ML20036B052
| ML20036B052 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/11/1993 |
| From: | Wiggins J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I) |
| To: | Broughton T GENERAL PUBLIC UTILITIES CORP. |
| References | |
| NUDOCS 9305180109 | |
| Download: ML20036B052 (6) | |
See also: IR 05000289/1992020
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Docket No. 50-289
Mr. T. Gary Broughton
Vice President and Director, TMI-1
GPU Nuclear Corporation
Three Mile Island Nuclear Station
P. O. Box 480
Middletown, Pennsylvania 17057-0191
Dear Mr. Broughton:
SUBJECT: NRC INSPECTION REPORT NO. 50-289/92-20
We have reviewed your letter of January 29,1993, which disagrees with the Notice of
Violation (NOV) issued with NRC Inspection Report No. 50-289/92-20 on the subject of a
missed core flood tank surveillance test. The staff maintains that the overdue surveillance
constitutes a condition prohibited by the Three Mile Island, Unit 1 (TMI-1) Technical
Specifications (TS) as discussed in the subject inspection report; therefore, the original
citation remains valid and should not be withdrawTi.
Much of your response duplicated information that you provided during the inspection. We
considered this information in our original determination and acknowledged it in summary
form in the inspection report. You correctly point out that Standard Technical Specification
(STS) SR 3.0.3, published in NUREG-1430, allows a delay period of up to 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to
perform a missed surveillance before a Limiting Condition of Operation is considered not
met. This provision was also offered on a voluntary basis in Generic Letter 87-09 to all
licensees, including those with custom TS. However, GPU Nuclear did not elect to
incorporate the provision into the TMI-l TS; therefore, GPU Nuclear cannot take advantage
of the delay period in STS SR 3.0.3. If GPU Nuclear had incorporated the provision into the
TMI-1 TS, there would not have been a violation of the TS and a Licensee Event Report
would not have been required pursuant to 10 CFR 50.73(a)(2)(i)(B). The Enclosure to this
letter discusses the staff's published position regarding missed surveillances in more detail.
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9305180109 930511
ADOCK 05000289
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Mr. T. Gary Broughton
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We regret the need to use enforcement action to resolve the matter. As stated in the
inspection report, use of enforcement discretion was not possible in this case because GPU
Nuclear did not acknowledge the violation.
Sincerely,
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Cridnal S;gned Dy
James T. Wiggins, Acting Director
Division of Reactor Projects
Enclosure: Staff Review
cc w/ encl:
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R. E. Rogan, TMI Licensing Director
M. J. Ross, Operations and Maintenance Director, TMI-1
J. Fornicola, Licensing and Regulatory Affairs Director
TMI-l Licensing Department
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E. L. Blake, Jr., Esquire
TMI-Alert (TMIA)
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K. Abraham, PAO
Public Document Room (PDR)
local Public Document Room (LPDR)
Nuclear Safety Information Center (NSIC)
NRC Resident Inspector
Commonwealth of Pennsylvania
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DRS/EB SALP Coordinator
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R. Blough, DRP
J. Joyner, DRSS
J. Rogge, DRP
N. Dudley, SRI, Seabrook
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ENCLOSURE
STAFF REVIEW -
The NRC staff has provided guidance in a number of documents on its interpretation of what
constitutes operations or conditions " prohibited" by the plant's Technical Specifications (TS).
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The staff issued Generic letter 87-09 on May 4,1987, to specifically address revisions to
TSs that would avoid undesirable plant shutdowns in the event of missed surveillances.
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Specifically, the generic letter allows licensees to request a provision in their TS to provide
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for up to 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to permit completion of a missed surveillance when the allowable outage
time (AOT) in the TS is less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. However, Generic letter 87-09 states "the staff
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wishes to make it clear ... that the failure to perform a surveillance within the allowable
sun eillance interval ... constitutes a reportable event under 10 CFR 50.73(a)(2)(i)(3) because
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it is a condition prohibited by the plant's TS."
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The staff issued Generic Letter 91-18 on November 7,1991, to provide guidance regarding
operability determinations to NRC inspectors and licensees. Generic Ietter 91-18 has
similar language as above but uses the words "specified time interval" instead of " allowable
surveillance interval" to include an AOT in the time interval allowed before a missed
surveillance becomes reportable. Specifically, the Generic letter states:
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"The Allowed Outage Time (AOT) in the action requirements specifies a time
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interval that permits corrective action to be taken to satisfy the LCO. If
such a time interval is specified in the action requirements or if the licensee
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has adopted, by license amendment, the 24-hour provision of amended Surveillance
Requirement 4.0.3 as discussed in Generic Letter 87-09, the completion of a missed
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surveillance within these time intervals meets the requirements."
It is, therefore, the staff's interpretation that, if a licensee fails to perform the surveillance
within the AOT (as specifically stated in the TS) or the 24-hour grace period, the event is
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reportable under 10 CFR 50.73. The staff disagrees with the statement in GPU Nuclear's
response that the above words are " ambiguous."
The staff has provided guidance in NUREG-1022, " Event Reporting Systems 10 CFR 50.72
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and 50.73," in September 1983 (and in supplements issued in February 1984 and
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September 1985) regarding "TS prohibited operations." The staff issued NUREG-1022,
Revision 1 for public comment in September 1991, and met with representatives of the
nuclear industry (NUMARC, BWROG, and several utilities) on May 7,1992, to discuss
comments on the proposed revision. The minutes of that meeting, dated June 3,1992,
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indicate agreement among the participants that a missed surveillance is reportable under 10
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CFR 50.73 as a TS prohibited condition or operation if the surveillance is not completed
within the specified interval plus the 25% allowance plus the AOT (LCO action time).
Specifically, this guidance document states:
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- If the surveillance interval plus the allowable time extensions for conducting a
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surveillance are exceeded, the event is reportable even though the surveillance
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is subsequently satisfactorily performed "
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The staff plans to finalize NUREG-1022, Revision 1 in the near future and has held a public
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workshop on May 6,1993. The meeting was announced in the Federal Register on
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April 8,1993. It has been the staff's intent to provide guidance to its inspectors, as well as
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to licensees, where guidance is warranted to provide consistency in application of the rules.
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Finalization of NUREG-1022, Revision I should represent an improvement in this effort.
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GPU Nuclear is encouraged to participate, either directly or through NUMARC.
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The staff's affirmation of this violation involved those personnel from the NRC
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Headquarters organization responsible for 10 CFR 50.73 and for providing guidance thereto.
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The GPU Nuclear response stated that staff guidance cannot be used in an enforcement
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context to add a new requirement out of an unchanged regulation. The staff disagrees that
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the subject Notice of Violation was such a case. The implication is that all regulations should
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be so complete and self-contained as to not require interpretation or guidance. The staff
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considers that this would make the regulations overly complex and burdensome and that the
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current system of pmviding uniform interpretations of the regulations, as needed, is required
as a practical matter.
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GPU Nuclear Corporation
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Post Office Box 480
Route 441 South
Middletown, Pennsylvania 17057 0191
717 944 7621
TELEX 84-2386
Writer's Direct Dial Number.
(717) 948-8005
January 29, 1993
C311-93-2011
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U. S. Nuclear Regulatory Commission
Attn: Document Control Desk
Washington, DC 20555
Dear Sir:
Subject:
Three Mile Island Nuclear Station, Unit 1 (TMI-1)
Operating License No. DPR-50,
Docket No. 50-289
" Reply to a Notice of Violation" - Inspection Report 92-20
In accordance with 10 CFR 2.201, this letter transmits the GPU Nuclear
response to the Notice of Violation identified in Enclosure 1 to Inspection
Report 92-20. After a review of the matter, GPU Nuclear disagrees with the
statement that sets forth the basis for the Notice and denies that a violation
occurred. Attachment I provides a detailed response to the Notice of
Violation including the basis for disputing the violation.
Based on NRC Staff discussion in Inspection Report 92-20 (Section 5.3), GPU
Nuclear understands that the Staff intended for " missed surveillance"
information to be data to be gathered using the LER rule (10 CFR 50.73).
Therefore, for purposes of accuracy of the record pending resolution of the
issue of reportability under the current THI-1 Technical Specifications, GPUN
Nuclear is filing a " voluntary LER" addressing the subject missed
surveillance.
Sincerely,
W
T. G. Brougttton
Vice President and Director, TMI-I
AWM/ emf
Attachment
cc: TMI-I Senior Project Manager
Region I Administrator
TMI Senior Resid nt Ins ector
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METROPOLITAN EDISON COMPANY
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JERSEY CENTRAL POWER AND LIGHT COMPANY-
PENNSYLVANIA ELECTRICAL COMPANY
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GPU NUCLEAR CORPORATION
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Three Mile Island Nuclear Station, Unit 1 (TMI-1)
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Operating License No. DPR-50
Docket No. 50-289
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Reply to Notice of Violation in Inspection Report 92-20
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This letter is submitted in reply to the Notice of Viclation in Inspection
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Report 92-20, Routine Monthly Inspection of THI-1 covering the period October
27, through December 7, 1992, dated January 6, 1993. All statements contained
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in this reply have been reviewed, and all such statements made and matters set
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forth therein are true and correct to the best of my knowledge.
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T.G.Broughtgn
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Vice President and Director, THI-1
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Signed and sworn before me this
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ATTACHMENT 1
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10 CFR 50.73(a)(2)(i)(B) states that the licensee shall submit a Licensee Event
Report (LER) within 30 days after the discovery of an operation or condition
prohibited by Technical Specifications. Technical Specification 4.1.2 states that
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equipment sampling and testing shall be performed as detailed in Tables 4.1-2 and
4.1-3.
Table 4.1-3, item 3, requires a monthly determination of boron
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concentration on the core flood tanks.
Contrary to the above, on January 23, 1992, the Licensee did not submit an LER
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within 30 days after the discovery of an operation or condition prohibited by
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Technical Specifications. On December 23, 1991, the licensee discovered that the
core flood tanks had not been sampled by December 21, 1991, to determine boron
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concentration.
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This is a Severity Level V violation (Supplement I).
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GPU NUCLEAR RESPONSE TO THE NOTICE OF VIOLATION
GPUN denies that the violation occurred. While the facts are not in dispute, GPUN
does not agree with the Staff conclusion that 10 CFR 50.73 (a)(2)(1)(B) required
the submission of an LER in this situation.
It is agreed that the cited violation
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is of minor safety significance, and GPUN is open to the prospect of amending the
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TMI-l Technical Specifications (T.S.) to clarify the reporting requirements, if
that is necessary and appropriate. There is no interest in withholding
information from the Staff. As explained below, however, GPUN made a good faith
and reasonable interpretation of the requirements at the time. Where the
inspector subsequently disagrees with the GPUN reportability evaluation and bases
that disagreement upon Staff guidance which has been, we submit, ambiguous if not
inconsistent, GPUN respectfully disagrees that use of HRC Enforcement Policy is
now appropriate as a means to clarify the requirement.
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The facts surrounding the missed core flood tank sampling surveillance are
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accurately described in section 5.3 of NRC Inspection Report 92-20. On
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December 23,'1991, GPUN identified that the monthly sample -- which under the T.S.
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was to have been taken no later than December 22, 1991 at 4:40 a.m. -- had been
missed. The tanks were sampled December 23, 1991, and the boron concentrations
met T.S. limits. The THI-I Plant Review Group (PRG) minutes for Meeting No. 92-
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002 show that the missed surveillance was evaluated as a potentially reportable
event. The PRG minutes conclude that:
Since the sample results determined the boron concentration to be within
the limits of the LCO, no operation or condition prohibited by Technical
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Specifications occurred and this event is not reportable under 10 CFR 50.72 or 50.73.
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C311-93-2011
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During an inspection approximately eleven months later, the inspector reviewed
these PRG minutes and, according to the inspection report:
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On December 1,1992, the inspector with the aid of the NRR Project Manager
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referred this specific situation to the NRC Technical Staff for their
understanding of the intent of the data that is collected by the LER rule.
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The NRC Technical Staff considered missing a surveillance interval
information that the NRC Staff desired to gather using the LER rule
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(See NRC Inspection Report 92-20, at pp. 5-6.)
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The report then proceeds to discuss Generic Letter (GL) 87-09 and the THI-l T.S.,
and states:
" Based on this information, the inspector disagreed with the PRG's
reportability evaluation."
It is informative to know that some Staff may now " desire" to gather this
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information under the LER rule. However, that interest cannot now constitute a
basis for enforcement action where the asserted " requirement" is so ambiguous and
subject to interpretation. GPUN believes that the PRG assessment was at the very
least based upon a rational and reasonable interpretation of the NRC regulation
and THI-l T.S.
The regulation in question, 10 CFR 50.73(a)(2)(i)(B), requires a licensee to
report "[a]ny operation or condition prohibited by the plant's Technical
Specifications." Neither this nor any other part of the LER rule (50.73) requires
the reporting of an event simply because a T.S. has been violated.
Rather, the
LER rule specifies the criteria for the types of events and conditions which are
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to be reported to the NRC. The words " operation or condition prohibited by the
plant's Technical Specifications," have always defined a smaller, more specific
class of circumstances than any violation of a plant T.S.
In this case, the fact
that the surveillance frequency T.S. nad been violated did not automatically mean
that an operation or condition prohibited by the T.S. haJ occurred.
As reflected in the PRG minutes, GPUN looked at whether a Limiting Condition for
Operation had been violated ~, and concluded that the Core Flood Tanks had not been
inoperable, and that the event was not reportable because no operation or
condition prohibited by the T.S. had accurred. The conclusion that the TMI-l T.S.
do not require a system / component to be considered INOPERABLE immediately upon
discovery of a failure to perform a surveillance requirement within the specified
time interval is based upon TMI-1 Specification 4 (Surveillance Standards), the
introductory paragraph to which states:
During Reactor Operational Conditions for which a Limiting Condition for
Operation does not require a system / component to be operable, the
associated surveillance requirements do not have to be performed.
Prior
to declaring a system / component operable, the associated surveillance
requirement must be current. The above applicability requirements assure
the operability of systems / components for all Reactor Operating Conditions
when required by the Limiting Conditions for Operation.
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Since the immediate performance of the required surveillance demonstrated the
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continued operability of the equipment and there was no technical reason to
speculate that the equipment was not operable prior to the performance of the
surveillance, the equipment is considered to have been OPERABLE during the period
for which the surveillance was late.' The THI-1 PRG concluded that the equipment
was OPERABLE and there had been no " operation or condition prohibited by the
plant's Technical Specifications" reportable under 10 CFR 50.73(a)(2)(1)(B).
This constitutes the basis for the PRG reportability evaluation which, in the view
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of GPUN, was correct and, at a minimum, is reasonable on its face and undeserving
of enforcement action. Subsequent research into the LER rule and Staff statements
on it confirms that conclusion.
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The history of the LER rule supports the PRG evaluation. As proposed, the parent
of the regulation at issue was labeled section 50.73(a)(4), and as noted at 47
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Federal Register 19543, 19546 (1982) required reporting of-
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Any event for which plant Technical Specifications require shutdown of the
nuclear power plant or for which a plant Technical Specification Action
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Statement is not met.
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The referenced FR Notice explained that:
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... this paragraph includes events where the licensee should have shut
down the reactor because of a condition that violated the Technical
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Specifications, and either -
(a) did not recognize until later review that the situation violated
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Technical Specifications and, therefore, did not shut down; or
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(b) did not recognize until later review that the condition existed and,
therefore, did not shut down.
Thus, operation of the plant with a condition that is prohibited by the
Technical Specifications should be reported (emphasis added).
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addition, if a condition that would have required a plant shutdown exists
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for a period of time longer than that permitted by the Technical
Specifications, it should be reported even if the condition was not
discovered until after the allowable time had elapsed and the condition
was rectified immediately after discovery.
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Here, the NRC established that operation with a condition prohibited by plant T.S.
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meant events which should have resulted in plant shut down because of a T.S.
violation, but did not result in shut down.
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The second sentence of the Specification applies prior to placing a
system / component into service initially or following removal from
service.
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The NRC also explained in the referenced FR Notice that " failure to
comply with a Surveillance Requirement need not be reported as an
LER."
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When promulgated in 1983 at 48 Federal Register 33850, 33855 (1983), proposed
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section 50.73(a)(4) became section 50.73(a)(2)(i), and was given its present-
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wording, which requires reporting of:
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(A) The completion of any nuclear plant shutdown required by the plant's
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Technical Specifications; or
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(B) Any operation or condition prohibited by the plant's Technical
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Specifications ...
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The accompanying Statement of Considerations for the referenced FR Notice
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explained that:
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This paragraph has been reworded to more clearly define the events
that must be reported.
In addition, the scope has been changed to
require the reporting of events or conditions " prohibited by the
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plant's technical specifications" rather than events where "a plant
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Technical Specification Action Statement is not met."
This change
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accommodates plants that do not have requirements that are
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specifically defined as Action Statements.
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This paragraph now requires events to be reported where the licensee
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is required to shut down the plant because the requirements of the
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Technical Specifications were not met.
In addition, if a condition that was prohibited by the T.S. existed (i.e., the
plant ras in a degraded mode allowed by the T.S.)- for a period of time longer than
that pu V tted by the T.S., it must be reported even if the condition was not
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discovereo until after the allowable time had elapsed and the condition was
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rectified immediately after discove-v. 14.; NUREG-1022 (Licensee Event Report
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System, 1983) at page 11.
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These revisions did not change the fundamental concepts of the regulation as
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originally proposed -- i.e., " operation or condition prohibited by the plant
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technical specifications" means operation when a T.S. requires plant' shutdown or a
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condition where the plant is in a degraded mode for a period of time longer than
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the T.S. permit. Since the TMI-1 T.S. did not require a plant shutdown for the
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missed surveillance and the plant was not in a degraded condition, section 50.73
did not apply here.'
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Since the inspection report cites Staff guidance -- in addition to the regulation
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and the TMI-1 license -- GPUN has examined that guidance also. Nevertheless, it
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must be noted that a " regulatory requirement," in the context of enforcement
action, "means a legally binding requirement such as a statute, regulation,
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license condition, technical specification, or order."
(10 CFR Part 2, Appendix
C,n.2.)
Staff guidance alone cannot establish a legally binding requirement.
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Plants which operate with Standard Technical Specifications have
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specifications which make compliance with
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surveillance intervals necessary to meet OPERABILITY requirements for
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a system / component. . In their case, section 50.73(a)(2)(i)(B) would-
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reeuire that an LER be submitted for a late surveillance.
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C311-93-2011
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In the Inspection Report, at page 6, the Staff relies upon GL 87-09, which is
entitled, " Sections 3.0 and 4.0 of the Standard Technical Specifications (STS) on
the Applicability of Limiting Conditions for Operation and Surveillance
Requirements." This guidance addressed a few problems encountered with the STS.
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While it was sent to all licensees and applicants, the T.S. changes proposed and
encouraged were described as " voluntary for all licensees and current OL
applicants." TMI-I does not have STS and did not adopt the changes described in
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One of the problems addressed in GL 87-09 was " Unnecessary Shutdowns Caused by
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Inadvertent Surpassing of Surveillance Intervals (Specification 4.0.3)."
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4.0.3 stated that the failure to perform a surveillance within the specified time
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interval shall constitute a failure to meet the LC0's Operability Requirements,
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The Staff observed in GL 87-09 (p. 4) that it was " overly conservative to assume
that systems or components are inoperable when a surveillance requirement has not
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been performed." Therefore, a 24-hour period was proposed to perform a missed
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surveillance before shutdown requirements apply. Having rectified the OPERABILITY
harshness of the STS, the Staff proceeded nevertheless (GL 87-09, p. 5) to attempt
to retain the LER requirement without amending the rule:
"the failure to perform
a surveillance within the allowable surveillance interval defined by specification
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4.0.2 constitutes a reportable event under 10 CFR 50.73(a)(2)(i)(B) because it is
a condition prohibited by the plants' TS."
No effort was made to explain or
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support this deviation from the fundamental concepts upon which section
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50.73(a)(2)(i)(B) was adopted.
A second generic letter , GL 91-18, addresses operability and includes a section
6.6, " Missed Technical Specification Surveillance." That section quotes STS
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4.0.3, and advises that "[p]lant-specific Technical Specification (TS) variations
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of this statement may exist, in which case the plant-specific TS govern."
(GL
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91-18, p. 12.) This confirms that the TMI-1 license must be applied as it is
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written. Nevertheless, it is noteworthy that GL 91-18 appears to change the Staff
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view expressed in GL 87-09. While the letter states that "[f]ailure to perform a
TS requirement within the soecified time interval is considered a condition
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prohibited by the TS and is reportable at least under 10 CFR Part 50.73," it also
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appears to interpret the time intervals meeting the requirements to include the
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24-hour delay period which starts with discovery of a missed surveillance. While
ambiguous, GL 91-18 could be read to require an LER, for those with amended STS,
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only where the 24-hour period is exceeded.
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In September 1992, the NRC published Standard Technical Specifications for
Babcock & Wilcox plants as NUREG-1430. Surveillance Requirement SR 3.0.1 states
in part that "[f]ailure to perform a Surveillance within the specified Frequency
shall be failure to meet the LC0 except as provided in SR 3.0.3"
SR 3.0.3, in
turn, states:
j
If it is discovered that a Surveillance was not performed within its
,
specified Frequency, then compliance with the requirement to declare the
LCO not met may be delayed, from the time of discovery, up to 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> or
up to the limit of the specified Frequency, whichever is less.
The Bases for SR 3.0.3 states that "[c]ompletion of the Surveillance within the
i
delay period allowed by the Specification, or within the Completion Time of the
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ACTIONS, restores compliance with SR 3.0.1."
(NUREG-1430 (Rev. O, September 28,
1992), at 3.0-3, 4; B 3.0-12.)
Consequently, it would appear that under the most
recent Staff-approved T.S., a missed surveillance performed during the delay
,
period is not reportable.
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C311-93-2011
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Page 6
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In conclusion, since GPUN complied with section 50.73, as it reasonably should be
interpreted to apply specifically to the TMI-I T.S., no LER was required and a
violation did not occur.
Staff guidance cannot be used in an enforcement context
to add a new requirement out of an unchanged regulation.
Further, Staff guidance
has been ambiguous and now would appear not to require an LER for a missed
surveillance successfully completed during the delay period.
i
Corrective Actions Taken and Results Achieved
As stated at the outset, GPUN does not wish to withhold from the Staff information
t
which the NRC desires to fulfill its regulatory functions. Consequently, GPUN is
filing a voluntary LER on this event.
In addition, an Interim THI-I Policy was
issued on January 14, 1993 which instructs THI-I staff to submit a voluntary LER
.
!
on each missed Technical Specification Surveillance until further notice.
In the longer term, GPUN seeks to achieve a common understanding of and clarity in
the reporting requirements under section 50.73(a)(2)(1)(B). While the inspection
j
report states the desire of some to receive information on missed surveillances
,
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under the LER rule, the recently issued B&W Standard Technical Specifications, if
adopted by THI-1, would appear not to have required an LER in this case.
Therefore, prior to proposing any changes to the THI-l Technical Specifications
(e.g., to specify the OPERABILITY consequences of a late surveillance and to
!
provide a delay period), GPUN will undertake a dialogue with the Staff to obtain
clarification on the interpretation of various technical specification provisions
which might be pursued.
Corrective Actions to Avoid Further Violations
Although GPUN denies that a violation occurred, an Interim Policy was published on
Janua ry 14, 1993, which should avoid further violations concerning reportability
for missed surveillances under the provisions of 10 CFR 50.73 pending
clarification of the relevant reportability requirements and communication of the
same to the licensee.
Date of Full Compliance
GPUN has been and remains in full compliance.
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