ML18044A440

Responds to Protesting Proposed Imposition of Civil Penalties & Requesting Remission of Penalties.Review of Items Revealed That Noncompliances Did Occur & No Valid Reasons Were Found for Remission of Proposed Penalties

ML18044A440
Person / Time
Site:	Palisades
Issue date:	12/20/1979
From:	Stello V NRC OFFICE OF INSPECTION & ENFORCEMENT (IE)
To:	Youngdahl R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.)
Shared Package
ML18044A441	List: ML18044A440 ML18044A442
References
NUDOCS 8001220057
Download: ML18044A440 (6)

Text

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Docket No..

50-25~ -

Consumers *Power Company~:- *. -.- *..

ATTN:

Mr. -R. C. Youngdahl,-,, --

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• Executive Vice President 1945. West Parna 11 Road::_-,

Jackso_n, MI.* -49201.

Gentlemen: - - ~: _

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Your' letter* of Novembe~*-_29, 19l9;:-protesting th~ proposed impositfon of civil penalties and requesting remission or mitigation of the penalties makes essen-tially four basic points:

1.

11 *** the evidence to date does not conclusively demonstrate that any violation occurred.

11 (p. 2);

2.

11 *** the correct maximum [total penalty] is 17 x $25,000, not 18 x $25,000

[as proposed]." (p. 3); the Notice of Violation was erroneous in that there was a "misconception of the potential accident consequences... "

_(p. 2) and

3.

the stated enforcement policies of the Commission "have been largely ignored11 (p. 3); and

4.

there exist a number of mitigating factors such as the fact that the violations were "voluntarily and timely reported" by the licensee, "corrective action... was undertaken promptly" and penalties in these circumstances lack any 11remedial purpose". (pp. 10-11).

With respect to your first major point we are apparently in essential agreement as to the facts.

We cannot, however, accept your view that a violation does not exist unless the evidence shows it 11conclusively.

11 In our view, the plain factual inference is that the valves in question were mistakenly left open for an extended period.

We fail to understand the.basis for your second basic point.

Part 100 dose -

estimates must be based *on calculations using assumptions similar to your Maximum Hypothetical Accident (MHA) assumptions.

When MHA assumptions are used, your calculations, with which we basically agree, show dose estimated in excess of Part 100 limits.

• Statenients that Part 100 limits have been met using other less conservative dose calculation assumptions (OBA dose calculation) are not*

in keeping with Part 100 criteria.

CERTIFIED MAIL RETURN RECEIPT REQUESTED

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. There were~ according J,'Q*your own records;;476 days during the* relevant 517"'."day -

span: during.which the -r-eactor was operated'-in~other.than a cold shutdown

• condition". - At no* time*'-during ~my 30-day: period within the -517-day *span was the reactor in a cold shutdow'°' __ condition for_ 25 days *or more.

• Therefore, at. -

least five violations. occurred during-every~ 30"."day period encompasse*d by the _'_ *..

• 517-day span.

• Moreover_, in addition to-the seventeen 30-day periods* covered*:':

by the 517 days, thereare seven additional days duririg which violations occurred. - Thus, the. correct ca 1cu1 at ion is 17 x $25, 000 p 1 us 7. x $5, 000 (limit~ to $25,000) equals-$450,000.

You make severa 1 specific charges in support of your content ion that NRC enforcement polic_ies "have.been largely ignored.

11 First you state that"a violation representing_*a threat to public-health and safety... is not the case here.

11

- Contrary to_ your: view we nevertheless continue to believe, as stated

• in my letter of November 9, that 11prolonged*violation of containment integrity is a matter of very serious safety significance.

11 This basic fact underlies our view that this case is not properly considered 11 normal 11 and that, in this particular situation, computation of the period of violation is entirely consistent with the portion of the Statement of Consideration quoted on page 4 of your re_sponse._

Your next point seems to be that since you 11voluntari_ly discovered and reported the condition and took immediate corrective action, 11 civil penalties are not appropriate.

In making this point no me*ntion is made of the fact that you are --

required to report and correct conditions of this sort and that even more serious sanctions such as suspension or revocation might be in order for failing to meet those obligations.

I shall not again rehearse the gravity with which we view the dereliction in question.

Suffice it to say here that the 11voluntary 11 actions you took do not operate to prevent the imposition of civil penalties either as a matter of sound policy or as a legal matter.

The third point you make is that the published Enforcement Criteria indicate that items of noncompliance which 11caused or resulted in actual consequences will be differentiated from those that merely provided the potential for the c6nsequences.

You then contend that such a differentiation was not made in this case.

You find such a conclusion 11apparent 11 from the fact that a $450,000 fine is proposed for Consumers while only a $155,000 fine was proposed for 148 violations associated with the Three Mile Island accident.

I fail to follow this reasoning.

There are, by your own count, 476 items of noncompliance here.

Moreover, had actual overexposures occurred as a result of these items it is very likely a shutdown of the reactor would have been ordered* rather than merely the imposition of penalties.

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Your.next-po1nt is that here "the -items of nonco~pliance *~re not repetitive or numerous"* and 1.1do not constitute an immediate or serious threat to health and safety.

11 For the reasons previously provided to you l regard the 476 derelic-tions here quite seriously threatening to the public health and safety.

Your next point is, apparently, that the violations here must be fitted into.*

one of the eleven categories of examples set forth in the Criteria (or cases *

• comparable to any of the eleven) and. that the violations here cannot be fitted into any of the categories.

This contention misreads the Criteria.. The first:

three sentences of the Criteria for civil monetary penalties read as follows:

"The Commission may levy civil monetary penalties on licensees who.

do not comply with the licensing provisions of the Act or any.rule, regulation, order, or license issued.. Generally, the type of cases

• that are appropriate for imposing civil penalties are those involving significant items of noncompliance and which represent a threat (but not necessarily immediate) to the health, safety, or interest of the public, or to the common defense or security, or the environment.

As a matter of judgment, civil penalties may be used in lieu of license suspension when there is no immediate threat to the health and safety or the common defense and security and license suspension would deprive the licensee or his employees of their means of live-lihood, or the public of essential service."

This is the general rule.

The eleven categories of examples which follow in no way limit nor purport to limit the general rule for the application of civil penalties--a rule manifestly applicable here.

In fact, this case falls squarely within example (h) of the criteria as it involves items of noncompliance in the violation category.

Your next point takes issue with the categorization of two of the items of noncompliance here as 11violations 11 rather than 11 infractions.

11 We believe both of these items of noncompliance had a 0 substantial potential for... contributing to or aggravating... an incident or occurrence [such as] (b) Radiation levels in unrestricted areas which exceed 50 times the regulatory limits... "

By your own analysis releases under certain accident conditions could result in exposure rates of more than 100 mr/hr which would exceed the 11mits of 10 CFR 20.105 (b)(l) by a factor of 50.

Therefore, the items of noncompliance are properly categorized as 11 vio1 at i on 11

• Your next point is predicated on your notion--discussed and shown-to be in error by the comments above--that the penalties here "fail to follow the Statement of Consideration [accompanying promulgation of 10 CFR 2.205] and the

[published] Enforcement Criteria." On that erroneous premise you fault the penalties here on the grounds that they are products of new enforcement policies which have not been adequately published in advance.

It is certainly true that over the years, and not just since the accident at Three Mile Island, the NRC has been applying existing enforcement policies in an increasingly more vigilant and diligent fashion.

Continued noncompliances mandate such action.

However, the basic policies remain the same and all licensees have long since been on notice that serious noncompliances will be met with serious enforcement actions.

The final-charge you make-in support of your contention that NRC enforcement*

policies "have been largely ignored" is t~at the proposed penalty action here ---

is "arbitrary and capricious wtten contrasted _with.th.e many instances involving similar events, where licensees' have not been cited at all for noncompliance _

or where, if cited, they have been penalized at a much lower level.

The recently proposed civil penalties for th~lhree Mile Island accident are onli the most obvious example.

11 I have already discussed the differences between your derelictions and those at Three Mile tsland.. Your failure to provide* any -

other indications as to the "many instances-involving similar events 11 as well as my own study of the matter leads me to.question whether such instances exist. In all events the serious safety violations here*merit the enforcement sanction of civil penalties in: the total_ amount of $450,000.

. ~-

Regarding the matter of possible mitigation -of the penalties which have been -

proposed, you 1 ist six factors for consideration.

Briefly summarized they are:

1.

the noncompliances-_ "were voluntarily and timely reported",

2.

there is no evidence of bad faith or willfulness,

3.

extensive corrective action was undertaken promptly,

4.

the cited violations are not representative of chronic violations,

5.

the public health and safety was not, in fact, adversely affected, and

6.

the penalties here are "solely punitive".

Factors such as reporting matters you were required to report anyway, taking corrective actions you would be required to take if you had not done so, not being in bad faith, not involving a chronic violation, and not actually over-exposing anybody are all "negative mitigation factors" in the sense that had any of them been present th_ey would have warranted even more severe sanctions than those proposed.

To be sure, we are pleased that the violations which did occur were not aggravated by any of those additional factors.

However, they do not represent factors for mitigation here.

Looked at a bit differently, these factors were taken into account--in the sense that they were not present to aggravate the situation further--when the initial $450,000 penalty was proposed.

The final factor you mention--that_the penalties here are "solely punitive"--is in my view simply not the case. It is my firm expectation that in the wake of*

the imposition of these penalties your company will be more vigilant in the future to avoid noncompliances of this particular sort and, indeed, noncom-pliances in general.

I also trust that other licensees will, in the light of this action, take appropriate steps to enhance their own-confidence that future noncompliances will be avoided.

For these reasons I believe that the penalties here quite clearly have a remedial or deterrent aspect and that they are not properly characterized as being solely punitive.

0 Accordingly, after careful cons*i deration of. your November 29, 1979 ~responses*

to the Notice of Violation and Notice of Proposed.Imposition of Civil Penalties, which were sent to you on November 9, 1979, we-conclude that the items of noncompliance did occur as described in the Notice of Violation and no valid reasons have been given for mitigation or remission of the proposed penalties.

We hereby serve the enclosed Order on Consuiners Power Company impos*i ng civil penalties in the amount of Four Hundred and Fifty Thousand Dollars ($450,000). *

Enclosure:

Sincerely, Origlnal signed bf Viet.or St.ellQ,/'

Victor Stello, Jr; Director Office of Inspection and Enforcement Order Imposing Civil Monetary Penalties WPU: SM ROI~;{: ROI~\\l ~

12/14/79 JR~sland~ryan J JOB N 12//?/79 ~i2/l'g/79 12

. A. J

. RM'~ µ.-

jto~I A/Dr;E D: IE Hek N"cf(oseley~\\erman GC~ DThowpson VStello f'J"/79 l2f1!79 12//'f /79 12/jf /79 12/ lC,79. 12/ /79

• Distribution: -

PDR NSIC LPDR TIC State of Michigan.

ACRS(3}

SECY D. Thompson, IE CA(3)

F. Ingram, PA J. P. Murray, ELD L. Lieberman, ELD R. Tedesco, AD/RS J. Crooks, OMPA J. J. Curmnings, OIA Enforcement Coordinators:

Regions I, II, III, IV~ V R. 0. Silver, ORB-2 T. W. Brockett, IE S. E.. Byran, IE F. Nolan, IE.

J. I. Riesland, IE J. S. Bl and, IE J. G. Keppler, RIII IE Files

~tral Files Civil Penalty Book CON XOOS Reading File EDO Reading File IE Reading File MAIL STOP H...;1016 H-1149 H-1057

• MNBB-3709 MNBB-9604 MNBB-9604 P-.1122 MNBB-12105 Landow-1200 P-314 L-316 soo122oostt