ML20072H149
Text
-
a 9l22)36 I
mumusummma GPUN STUDY TMI-I EMERGENCY DIESEL GENERATOR PREVENTIVE MAINTENANCE AND INTERNAL INSPECTION DURING NUCLEAR PLANT OPERATION i
I gjs2ESs jg 9
'REPARED By:
4 9
444 CORRESPONDENCE PDR W. F. SCHMAUSS
F *.
l l
\\
i m
{
GPUN STUDY l
TMI-1 Emerrency Diesel Generator Preventive Maintenance and Internal Inspection During Nuclear Plant Operation l
Purpose
--=.
j The purpose of this study is the evaluation of potential impacts on plant l
l safety as a result of planned preventive maintenance and internal inspection i
of energency diesel generators (EDG) during plant operation. The study evaluates specific conditions and current practices at Three Mile Island, 'Jnit 1.
And this study takes into accoant preliminary Probabilistic Risk g Assessment (PRA) study results rela ted to these practices.
Summary, Conclusions. and Recommendations s
Summary:
l l
l The TMI-1 present practice of P.M./ Inspection of EDGs during plant operation:
1.
Has not been shown to make a significant difference in the probability of core damage.
2.
Is believed to provide a better quality, more thorough, and more l
j complete P.M./ Inspection than that which would be performed during a plant refueling / maintenance outage.
l 3.
Is consistent with approximately 50% of the nuclear utilities i
responding to a question forwarded to the EEI Nuclear Operations Committee.
t Is in accordance with TMI-1 licensing basis documents.
i 4
==
Conclusions:==
No technical or plant safety considerations were identified which would require changes in the TMI-1 practice of scheduling EDG P.M./ Inspection during plant operation.
It di recognized that EDG unavailability during plant operation is increased by this practice. However, the improvement in EDG reliability as a result of the better quality maintenance is believed to more than offset this change in unavailability.
2934K/2
l '-
m i
Recommendations:
1.
Implement the following to maximize the availability of offsite electrical power during TMI-1 EDG P.M./ Inspection:
A. Schedule THI-1 EDG maintenance to coincide with benign weather seasons. Avoid the higher probability snow / ice and thunderstorm / tornado seasons.
B. Coordinate / schedule TMI-1 EDG maintenance with Met Ed system dispatching to eqpure maximum availability of off-site power to TMI.
The dispatcher will: (1)
Assure that no alert for emergency generation is in effect or anticipated.
(2) No maintenance is in progress or scheduled that will affect reliability of any of the four sources of power to TMI.
(3) If an alert or emergency outage occurs, the dispatcher should notify the TMI-1 Operations personnel; and (4)
Requests for scheduled outage of the sources to TMI l
l vill be deferred, if practical, during the period the diesel is out of service.
I The four sources are 1091,1092, and 1051 lines and the tie to the 500 kV system including line breakers and substation buses on each end of the line.
2.
Implement GPUN Corporate Procedure, Procedure for Control of Plant Modifications and Major Maintenance Work In Critical Plant Areas Vhile the Plant Is In Operation, No.
1504-ADM-3040.01 to require specific Division Director approval for the EDG P.M./ Inspection task and performance of supplemental supervisory responsibilities during this work.
References, Considerations, and Evaluations Extensive interaction with GPUN Technical Functions Risk o
l Assessment occurred during the course of this study in the following areas:
1 Review of preliminary PRA results.
- 2. Preparation of a TMI-1 Esergency Diesel Generator Unavailability Study by Risk Assessment.
Many personal contacts were initiated:
o
- 1. Site OEM personnel
- 2. 1.icensing personnel The following documents were evaluated:
o
- 1. Technical Specifications
b l
Muuuuummuun
\\
- 3. EPRI Study of D.C. Surveillance Tests
- 4. CPUN PRA Preliminary Results
- 5. CPUN Memo Summarizing EDG Unavailabil','es
- 6. EEI Nulear Operations Committee Responses
- 7. NRC TMI-1 Status Report
- 8. GPUN Memo discussing EDG Inspection
- 9. GPUN 1986 Corporate Objectives and Goals The following identifies these items in more detail, lists pertinent excerpts, states the considerations that were examined, and states the evaluations derived by the study:
1.
Technical Specifications TMI-1 Technical Specifications
~4.6.1 c.
Each diesel generator shall be given an inspection at least annually in accordance with the manufacturer's recommendations."
B&W Standard Technical Specifications
~4.8.1.1.2 c. At least once per 18 months during shutdown, by:
~
1.
Subjecting the diesel to an inspection in accordance.
Considers: ions:
The B&W Standard Tech. Specs. are more restrictive in that they require plant shutdown while the TMI-1 Tech. Specs.
permit inspection during plant operation provided that other 1.imiting Conditions For Operation are maintained.
Evaluation:
The TMI-1 practice of performing EDG annual inspections during plant operation is in accordance with the plant's licensing basis documents.
2934K/4
l t.
4 f
Y 1
2.
USNRC NUREG/CR-4557, April 1986 A REVIEV 0F ISSUES RE1ATED TO IMPROVING NUCLEAR POWER PLANT i
DIESEL GENERATOR RELIABILITY The abstract of this report is quoted as follows:
i "The purpose of the report was to analyze the data and recommendations made by the various groups associated with nuclear power diesel generators and to summarire the major recommendations of each group.
Those groups making 1
recommendations included: cuclear utilities, industry organizations (such as INPO and ASME), DG manufacturers or vendors, foreign DG users, the Advisory Committee on Reactor Safeguards (ACRS), and some miscellaneous groups. The report presents those areas having broad documented support."
Paragraphs 2.5.7 of this report is quoted in its entirety.
3 The quotation withic paragraph 2.5.7 is paragraph 7 of Attachment To Enclosure 3 of NRC Generic Letter 84-15, July 1
2, 1986.
l
~2.5.7 Diesel Generator Inoperability Limits - Summarv of Comments "The staff has determined that the allowable out-of-service period for a diesel generator should be in ereess of the 72 hour8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> Technical Specification limit, while at the current same time placing a yearly limit upon the total cumulative time that a plant may operate with one of the diesci generators inoperable.
By placing an individual limit on merimum inoperable time for a diesel generator and a cumulative limit of inoperability of the onsite power system, 4
a framework is establisted within which flexibility is provided to allow a licensee to best optimize planned and unplanned service of diesel generators at a plant.
This would limit plant risk from station blackout at the same time allowing flexibility for any given outage.
Licensees may propose a total cumulative outage time for diesel generators in the Technical Specification along with the basis for the outage time chosen."
Most utilities agreed with lengthening allowable outage time beyond 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />.
Several stated they already have 7 day allevable outage times. Tour utilities did not agree with the proposed cumulative time limits.
Comments regarding the cumulative limits it would not allow flexibility for inspection, preventive were:
maintenance, or overhaul; it could cause deferred preventive and corrective maintenance; and if adopted it should apply only during plant operating times not cold shutdowns.
Three utilities agreed with the concept of a cumulative limit and one did not understand it."
l f-r i
Considerations:
The NRC staff acknowledges that additional time beyond the current and more restrictive 72 hour8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> Yech. Spec. limit on some operating plants should be increased.
The NRC staff further acknowledges that changes to these existing Tech.
t l
Specs. would allow nuclear plants to optimize planned and unplanned I
service of tiie EDGs.
Evaluations:
There appears to be an industry awareness (Operator, vendor, and l
Regulator) that adequate time for maintenance and inspection is conducive to improved EDG reliability.
And that such maintenance during plant operation is an acceptable risk.
3.
EPRI Report, NP-4264, September 1985 Failures Related to Surveillance Testing of Standby Equipment Volume 2 Diesel Generators A portion of the abstract of this report is as follows:
l "A study is made of failures of emergency diesel generators at nuclear power Plants.
The objective is to identify failures in which surveillance testing (in particular, fast starts, fast loading and the large number of starts) has been a contributing factor.
The failures are described, corrective actions identified, and information is presented on diesel vendors' recommendations for testing and maintenance.
An example *of a successful effort to improve diesel i
generator reliability is detailed.'
Paragraph 5,1.3, Allowable Down Time, describes concerns expressed by EDG vendors.
The 72 hour8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> time limit for repairs and inspection during plant operation does not allow adequate time for root cause determination and thorough internal inspection.
Considerations:
A primary thrust of this report identifies harsh aspects of periodic I
surveillance testing as the cause of 12% of EDG failures.
Additionally, the report makes maintenance recommendations and states EDG vendor concerns for limited allowable down time during plant operation.
I All of this was stated in the contert of improved EDG reliability.
l Evaluation:
The EDG vendor concerns for adequate time for internal inspection may add credence to increasing allowable out of service time during plant e no ra r t nn.
l '-
l f
M l
4.
Preliminary results of the GPUN. Probabilistic Risk Assessment Study for i
wI-1 In response to a request from the Corporate Nuclear Safety Review Group, the Risk Analysis section of GPUN 7ech Functions provided the following "best-estimate" of preliminary PRA data:
l Probability of core damage / year l
EDG P.M/ Inspection-plant in~ operation 8 x 10-6 EDG P.M/ Inspection-plant shutdown 5.7 x 10-6
(
Considerations:
I The probabilities of core damage at TMI-1 are relatively small nu=bers for these two cases of EDG unavailability.
The apparent reason for such low probabilities is the extent of the scenario required to reach core damage following an event. A sequence might be as follows:
1.
Event 2.
Loss of all offsite power l
3.
Failure of the steam driven emergency feedwater pump 4.
Failure of one EDG to start and/or carry load SA. Unavailability of second EDG due to P.M./ Inspection SB. Failure of second EDG to start and/or carry load l
Evaluation:
.h Based on the relatively small overal1[ probability of core damage due to loss of EDG capability, the nominal,20% change in probability for the two cases of P.M./ Inspection during ' operation vs. shutdown does not significantly change the risk of core damage.
Additionally, the Considerations and Evaluation of impacts on EDG unavailabilities stated for Reference 5 apply here.
It is possible that a potentially better P.M./ inspection during plant operations could more than outweigh the identified risk of scheduled unavailability during the P.M./ Inspection.
2934K/7
1 j
t '.
m 5.
CPUN Memorandum, pRA 013 Rev.1 February 20, 1986 TMI-1 Emergency Diesels Scheduled Maintenance During Plant Operation The concluding paragraph of this memorandum is quoted as follows:
1 "In conclusion, scheduled saintenance during plant operation at IMI-1 contributes about,30% to onsite power system unavailabilities.
Scheduling DG maintenance for times when the reactor is shutdown reduces the total unavailability of one Diesel (Table 1) by 30% from 5.99x10-2 to 4.13x10-2 which is below the average for industry diesels (4.93x10-2).
The total unavailability (Table 2) for one-out-of-two diesel configuration is also reduced by 28% (Items 3 and
~
- 5) from 3.26x10-3 per demand to 2.35x10-3 which is comparalle to l
the industry average unavailability (2.4x10-3) for the same configuration."
Considerations:
The nunerical impact on EDG unavailabilities resulting from performance of scheduled annual inspections during plant operation is significant.
I The possible impact on these calculated unava11 abilities is not readily quantifiable for the reversed situation where the inspections would be performed with the plant shutdown and subjected to the pressures and priorities of many other plant outage tasks.
Evaluation:
The lack of quantifiable EDC unavailabilities for inspections perferned when shutdown raises some doubt regarding the potential total impact I
resulting from the plant operating vs. shutdown status during the inspections.
6.
EEI Nuclear Operations Committee responses to the following CPUN questien:
"What is your corporate or plant policy regarding taking safety equipment out of service during plant operation? Specifically, are diesel generators taken out of service for annual overhauls during plant operation?"
A tabulation of responses from 11 cuclest utilities to this question are listed below:
2934K/8
j h
i l
l f
i l
l TABUIATION OF RESPONSES Deliberately remove from service i So. Cal. l1.
Visc. Elect. Pwr.
for P.M./ Inspection during l
Point Beach 1&2 operation (within Tech. Spec.
I Phila. Elect.
allowable time) l Peach Bottom Duke Power l
l l North. State Pwr.
Penna. Pur. & Light l
Susquehanna 1&2 l Union Elect.
I Callaway l
Florida Power Corp.
(Unscheduled) l l
i Carol. Pyr. & Light I
Remove from service for P.M./
l Duquesne Light Co.
Phila. Electric j
Inspection only when shutdown l
Lime rick l So. Cal. Ed.
I (EDGs 72 hr.
l Fla. Power Corp.
l T.S. Limit)
(Scheduled) l l Carol. Pwr. & Light Wisc. Pub. Serv.
1 I
Perform corrective maintenance l Duquesne 1.ight Co.
during operation only upon being l
Carol. Pwr. & Light detected as inoperable l
l Considerations:
It appears that the various utilities schedule and conduct P.M./ Inspection activities as permitted by their Technical l
Specifications.
The responses to the question veri not uniformly l
consistent and some interpretation was required to fit thea into this tabulation.
CPUN did not respond to this question.
It should be noted that TMI-1 doce schedule EDG P.M./ Inspection during plant cperation and Oyster
{
Creek schedules only when shutdown.
Evaluation:
There was no apparent indication that the responding utilities were prejudiced by considerations beyond their Technical Specifications in the scheduling of these activities.
l'.
n f
4 It can be interpreted from these responses that approximately half of the responding utilities deliberately schedule EDG P.M./ Inspections during plant operation.
Some of these utilities schedule P.M. during operations but have a 72 hour8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> Tech. Spec. time limit which requires their EDG internal inspections to be scheduled during plant outages.
7.
NRC Memorandum dated November 18, 1985
Subject:
TMI-1 Status Report For The Period November 8 - 15, 1985.
Ites 4 of the enclosure to this memorandus is quoted as follows:
t "4
Itees of Special Interest NRC Notifications As has been the cose in prior periods, there were no events that i
required notification of NRC by the licensee. There are however, j
several items of interest and they are discussed below.
Emertenev Diesel Generator Annual Preventive Maintetance t
On November 4,1985, one of the two emergency diesel generators was removed from service, es permitted by the plant's technical
}
specifications, for annual preventive maintenance and inspections.
i The diesel generator was returned to service on November 8,1985, and a 24-hour operational test with the diesel generator loaded to 3C00 kilowstts was completed satisfactorily as well as other required post-saintenance surveillance testing. After that diesel generator was officially declared operable, the other energency diesel generator was removed from service on November 11, 1985, for similar annual maintenance and testing. Work on the second diesel generator was completed and a 24-hour operational test is underway."
^
Considera tions :
The NRC was fully cognizant of THI-1 P.M. activities on the EDCs and acknowledged that these activities were as permitted by the plant Tech Specs.
Evalua tion:
The TMI-1 practice of performing EDG annual inspections during plant operation is in accordance with the plant's licensing basis documents.
2934K/10
t '.
m
~
8.
GPUN Memorandum, TMI-1 Emergency Diesel Generator Inspection 3220-85-0232, Dated Novaber 21, 1985 Portions of two paragraphs of this memorandus are quoted as follows:
"The TMI-1 Diesel Generators have high reliability factors.
This is felt to be due to the quality of the maintenance being performed rather than related to the frequency of the maintenance performed.
The reliability fqc.cors reported to the NRC in October 1984 were EG-Y1A=0.99; EG-Y1B=0.98 per letter $211-84-2242."
~
"The present manner of scheduling the inspections during plant operations using the allowable seven day time clock is the most desirable time to perform the inspections due to the ability to concentrate the efforts of a trained group of supervisors and technicians on this activity that may not be pessible during an outage."
Considerations:
The TMI-1 EDG reliability factors attest to the quality of maintenance being perf ormed.
The ability to schedule EDG P.M./ Inspection during plant operation permits the plant staff to concentrate the efforts of trained supervision and technicians on this activity.
This concentration of effort most probably would not be possible during a plant outage.
Evaluation:
It is believed that P.M./ Inspection of the EDGs during plant operation facilitiates a better quality, more thorough, and more complete job with closer supervision and utilization of l
the best qualified technicians.
As a further consideratian, the performance of plant maintenance during the plant operating cycle enhances the maintenance technicians' skills and proficiencies as compared to what might result if plant maintenance was restricted to refueling / maintenance outages. Additional benefits of maintenance manpower and work load leveling are also achieved by performance of maintenance during plant operation.
2934K/11
t.
\\
l 1
fl assummmmmma I
9.
GPU Nuclear 1986 Corporate Objectives and Goals Item 4 of the Goals is quoted as follows "4. Achieve an 80% or greater capacity factor from THI-1 for the i
operating period, less the eddy current outage."
Considerations:
The financial viability of CPUN is dependent on the safe and efficient operation and maintenance of facilities, systems and equipment.
The attainment of 80% or greater plant capacity factors requires a sinimum of unplanned plant enrages and scheduled plant outages with minimum duration.
{
Evaluation:
The present course of action taken by TMI-1 Operations and Maintenance management is consistent with this GPUN Goal.
The scheduling of EDG P.M./ Inspection during plant operations permits the concentration of management attention, and dedication of trained supervisors and technicians to perform this important work.
l 48 4 4 W 8 4
t, I
V
~
Reactor Coolant Purp Seals. Because RCP seal leakace and f ailure e
701acerrf'7 css of seal injection and seal cooling are irportant in many core damage scenarios, a better understanding of this issue is important and improvements to these important support systems should be sought.
GPUN should follow industry activities on the subject of RCP seal integrity and f actor what is 4 earned into design, maintenance, and operations, as well as into the PRA.
The intermediate closed cooling water pump discharge check valves have a history of f ailure that impacts the reliability of that syster for providing RCP seal cooling.
Improvements in design er maintenance should be investigated.
Loss of instrument air causes loss of both seal cooling and seal injection.
Improvements to air system reliability are thus valuable. The new air dryers should improve system reliability j
althouch the dryer transfer mechanism is still a vulnerability that requires prompt operator action in case of f ailure (to avert a plant trip and loss of RCP seal cooling).
Procedures and training should erphasize the importance of seal cooling, seal injection, anc the actions necessary to prevent seal damage.
e Fi re s.
The fire hazard scenarios, which were signficant contribut:rs to tne core damage f recuency in the TF11-1 PRA, should be examined mere carefully to confirm the validity of the assurptions about wrich cables and other equipment are damaged. All Appendix R r'odificati*ns that have been completed to date and recovery actions currently ir.
procedures should be included in the PRA rodel.
If they continue to be important scenarios, the values used for frecuency of occurrer:e, severity and nonsuppression f actors should be further analyzed to reduce the uncertainty associated with them.
e Onsite Electric Power. Failures in the onsite electric power system are significant contributors to core damage frecuency. Several vulnerabilities and potential irprovements have been identified.
T!11-1 diesel generators have starting f ailure rates comparable to h
the industry average, but higher than average maintenance gfc unavailabilities primarily caused by preventive raintenance.
(
Unavailability due to preventive maintenance stems from scheduling maintenance during periods of plant operation. The maintenance program and scheduling should be evaluated with t'e aim of achieving the lowest possible total unavailability for the diesel generators.
During automatic start attempts of the erergency diesel canted by an engineered safeguards actuation signal,
-- --. u er
l l '.
(
f s
THRE MILE ISIJED NUCIJAR STATICN LNIT NO.1 DFAFT MIWTES T MEETING 10. 73 AUGUST 20,1986 - DE NO. 2 ATTDOEIS:
Mer.bers :
Non-+1erbers :
I. R. Finfrock, Jr.
P. F. Ahern*
T. L. Cerber A. Bhattacharyya*
R. W. Griebe R. P. Germann*
R. W. Heward, Jr.
K. R. Goddard
- 1 H. D. Rukill E. L. Hasmond*
N. C. Fazanas R. V. Laney I
- 3. 7. Leighten K. T. O'Donnell*
W.W.Ioe W. F. Schsauss*
f rrsr>
g L. H. Roddis W. Witzig J. R. Thorpe R. N. hhitesel 1
Ccmsultant:
Secretary:
G. E. Kulynycfh B. J. Bynderian
' Denotes Part-Time LOCATICE:
W.I-2 Adrinistration Building - P.I The ameting as reconvened at 6:00 A.M. by Mr. I. R. Finfrock, Jr., GCRB Chairran.
AGD=TA TITH ND.13 - PRA UPIATE:
Mr. K. R. Mard, Manager, Risk Analysis, reviewed the present status of the 'IMI-1 PRA, (See Viewgraph No. 2). The GOTE continues to follow the developeent of the 'IMI-1 PPA with such interest. The refined, but still pre-limirary, estimate of core relt frequency requires additicmal refinements.
The OORB telieves that it is important to understand the differences betwen
t.
(
1 i
m I
l ETA ITDi }c.13:
(Cont' d. )
this and other similar PRA studies, to obtain input and review 4' knowledge-able '!MI-1 Plant Operations personnel, "and to couplete and saintain the PRA as crw important risk evaluation tool.
ACID.TA I'!TM NO.14 - EC 12RVAIIABII.1TI DURDG OPERATICE:
Mr. W. F. Schrauss, Consulting Engineer, reviewed the results of his study of the ispect of perforr.ing preventive maintenance and intamal inspecticn of the emergency diesel generator while the plant is in cperatico (See Viewgraph No. 3). He reported trat '!MI-l's present practice of preventive saintenance/
inspecticn of the emergency diesel generators during plant operation has been found to te as follows:
1.
Has not been shown to make a significant difference in tra prota-bility of core darage.
2.
Is telieved to provide a better quality, sore thorough, and scre cce-plete preventive saintenance/ inspection than that which would be per-ferred during a plant refueling /saintenance cutage.
3.
Is consistant with approximately 50% of the nuclear utilities responding to a question fonarded to the EEI Nuclear Operations Cce-mittee.
As a result of this study, Mr. Schsmuss advised that the following recornenda-ticr:s were ande 1.
Ispleset the following to anximize tie availability of offsite elee-trical power during 'IMI-1 Energency Diesel Generator (IIG) IN/Inspee-tion:
h i
m i
)
0 i
l MBTA IHM NO.14:
(Cont'd.)
i b.
Cecrdirate/ schedule 'D41-1 IIG raintenance with Met-Ed System dispatchirg to ensure maiinan availability of offsite power to
'Dil.
2.
Irplement GPUN Cerporate Procedure No.1504-ADi-3040.01, " Procedure for Control of Plant Modificatiens and Major Maintenance Work While the Plant Is in Cperatico," to require specific Divisicn Director approval for the IIG PM/Inspecticn task ard performance of supplemen-j
(
tal supervisory responsibilities durirg this work.
The CGB agreed with these recommerriations.
MDC% T!TM No.15 - CmSG SUBCDt4ITHI RDGrls A brief report frcr. the CISG Subcoerdttee was given by Mr. W. W. Iowe, Subcocelttee Chairran.
He roted that the Sulecordttee has ccrpleted its work and ews to issue a brief acMendum to its June 13, 1984, report.
(Subse-quently distrituted by letter No. G 'IMI-1-563).
He advised that the Subece-mittee continues to conclude that 'IMI Unit No.1 can be safely cperated with the repaired steam generators. 'Ihis conclusien is tased on a review of GPLN's response to the conditicna and reconnendations in the June 1984 report and on the inforzation about eteam generator integrity W.ich has become available since then.
MBTA ITD4 NO.16 - MMOR f tCT CDMI'ITEI I - RISK CI2< Tid:
A ccpy of the Firm 1 Report of Ma%r Issue Ccanrdttee I on the Risk Control Frocess was distributed to the GORB sembers by latter No. TGR-1-185.
Mr.
W. W. Iowe, Committee Omirman, reviewed the firmi report of this committee
I:
j M
s AGD.TA ITD4 NO.16:
(Cmt'd.)
A m.irdation No. 2I-1-73-1:
The CCRB endorses the enclosed report of its Carrdttee on Risk Cen-trel dated July 1966. It is recocrerded that you consider this report in your current evaluation of the GPUN Safety Peview Prcgram. 7he GOPE would be interested in being kept alreast of your efforts to further irprove this Prcgrar..
j y
MDTA I7Di No.17 - DQ:CITTIVE SESSICN:
.4 A) Sicnificant Concerns:
A copy cf a remorardum frca. P. R. Clark to t.he Division Directors, dated July 17, 1986, regarding Significant Cancerns, was distributed to the GCF3 mer.bers by I.etter No. A11-300. 'Ihe (DEB merhers were not aware i
of ar:y significant mncerns that were not being addressa$ to seine extent.
The fellca.irg iter.s will be reviewed at futurc meetings:
1.
IJse of MI-2 Diesel Generators at MI-1, 2.
Consideration for Inerting - Facts known relative to H I"
2 21-1.
3.
Calculatico Checking.
4.
Prescribed Error Analysis.
5.
Limits & Precautions - Setpoints Palative to Beactor Safety.
(
The meetirg was adjourna$ at 12:15 P.M.
/
Y
(,9 l v s ?,
t v>lv g a
1 P
i i
k, C
1 I
1
r g;.
mW NUCLEAR MANAGEMENT AND RESOURCES COUNCIL 1776 Eve Street. N W
- Suite 300 e Washington, DC 20006-2496 (202)872 1280 i
aobeet W. Bishop Vce Presdent &
ceat counsei February 19, 1992 TO:
NUMARC Administrative Points of Contact
SUBJECT:
NRC Proposed Rule Exclusion of Attorneys From Interviews Under subpoena On February 11, 1992, we sent you a copy of comments that we had drafted for submittal to the NRC regarding its proposed rule dealing with the exclusion of attorneys from NRC interviews under subpoena (56 Fed. Reg. 65949
- December 19,1991).
Enclosed is the final letter that we transmitted to the NRC yesterday.
Briefly, the comments describe why a rule is not necessary 'and why the focus of the proposed rule is. incorrect.
If, however, the NRC issues a final rule, we encourage the Commission to respect the rights of a witness to choose counsel to represent him. We also recommend that the grounds for disqualification of counsel be limited to whether there has been misconduct j
rather than the rule's current subjective test of whether the NRC investigation would be impeded or impaired by the participation of a particular lawyer.
Please feel free to call if you have any comments or questions.
Sincerely, Robert W. Bishop i
RWB:bjb Enclosure cc: NUMARC Board of Directors (w/o enclosure)
NUMARC Executive Points of Contact (w/o enclosure) bcc:
Byron Lee, Jr.
Joe F. Colvin DDs/SS Ej e
en e
f
sen er #
9 I.
(
i
(
f
. m w_h NUCLEAR MANAGEMENT AND RESOURCES COUNCIL 1776 Eye Street. N W
- Sude 300
- Washington. DC 20006-2496 (202)872-1280 Robert W. SIshop vce nescent a February 18, 1992 Generot Counsel Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 ATTENTION: Docketing and Service Branch RE:
Proposed Rule and Final Rule Exclusion of Attorneys From Interviews Under Subpoena 56 Fed. Reg. 65949 (December 19, 1991)
Recuest for Comments
Dear Mr. Chilk:
These comments are submitted on behalf of the nuclear power industry by the Nuclear Management and Resources Council, Inc. (NUMARC)' in response to the notice of a final rule published by the U.S. Nuclear Regulatory Commission (NRC) on the exclusion of attorneys from interviews under subpoena. This l
proposed rule and the accompanying final rule were adopted in response to the decision by the U.S. Court of Appeals for the District of Columbia Circuit in Professional Reactor Operator Society v. NRC et al., 939 F.2d 1047 (D.C. Cir.
1991).
NUMARC supports the NRC's objective of ensuring that investigations are conducted so as to obtain information necessary to determine whether actionable violations have occurred. NUMARC agrees that no attorney representing a witness should be permitted to obstruct an investigation because of the attorney's misconduct. However, as was true with the previously proposed rule, we do not believe that a rule'is-necessary to achieve the NRC's objective with respect to the conduct of its investigations.
The NRC rules currently in effect (10 C.F.R. Part 2) already provide a mechanism for imposing sanctions for attorney misconduct in various contexts.
'NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry. Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC.
In addition, NUMARC's members include major architect / engineering firms and all of the major nuclear steam supply system vendors.
(
~
1 i
Mr. Samuel J. Chilk February 18, 1992 Page 2 1
That is, attorney misconduct that would qualify under the concrete evidence test of the Professional Reactor Operator Society decision Can be properly resolved under the NP.C's current regulations and law. Consistent with the declaration of President Bush in his January 28, 1992, State of the Union message, we recommend that a final rule not be issued.
I The principle of attorney conduct during an 01 interview at stake when J
the rule was originally proposed remains unaddressed. Clearly, the attorney's Code of Ethics is intended to control an attorney's behavior during the course of his or her representation; an attorney may only be said to engage in misconduct if he or she acts unethically or unlawfully. Thus, an attorney acting in an ethical and lawful manner during the course of an 01 investigation, regardless of the vigorousness of his or her advocacy, does not provide grounds for an investigator to remove that attorney for impeding at j
investigation. The fundamental flaw in the NRC's proposed rule is its inappropriate concentration on the impact of an attorney's conduct, even though it may be legal and ethical, rather than evidence of misconduct.
Unfortunately, the proposed rule does not properly focus on disqualifying counsel where " concrete evidence" exists regarding the counsel's misconduct, but instead inappropriately establishes a subjective test to be applied by an investigator regarding whether he or she believes that their investigation is i
in some way impeded by the participation of counsel generally or of a particular counsel.
The Supplementary Information provides no additional justification for the adoption of this rule. We recognize the principle that i
the NRC is trying to honor, that attorney misconduct cannot be allowed to j
impede an NRC investigation, and while such misconduct cannot be condoned, we completely disagree that the objective will only be accomplished through the i
adoption of this proposed rule.
i The standard in the proposed rule does not comport with the requirements under Securities and Exchanae Commission v. Csaco, 533 F.2d 7 (D.C. Cir.
1976), the case that was the foundation for the Court's decision in Professional Reactor Operator Society.
In fact, portions of the Supplementary Information imply a reluctance on the part of the NRC to fully comply with the Court's decision regarding application of an appropriate standard.
Evidence of the NRC's reluctance to comply is the modification of the concrete evidence criteria by the phrase "directly or indirectly." This improperly qualifies i
the concrete evidence standard; " concrete" means solid, tangible or real, and the NRC's qualifiers essentially obviate the " concrete" aspect of the standard.
In this context, it is critical to recognize that the concrete evidence standard is a minimum, setting a floor and not a ceiling, and requires demonstrable proof of how a counsel sought to be excluded has or would actually impede or impair an investigation. Therefore, the words "directly or indirectly" should be deleted from Section 19.18(b). The proposed rule fails to identify, through examples or otherwise, what conduct would appropriately satisfy the " concrete evidence" test and thus serve as a proper basis for exclusion.
For example, an attorney instructing a witness to commit perjury would be " concrete evidence" that would support the exclusion of that counsel.
However, a temporal delay in a proceeding because of valid
Mr. Samuel J. Chilk February 18, 1992 Page 3 questions asked or objections raised does not constitute misconduct that would justify exclusion.
l The Commission accedes that one cannot predict in detail the circumstances that might arise in a particular investigation and could lead to application of the rule. However, the examples cited in the Supplementary Information do not provide confidence that, in fact, " concrete evidence" of wrongdoing by counsel will be the determinative standard but rather that an investigation might in some way be impacted in a manner not acceptable to an i
investigator. For example, the Supplementary Information intimates that a witness' counsel could be excluded if a witness would be "more forthcoming" or i
" answer in greater detail" in the absence of the particular counsel chosen by a witness to represent him or her.
That does not correctly employ the concrete evidence standard. While the Commission admits that it "does not view vigorous advocacy by competent counsel as improper," the Supplementary Information strongly suggests that the NRC would approve an investigator's exclusion of counsel simply because the counsel's vigorous advocacy could "have an adverse impact on the investigation."
Indeed, as was noted earlin, only if an attorney acts unlawfully or unethically would there be grounds for his or her removal. The impact of perceived obstruction without actual wrongdoing by an attorney is simply not enough, i
Also, inherent in the proposed rule's structure and logic is the bias that simply because an attorney represents more than one witness or a witness and the licensee, an 01 investigation will be impeded.
The NRC cites the memorandum dated August 7, 1989, from the Director of the Office of Investigations as evidence for its position that multiple representation impairs investigations.
It does not stand for that proposition.
Rather, the document suggests a fundamental bias by the Office of Investigations against a j
witness' counsel who has been retained by an NRC licens2e. Unfortunately, statements made in the Supplementary Information, as written, could be used as evidence of Commission support of that bias. The Commission should revise the Supplementary Information that will accompany the final rule to be consistent with the law, both in spirit and in letter.
We believe the appeal provisions in the proposed rule establish, with j
three exceptions, a reasonable administrative process to resolve issues that j
may arise '. the application of the rule. We recommend that, because i
exclusion of counsel is fundamentally a legal issue, the investigator seeking to exclude a witness' choice of counsel should be required to obtain a written opinion from the Office of General Counsel finding that the standard of
" concrete evidence" has been met; mere " consultation" with OGC is not sufficient.
In addition, we recommend that Section 19.18(d) be revised to provide the witness, and the witness' counsel sought to be excluded, with an opportunity to appear before the Commission in the course of its evaluation of the appeal of an investigator's decision.
Such a process would not impede the NRC from prompt resolution of issues, but would ensure that the parties most directly, and potentially adversely, affected by an NRC decision would have a right to be heard.
Finally, we recommend that proposed Section 19.18(e) be
{
clarified to assure that a witness' interview be delayed automatically at
Mr. Samuel J. Chilk j
February 18, 1992 Page 4 least until they receive the written statement of exclusion reasons required by 19.18(c).
We also recommend that the Commission direct the modification of internal NRC procedures that will implement the final rule. Notwithstanding the current provisions of NRC Management Directive 0119, we believe that the NRC's responsibilities for fundamental fairness should be reflected in these procedures and, accordingly, that NRC investigators should be directed to advise witnesses of the right to counsel, including the witnesses right to consent to an attorney representing multiple witnesses and/or any single witness and the NRC licensee. The witness should also be advised of the provisions of Section 19.18, including the right to appeal any exclusion of counsel.
We remain concerned that the rule, even if so modified, provides the opportunity for and, in essence, would condone the misuse of delegated authority to overzealous investigators. This situation may arise under the proposed rule because an investigator could inappropriately rely on some of the comments contained in the Supplementary Information acc.ompanying the proposed rule. Accordingly, if the Commission issues a final rule despite our recommendation to the contrary, we urge the Commission to revise the Supplementary Information section as discussed above.
We further urge the Commission and the Office of General Counsel to carefully monitor the i
implementation of the rule and respond promptly to any suggestions of its
{
misapplication.
We would be pleased to discuss our comments further as the Commission i
uay deem appropriate.
Since ely, W
/
\\
Robert W. Bish j
_,_