ML20140C997
| ML20140C997 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 04/15/1997 |
| From: | Ohanlon J VIRGINIA POWER (VIRGINIA ELECTRIC & POWER CO.) |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| 97-188, NUDOCS 9704220056 | |
| Download: ML20140C997 (10) | |
Text
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Wassir EimcTaic AND POWER Cm1PANY RicsiuoNo, ValuilNE A 23261 April 15, 1997 U. S. Nuclear Regulatory Commission Serial No.97-188 Attention: Document Control Desk NAPS /JHL R2 Washington, D. C. 20555 Docket Nos.
50-338 50-339 License Nos.
NPF-4 NPF-7 Gentlemen:
VIRGIN _lA ELECTRIC AND POWER COMPANY NORTH ANNA POWER STATION UNITS 1 AND 2 lHSPECTION REPORT NOS. 50-333/97-01 AND 50-339/97-01 REPLY TO THE NOTICE OF VIOLATION We have reviewed your letter of March 21, 1997, which referred to the inspection conducted at North Anna Power Station from January 12,1997 through February 22, 1997, and the associated Notice of Violation which was reported in inspection Report Nos. 50-338/97-01 and 50-339/97-01. Our reply to the Notice of Violation is attached.
Virginia Electric and Power Company believes that a violation of 10 CFR 70.24 requirements has not occurred. Exemptions from 10 CFR 70.24 requirements were i
received when the NRC approved the Part 70 licenses for North Anna Units 1 and 2.
We maintain that the 10 CFR 70.24 exemptions were incorporated into the Operating Licenses for North Anna Units 1 and 2. Additionalinformation to support this contention 1
is provided in the attachment.
No new commitments are intended as a result of this letter. If you have any further questions, please contact us.
Very truly yours, 4
James P. O'Hanlon
,f Senior Vice President - Nuclear i
Attachment 9704220056 970415 DR ADOCK 0500 8
3 I$lfllllll$llM!
3, i
cc:
U. S. Nuclear Regulatory Commission Region ll J
101 Marietta Street, N.W.
Suite 2900 Atlanta, Georgia 30323 NRC Senior Resident inspoctor North Anna Power Station J
1 j
4 REPLY TO NOTICE OF VIOLATION INSPECTION REPORT NOS. 50-338/97-01 AND 50-339/97-01 NRC COMMENT During an NRC inspection conducted on January 12,1997 through Fcbruary 22,1997, a violation of NRC requirements was identified.
In accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG 1600, the violation is listed below:
A.
10 CFR 70.24 requires that each licensee authorized to possess special nuclear material in a quantity exceeding those identified, to maintain a radiation monitoring system in each area where material is handled, used or stored, consisting of two detectors of specified sensitivity. Additionally, 10 CFR 70.24 requires that licensees have plans for evacuation of the area upon system alarm and conduct drills to familiarize personnel with the evacuation plans.
Contrary to the above, as of February 13, 1997, radiation monitors installed in fuel handling and storage locations did not provide full coverage for the area used for new fuel receipt and did not consist of two permanently installed detectors. Additionally emergency procedures did not clearly direct area evacuation upon receipt of any alarm, and drills were not conducted to familiarize personnel with evacuation plans. This condition had existed since issuance of the facility operating license.
During that time period, the new fuel receiving and storage areas were used to handle, use and store new fuel assemblies on a regular basis prior to each unit refueling outage.
This is a Severity Level IV violation (Supplement I).
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4 REPLY TO NOTICE OF VIOLATION 4
1.
THE REASON FOR THE VIOLATION. OR IF CONTESTED. THE BASIS FOR DISPUTING THE VIOLATION Virginia Electric and Power Company denies the violation. Exemptions from 10 CFR 70.24 requirements were received when the NRC approved the Part 70 licenses for North Anna Units 1 and 2.
We maintain that the 10 CFR 70.24 exemptions were incorporated into the Operating Licenses for North Anna Units 1 and 2. Additional information to support the denial of the violation is provided below.
Reaulatory Reauirements 10 CFR 70.24 requires that each licensee authorized to possess special nuclear material in a quantity exceeding those identified, to maintain a radiation monitoring system in each area where material is handled, used or stored. The radiation monitoring system used is to be gamma or neutron sensitive and energize clearly audible alarm signals, if accidental criticality occurs. 10 CFR 70.24(a)(1) requires coverage of all such areas to be provided by two detectors and specifies radiation monitor sensitivities. Additionally,10 CFR 70.24 requires j
that licensees have plans for evacuation of personnel to an area of safety when 1
the alarm sounds and that drills be conducted to familiarize personnel with the evacuation plans.
The design of the fuel building radiation monitoring system at North Anna Units 1 and 2 includes one gamma sensitive area radiation monitoring system which provides both local and control room alarms. This area radiation monitoring system is designated as a criticality monitor in the Technical Specifications. This radiation monitoring system is designed and operated as described in the Updated Final Safety Analysis Report (UFSAR) and was found acceptable by the NRC as documented in NUREG-0053, Safety Evaluation Report Related to the Operation of North Anna Units 1 and 2, dated June 1976.
Licensina Backaround The NRC issued the Part 70 licenses for North Anna Units 1 and 2 on April 16, 1976 and February 22, 1978, respectively.
Included in the licenses were exemptions from the requirements of 10 CFR 70.24. The explanation included in the NRC approved Part 70 license for North Anna Unit 2, in part, states "Because of the inherent features associated with the storage and inspection of 4
unirradiated fuel the NRC Staff has determined that you have shown good cause for granting the exemption." The operating li.ense for North Anna Units 1 and 2 that was subsequently issued, and Section 1.H in part, states "The receipt, possession, and use of source, byproduct, and special nuclear material as 2cf8
authorized by this amendment to the license will be in accordance with the Commission's regulations in 10 CFR Parts 30,40, and 70." Section 2.C(2) of the operating licenses further authorizes Virginia Electric and Power Company to
" receive, possess, and use at any time special nuclear material as reactor fuel, in accordance with the limitations for storage and amounts required for reactor operation, as described in the Final Safety Analysis Report, as supplemented and amended." The Part 50 operating licenses do not explicitly describe the previously approved exemption from 10 CFR 70.24 (for new reactor fuel) which was the authority to: 1) not include a criticality accident monitoring system in the fuel building new fuel storage and handling areas during design and construction of North Anna Power Station,2) not maintain emergency procedures to ensure personnel are withdrawn to an area of safety when the alarm sounds and 3) not perform drills to familiarize personnel with the evacuation plans.
Bases for Denial The current Part 50 operating licenses for North Anna Units 1 and 2 explicitly state in Section 2.C(2) that Virginia Electric and Power Company is authorized to
" receive, possess, and use at any time special nuclear material as reactor fuel, in accordance with the limitations for storage and amounts required for reactor operation, as described in the Final Safety Analysis Report, as supplemented and amended." The features associated with the storage of unirradiated fuel, as well as, the radiation area monitoring system are documented in Updated Final Safety Analysis Report (UFSAR) sections 3.1.53, 4.3.2.7, 9.1.1 and 12.1.4.
These UFSAR sections were used as the basis for applying for the Part 70 licenses.
UFSAR section 3.1.53 discusses that the handling, transfer and storage equipment and facilities are designed and arranged to provide sufficient center-to-center distance between assemblies to ensure Keff is equal to or less than 0.90. The transfer equipment is designed to only handle one fuel assembly at a time. UFSAR Section 4.3.2.7 describes that criticality of fuel assemblies outside the reactor is precluded by adequate design of the fuel transfer and storage facilities and by administrative control procedures. UFSAR Section 9.1.1 describes the new fuel storage area. Any water that may enter the new fuel storage area drains to the fuel building sump. Even if the area were filled with unborated water, the fuel assemblies would remain subcritical. UFSAR Section 12.1.4 describes the plant area radiation and airborne radioactivity monitoring instrumentation. Table 12.1-4 lists the area radiation monitors installed in the plant, including their alarm setpoints. This table indicates that there is only one detector in the New Fuel Storage Area (1-RMS-RM-152).
As a result of the above design descriptions, the NRC documented in NUREG-0053, Safety Evaluation Report Related to the Operation of North Anna Units 1 and 2, dated June 1976, that North Anna was in conformance with the intent of the General Design Criteria and that the design of the new fuel storage facility is in conformance with General Design Criteria 62 and is acceptable. It was also i
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documented that based on the locations chosen for the area radiation monitors and their associated sensitivities, alarm settings and the calibration program that there is reasonable assurance that radiation levels in the plant would be adequately monitored and that the area radiation monitoring system is acceptable.
Following documented acceptance of the design of the plant, the NRC issued North Anna Unit 1 an operating license included with the operating license are the plant Technical Specifications. Technical Specification 3.3.3.1 provides the limiting condition for operation of radiation monitoring instrumentation. Table 3.3-6 lists the radiation monitoring instrument channels required to be operable during periods when fuel is in the fuel storage pool or fuel building. Table 3.3-6 requires one radiation area monitor in the Fuel Storage Pool Area to be operable. This area radietion monitor is described as a Criticality Monitor.
Specifically, it is the New Fuel Storage Area Radiation Monitor (1-RMS-RM-152).
The measurement range associated with 1-RMS-RM-152 is the same as was discussed in UFSAR Section 12.1.4, Table 12.1-4 and as documented as acceptable by the NRC in NUREG-0053. The same requirements were applied to North Anna Unit 2 when its operating license was received.
Based on documented NRC acceptance of the new fuel storage area design, area radiation monitoring system design, and conformance with applicable 10 CFR 50, Appendix A, General Design Criteria, it can be concluded that the NRC exemption from the requirements of 10 CFR 70.24 that was included in the Part 70 licenses was extended with the issuance of the Operating Licenses for North Anna Units 1 and 2.
Virginia Electric and Power Company understood the NRC position to be that the 10 CFR 70 license, issued to authorize the receipt of unirradiated special nuclear material (SNM) prior to issuance of the 10 CFR 50 operating license, is subsumed into the 10 CFR 50 license upon its issuance. This understanding was reinforced by a decision of the NRC's Atomic Safety and Licensing Appeal Board (ALAB) in the matter of Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-765.19 NRC 645,649 n.2 (1984). In this decision, the Appeal Board stated that authorization to own, acquire, deliver, receive, possess, use, or transfer SNM granted pursuant to a 10 CFR Part 70 license "...is essentially subsumed within a license to operate a commercial power reactor, issued pursuant to 10 C.F.R. Part 50."
Further evidence of understanding the NRC's position is documented in a letter from the NRC to the Tennessee Valley Authority (TVA) dated May 11, 1988.
This letter documents that Browns Ferry Units 1, 2 and 3 had received exemptions from Section 70.24 in its Part 70 licenses, but the exemptions were not incorporated into the operating licenses.
The letter states "the staff considers the previously issued exemptions are still in effect even though the 4 of 8
specific provision of Part 70 licenses were not incorporated into the Part 50 license. Section 2.D(2) of the Units 1, 2, and 3 licenses states that TVA is authorized to receive, possess and use special nuclear material as reactor fuel in accordance with Part 70.
In view of this provision, the previously issued exemptions should not be considered to have expired and you are hereby advised that the staff does not consider a further exemption necessary.
Nevertheless, be advised that if TVA still wishes to receive the requested exemption, the staff will process it." It should be noted that the NRC letter to TVA was endorsed by the NRC Office of General Counsel. The same circumstances for Browns Ferry are applicable to North Anna Units 1 and 2.
It is our position that the initial 10 CFR 70.24 exemption granted for North Anna Units 1 and 2 was subsumed into the Operating Licenses at issuance. We believe this position to be consistent with the NRC Commissioner's decision granting the North Anna Unit 2 Operating License on August 21,1980, that stated that an operating license could not be issued "without first finding compliance with all applicable NRC safety regulations." That decision includes a separate attachment that, although identifying concerns with the pending application, concluded that the facility had been constructed and would operate in conformity with the provisiora of the Atomic Energy Act and all of the rules and regulations of the Commission.
Rationale For Denying The Violation In light of the regulatory history provided above, and the prior NRC issuance of exemptions from 10 CFR 70.24 for North Anna Units 1 and 2, and the explicit incorporation of UFSAR requirements (which call for only one detector) in the current 10 CFR 50 operating licc,ses, Virginia Electric and Power Company contends that a violation of NRC regulations has not been committed. Further discussion is provided below.
First, as discussed above, Virginia Electric and Power Company is in specific compliance with the North Anna Unit 1 anj 2 UFSARs, which are the substantive standards established by the current Part 50 operating licenses.
Documented approval was provided by the NRC in NUREG-0053.
Second, the Appeal Board decision for Limerick makes it clear that the NRC's position is that the provisions of the Part 70 license are subsumed in the subsequently issued Part 50 operating license.
i Third, the issuance of the May 11,1988 NRC letter to TVA, coupled with the staff's unambiguous statement that the previously issued exemption for each unit was still in effect, and the NRC's Cifice of General Counsel concurrence on the outgoing letter, constitute an agency interpretation of its own rules. We believe 5 of 8
that enforcement action based on an unannounced change in the NRC's interpretation of its own rules is unwarranted.
Although the NRC is entitled to change its position with respect to the automatic inclusion, or subsuming, of a pre-operating 10 CFR 70 license exemption into a j
facility's 10 CFR 50 operating license, the Administrative Procedure Act (5 i
U.S.C. 552, et seq.) requires adequate notice of such a change or position before citing licensees for violations based on the new staff position and may.
only be applied for enforcement purposes prospectively, and not retroactively, to affected licensees.
in Maxwell Co. v. NLRB, 414,F 2d, 477 (6th Cir.1969), a case cited with full approval by the Commission in Unitea States Department of Energy, Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-83,16 N.R.C. 412. 420 (1982), the Court upheld the right of the NLRB to change a former policy determination by its staff, on the ground that principles of res judicata and equitable estoppel do not apply to j
administrative agencies, because an agency must be free to correct past mistakes. Id. at 479. However, the Court denied enforcement of the NLRB's bargaining order because the NLRB did not put the petitioner on notice of a
" clear-cut change of Board policy relating to the industry as a whole or to Maxwell's own bargaining situation..." 414 F2d at 48't.'
Virginia Electric and Power Company does not dispute that the Commission, or the NRC staff, can change its interpretation that licensee exemptions in pre-operating Part 70 licenses automatically carry fonvard to Part 50 operating licenses.
However, the staff must give its licensees notice of the new interpretation and an opportunity to comply with the new interpretation before j
using the new interpretation as a basis for enforcement. It should be noted, that after learning of the new staff interpretation, and before a Notice of Violation was received, an exemption request from the requirements of 10 CFR 70.24 was submitted to the NRC for approval.
Additional Rationale For No Enforcement Action By The NRC Staff Virginia Electric and Power Company recently re-submitted a request for exemption from 10 CFR 70.24 in a letter dated January 28,1997. This letter along with the original exemption was based on the fact that there is no reduction in safety associated with the approval of the exemption.
in Oakwood Hospital v. NLRB,983 F2d 698,703-04 (6th Cir.1993), the Court also refused retroactive enforcement of a newly-issued policy decision when the NLRB attempted enforcement action against an employer.
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The focus of the NRC's Enforcement Program is to " emphasize the importance of identifying problems before events occur, and or taking prompt comprehensive action when problems are identified [.) (60 Fed. Reg. 34,381 (1995)). The enforcement action represented by the cited violation does not address this focus and provides no meaningful regulatory message for incorporation of improvements into the plant performance improvement program.
The violation, as cited, provides no deterrent effect (60 FR 34,383 (1995)). The violation does not emphasize the importance of compliance with regulatory requirements. Virginia Electric and Power Company believed, and continues to believe, that it was and remains in compliance with regulatory requirements as they have been explicitly interpreted in writing by the NRC staff.
In summary, the cited violation serves no regulatory purpose as set forth in the NRC's Enforcement Policy.
Conclusion l
Virginia Electric and Power Company concludes that:
1.
The issuance of a cited violation for not having an exemption to 10 CFR 70.24 coristitutes a change in NRC staff position without proper notice and j
comment pursuant to the Administrative Procedure Act.
2.
The initial operating license decision on compliance with all Commission rules, the Appeal Board decision for Limerick, holding that the 10 CFR 70 1
l license is subsumed in the Part 50 license, and the NRC's May 11,1988 letter to TVA provide evidence of the prior NRC staff position on the cited violation.
3.
Enforcement action in this instance is inappropriate and any regulatory message delivered in enforcement action would not sente any regulatory rarpose as set forth in the NRC Enforcement Policy.
2.
CORRECTIVE STEPS WHICH HAVE BEEN TAKEN AND THE RESULTS ACHIEVED To proactively address any non-compliance contentions and allow receipt of new fuel for the upcoming Unit 1 refueling outage, Virginia Electric and Power Company initiated the following immediate actions:
Temporary criticality monitors were installed in the new fuel receiving and storage areas.
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Operating Procedures were revised to include requirements for personnel response to alarms on the temporary criticality monitors installed in the new 2
fuel receiving and storage areas.
1 Personnel directly involved in the handling, use and storage of new fuel participated in evacuation drills.
Operations and Radiological Protection personnel received special training on the temporary criticality monitors and what the expected response is if a j
monitor is discovered in alarm. In addition, plant personnel received similar training through the issuance of a Training Information Bulletin.
A request for exemption from the criticality accident monitoring requirements of 10 CFR 70.24(a) was submitted to the NRC on January 28, 1997.
3.
CORRECTIVE STEPS WHICH WILL BE TAKEN TO AVOID FURTHER VIOLATIONS No further corrective actions are required.
4.
THE DATE WHEN FULL COMPLIANCE WILL BE ACHIEVED Virginia Power contents that it has been and remains in full compliance with 10 CFR 70.24.
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