ML20129J659
| ML20129J659 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 11/21/1980 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Moseley N NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| Shared Package | |
| ML20127A105 | List:
|
| References | |
| FOIA-84-311 NUDOCS 8507230204 | |
| Download: ML20129J659 (9) | |
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MEMORANDUM FOR: Noman Moseley, Director Division of Program Development and Appraisal FROM: Richard K. Hoefling, Attorney Rulemaking and Enforcement Division, OELD
SUBJECT:
APPLICATION OF 10 CFR 20.403 TO THE TMI-2 INCIDENT On March 21, 1980, the Commission directed the Office of Inspection and Enforcement to further examine the events'of March 28, 1979 which occurred at the Three Mile Island Unit 2 (lNI-2) facility to determine whether further enforcement action was warranted regarding the information transfer which occurred on that day. An extensive factual record with respect to what infomation was and was not reported on March 28, 1979 has been developed.
In this effort, a question has been raised as to the reach of the repa61ng requirement codified as 10 CFR 20.403. As is discussed below, a serious legal obstacle precludes the application of Section 20.403 to utilization facility incidents which took place on March 28,1979 at Dil-2.
The regulation reads as follows:
Section 20.403. Notification of incidents.
(a) Immediate notification. Each licensee shall immediately notify by telephone and telegraph, mailgram, or facsimile, the Director of the appropriate NRC Regional Office listed in Appendix 0 or any incident involving byoreduct, source, or special nuclear material possessed by him and which may have caused or threatens to cause:
(1) Exposure of the vhole body of any individual to 25 rens or n. ore of radiation; exposure of the skin of the whole body nf anv individual of 150 rems or more of radiation; or exposure of the feet, ankles, hanas or rorearas or any individual to 375 rems or .r. ore of radiation; or (2) The release of radioactive taterial in concentrations which, if averaged over a period of 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, would exceed 5,000 times the liaits specified for such materials in Appendix B, Table II; or (3) A loss of one working week or more of the operation of any facilities affected; or 8507230204 850506 PDR FOIA DORDSHOO4-311 PDR
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Norman Moseley (4) Damage to property in excess of $200,000.
The legal analysis of the application of Section 20.403 to the events of March 28, 1979 centers upon a distinction between " utilization facility incidents" and " incidents involving byproduct, source, or special nuclear material" hereafter called " material incidents".
The rulemaking history of Part 20 makes clear that it applies only to material incidents, i.e., incidents involving byproduct, source, or special nuclear material which may have or threatens to cause either a significant exposure, a significant release of radioactivity, down time of a facility of one week or more, or property damage in excess of $200,000. A material incident under Section 20.403 involves byproduct, source, or special nuclear material very directly. The regulation was not intended to apply to incidents involving these materials only indirectly. Such indirect involvement of byproduct, source, or special nuclear material can be postulated for almost any serious incident occurring at a utilization facility which consists basically of a complex machine designed to control the material present. Such incidents can be referred to as " utilization facility incidents" and are not subject to the reporting requirements of Section 20.403.
The rulemaking history of Section 20.403 makes clear that this reporting requirement was meant to deal only with material incidents relative to Part 30, 40 or 70 license holders, i.e., holders of byproduct, source, or special nuclear material licenses. The intent originally was to limit reports to overex. sures. See Proposed Regulations of July 11, 1955 and January 24, 1956. The Proposed Regulations of Cctober 1,1956 make clear that the regulation was meant to deal with "...the release of radiation or radioactive substances from normal location..." The proposed regulation was
. modified to require a report whenever releases or exposures exceeded the pennissible limits of Part 20. See Preposed Regulations of November 1, 1956.
In a significant merorandum of November 16, 1956, Curtis N. Nelsen, Director of the Division of Inspection, advised Harold Price that the reporting requirement proposed required additional Staff consideration before promul-gatien, r; 3 cc--a~,anca, tha rannr+ing *onniro-ant was deleted from the regulations issued on January 29, 1957. Accordingly, the November 16, 1956 memo from the Division of Inspection provides good indication of the agency's thinking on this subject. The follcuing language dr:un frca that memorandum is instructive:
Serious or major radiation incidents should be reported immediately, preferably by telephone. Although reports or notification of the serious incident may be sketchy, it is 1/ The rulemaking historical materials referred to in this Memorandum are attached along with certain other materials to provide the reader with an overview of the development of 5 20.403.
Norman Moseley I quite possible that an AEC Inspection team will be dispatched to observe the scene and actual conditions that contributed to the incident before.they are altered materially. (Emphasis supWed.)
The reporting requirement contemplated a single incident which was to be reported immediately after its occurrence and a sketchy or " gross" report would be acceptable. The notification was to alert the AEC as to the inci-dent's occurrence and place the agency in a position to respond.
The rulemaking history just prior to the regulation's issuance verifies this 4
reading. In the May 1,1957 Report by the Director, Division of Civilian Application, the purpose of the regulation is identified to be "Sufficiently rapid notification of the occurrence ... to allow where necessary prompt inspection and institution of measures to mitigate the consequences of the incident." The rulemaking materials attached support an agency intent for a " gross" reporting requirement. See also the Federal Register Notice of May 14, 1957 (Statement of Considerations) which equates " incident" with
" accident. "
In addition, Part 20, as originally promulgated, explicitly stated in both its original scope and in its definition of " licensee" that it was appli-cable to holders of Part 30, 40 or 70 licenses only. Consequently, the tenn
" incident" in Section 20.403 reasonably must be limited to incidents directly involving Part 30, 40 or 70 material. This conclusion is mandated by a reading of AEC Manual Chapter 0707 wherein a radiation incident is defined as:
...one involving byproduct, source or special nuclear materials held under AEC license, in which there has been or believed to have been a release of radiation or radioactive substance...
(Emphasis Supplied)
In summary then, this regulation was intended for material license holders to deal with overexposures and releases related rather directly to the use of byproduct, source and special nuclear material. The reporting requirement was a gross one. The emphasis was on speed and not detail.
In1975(40 Fed. Reg. 8783, March 3, 1975), the scope section of Part 20 was amended to include reference to Part 50 license holders. This brought Part 20 into congruance with the Part 50 licenses issued b Such licenses, and specifically the TMI-2 license (DPR-73)y this agency.
, authorize the licensee to receive, possess and use byproduct, source and special nuclear >
material . pursuant to 10 CFR Parts 30, 40 and 70 and invoke the requirements of Part 20 on the licensee. In effect, the Part 50 licensee is effectively a-licensee.under Parts 30, 40 and 70 with respect to byproduct, source and special nuclear material and, as Part 20 applies to such licensees, Part 20
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applies to the Part 50 licensee also. However, Part 20 applies only to activities to which it is applicable, that is material activities.2]
This background of rulemaking history supports the application of Section 20.403 only to material incidents, ~i.e., those involving directly byproduct, source or special nuclear material. This background cannot support the application of this regulation to utilization facility incidents, i.e.,
incidents which involve, or may involve, byproduct, source, or special nuclear material only indirectly.
This conclusion is supported by other considerations 'as well. Explicit 7
reporting requirements for utilization facility incidents are imbedded in utilization facility Technical Specifications. This, in effect, is agency recognition that additional explicit reporting requirements are needed to deal with utilization facility incidents which can be related only indirectly to byproduct, source, or special nuclear material. The conclusion that Section 20.403 is not a utilization facility incident reporting requirement is further supported by this agency's action in expeditiously enhancing reporting requirements for utilization facilities shortly after TMI-2, i.e.,
, the development of a new Part 50 section,10 CFR Section 50.72, rather than '
amendment of Section 20.403.
With respect to the particulars of March 28, 1979, the licensee should, at some point, have recognized that it had a material incident which required reporting under Section 20.403. One could postulate that reporting was required when the~1icensee became aware, or should have become aware, that byproduct, source, or special nuclear material had become directly involved in the utilization facility incident which occurred in the early hours of March 28, 1979. When such recognition should have been made is debatable.
It could be argued that such a material incident should have been recognized when radiation monitors began seeing ' excessive radiation. This apparently occurred sometime between 6:00 and 7:00 a.m. of the morning of March 28,
- 1979. Allowing for a period of time for event recognition and analysis, i.e., to determine whether the incident involving byproduct, source, or special nuclear material may have caused or threatened to cause excessive exposure, excessive releases of radioactive material, facility down time, or
. preparty drge, the initial efforts for reporting to NRC Region I offices, initiated at shortly af ter 7:00 a.m. in the morning, do not appear unirieasun-able. It must be recognized that the law pennits reasonable period of time foreventrecognition.y y The application of Part 20 in the past to Part 50 license holders is
- consistent with this interpretation. Computer printouts involving Section 20.403 citations against Part 50 license holders identify only three citations, all of which are individual overexposures.
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. B&B Insulation Inc. v. Occupational Safety and Health Review Commission and F. Ray. Marshall, Secretary of 1. abor, 585 F2d 1364 (5th Cir.1978).
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Once the initial report was made to Region I with regard to the material incident, i.e., that the radiation monitors were reading high, the licensee ,
had complied with the requirements of Section 20.403. This occurred shortly before 8:00 a.m. in the morning. Consequently, the regulation cannot be relied on to support citations for any presumed failures to report anything following this point in time. A citation against this regulation could only lie based upon some theory that the licensee failed to pranntly report the initial indications that indeed a " material incident" had occurred at the facility. The facts do not appear to support such a citation.
In conclusion, Section 20.403 will not support a citation against the licensee
' for a " utilization facility incident." This is a materials license require- '
ment and applies only to " material incidents". Utilization facility incident reporting is dealt with via plant Technical Specifications. A different application of Part 20 to TMI-2 would violate due process in that it would involve an application of a regulation to unintended incidents without proper notice to the licensee.4/
Richard Hoefling, Attorney Rulemaking and Enforcement Division Attachments: As stated cc: Terry'Harpster, I&E w/ enc 1.
John Craig, I&E w/ enc 1.
4/ Diebold, Inc. v. F. Marshall, Secretary of Labor and Occupational Safety
& Health Review Commission, 585 F2d 1327,1335-1339 (6th Cir.1978).
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b VOLUME 22 NUMBER 93 p.g. 3389 D
WasMngton, Tuesday, May 14,1957 TITLE 10-ATOMIC ENERGY 2. ne following r.ew section is added: TyFL Chapter I-Atomic Energy 1 20.403 Notifications and reports of [
Commisalon incidents--t a) immediate notification.
Each licensee shall immediately notify M OOM,'
PART 20-STANDARDS FOR PaoTEcfloN the Manager of the nearest Atomic AGAINST RADIAT!oN Energy Commission Operations Omce aEPoRTINc REQUIREMENTS listed in Appendix D by telephone and telegraph of any inciaent involving The following amendments add re- 7;pyggg material possessed by him and porting requirements to this regulation. which may have caused or threatens to They are designed, among other things' cause-to give the AEC prompt notice of po* (1) Exposure of any individual to 25 tentially serious accidents involving h* rems or more of radiation, including any censed material in order that appropri- radioactive material taken into the bodyl ate steps may be taken to protect against or further hazard to life or property. For (2) The release of radioactive mate-these reasons the Atomic Energy Com- rialin concentrations which,if averaged mission has found that general notice over a period of 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, would exceed of proposed rule-making and public pro- 5000 times the limits specified for such cedure thereon are impracticable and materials in Appendix B~. Table 2; or that good cause exists why these amend- (3) A_ loss of one working week or more ments should be made effective without of the operation of any f acilities a!!ected; the customary period of notice. The g Commission will, however, give consider- (4) Damage '.o property in excess of [rPC
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ation to any comments or suggestions $100.000. .
concerning these reputting requirements.
Allinterested persons who desire to sub-tb) Twentv-fcur hour noffMeation. ' h
Each licensee shall within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> notify mit written comments and suggestions the Manager of the nearest Atomic " '. .M relating to the following amendments Energy Commission Operations Omce should send them to the United States listed in Appendix D by (elephone and, Atomic Energy Commission. Washington telegraph.of any incident nvolving 'li-25, D. C Attention: Director, Division rensed material possessed by him and of Civilian Apphcation. which may have caused or threatens to Effective upon publication Title 10, cause:
Chapter I. Part 20. Code of Federal Regu- (1) Exposure of any Individual to 3.
lations entitled " Standards for Protec- rems or more of radiation. including any
- tion Against Radiation ** is amended in radioactive maternal taken into the body; the followmg respects: or
- 1. Section 20.402 is amended to read as (2) The release of radioactive material follows: In concentrations which, if averaged i 20.402 Reports of theft or loss of over a period of 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, wculd exceed -
licensed maternat Each licensee shall W timee ** Um!tt specified for such report by telephone e nd telegraph to the materials in Appendix B,Taole 2; or IManager or tne nearest-Alomle E6e@ (3) A loss of nne dw or more of the Commission Operations Omce listed in operation of any facilities a!Tected; or Appendix D. imm_edi le tely_ ali/C4.oc, (4) Damage to property in excess of p ,.,-
CugfnstktgQLnes known to the licensee, $1,000. .- s any loss or theft 6f 12erided material in (c) Thirty-dav reports. Each licensee .
such quantiues ahd under such eircum- shall make a report in writing within 30 .1"O stances thal it appears to thEicensee days to the Director, usesames=eMurnt-IbaMbst_anliaQTzard may rEssit to Lasa shephetthese United States Atomic MT
, ntnpIuLlrl,,,unlestncted areas. Energy Commission. Washington 25,
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D. C., of each incident involving licensed i material possessed by him which appears to have resulted in the exposure 6f an jndividual to radiation or to concentra-tions of radioactive material, or to have resulted in levels of radiation or con-centrations of radioactive material, in ^)
excess of any applicable limits set forth in these regulations or in the licensee's license, Each report required under this paragraph shall describe the nature of the incident, the extent of exposure of persons to radiation or to radioactive material, the levels of radiation and con.
centrations of radioactive material in-volved. the cause of the incident, and corrective steps taken or planned to assure against a recurrence of the joci-dent. A copy of each report shall be transmitted to the Manager of the nearest Atomic Energy Commission Operations OfRee listed in Appendix D.
- 3. Appendix D" is added to read as follows:
Artswort D t witse starts arouse susac.? ccumunion ottaations erricae
&fs't address Telegraph addreas
- Alhuguerque Operations OSee D.O. Dos Se1n. Albuqurcque.N.Mes. Albuqueregne, N. Mes, t'htcngo Operetnons Ofike... . . ....... P. O. mos M. larment 311...... . Issnent, gu.
Grand Junction Operations Olsee. Grand J unct lon. rato. . . . . . . - . .. . Grand June
- ion. Cole.
11anford Operations Omos P. O. Re It's. Michland. Wash..... Richland. Wash.
Idaho Operauous OSce.. P. O. Boa 1221, Idaho Falls, Idaho.. (Tenreram) &BB Seeend st., Llabe Falle, Idaho.
(Teletype). Idaho Falle.14aha, New York Operations OSce.-. 7e retumbus Ave., New York 33 is Cohuahus Ave.,
N. Y. (Telegrarn)k New Yor 23. N. Y.
Oak Ridge Operations Ome. . P. O. Roi E. Oak Rider. Tene..... On ide n Ran Franelaco OperaHons ofre..... Als 17th nt.d. Oakland is, rald . . .A iksit en inh St Oakland 12. Calif.
it. c. ... . . . . . ..
Savannah River Operations OfBm. . P. O. Res Aneusta. Oa.
Schenectady Operations 081oe P. O. Bos 1069, tschenectady N. Y_ (Telecram). Knotte Atesnie Power 14horntory, ftchenectady N. Y.
(Teletype), sehenectady, N. Y.
(sec. toi, es stat. e4s; es tr. s. c. 2201)
Dated at Washington, D. C., this 9th day of May 1957.
- For the Atomic Energy Commission.
K. E. Frst.as, General Manager.
[F. R. Doc. 67-3354; Filed. May 10. 1967; 6:00 p. m.)
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VOLUME 22 e NUMBER 19 UNITED Washington, Tuesday, January 29,1957 exposure problem, fication to be effective 30 days after pub.
TITLE 10-ATOMIC ENERGY umstations upon leveis of radiation lication in the PEDERAI. REGISTER.
Chapter I-Alomic Energy and concentrations of radioactive mate. crNtaAr. raonsioNs rial in areas affected by but not con. see.
Commission trolled by the licensee are contained 20.1 Purpose.
PART 20--STANDARDS FoR PROTECTION principally in i 26.102 (" Permissible 20.2 scope.
AcAINsf RADIATIoM IAvels of Radiation in Unrestricted 20.s Dennitions.
20.4 In July 1955 the Commission issued Areas"), i 20.103 t" Concentrations in 2as Units of radiation dose.
Units of radioacunty, for public comment a proposed regula. Eniuents to Unrestricted Areas")* and the sections on waste disposal. The sec. 2 e Intupntauons. "
tion to establish general standards for gns are r?e+ned tn ammre that inett. "
protection of licensees, their employees. virfunk in a nautssinu nostsarms, ANo '
and the public against radiation hazards uMgs1Lig1Rgras"Jio not * """'**" "*
receive exposure in excess of 10 percent arising out of the possession or use of cGhe Umits estabilshed for persons ex. 20.101 Exposure of individuals in restricted special nuclear, source, or byproduct ma* anas.
rfal under license issued by AEC. In Dosed In restricted areas. For this Dur.
pose, the secttons Ilmit levels of radiatfor, 2'J.102 Permissible levels of radiation in un.
.reparing the effective regulation pub" and concentrations of radioactive mate. "'*#I**#d""**
11shed below, the Commfufou bas had " """*
rial which may be created. in unrestricted ,"$c"g [,",*, '"
the benefit of numerous comments and gggpy_Jigenseesdthout special au. 20.104 Etedical diagnosis, therapy, and re.
suggestions received since publication of thorizatJon from the AYC. to extremM search, the proposed rules. A number of changes gg,, TTiese levels are believed to 20.105 Eteasures to be taken after excesstre suggested by those comments have been ge sufficiently low to assure that there up suus.
Incorporated in the following regulation. is no reasonable probability of individ. rarcAvnoNaar raocrnvars The regulation establishes standards uals in unrestricted areas receiving ex.
which rnust be followed in handling ra. '
dioactive materials which are subject to posures in excess of 10 percent of the $22 rsoNel monitoring the licensing authority of the Commis. permissible levels for restricted areas. 20.203 caution signs, labels." and signals.
Procedures are incorporated in those 20.204 Exceptions from posting require.
sion and provides procedures whereby sections, however, under which the Com. ments.
deviations from such standards may be mission may authorize licensees in spe. 20.205 Exemptions for radioacttre materials authorized on a case-to-case basis. The cific cases to create higher levels in pac 1 raged for shipment.
regulation prescribes !!mits which gov. unrestricted areas where the circum. 2a20e Instruction of pusomt.
ern exposure of personnel to radiation stances of the particular case are such 2N age of Itcensed anatettat and concentrations of radioactive mate
- as to provide reasonable assurance that waarE D1sPoSAI, rial, concentrations of radioactive terial which may be discharged into air ma* Individuals in the unrestricted areas will 20.301 Genera 1 requirement
' not receive exposures in excess of 10 20.302 Arethod for obtaint'ng approval of and water, and disposal of radioactive percent of the limitation established for proposed disposal procedures.
wastes. It also establishes certain pre
- restricted areas. 20.303 Disposa1 by release tato sanitary sew.
cautionary procedures and administra. "* 8' ' 78t****
tive controls. It is believcd that the standards incor.
porated in these regulations provide, in *E ** I "# * ' " '
- tablished thi re auon I be found to agree uhsia accordance witt' present knowledge, a are ans, amars, 4No NOT*g1CArloN b tIII}y with those piiSished by the Na. Very substantial margin of safety for ex. 20.401 Reeceds of surveys, rsdiation mont.
t 4 ,t,onaf~ Committee on Radiation ProIe'c. posed individuals. It is believed also that 20.402 Re l'oss of itcensed y tion m N. H S. Handbook 52 "MiETmum the standards are practical from the s cf th ft materlat.
. Permissible Amounts of Radioisotopes In standpoint of licensees. It should be 4 tTIThuman 13ody and Maximum Ferrdlia emphasized that the standards are sub. trezPrioNS AND ADDITIONAL BrQUfarutNTS h sti>1e (gngggations. In Air anti water." ject to change with the development of 20.501 App 11eations for exemptions.
d and N. II. 8. Ilandbook 69 " Permissible new knowledge, with significant increase 20.602 Additional requirements.
, !Tose TromEFEa%urces nf Yn"W in the average exposure of the whole zNroacturNr
.) Mation." The National Committee on population to radiation, and with further tion Protection has under review experience in the administration of the 20.001 violations.
% nendations to Ifmit cumulative Commission's regulatory program.
Avinoarry: Il 20.1 to 20.001 lasued under
.res over pericds of years. The Pursuant to the Administrative Pro. sec.161 tb),68 Stat 948,42 U. 8. C. 2201.
, 111ssion is giving consideration to cedures Act Public Law 404,79th Con
- cENr.RAL PROVIstoNs appropriate amendments to its regula. gress,2d Session, the following rules are tions to deal with this cumulative published as a document subject to codi, i 20.1 Purpose. (a) The regulations
f kSp0 h 9 Need plain English statement with regard to the following:
- 1. Miller's understanding on March 28.of the significance of superheat.
- 2. Is Miller's understanding on March 28 as to the fact that the FORV had been stuck open for approximately 20 minutes?
- 3. Miller's awareness on March 28 that reactor core was being cooled by methods not specified in the emergency procedures.
- 4. Miller's uncertainty or lack thereof prior to 9 a.m. on March 28 as to whether core cooling was adequate.
Question:
- 5. Did Miller in his conversation on March 28 prior to 10 a.m. with State and Federal officials inform them that the core was in a condition not covered by emergency procedures, that PORV had been opened for more than two hours during which time HPI had been throttled, that there was superheated conditions in a hot leg apd pressure vessel that he was uncertain as to
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adequacy of core cooling.
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