ML20133B945

Expresses Appreciation for Opportunity to Present Ilpr View on Why Plant Operating Crew Actions Do Not Amount to Willful Violations of CPC Procedures During 960905 Event

ML20133B945
Person / Time
Site:	Clinton
Issue date:	12/06/1996
From:	Daniel Shapiro MORGAN, LEWIS & BOCKIUS
To:	Walker H NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III)
References
EA-96-412, NUDOCS 9701060289
Download: ML20133B945 (8)

Text

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December 6,1996

, VIA FACSIMILE AND U.S. MAIL I

Mr. Harold G. Walker

i. Senior Special Agent

U.S. Nuclear Regulatory Commission

Office of Investigations, Rill

8')1 Warrenville Road Lisle, Illinois 60532

Re: Illinois Power Company Position Paper on Willful Violations and the September 5,1995 -

. Event at the Clinton Power Station i~

Dear Mr. Walker:

l Thank you for the opportunity to present Illinois Power Company's view on why the Clinton Power 1- Station (CPS) operating crew's actions during the September 5,19% event (event) do not omount j to willful violations of CPS procedures.  ;

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[ As the enclosed Position Paper explains, willful violations can be either intentional acts or actions taken in careless disregard for requirements. During the course of the event, the CPS operating j

j crew made decisions only after carefully considering CPS procedures, their safety implications, and obtaining expert technical advice. While in hindsight, some of these decisions resulted in CPS 1 .. procedure violations, it is crucial to your willfulness inquiry to consider that, during the event, the crew reasonably believed that they were following CPS procedures. Therefore, we trust that upon your review of the attached position paper and the evidence and testimony gathered during your i

j. investigation, you will agree that no willful violation of CPS procedures occurred on September 5, j j .1996. l 1

if you have any questions regarding the enclosed position paper, please do not hesitate to call me.

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Very truly yo rs,

/ . J aryl M. Shapiro l

Enclosure r I

=caea ' 0l 4C 060053 9701060289 961206 ,

PDR ADOCK 05000461 s PDR PNiedelphia Washington New York Los Angeles Marni Hamsburg Pnnceton London Brussels Frankfurt Tokyo

POSITION PAPER I. ISSUE Whether Illinois Power Company or any of its employees willfully violated Clinton Power Station Operating Procedures on September 5, 1996, while attempting to shift the operation of the reactor recircu-  !

lation system from two-loop to single-loop operation.

-II. FACTUAL BACKGROUND On September.5, 1996, Clinton Power Station (CPS) personnel, i in an attempt to stop reactor coolant leakage into the drywell floor  !

i drain system, performed procedures intended to shift the operation  ;

l of'the reactor recirculation system from two-loop to single-loop operation. During the course of this evolution, the operating crew l

made decisions after carefully considering CPS procedures, their safety I implications, and obtaining expert technical advice. Notwithstanding the crews belief that they were following CPS procedures, in hindsight,  !

several procedures were performed out of their required sequence resulting in violations of CPS procedures. Ultimately, the reactor coolant leakage rate increased above the plant's technical specification limit for unidentified leakage and resulted in the j declaration of an unusual event. As a result, the reactor i i

recirculation pump seals failed and the plant was shut down.

III. LEGAL STANDARD: WILLFULNESS As a general matter of law, willfulness includes either the intent to do a prohibited act or acting in careless disregard of requirements.

. United States v. Illinois Central R. Co., 303 U.9 239, 243 (1938)

("either intentionally disregards the statute or is plainly indifferent to its requirements") . See also Goodman v. Bensen, 286 F.2d 896,

. . . . _ _ _ . _ . - . . ~ . . . _ _ _ _ _ _ _ . . _ - . . _ _ - . . _ _ . . ~ . ,

q l 900 (7th Cir.1961) . Although the development of the statutory term

! " willful" occurred in the context of criminal statutes, courts have t

since applied this definition to both criminal and civil statutes.

Trans World Airlines v. Thurston, 468 U.S. 111, 127 (1985). The NRC defines willfulness in much the same way: "[a] n attitude toward compliance with requirements that ranges from the careless disregard for requirements to a deliberate intent to violate or falsify." NRC Enforcement Manual, Chapter 1, Section 1.6 at 6. See also 1,' Appendix I, Statement of Consideration for the Final Rule on Deliberate Misconduct by Unlicensed Individuals, at 23. Willfulness does not include mistakes or simple errors, misjudgments, miscalculations, ignorance, or ordinary negligence. Illinois central, 303 U.S. at 244; Nabob Oil Co. v. United States, 190 F.2d 478, 480 (10th Cir.

1951).

(1) Intentional Act:

An intentional or deliberate violation is "one in which an NRC requirement has been breached with some intent or purpose to commit the breach." NRC Enforcement Manual, Chapter 7.2, at 1. The Commission describes such a violation as:

knowingly provid[ing] goods or services relating to a licensee's activities subject to NRC regulation, when that misconduct causes or, except for detection, would have caused a licensee to be in violation of an NRC requirement.

In this context, it includes an intentional act or omission that the person knows would cause a licensee to be in violation of any rule or regulation or other NRC requirement, or that the person knows constitutes a violation of a requirement or policy of a licensee, contracter, or subcontractor. l 1

L L., a t A p p e n d i x I , at 33.  !

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(2) Careless Disregard:

Careless disregard connotes "a reckless regard or callous indifference toward one's responsibilities or the consequences of one's actions. . . ." NRC Enforcement Manual, Appendix H, at 8.

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The NRC, in forming its definition of careless disregard, specifically '

1 relied on Trans World Airlines. 1 In Trans World Airlines, the l Supreme Court described careless disregard as "' wholly disregard [ing) 3 the law . . . without making any reasonable effort to determine whether I I

the plan he is following would constitute a violation of the law. '"

469 U.S. at 126 quoting Nabob Oil Co. v. United States, 190 F.2d 478, 479 (10th Cir.) cert. denied, 342 U.S. 876 (1951).l' See also Illinois i

4 Central, 303 U.S. at 242-243 (careless disregard for lawful duties amounts to " plain indifference" to the requirements of a statute) .

In Trans World Airlines, former airline pilots filed an age discrimination suit under the Age Discrimination in Employment Act (ADEA) against their former airline challenging the corr >any's mandatory retirement and transfer policies. These policies .vored captains disqualified for any reason other than age ( su c.. is medical) over

those disqualified for age (mandatory retirement). The pilots were i

awarded double damages because the airline was found to have willfully discriminated against the them. The Supreme Court reversed as to the issue of willfulness, finding that the discrimination was not willful because the airline did not know that its conduct violated E Other definitions of " careless disregard" accepted by the Court were " reckless disregard for the matter of whether its conduct was prohibited," and " marked by careless disregard [for] ,

whether or not one has the right to so act." E at 126-27 l (internal citations omitted).

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any statute and because it did not adopt its retirement policy in reckless disregard of statutory requirements. Trans World Airlines, 469 U.S. at 129. Specifically, the Court reasoned that because TWA officials met with their lawyers to determine whether their policy relating to mandatory retirements and transfers violated the ADEA, the " record [made] clear that TWA officials acted reasonably and in good faith in attempting to determine whether their plan would violate the ADEA. " 1 Another example of a violation not rising to the level of careless disregard is Brock v. Guffey. Hubbell. McGhee. P.C., 1985 WL 17583

(W.D. Va.), where the court found, even though the defendant's actions constituted violations of Fair Labor Standards Act, the violations i

! were not intentional or a careless disregard of the Act because, prior to acting, the defendant made a good faith effort to interpret the Act and design a scheme consistent with the Act. This case concerned an employer'e calculation of regular pay (guaranteed hourly or salary) and the resulting computation of overtime pay. After referring to the Act and its implementing regulations, the employer mistakenly computed overtime on an alternative basis as permitted by DOL regulations (the employer paid overtime to guaranteed hourly employee at a salary employee rate instead of the higher hourly overtime rate).

Because the distinction between the two ordetime calculations was somewhat confusing and the employer made a reasonable effort to l determine the correct method, the court deemed the violation not to be willful. E at 3.

In contrast, an example of acting in careless disregard of the 1

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j law is Finer Foods Sales Co. v. Plock, where the court affirmed a i

willful (careless disregard) violation of the Perishable Agricultural r

d Commodities Act (Act). 708 F.2d 774 (D.C. Cir. 1983). In Finer Foods, 4 i

{. a licensee / purchaser who knew that Act required prompt and full I l payment, entered into significant and repeated transactions after ,

1 j pledging most of its assets to a third party creditor and experiencing l serious financial problems. As a result, the court concluded that i

"[wjhen the petitioner made the purchases involved in this case, it l

l necessarily knew that it probably would ret be able to pay for them '

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{ in accordance with the statutory requirement" and, therefore, )

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! " petitioner's failure to pay was willful because it was done with l i- .

Careless disregard of statutory requirements." E.at 778. l l

l Another such example is Potato Sales Co. v. Department of Acricul-f ture, 92 F.3d 800 (9th Cir.1996) , where a seller challenged a Secre-i tary of Agriculture willful determination and subsequent license  ;

revocation. At a customers request, the seller had misrepresented i

the place of origin of over 7000 cartons of apples by re-lidding the j cartons to make them look like domestic instead of foreign apples.

I l The seller argued that he was unaware of any prohibition against his j conduct and therefore his acts could not be considered willful. The j l

l court disagreed, concluding that the seller's violation was willful f- (careless disregard) because the seller's acts were clearly deceptive i

I and should have at least raised doubts with the seller as to the i

! propriety of the re-lidding. E at 805.

1 l In sum, careless disregard is a high standard and does not include

, " violations caused by simple error, misjudgment, miscalculation, 5

i, , .

t ignorance, or confusion on the part of the individual." NRC Enforcement Manual, App. I at 30. If a person " acts reasonably in determining l 1

its legal obligation it cannot be deemed willful." McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 135 n. 13 (1988). As such, the Court in Richland Shoe specifically rejected a willfulness standard )

below that which it announced in Thurston (knowledge or reckless disregard for legal requirements) . 11. at 135. As the Court reasoned,

" permit [ ting) a finding of willfulness to be based on nothing morc than mere negligence, or perhaps, on a completely good-faith but incorrect assumption. . . would fail to give effect to the plain j

[ meaning of willfulness]." Ii IV. ANALYSIS l

Illinois Power Company employees did not willfully violate CPS operating procedures while attempting to shift the operation of the reactor recirculation system from two-loop to single-loop operation. 1 At each step during the evolution, the operating crew made reasoned decisions after carefully considering CPS procedures, the safety implications of their actions, and obtaining expert technical advise.

While hindsight shows that some decisions made by the operating crew I were wrong and resulted in procedural violations, these decisions l l

were made in good faith and were motivated by a desire to follow procedures and safely operate the plant. Such mistakes, made in good i faith, does not rise to the level of wholly disregarding the law or i not making a reasonable effort to determine what the law is, necessary prerequisites to finding careless disregard.

Nor can such mistakes be labeled intentional violations. As 6

w the Commission has recognized, " people make mistakes while acting in good faith [and] enforcement actions directly against individuals are not to be used for [such) activities. . . . It would therefore be an erroneous reading of the final rule . . . to conclude that conscientious people can be subject to personal liability for mistakes."

NRC Enforcement Manual, Appendix I, Statement of Consideration for the Final Rule on Deliberate Misconduct by Unlicensed Persons, at ,

23. Because the procedural violations that occurred during the single-loop evolution were honest mistakes, no willful violation of CPS operating procedures occurred.

DOC #54388 I

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