe that a change to the enforcement process is warranted. However, the panel feels that I followup by the NRC is required to establish whether the violation was willful or not.

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