ML17300A331
| ML17300A331 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 07/30/1986 |
| From: | Van Brunt E ARIZONA PUBLIC SERVICE CO. (FORMERLY ARIZONA NUCLEAR |
| To: | Kirsch D NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION V) |
| References | |
| ANPP-37636-EEVB, NUDOCS 8608150078 | |
| Download: ML17300A331 (13) | |
Text
8608150078 860730 PDR ADOCK 05000528 8
PDR Arizona Nuclear Power Project P.o. BOX 52034 4
PHOENIX. ARIZONA85072-2034 July 30, 1986 ANPP-37636-EEVB/ACG/SGB/98.05 U. S. Nuclear Regulatory Commission Region V
1450 Maria Lane, Suite 210 Walnut Creek, CA 94596-5368 Attention:
Mr. D. F. Kirsch, Deputy Director Divisi'on of Reactor Safety and Projects
Subject:
Palo Verde Nuclear Generating Station (PVNGS)
Unit 1
Docket No.
STN 50-528 (License No.. NPF-41)
Request for Reconsideration of the Ruling on the
Response
to Violation No. 50-528/85-26-04 dated October 4.,
1985 File:
86-019-026'.4.33.2
Reference:
(a)
Letter from D. F.. Kirsch to E. E.
Van Brunt, Jr., dated October 4, 1985.
Subject:
IRE Inspection Report.
(b)
Letter from E. E. Van Brunt, Jr. to D. F. Kirsch (ANPP-33926EEVB/FJH)'dated November 5, 1985.
Subject:
PVNGS Denial of Violation (c)
Letter from D. F. Kirs'ch to E. E. Van Brunt, Jr.,
dated May 5, 1986.
Subject:
NRC Response to PVNGS Denial of Violation.
Dear Sir:
Arizona Public Service (APS) requests reconsideration of the ruling in Reference (c) which rejected APS'enial of the Violation No. 50-528/85-26-04 (hereinafter "the Ruling").
Additionally, APS requests a conference to discuss this request, and to resolve all concerns related to the application of overtime controls at PVNGS.
In the alternative, APS requests that this matter be submitted to the NRC Executive Director of Operations (EDO) or the Commission for final resolution.'his request.for reconsideration stems from a conviction held by APS that the Ruling is not justified based upon the following assertions:
(1]
The Ruling adopts an interpretation of Technical Specification 6.2.2.2 which is inconsistent with prior interpretations established by the Office of Nuclear Regulation (NRR), and Region V, of the NRC.
[2]'he interpretation given by the Ruling constitutes a modification to the procedures required to operate PVNGS resulting from a new staff position, which cannot be made effective without compliance to the requirements of 10 CFR 50.109; and
[3].
The use of a notice of violation to force a change in a licensee's administrative procedures is unreasonable and unfair regulatory practice.
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Mr. D. P. Kirsch, Deputy Director Request for Reconsideration of the Ruling on the
Response
to Violation No. 50-528/85-26-04 dated October 4, 1985 Page 2
Back round Violation No. 50-528/85-26-04 was based, upon an interpretation that the Technical Specification 6.2.2.2'(hereinafter "the Tech, Spec" ) applied to "all unit staff who performed safety-related functions."
[Inspection Report Nos.
50-529/85-26 and 50-529/85-27, dated September 25, 1985, Item 8, p. 11]
In APS'enial of Violation, dated November 5,
1985, it was contended that such interpretation was inconsistent with:
The evolution of the regulatory requirements relating to overtime work; The Commission's Overtime Policy Statement; The acceptance by NRR of APS'icensing commitment which explicitly identified the personnel who were to be subject to overtime controls) and NRC licensing actions in other dockets.
'The Ruling, without discussion of APS'ontentions, summarily concludes that a violation of the Tech Spec did occur.
The only basis given for this conclusion is a sub)ective belief as to the intent of the Tech Spec'.
"The NRC believes that the intent of this specification is to limit the working hours of unit staff who perform safety-related functions, which include the type of work this engineer performed, namely taking measurements and calculating percent of valve travel during safety-related surveillance testing."
This request for reconsideration by APS's supported by the following gustificationsl which are restatements in part of APS'nitial
- denial, but are also supplemented by a
more recent NRC Inspection Report (50-528/85-33 and 50-529/85-33),
and the application of Backfitting Rule 10 CPR 50.109.
1 Additionally, the Ruling could be criticized (i) for not analyzing the contentions made by APS in its denial, and (ii) for its failure to consider objective evidence of the intent of the Tech Spec, and (iii) for its failure to adhere to rules of statutory construction.
- However, such arguments are not pursued in this request for reconsideration.
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Mr. D. Fs Kirsch, Deputy Director Request for Reconsideration of the Ruling on the
Response
to Violation No. 50-528/85-26-04 dated October 4, 1985 Page 3
[1]
The Rulin ado ts an inter retation of Technical S ecification 6.2.2.2 which is inconsistent with
, rior interpretations established b
the Office of Nuclear Re ulation NRR, and Region V, of the NRC.
1.1 The Tech Spec and NUREG-0737 The portion of the Tech Spec which is relevant to the issue of its interpretation is paragraph a.
of the Tech
- Spec, which states:
"a.
Administrative procedures shall be developed and implemented to limit the working hours of unit staff who erform safet -related functions; e.
senior reactor o erators reactor o erators, radiation rotection technicians auxiliar o erators and key maintenance personnel."
Emphasds snppplieds The underscored phrase is virtually identical with phraseology used in the Commission's Overtime Policy Statement and in NUREG-0737,Section I.A.1.3 (as revised by Generic Letter 82-12, dated June 15, 1982), to wit:
"The controls shall apply to the lant staff who erform safet -related functions (e.
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senior reactor o erators reactor o erators auxiliar o erators health h sicists and ke maintenance ersonnel."
[Emphasis supplied.
Because NUREG-0737 and the Tech Spec are almost identical in describing the personnel whose working hours are to be controlled and the ambiguities found in one are also found in the
- other, interpretations of the NUREG-0737 requirements are controlling in the interpretation'of the Tech Spec.
1.2 NRR's Interpretation of NUREG-0737 I
During the course 'f preparing 'the PVNGS Safety Evaluation
- Report, NUREG-0857, NRR met with PVNGS personnel on September 15, 1981, to resolve a number of open items dealing with Chapter 13 of NUREG-0857.
Among such open items was the matter of overtime controls.
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Mr. D. P. Kirsch, Deputy Director Request for Reconsideration of the Ruling on the
Response
to Violation No. 50-528/85-26-04 dated October 4, 1985 Page 4
Subsequent to the September 15, 1981 meeting, APS confirmed the oral commitments made at the meeting by submittal of a letter from E.
E.
Van Brunt, Jr.,
to R. L.
Tedesco dated September 30, 1981.
Item 13 of an Attachment to the letter established APS'icensing commitments related to overtime controls as follows:
"13.
The maximum work hours of personnel performing a
safety-related function will be no more than 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> of continuous duty exclusive of travel time with at least 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> between work periods, no more than 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> in any 7&ay period, and no more than 14 consecutive, days of work without at least 2 consecutive days off.
Only the Manager of Nuclear Operations shall have authority to waive these limits.
The ersonnel effected
[sic]
b this requirement will be senior reactor o erators reactor o erators radiation rotection technicians auxiliar o erators I 6 C
technicians and key maintenance ersonnel."
[Emphasis supplied.
This licensing commitment made by APS explicitly limited the application of the then current NUREG-0737 overtime controls solely to the personnel specified and was iterated again in Amendment 2 of Section I.A.1.3 of the PVNGS Lessons Learned Implementation Report (LLIR) filed in November, 1981.
This licensing commitment was subsequently accepted by NRR to be in accordance with the then existing provisions of NUREG-0737.
Specifically, it is stated in Section 22.2 of NUREG-0857:
"The licensee defined the quantitative limits on allowable overtime and the ersonnel affected.
Since this definition I.A.1.3, the staff finds the proposed overtime controls acceptable."
[Emphasis supplied.]
See also Section 13.3.1.3 of NUREG-0857.
This acceptance by the NRR of APS'efinition of the personnel to be affected by the overtime limits as "consistent" with NUREG-0737, provides a clear interpretation of NUREG-0737 'and, therefore, the Tech Spec.
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Mr. D. F. Kirsch, Deputy Director Request for Reconsideration of the Ruling on the
Response
to Violation No. 50-528/85-26-04, dated October 4, 1985 Page 5
1.3 Region V's Interpretation of NUREG-0737 To assure adherence to its licensing commitment, PVNGS issued Station Manual Procedure No.
10AC-OZZ07, Overtime Limitations, effective t'uly 25, 1984.
This procedure and subsequent revisions defined and limited the personnel subject to overtime limitations in the following manner:
"1.2 This control applies to unit staff who perform safety-related functions.
The ersonnel effected sic b
re uirement will be senior reactor o erators reactor this o erators radwaste o erators radiation rotection technicians auxiliar o erators chemistr technicians and maintenance ersonnel workin on safet related e ui ment."
[Emphasis supplied.]
NRC Region V inspectors conducted a routine, unannounced inspection on September 16-27, 1985, including, but not limited to, compliance with NUREG-0737 overtime limitations.
(Inspection Report Nos.
50-528/85-33 and 50-529/85-33, dated October 17, 1985).
As a result of their review of Procedure 10AC-OZZ07, the regional inspectors concluded:
"I.A.1.3 Shift Mannin This TMI item involves two different aspects:
1)
Limiting
- Overtime, and Establishing a Minimum Shift Crew 1) 0 en Limit Overtime The licensee has met the intent of this TMI item by incorporating the guidance for overtime of Generic Letter 82-12 into Procedure 10AC-OZZ07, Overtime Limitations.
These overtime limitations applied to plant personnel who performed safety-related activities, such as plant operators, radiation protection technicians, maintenance personnel, etc."
This acceptance by NRC Region V inspectors with respect to Procedure 10AC-OZZ07 and the interpretation of the NUREG-0737 (as revised by Generic Letter 82-12) is not consistent with the finding (Inspection Report Nos. 50-528/85-26 and 50-529/85-27) of the resident inspectors that the Tech Spec applied to "all unit staff who performed, safety-related functions." It is also inconsistent with the interpretation of the Tech Spec in the Ruling.
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Mr. D. F. Kirsch, Deputy Director Request for Reconsideration of the Ruling on the
Response
to Violation No. 50-528/85-26-04 dated October 4, 1985 Page 6
[2]
The inter retation iven b the Rulin constitutes a modification to the rocedures re uired to o crate PVNGS resultin from a new staff osition'hich cannot be made effective without corn liance to the re uirements of 10 CFR 50.109'nd The use of a notice of violation is not a permissible means to effectuate a change in interpretation of a regulatory requirement.
If the NRC staff believes that the Tech Spec should be modified to expand its applicability to include engineers who take measurements and calculate percent of valve travel during safety-'related surveillance testing, 10 CFR 50.109 sets forth the requirements to accomplish that objective.
[3]
The use of a notice of violation to force a chan e in a licensee s
administrative rocedures is unreasonable and unfair re ulator ractice.
APS contends that it is unreasonable and unfair 'to, issue a notice of violation based upon new interpretation of the Tech Spec'here APS interpretation of the Tech Spec had been set forth explicitly'in its Station Manual Procedure No.
10AC-OZZ07; and Acceptance by NRR of APS'icensing commitment, and acceptance by Region V inspectors of the PVNGS overtime procedure demonstrate the reasonableness of APS'nterpretation of the Tech Spec.
Under the circumstances (a) where a procedure was issued based on an interpretation which clearly was not unreasonable nor arbitrary, and (b) where overtime had been controlled in compliance with such procedure, the only fair and reasonable regulatory action would be to discuss a proposed revision to the procedure to include additional personnel or functions as appropriate.
The problem with using a notice of violation to achieve this goal is that the ambiguity of the Tech Spec is perpetuated and disparate regulation of a licensee is enhanced.
Neither of these results can be considered reasonable; neither reflects good regulatory practice.
Mr. D. F. Kirsch, Deputy Director Request for Reconsideration of the Ruling on the
Response
to Violation No. 50-528/85-26-04 dated October 4.,
1985 Page 7
J Conclusion On the basis of the foregoing, APS maintains the conviction that a violation did not occur, and that the Ruling is not justified and. should be reconsidered.
However, since reconsideration may not resolve al1 of the NRC's concerns related to the control of overtime at
- PVNGS, we request a conference to discuss these matters.
Hopefully, this process will obviate any referral of this matter to the EDO or the Commission.
Very truly yours, E. E. Van Brunt, Jr.
Executive Vice President Project Director EEVB/ACG/SGB/dh cc:
J.
G. Haynes A. C. Gehr E. A. Licitra R. P.
Zimmerman
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