ML20129H559
| ML20129H559 | |
| Person / Time | |
|---|---|
| Site: | Quad Cities  |
| Issue date: | 02/15/1985 |
| From: | Reed C COMMONWEALTH EDISON CO. |
| To: | James Keppler NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| References | |
| NUDOCS 8507190235 | |
| Download: ML20129H559 (9) | |
Text
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February 15, 1985 Mr. James G. Keppler Regional Administrator United States Nuclear Regulatory Commission Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137 Re:
Docket Nos. 50-254, 50-265, Quad Cities Nuclear Station -- Response To Nuclear Pegu-latory Commission's ("NRC") Letter, Notice Of Violation and Proposed Imposition Of Civil Penalty, dated December 12, 1984, pursuant to 10 C.F.R. 2.205.
Dear Mr. Keppler:
Dy this letter, in accordance with 10 C.F.R.
$ 2.205, Commonwealth Edison Company (" Edison") herewith provides its answer and protest te the NRC's letter and Notice of Violation of December 12, 1984, which proposes the imposition of a
$50,000.00 civil' penalty.
Edison's answer to the NRC's letter and Notice of Violation, pursuant to 10 C.F.R.
$ 2.201, will be provided separately, and should be read with and is incorpo-rated into this letter.
The letter and Notice of Violation proposes the penalty for Edison's alleged noncompliance with the require-ments of 10 C.F.R.
$ 50.54(k) and Station Procedure QAP-300-2, Conduct of Shift Operations, Section 9(b), in the Quad Cities Control Room on October 25, 1984.
The penalty is categorized as a Severity Level III Violation (Supplement I) in accordance with the General Statement of Policy and Procedure for NRC Enforcement Actions, 10 C.F.R. Part 2, Appendix C, as revised 49 F.R. 8583 (March 8, 1984).
FE8 :191985 8507190235 850215 ICi PDR ADOCM 05000254 G
PDR TM/
Mr. James G.
Keppler February 15, 1985 Page 2 As more speci fically set forth below, Edison denies the noncompliance and believes the Notice of Violation to be in error no it does not follow the General Statement of policy and Procedure for NRC Enforcement Actions criteria.
Edison also believes the proposed penalty in this case to be inconsistent with the remedial purposes of the NRC's civil penalty author-ity.
Further, Edfson holieves the NRC's proposed enforcement action in this care is not in accordance with its previous han-dling of other incidents involving the alleged failure of an operator to renain at nis designated control panel.
- Finally, in addition to protesting the inpos' tion of the proposed civil penalty, Edison requests the pr aa2 ty's remission or mitigation.
Denial Of Noncompliance As stated in Edison's response oursuant to 10 C.F.R. 4 2.201 under the heading " Denial of Viol 7 tion," incorporated herein by reference, the evidence to date simply does not sup-port the NRC's allegation that a violation of the NRC reaula-cions occurred.
In the alternative, there is no support for the NRC's allegation that, if a violation did indeed occur, it amounted to a Severity Level III violation.
The Staff, as proponent of the penalty imposition, bears the burden of establishing Edison's violation of a spe-cific regulation or license technical specification "by a pre-ponderance of the reliable, probative and substantial evi-dence."
Radiation Technology, Inc., ALAB-567, 10 N.R.C.
533 (1979); see also Atlantic Research Corporation, ALAE-594, 11 N.R.C.
841 (1980); 10 C.F.R. 2.732.
Until such time as an
~
1 adequate showing is made, Edison contests the allegaticn of noncor.pliance and stresses its belief that no penalty is war-ranted.
Errors In Notice Of Violation:
Failure To Use Appropriate Enforcement Criteria Misclassification Of Nonconpliance.
The specific act from which the NRC's Notice of Violation arises is as follows.
The Unit 1 operator moved from directly in front of his control panels over to assist the Unit 2 operator.
He remained close to the Unit 2 panels for approximately 15 minutes, during which time he returned to the Unit 1 reactor panels on several occa-
Mr. James G.
Keppler February 15, 1985 i
Page 3 siens, either to respond to an annunciator or to monitor h!s Unit 1 panels.
The finding, categorization, and the amount of the proposed civil penalty for the noncompliance is based on a misconception of the potential consequences of the alleged incident.
In order for this particular incident to be classified as a Severity Level III violation, the " system designed to prevent or mitigate a serious safety event must have been unable to perform its intended function."
(10 C.F.R.,
Part 2, Appendix C, Supplement 1, paragraph C.2.)
Alternatively, there must have boon a " serious dereliction of duty on the part of personnel involved in licensed activi-ties."
(10 C.F.R.,
Part 2, Appendix C, Supplement 1, paragraph C.3, emphasis added.)
As noted in the " Denial of Violation" contained in Edison's 10 C.F.R.
{ 2.201 Jetter, any system malfuaction which could lead to or which is itself considered a " serious safety event" is indicated on reactor control panels by en alarm consisting of both an annunciator and a visual signal.
In this instance, even assuming the truth of the Notice of Violation allegations and that the Unit 1 operator was not at all times directly in front of the control panels of his reactor, no serious safety consequences could have resulted.
Nowhere in the Notice of Violation is there any proof or allegation that the Unit 1 operator would not have been able to receive and respond to an annunciated alarm.
Indeed, the contrary is in fact the case.
The evidence demon-strates that the Unit 1 operator not only was able to monitor the controls of his unit during the few minutes in question, but that he also returned to his station in response to a Unit 1 annunciator.
This is not by any means a case of an
" absent" operator, but rather one of an operator at all times capable of monitoring and responding to the demands of his unit.
Thus, the potential consequences of the alleged incident could not have affected "a system designed to prevent or miti-gate a serious safety event."
In addition, there clearly was not a dereliction, much less a serious dereliction, of duty on the part of the Unit 1 operator.
The operator believed he could monitor his reactor and respond to any abnormal conditions, and the evidence demon-strates he was able to do so.
Moreover, the operator's conduct was consistent with prior practice in the control room and with the Station's operating procedures.
Mr. James G.
Keppler February 15, 1985 Page 4 In short, there is no basis for concluding that the alleged incident should be classified as a Severity Level III, Gupplement 1, C.2 Violation.
Therefore, the $50,000.00 penalty should not be imposed.
Failure To Use Proper Standards In Determining The Penalty Assessment The letter and Notice of Violation state that the alleged violation has been categorized as a Severity Level III violation in accordance with the General Statement of Policy and Procedure for NRC Enforcement Actions, 10 C.F.R. Part 2, Appendin C.
Severity Level III violations are therein stated to be "cause for significant concern".
However, guidance as to datermining the severity level of an alleged violation is lach-ing.
The examples provided are stated to be "neither exhaus-tive nor controlling."
The tables provided are said to take "into account the gravity of the violation as a primary consid-eration".
The NRC " reviews each proposed civil penalty case on its own merits".
Based upon the allegations in the Notice of violation and the circumstances surrounding its issuance, it is apparent that the NRC has failed to give proper consideration and weight to the facts and merits of this case.
The " gravity of the violation" is considered to be the
" primary consideration" in determining the severity level of any alleged violation.
Given the characterization of the sub-ject incident as a Severity Level III violation, however, this consideration has obviously been neglected.
It is manifestly clear that the Unit 1 operator at all times was fully cognizant of his responsibilities and able to fulfill those duties ade-quately.
No adverse events could have occurred under the con-ditions described in the Notice of Violation.
Moreover, no event did occur which in any way affected public health, safety, the environment or the security of the plant.
Cer-tainly, an adequate consideration of this circumstance greatly diminishes the gravity of the alleged noncompliance.
Under these circumstances, it appears that in catego-rizing the alleged violation as one of Severity Level III, the NRC was not guided by its own critoria, directives and prin-ciples.
All the facts and circumstances were obviously not examined.
Consequently, Edison submits that the $50,000.00 penalty is unwarranted.
a Mr. James G.
Keppler Fabruary 15, 1905 Page 5 The Proposed Civil Penalty Is
[
Not Remedial Edison believer that the imposition of a penalty in i
this case would serve no remedial purpose.
Aprendix C of i
10 C.F.R. Part 2 states that the purpose of the NRC enforcement l
program, to protect the public's and employees' health and J
safety, is to be met by the achievement of several distinct goals.
'ih e NRC, in Appendix C of 10 C.F.R.,
Part 2, states that it wishes to ensure compliance with its regulations and license conditions, obtain prompt correction of noncompliance, and deter any future noncompliance.
Edison believes that the imposition of a ranalty in this case would serve none of these stated purposes.
First, as stated more fully in Edison's 10 C.F.R. 2.201 letter, employee directives were issued prior to the Notice of Violation so as to insure that the operators would, in the future, comply with the NRC's newly announced interpretation of 10 C.F.R. 50.54(k).
Second, the Notice of Violation itself, withcut a civil penalty, is sufficient to put both Edison and the industry as a whole on notice that the NRC considers the Unit 1 operator's alleged conduct improper.
Therefore, the proposed penalty in this case will not serve any of the stated purposes.
Another stated purpose of the NRC's enforcement pro-gram is to encourage improvement in the licensce's and the industry's performance, particularly the prompt identification and reporting of potential safety problems.
Again, Edison 1
urges that the imposition of a civil penalty in this instance will not serve the stated purpose.
As to Edison itself, the Company has already taken the necessary steps to insure conduct consistent with the NRC's interpretation of 10 C.F.R.
a
$ 50.54(k).
(See Edison's 10 C.F.R.
{ 2.201 accompanying let-l ter under the heading, " Preventive Measures".)
As to the industry as a whole, Edison believes that the Notice of Viola-tion alone satisfies the stated goal of encouraging industry-wide improvement.
Having been notified of the NRC's disap-proval of the conduct of the Unit 1 operator, other similarly-situated licenscos are now bound to prevent lika occurrences at their facilities in the future.
Given that none of the stated goals of the NRC enforcement pregram will be met by the imposi-tion of a civil penalty upon Edison, we strongly urge that the proposed penalty be withdrawn.
4 1
O Mr. James G.
Koppler February 15, 1985 Page 6 Inconsistent Application Of Penalty Imposition Criteria Finally, based on a review of other NRC enforcement actions, Edison believes the imposition of a civil penalty in this case would be inconsistent with prior NRC determinations in other cases involving similar facts.
For example, on August 24, 1982, at the Virginia Elec-tric and Power Company's Surry Station, an operator assigned to the radiation monitoring and waste treatment panels was deter-eined by the NRC to be absent from his post while assisting the Unit 1 operatot.
In the Surry case, the NRC recognized that the operator in question did not leave his post for some per-sonal er unofficial reason, but rather to assist a fellow oper-ator.
Indeed, it appears that the Surry procedures required that the operator render assistance.
However, as a result of his action the operator failed to respond to an annunciator at the pnuel for which he was assigned responsibility.
Nonethe-leos, the NRC did not impose a civil penalty.
In the present case, the Quad Cities Station Procedures permitted the Unit 1 operator's actions.
Moreover, in contrast to Surry, the Quad cities operator was in a position to respond to alarms at his Unit and in fact did so.
Thus, when compared to Surry, Edison's case presents even greater justification for not imposing a civil penalty.
Also, on November 24, 1981, the NRC determined that an operator at the University of Wisconsin reactor had left his post for twelve seconds.
The NRC initially concluded that this action u nnstituted a violation of 10 C.F.R.
$ 50.54(k), catego-rized the violation as a Severity Level III and proposed the imposition of a civil penalty.
However, the NRC cventually withdrew the proposed civil penalty.
The NRC found the inci-dont to be of " limited safc.y significance" and found that the licensee had taken prompt corrective action, including revi-sions of procudures and retraining of personr?l.
As noted ear-lier, and in Edison's 1C C.F.R.
$ 2.201 response the Quad Cities incident was not safety signi'icant and prompt and effective actions were taken in response to the NRC's concerns.
A consistent applicatica of the..dL's enfarcement criteria thus warrants the withdrawal of the proposed civil penalty in this case.
An example of the NRC's imposition of a civil penalty for a violation of 10 C.F.R.
$ 50.54(k) which provides.nstruc-
O Mr. James G.
Koppler February 15, 1985 Page 7 tive guidelines in Edison's case occurred at the Florida Power and Light Company's Turkey Point Station.
On January 29, 1981, the assigned Unit 3 operator left his station to get a cup of coffee.
This departure necessitated his entering a completely different room behind the Unit 4 instrument panels.
In this instance, a $40,000 civil penalty was imposed.
Edison submits that its case is clearly distinguish-i able from the Turkey Point case.
First and foremost, the Quad Cities Unit 1 operator was at all times able to perform his duties and responsibilities regarding his unit.
Indeed, he responded to an annunciator during the incident and went back to his panel on at least one occasion to monitor the controls of his reactor.
Secondly, this is not the case of an operator departing to get a cup of coffee.
It is rather one of an oper-ator assisting another operator in the same room.
i As can be seen from this discussion, the NRC has pre-viously been consistent in only imposing penalties where an operator left the area immediately in front of his controls, where such conduct was not permitted by operating procedures e.nd presented significant safety concerns.
Neither of these circumstances are present in this case.
Consequently, consis-tent application of the NRC's enforcement criteria mandates the withdrawal of the proposed penalty.
I Mitigating Factors i
l.
In addition to the foregoing, Edison offers the fol-lowing factors for your consideration in remission or mitiga-tion of any civil penalties you nevertheless determine to assesst l
1.
As mentioned earlier, the alleged noncompliance did not and could not adversely affect public health or safety, the environment or the common defense or security.
Rather, the Unit 1 operator acted professionally under the circumstances and was not at any time unable to perform his duties or fulfill I
his responsibilities.
2.
Judging from its letter, the NRC is apparently refusing to mitigate or remit the proposed civil penalty in response to Edison's " prompt and offective corrective action" due to its belief that " corrective actions for previous viola-tions in [the area of adherence to operating procedures] should
Mr. James G.
Keppler February 15, 1985 Page 8 have precluded [the Quad Cities] incident."
Edison believes this position to be unjustified for two reasons.
First, as previously mentioned, the operator's conduct in this case does not reflect a failure to adhere to operating procedures.
Indeed, the operator's conduct was wholly consistent with the Station's procedures.
At worst, the incident can only be described as a failure of the procedures to comply with the NRC's newly announced interpretation of 10 C.F.R. $ 50.54(k).
Even if the NRC were to maintain that this failure constitutes a noncompliance with NRC regulations, there have been no simi-lar noncompliances at Quad Cities.
The NRC's enforcement cri-teria permit a reduction by as much as 100% of the base civil penalty for prior good performance in the general area of concern.
Thus, under the criteria, total remission of the proposed penalty is appropriate.
The second problem with the NRC's position arises from its assertion that Edison's corrective actions for previous violations should have precluded the Quad Cities incident.
The only recent violations at Quad Cities which can even arguably be deemed in some way related to this case are (1) 83-11-01, failure to insert control rods properly (Severity Level III) and (2) 83-11-02, failure to maintain secondary containment (Severity Level IV).
Edison simply does not understand how its corrective actions in response to these two events could possi-bly have addressed the concern of the NRC in this case.
- Thus, the NRC's basis for refusing to mitigate the proposed civil penalty in this case is not supportable.
Under the enforcement policy, mitigation of up to 50%
of the proposed penalty is appropriate if a licensee takes prompt and effective corrective action.
Since the NRC agrees that Edison's response to the NRC's concerns which gave rise to this Notice of Violation was prompt and effective, Edison sub-mits that the proposed penalty should be mitigated.
3.
There is no evidence of Edison's bad faith or willfulness in connection with the alleged noncompliance.
Although this factor is not a defense to the allegation itself, it is appropriately recognized in mitigation of civil penal-ties.
(Atlantic Research Corporation, ALAB-567, 10 N.R.C.
533 (1979).)
Mr. James G.
Keppler February 15, 1985 Page 9 By filing these responsos to 10 C.F.R. $ 2.201 and 10 C.F.R.
$ 2.205, Edison does not intend to waive any argument it may later wish to assert but which is not mentioned in these letters.
Very truly yours, Cr-e9vN br Cordell Reed Vice President l
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