ML20128E694

Responds to Violations Noted in Insp Rept 50-289/92-20. Corrective Actions:Voluntary LER Issued Re Missed Surveillance & Interim Policy Issued on 930114 Instructing Staff to Submit LER on Missed Surveillance in Future

ML20128E694
Person / Time
Site:	Three Mile Island
Issue date:	01/29/1993
From:	Broughton T GENERAL PUBLIC UTILITIES CORP.
To:	NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
References
C311-93-2011, NUDOCS 9302110013
Download: ML20128E694 (8)

Text

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e s OPU Nuclear Corporation

.. , UQg3 f Post Office Box 480 Route 441 South Middletown, Pennsylvania 17057 0191 717 944 7021 TELEX 84 2386 Writer's Direct Dial Nurnber:

(717) 948-8005 January 29, 1993 C311-93-2011 l

U. S. Nuclear Regulatory Commission Attn Document Control Desk Washington, DC 20555

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 I 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 1 3rovides a detailed response to the Notice of Violation including the ) asis 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 )ending resolution of the issue of reportability under the current THI-l Tec1nical Specifications, GPUN Nuclear is filing a " voluntary LER" addressing the subject missed surveillance.

• Sincerely,

$gm 050002 7,c,Brou$1on 8@ Vice President and Director, THI-1 mo- AWM/ emf

, rw g Attachment 7

jf cc: THI-) Senior Project Manager

-Region I Administrator.

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.@h TMI Senior Resident Inspector fr }i GPU Nuclear Corporation is a subsidwy of General PutAc Ut:i$es Corporation -

METROPOLITAN EDISON COMPANY

. JERSEY CENTRAL POWER AND LIGHT COMPANY PENNSYLVANIA ELECTRICAL COMPANY GPU NUCLEAR CORPORATION Three Mile Island Nuclear Station, Unit 1 (THI-1)

Operating License No. DPR-50 Docket No. 50-289 Reply to Notice of Violation in Inspection Report 92-20 This letter is submitted in reply to the Notice of Violation in Inspection Report 92-20. Routine Monthly Inspection of THI-l covering the period October 27, through December 7, 1992, dated January 6, 1993. All statements contained in this reply have been reviewed, and all such statements made and matters set torth therein are true and correct to the bes* of my knowledge.

I N T.G.Broughtgn Vice President and Director, THI-l Signed and sworn before me this M day of b%AanhL ,1993.

N h E n ~ ~ M 24 6 3 o Notary Public EM M P Rdc

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C311-93-2011 Page 1, t'

ATTACHMENT 1 NOTICE OF VIOLATION 10 CFR 50.73(a)(2)(1)(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 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 concentration on the core flood tanks.

Contrary to the above, on January 23, 1992, the Licensee did not submit an LER within 30 days after the discovery of an operation or condition prohibited by Technical Specifications. On December 23, 1991, the licensee discovered that the i core flood tanks had not been sampled by December 21, 1991, to determine boron concentration.

This is a Severity Level V violation (Supplement I). ,

GPU NUCLEAR RESPONSE TO THE NOTICE OF VIOLATION GPUN denies that the violation occurred. While-the facts are not in dispute, GPUN ,

required does not agree of the submission with anthe LERStaff conclusion in this situation.thatIt 10 CFR 50.73 is agreed that(a)(2)(i)(B)dthe cite vio1' tion  ;

is of minor safety significance, and GPUN is open to the prospect of.-amendint. the THI-1 Technical Specifications (T.S.) to clarify the reporting requirements, 'f that is necessary and appropriate. There is no interest in-withholding- i information from the Staff. As-ex)lained below, however, GPUN made a good faith and reasonable interpretation of tie 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 NRC Enforcement Policy is -

now appropriate as a means to clarify the requirement.

The facts surrounding the missed core flood tank sampling surveillance are-accurately described in section 5.3 of_NRC' Inspection Report 92-20. On December 23, 1991, GPUN identified that the monthly sample -- which under the T.S.

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 TMI-l Plant Review Group 002 show that'the missed surveillance was evalua(PRG) ted as minutes' a potentially for Meeting No. 92 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

- Specifications occurred.and this event' is ~not reportable' under 10 CFR

50.72 or 50.73.-

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C311-93-20ll Page 2,

! During an inspection approximately eleven months later, the inspector reviewed these PRG minutes and, according to the inspection report:

On December 1, 1992, the inspector with the aid of the NRR Project Manager .

referred this specific situation to the NRC Technical Staff for their l understanding of the intent of the data that is collected by the LER rule.

The NRC Technical Staff considered missing a survoillance interval information that the NRC Staff desired to gather using the LER rule (10 CFR 50.73). (See NRC Inspection Report 92-20, at pp. 5-6.)

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 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 TH1-1 T.S.

The regulation in question,10 CFR 50.73(a)(2)(1)(B), requires a licensee to report "[a?ny operation or condition prohibited by the plant's Technical S)ecificat<ons." Neither this nor any other part of the LER rule (50.73) requires

tie 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 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. had been violated did not automatically mean that an operation or condition prohibited by the T.S. had 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 occurred. The conclusion that the THI-l T.S.

do not require a system / component to be considered IN0PERABLE immediately upon discovery of a failure to perform a surveillance requirement within the specified time interval is based upon THI-l 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 o;)erable, 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.

- . - . _ - _ = . - _ - - ._ - _- . _ _ - _ - . -- .

4 C311-93-2011 Page 3, L i

Since the immediate performance of the recuired surveillance demonstrated the 4 continued o)erability of the equipment anc there was no technical reason to speculate t1at 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 2 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),

4 This constitutes the basis for the PRG reportability evaluation which, in the view

] 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.

The history of the !ER 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 i federal Register 19543, 19546 (1982) required reporting of:

l Any event for which plant Technical Specifications require shutdown of the

nuclear power plant or for which a plant Technical Specification Action Statement is not met.

The referenced FR Notice explained that:

... this paragraph includes events where the licensee should have shut down the reactor because of a condition that violated the Technical Specifications, and either -

(a) did not recognize until later review that the situation violated

Technical Specifications and, therefore, did not shut down; or (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 orohibited by the Te_chnical Specifications should be reported (emphasis added). In addition, if a condition that would have required a )lant shutdown exists for a period of time longer than that permitted by tie Technical Specifications, it should be reported even if the condition was not discovered until after the allowable time had elapsed and the conditica was rectified immediately after discovery.

Here, the NRC established that operation with a condition prohibited by plant T.S.

meant events which should have resulted in plant shut down because of a T.S.

violation, but did not. result in shut down.

The second sentence of the Specification applies prior to placing a system / component into service initially or following removal from service.

The NRC also explained in the referenced FR N.tice that " failure to comply with a Surveillance Requirement need n7t be reported as an LER."

C311-93-2011

, Page 4, i

When promulgated in 1983 at 48 federal Register 33850, 33855 (1983), proposed

section 50.73(a)(4) became section 50.73(a)(2)(i), and was given its present '

wording, which requires reporting of (A) The completion of any nuclear plant shutdown required by the plant's Technical Specifications; or j (B) Any operation or condition prohibited by the plant's Technical Specifications ...

The accompanying Statement of Considerations for the referenced FR Notice explained that:

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 plant's technical specifications" rather than events where "a plant Technical Specification Action Statement is not met." This change accommodates plants that do not have requirements that are specifically defined as Action Statements.

This paragraph now requires events to be reported where the licensee is required to shut down the plant because the requirements of the

. Technical Specifications were not met.

. In addition, if a condition that >is )rohibited by the T.S. existed (i.e., the plant was in a degraded mode all( <ed )y the T.S.) for a period of time longer than that permitted by the T.S., it must be reported even if the condition was not discovered until after the allowable time had elapsed and the condition was i

rectified immediately after discovery. M.; NUREG-1022 (Licensee Event Report System, 1983) at page 11.

4 These revisions did not change the fundamental concepts of the regulation as originally proposed -- i.e., " operation or condition prohibited by the plant technical s)ecifications" means operation when a T.S. requires plant shutdown or a condition w1ere the plant is in a degraded mode for a period of time longer than the T.S.. permit. Since the TMI-l T.S. did not require a plant shutdown for the missed surveillance and the plant was not in a degraded condition, section 50.73 did not apply here.'

l Since the inspection report cites Staff guidance -- in addition to the regulation and the TMI-l license -- GPUN has examined that guidance also. Nevertheless, it must be noted that a " regulatory requirement," in the context of enforcement action, "means a legally binding requirement such as a statute, regulation, 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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l Plants which operate with Standard Technical- Specifications have specific technical specifications which make compliance with surveillance intervals necessary to meet OPLAABILITY requirements for a system / component. In their case, section 50.73(a)(2)(1)(B) would require that an LER be submitted for a late surveillance.

C311-93-20ll Page 5 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.

While it was sent to all licensees and applicants the T.S. changes proposed and encouraged were described as " voluntary for all IIcensees and current OL applicants." THI-l does not have STS and did not adopt the changes described in GL 87-09.

One of the problems addressed in GL 87-09 was " Unnecessary Shutdowns Caused by inadvertent Surpassing of Surveillance Intervals (Specification 4.0.3)." STS 4.0.3 stated that the failure to perform a surveillance within the specified time interval shall constitute a failure to meet the LCO's Operability Requirements.

The Staff observed in GL 87-09 (p. 4) that it was " overly conservative to assume that systems or com)onents are ino)erable when a surveillance requirement has not been performed." Tierefore, a 24-lour period was 3roposed to perform a missed surveillance before shutdown requirements apply. .iaving 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 4.0.2 constitutes a reportable event under 10 CFR 50.73(a)(2)(1)(B) because it is a condition prohibited by the plants' TS." No effort was made to explain or support this deviation from the fundamental concepts upon which section

50.73(a)(2)(1)(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 4.0.3, and advises that "(p]lant-specific Technical Specification (TS) variations of this statement may exist, in which case the plant-specific TS govern." (GL 91+18, p. 12.) This confirms that the TMI-l license must be applied as it is written. Nevertheless, it is noteworthy that GL 91-18 appears to change the Staff view expressed in GL 87-09. While the letter states that "[f]ailure to perform a TS requirement within the specified time interval is considered a condition prohibited by the IS and is reportable at least under 10 CFR Part 50.73," it also appears to interpret the time intervals meeting the requirements to include the 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, only where the 24-hour period is exceeded.

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 shall be failure]ailure to meet to perform the LCO a Surveillance except as providedwithin the3.0.3" in SR specified SRFrequency 3.0.3, in turn, states:

If it is discovered that a Surveillance was not performed within its specified Frequency, then compliance with the requirement to declare the LC0 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 delay period allowed-by the Specification, or within the Completion Time of the-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.

. 4.

C311-93-20ll Page 6 in conclusion, since GPUN complied with section 50.73, as it reasonably should be interpreted to apply specifically to the THI-I T.S., no LER was required and a

violation did not occur. Staff guidance cannot be used in an enforcement context 1 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.

Corrective Actions Taken and Results Achieved

. As stated at the outset, GPUN does not wish to withhold from the Staff information 3

which the NRC desires to fulfill its regulatory functions. Consequently, GPUN is filing a voluntary LER on this event. In addition, an Interim THI-1 Policy was issue ( in January 14, 1993 which instructs THI-l staff to submit a voluntary LER

on eatn missed Technical Specification Surveillance until further notice.

In the longer term, GPUN seeks to achieve a common understanding of and clarity in (1 .While the inspection 1

the reporting report states requirements the desire of under some section 50.73(a)(2) to receive information)(B).

on missed surveillances under the LER rule, the recently issued B&W Standard Technical Specifications, if j adopted by THI-1, would appear not to have required an LER in this case.

Therefore, prior to proposing any changes to the THI-1 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 Violat_iani Although GPUN denies that a violation occurred, an Interim Policy was published on

' January 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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