ML18045A833
| ML18045A833 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 10/27/1980 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CIV, NUDOCS 8010300077 | |
| Download: ML18045A833 (12) | |
Text
In the Matter of UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE 10/27/80 CONSUMERS POWER COMPANY (Palisades Nuclear Power Facility
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Docket No. 50-255 (Civil Penalty)
NRC STAFF'S ANSWER TO CONSUMERS POWER COMPANY'S MOTION TO COMPEL MORE SPECIFIC ANSWERS TO CONSUMERS' SECOND ROUND OF INTERROGATORIES On September 24, 1980, the Nuclear Regulatory Commission (Staff) served its answers to a second round of interrogatories that had been served on the Staff on August 20, 1980, by Consumers Power Company (CPC).
On October 6, 1980, CPC filed a motion to compel the Staff to provide more specific answers to certain of these interrogatories.
CPC contended that the Staff's answers to Interrogatories 1, 2, 3, and 4 were 11incomplete and insufficiently specific.
11*U The Staff files this _response to CPC 1s motion and asks that the motion be denied.
The Staff does not deny its duty.to supply complete responses to CPC 1 s i nterroga tori es.
The Staff recognizes that 11answers to i nterroga tori es must be complete, explicit and responsive. 1Y The Staff has fully met its duty and has supplied CPC with complete and responsive answers to Interrogatories 1-4.l/
1J Consumers Power Company's Motion to Com el More S ecific Answers to Consumers' Second Round of Interro atories, at 1 Oct. 6, 1980 here-inafter Motion to Compel
1f A copy of Interrogatories 1-4 and the Staff's answers thereto are attached to this response.
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In Interrogatory 1, CPC asked the Staff to list the factors used by the Office of Inspection and Enforcement (IE) in determining whether to treat a condition as a continuing violation of the Atomic Energy Act.
CPC states that this interrogatory seeks to discover "the specific factors and criteria applied by the Staff in considering whether to classify an item of noncompli-ance as single or continuing. 1.il c*Pc alleges that the Staff has failed to identify any of the factors that the Director of IE considers in the exercise of his discretion.if In point of fact, the Staff clearly and concisely answered the interrogatory.
The Staff responded by quoting portions of the Statement of Consideration that accompanied the issuance of 10 CFR 2.205, since the Statement of Consideration provides the general guidance (or "factors" or "criteria", if CPC prefers those terms) from which to judge whether to impose civil penalties for each day of a continuing item of non-compliance.
The Staff also pointed out that, within this general framework, the Director of IE has broad discretion to use the civil penalty sanction for continuing viola~ions, which necessarily implies that the determination to use the sanction must be made on a case-by-case basis.
The Staff believes it has fully answered the interrogatory by identifying the general criteria used in judging whether to impose penalties for a continuing violation.
Interrogatory 2 asked the Staff to apply the factors or criteria iden-tified in response to Interrogatory 1.
The Staff's answer provided exactly what the interrogatory requested.
The Staff explained that the circumstances portrayed under the Statement of Consideration's general guidance did not 4/
Consumers' Motion to Compel at 2.
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Ji. at 3.
- 3 apply to the continuing item of noncompliance with which CPC is charged.
The Staff specifically stated why the violation of containment integrity at
.Palisades was not "normal", and listed the matters which underscore the seriousness of the incident.
CPC is fully apprised by this answer of the Staff's position.
CPC's dissatisfaction with the answer may stem from CPC's disagreement with the Staff's position in this case; it cannot fairly stem from any failure of the Staff to answer the interrogatory.
The Staff, of course, is not required to mold its answers to support CPC's ultimate liti-gation objectives.
Interrogatory 3 asks for the factors that the Staff will rely on in supporting its position that the item of noncompliance in question was a continuing one.
In discussing this interrogatory, CPC has contended that the Staff has not identified any of the factors that allow the Director of IE to impose a civil penalty for. each day of noncompl i ance *.21 A fair read-ing of the Staff's response to Interrogatory 3 will show that the Staff has again set forth a complete and responsive answer.
The Staff's answer to Interrogatory 3 identifies a number of matters on which the Staff will rely in advancing its view that the Director of IE exercised his discretion properly in deciding to assess a penalty for each day containment integrity was breached.
The Staff did not restate the general guidance in the State-ment of Consideration for 10 CFR 2.205, because the Staff will not rely in support of its position on the examples given therein.
The Staff intended to reiterate its view that the incident at Palisades was not normal under the Staff's view of the general guidance provided in the Statement of Con-sideration.
The fair implication of the Staff's answer, in light of CPC's 6/
Id. at 6.
.,* interrogatories 1 and 2 and the Staff's corresponding answers, was that the Staff does not view the Palisades incident as a 11normal 11 occurrence and that the Staff does not believe the incident corresponds to the examples given in the Statement of Consideration.
Finally, Interrogatory 4 asks the Staff to identify' factors known to the Staff that support CPC's view that the item of noncompliance was noncon-tinuing.
The Staff responded that it was not aware of any such facts that would support CPC's view.
CPC has taken issue with the Staff's use of the word 11 facts 11 and states that CPC seeks instead an identification of those factors and criteria that would support a ruling by the Administrative Law Judge that the item of noncompliance be classified as noncontinuing *.Z./
The Staff can only reiterate its view that it is not aware of any such 11factors 11 or 11criteria 11 The Staff used the term 11facts 11 to include both objective facts which would show that the noncompliance did or did not occur and the subjective facts (or 11factors 11
) which would support or militate against imposition of penalti.es for each day of noncompliance.
In retrospect, CPC's dissatisfaction with the Staff's answer to Inter-rogatory 4 may stem in part from CPC's misunderstanding of the nature of a I
continuing violation. Whether a violation is 11continu"ing 11 or not depends on the occurrence of events and actions that would show that noncompliance with a requirement occurred and such noncompliance continued over a given period of time.
The violation is no less 11continuing 11 because no civil penalties are imposed for the violation at all or for each day of violation.
Once the violation and its continuing nature have been established in fact, a second lJ Id.
question must be answered: whether penalties should be imposed for each day of violation as is authorized under section 234 of the Atomic Energy Act.
It is the answer to this second question which requires a reasonable exer-cise of discretion. Thus, the Staff's answer to Interrogatory 4 attempted to answer both questions inherent in the application of the concept of "continuing violations" in this case:
(1) whether there are facts known to the Staff which would indicate that noncompliance did not occur, and (2) whether there are facts (or "factors") which would support not imposing civil penalties for each day of noncompliance.
In sum, then, the Staff has identified all relevant "factors 11 and "criteria", applied the "factors" and "criteria", and stated the matters on which the Staff will rely in this case.
The Staff's answers to CPC's inter-rogatories are therefore complete, explicit, and responsive.
The Staff asks, therefore, the Administrative Law Judge to deny CPC's motion to compel more specific responses.
Enclosure:
As stated Dated at Bethesda, Maryland this 27th day of October, 1980.
Respectfully submitted,
~G-.~
Stephen G. Burns Counsel for NRC Staff
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- '~i i. 3i' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of:
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ENCLOSURE
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CONSUMERS POWER COMPA..~Y
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(Palisades Nuclear Power Facility) }
DOCKET NO. 50-255 License No. DPR-20 CONSUMERS POWER COMPANY'S SECOND ROUND OF INTERROGATORIES TO BE ANSWERED BY THE NUCLEAR REGULATORY COMMISSION Consumers Power Company ("CPCo") hereby requests the Nuclear Regulatory Commission ("NRC" or "Commission"),
or the appropriate NRC personnel, to answer separately and fully in writing, under oath or affirmation, each of the following Interrogatories within 30 days of service.
INSTRUCTIONS AND DEFINITIONS Unless otherwise indicated, the instructions and definitions applicable for these interrogatories incorporate by reference the instructions and definitions contained in Consumers Power Company's First Round of Interrogatories and Request for the Production of Documents by the Nuclear Reg-ulatory Commission, dated February 21, 1980.
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INTERROGATORIES
- Interrogatories 1 through 6 refer to the catego-rization of Item 1 of the Notice of Violation, which is the subject matter of this proceeding, as a continuing violation.
- 1.
List each factor and/or criterion which the Off ice of Inspection and Enf~rcement utilizes in evaluating whether,to treat a condition caused by a single act or series of acts but which persists thereafter as a continuing violation under Section 234 of the Atomic Energy Act.
- 2.
With respect to each factor or criterion listed in response to Interrogatory 1 above, state the manner in which the factor or criterion is relevant to the question of whether Item 1 is a continuing violation.
This statement should include an explanation of whether the existence of the factor or criterion in question militates in favor of a determination that the noncompliance is continuing or noncontinuing,: and an explanation of whether the particular factor or criterion is of major, minor or average significance.
- 3.
Identify each factor or criterion which the NRC will rely upon in support of its position that the Ad-ministrative Law Judge categorize Item 1 of noncompliance as a continuing item of noncompliance.
- 4.
Identify each factor or criterion known to the NRC which supports Consumers' position that the Administrative Law Judge categorize Item l as a noncontinuing violation.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of
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CONSUMERS POWER COMPANY
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(Palisades Nuclear Power Facility).*
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Docket No. 50-255 (Civil Penalty)
NRC STAFF'S ANSWERS TO CONSUMERS POWER COMPANY'S SECOND ROUND OF INTERROGATORIES, DATED AUGUST 20 1980 The NRC Staff hereby submits its answers to Consumers Power Company's second round of interrogatories, dated August 20, 1980.
The Staff's answers follow the restatement of each interrogatory.
Interrogatory 1:
List each factor and/or criterion which the Office of Inspection and Enforcement utilizes in evaluating whether to treat a condition caused by a single act or series of acts but which persists thereafter as a continuing violation under Section 234 of the Atomic Energy Act.
Answer to Interrogat?rY 1:
General guidance is provided in the Statement of Consideration accom-panying issuance of 10 CFR 2.205, 36 Fed. Reg. 16894 (1971):
Furthennore, section 234 of the Act provides that if any violation is a continuing one, each day of violation shall constitute a separate violation for the purpose of computing the applicable civil penalty.
In a case where, despite the exercise of reasonable diligence, a licensee was not aware of the violation until brought to its attention by the Commission, the computation of the period of violation would nonnally begin at that time or after the time allowed the licensee for corrective action.
On the other hand, if the evidence showed that a licensee had knowingly permitted violations to continue, the computation of the period of violation might begin at the time the licensee permitted the violations to continue.
Given this general guidance, the Director of the Office of Inspection and Enforcement has broad discretion to determine whether to assess penalties for each day of a continuing item of noncompliance.
Interrogatory 2:
With respect to each factor or criterion listed in response to Interroga-tory I above, state the manner in which the factor or criterion is relevant to the question of whether Item I is a continuing violation. This statement should include an explanation of whether the existence of the factor or criterion in question militates in favor of a determination that the noncom-pliance is continuing or noncontinuing, and an explanation of whether the particular factor or criterion is of major, minor or average significance.
Answer to Interrogatory 2:
Neither of the Statement of Consideration's examples of application of civil penalties to a continuing item of noncompliance fit exactly the cir-cumstances surrounding the breach of contairvnent integrity at the Palisades facility.
The NRC Staff does not contend that Consumers Power Company knowingly permitted operation of the facility while the valves were locked open.
The incident at Palisades does not, however, constitute a case in which "a licensee was not aware of the violation" such that "the computation of the period of the violation would normally begin at that time [the viola-tion was discovered] or after the time allowed the licensee for corrective action." The violation in this case is far from "normal".
The Director underscored this point in his letter to Consumers Power Company which trans-mitted the Order Imposing Civil Monetary Penalties:
"Contrary to your view we nevertheless continue to believe as stated in my letter of November 9, that 'prolonged violation of contairunent integrity is a matter of very serious safety significance'. This basic fact underlies our view that this case is not properly considered 'normal' and that, in this particular situation, computation of the period of violation is entirely consistent with the *** Statement of Consideration
[on 10 CFR 2.205] **** " Letter at 2 (Dec. 20, 1979).
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"" ! The seriousness of the breach of contairvnent integrity at Palisades is highlighted by the following matters:
(1) Containment integrity plays a significant role in assuring adequate protection of public health and safety from the operation of power reactors; (2) The prolonged breach of containment integrity added to the risk to the public each day it existed during the 17 month period; and (3) The consequences resulting from a loss-of-coolant accident (LOCA) that might occur while the valves were in the locked open position are potentially severe.
Given the seriousness of the 17 month breach of contairvnent integrity at Palisades, the incident was far from nonnal or routine.
Civil penalties are, therefore, appropriately assessed for each day of noncompliance.
Interrogatory 3:
Identify each factor or criterion which the NRC will reply upon in support of its position that the Administrative Law Judge categorize Item 1 of noncompliance as a continuing item of noncompliance.
Answer to Interrogatory 3:
The NRC Staff will rely on the following "factors" in support of its position that the Administrative Law Judge impose penalties for each day the
.noncompliances in Item 1 existed:
(1) The Commission has broad discretion in detennining the circum-stances in which it is appropriate to use the Commission's avail-able enforcement sanctions; and (2) Civil penalties for each day of noncompliance are appropriate in this case because of the seriousness of noncompliance with the
- l. I requirement to maintain containment integrity.
The seriousness of the incident is indicated by:
(a) Containment integrity is important in assuring adequate protection of public health and safety from the operation of power reactors; (b)
The prolonged breach of containment integrity added to the risk to the public each day it existed during the 17-month period; and (c) The consequences resulting from a loss-of-coolant accident (LOCA) that might occur while the valves were in a locked open position are potentially severe.
Interrogatory 4:
Identify each factor or criterion known to the NRC which supports Consumers' position that the Administrative Law Judge categorize Item 1 as a noncontinuing violation.
Answer to Interrogatory 4:
There are no facts of which the Staff is aware which would indicate that Item 1 was not a continuing violation.
Interrogatory 5:
Identify each witness, and describe the subject matter of his or her testimony, which the NRC will present with respect to the issue of whether Item 1 of noncompliance constitutes a continuing item of noncompliance.
Answer to Interrogatory 5:
Victor Stello, Jr., the Director of the Office of Inspection and Enforce-ment, will testify concerning the significance of the noncompliances charged in Item 1 of the violation and, thus, the appropriateness of imposing civil penalties for each day of noncompliance.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of CONSUMERS POWER COMPANY (Palisades Nuclear Power Facility)
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Docket No. 50-255
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(Civil Penalty)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S ANSWER TO CONSUMERS POWER COMPANY'S MOTION TO COMPEL MORE SPECIFIC ANSWERS TO CONSUMERS' SECOND ROUND OF INTERROGA-TORIES in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 27th day of October, 1980.
Hon. Ivan W. Smith
- Administrative Law Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cormnission Washington, D.C. 20555 Michael I. Miller, Esq.
Alan Biewawski, Esq.
Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 Paul Murphy, Esq.
Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 '
Judd Bacon, Esq.
212 W. Michigan Avenue Jackson, Michigan 49201 Docketing & Service Section
- Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Panel
- U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen G. Burns Counsel for NRC Staff