ML20148Q505

Forwards Comments by Il Power Co to Ja Mcclure on Proposed Rule 10CFR2 Re Policy & Procedure for Enforcement Actions. Particular Attention Should Be Given to Citation for Violations Resulting from safety-related Equipment Failure

ML20148Q505
Person / Time
Issue date:	12/18/1980
From:	Hendrie J NRC COMMISSION (OCM)
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-45FR66754, RULE-PR-2 45FR66754-94, NUDOCS 8101220639
Download: ML20148Q505 (10)

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December 18, 1980

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f MEMORANDUM FOR:

SamuelJ.Chilg

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Secretary of th Commission N

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FROM:

Joseph M. Hendri ty

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SUBJECT:

COMMENTS ON PROPOSED ENFORCEMENT POLICY Bee STATEMENT r.;

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l I suggest that applicable portions of the enclosed letter hhd attagh-ments be regarded as comments on the proposed enforcement policy statemerHi.

j All of the Commissioners have received copies.

I recommend to the staff reviewing comments and preparing a final version of the policy statement for Commission decision that attention l

be given to at least two of the matters raised in these documents, The j

first has to do with licensee liability for a violation notice and civil l

penalty if a piece of safety-related equipment fails to operate or breaks. On page 11 of the proposed statement is a paragraph saying

" Licensees are not ordinarily cited for violations resulting from matters not within the control of the licensee, including its employees, t

that could not have been reasonably foreseen, such as, equipment failures i

that are not the result of personnel error or inadequate design, proce-i dures, quality assurance, fabrication, testing, maintenance, or comunica-i tions." Now I can conceive of no equipment failure that is not due to l

one or several of the listed causes, and licensees (and perhaps NRC l

staff) may be reading this to say there is no way they can avoid being j

cited for an equipment failure.

That was certainly not the way I intended that paragraph to be interpreted and apparently it needs some i

cl ari fying.

l The second matter is the comment that no exception for overexposures due even to life-saving emergency actions is offered in the descriptions of l

violations in the health physics area.

That raises a point we did not cover in the discussions of the proposed statement, at least so far as j

I can recall.

Emergency situations may well require actions, and not only in the radiation protection area, that would be subject to a i

violation notice in normal operation but are necessary to prevent greater harm to plant personnel or the public.

I think there should be a general i

exemption for such actions in an emergency situation.

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Enclosure:

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As stated t

cc:

Chairman Ahearne

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Commissioner Gilinsky

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l Commissioner Bradford THIS DOCUMENT CONTAINS POOR QUAUTY PiGES 810 3 22 0 (M i

/LLINDIS POWER COMPANY 500 SOUTH 277H STREET, DECATUR, ILUNOIS M525 December 9, 1960 Honorable James A. McClure United States Senator 5229 Dirksen Senate Office Building Washington, D.C.

20510

Dear Senator McClure:

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I recently attended a public meeting in Chicago called by the Nuclear Regulatory Commission to describe their " Proposed General Statement of Policy and Procedure for Enforcement Actions."

The thrust of the meeting was to provide the NRC representatives an opportunity to describe how they plan to punish licensees for noncompliance (avoidable and unavoidable) and to provide to licensees and the public an opportunity to comment.

I am writing to you because the NRC representatives attribute both the intent and the content of this policy to the Congress and indicated in their responses to questions that the proposed actions were required by law.

(Recent events would suggest that their interpretation may be correct. ) (1)

The comments were not limited to the utility industry; in fact, the bulk of them represented universities, research establish-ments, the medical profession, and hospital organi:ations.

I urge you to have the record of this meeting examined and summari:ed for you.

In particular, I recommend the comments of Dr. Lynn Miner, speaking for Marquette University.

I am enclosing a copy of the comments made by Thomas F. Plunkett, Manager of our Clinton Power Station.

Mr. Plunkett has chosen a career in nuclear power management and speaks from that perspective.

It is a perspective which I believe warrants your attention; parti-cularly the last paragraph.

(1)

The recent decision of the U.S.

Circuit Court of Appeals

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-2 for the District of Columbia that existing law requires the NRC to held public hearings on all license amendment.s tf so requested would appear to support the NRC position (notice attached).

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McLaure

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The proposed policy describes in detail the basis for the l

various forms of punishment up to and including criminal action.

j It establi.shes six severitv levels and seven areas of activities.

Civil penalties are required for certain violations even though the licensee has followed properly all applicable procedures and met all regulations.

For example, if a piece of equipment fails even.though it has been made and inspected in accordance with all applicable codes, standards, and regulations, a fine must be levied.

If a worker receives radiation exposure in excess of the prescribed limit, irrespective of the circumstances, a fine must be levied.

Mr. Plunkett made the observation in his comments that no allowance is made even for an overexposure resulting during an emergency where a human life is in jeopardy.

The reaction of the audience can be summarized best by the =imple question, "What happened to the team concept ~wherein the equlators and those regulated work together to assure a safe and efficient utilization of nuclear energy?"

I believe that this proposed policy'and procedure for en-forcement contains implications far beyond the nuclear industry.

If this concept represents the appropriate approach to regulation, then I can think of no reason why it should not be extended to other areas of regulatory enforcement.

For example, the air-transport industry presents a ha ard to the public and a schedule of fines for this industry could be established comparable to the schedule of fines proposed in the NRC policy.

The loss of an engine from an airplane would surely justify a fine of millions of dollars since it is already established that many lives could be lost when

'such a failure occurs.

Similarly, a failure of a tire on landing would support a sizable fine since this failure also produces a significant potential hazard.

It shoulf be noted that to be consistent with the proposed nuclear enforcerent policy, this fine would be imposed even though the operator / licensee had carried out a proper tire maintenance orogram and had cerformed all recuired.

tests, preventive maintenance actions, etc.

(The regulators would have the prerogative to reduce the fine, but not eliminate it.)

In a similar vein, fines could be established for the operators of aircraft in the same manner as are being established for operators in nuclear power plants or radiation facilities.

The pilot would be fined for a rough landing, he would be fined for departing from his prescribed course, etc.

The latter system of fines would be proportional to the amount of departure frc= the l

prescribed course (six severity levels might accommodate this industry too).

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Senator James A..McClure

~3-December 9, 1980 1

It is difficul: to imac.ine that a utility c cme. a ny would ccm-mit to build new nuclear power cac.acity in this rec.ulatorv. environ-ment.

(I certainly would not recommend such an action.)

In

addition, as emphasized by many of the commentors, it will be extremely difficult (hoc.efullv not imc. o s sible ) to keep qualified People in this industry.

Therefore, I conclude that the NRC has effected a moratorium on new nuclear power plants and is slowly strangling the existing industry.

If the NRC is correctly inter-preting the will of Congress, then Congress has done it.

I have been involved in nuclear energy development for almost 33 years; much of it involving ISR-I and EBR-II in your state.

During most of that time, the Congress has supported the develop-ment of nuclear energy and encouraced its application for peaceful uses.

In the 1960's and early 1970's, it would have been almost P

unpatriotic for a utility c eme. a nv. to not use nuclear power if its needs for electricity were large encugh and if the economics justi-fied its use.

I personally concur with the en.dorsement of nuclear power which the Congress fostered through the Atomic Energy Act of 1954 and subsequent amendments.

I am now very confused as to our national policy regarding nuclear energy.

If the national opinion has changed and Congress no longer endorses the use of nuclear enere.v, then I believe that Congress should make this national co. inion known and should take resc.onsible action accord-in-l.v.

As a minimum, such actica should include relieving those v

utilities who responded in good faith to national c.olicy and built nuclear power plants.

The government should assume total respons-ibility for all existing nuclear installations and utili:e them as they deem appropriate.

The path we are en now is placing disproportionate burdens on those organizations that have' built and are building nuclear power plants.

It is becoming almost impossible to continue, but also impessible to terminate these activities.

The total industry is being impacted by this situation and the health and reliability of this vital industrv. is bein9 adeo=ardized.

If it is the national will (as established by the Congress of the United States) to kill nuclear energy, then I believe it deserves a decent and honorable burial and not a humiliating slow death by strangulation.

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5enator James A.

Mrclure December 9, 1930 I stand ready to. assist in any way I can to resolve this matter and to remove the uncertainty which is draining our nati.on of valuable resources.

Sincerely, s

L J. Koch Vice President Enclosures cc:

Senator Charles H.

Percy Senator Elect Alan J. Dixon Congressman Edward R. Madigan John F. Ahearne, Chairman, NRC Peter Bradford, Commissioner, NRC Victer Gilinsky, Commissioner, NRC Joseph M. Hendrie, Commissioner, NRC"'

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l IF2 DICI5!ON 3Y A ?IDEFAL A??IALS COURT TF.AT T"I NCCLIAR RIOULATORY COMMI55!CN l

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,?,,,AN7 TO VENT RADICACTItII GAS FRO TF.I D.O'_;GE3 T'.:.RII MILE 151AND '3IT 2 RIAI!;?

PUILDING MAY CREATE MAJOR DIFFICULTIES FOR TFE NCCLIAR ?.ICU aTORY CCMMISSION :N ALL LICENSE ALTE?.ATIONS, NRC CF. AIR'>AN J0'0; T.

AF.EARNE SAID.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Colu=bia ruled Nove=ber 19,1980 that the NRC violated provisions of'the A:omic Energy Act of 195L when

. it denied a hearing on its decision to nuclear opponents and residents living near the plant area.

s The purpose of the ven:ing was to remove ndicactive krypten gas fro = the damaged plan:'s con:ain=en: building so that =anned en::y into :he building could be cade to inspect the da= age and begin cleanup operaticas. The NRC staff had found that venting would be the easies and be,st r.pproach and i:

would offer no damage to public health. NRC had de: ermined cha: "no signifi-cant hazards" were likely fro = the ven:ing and fel: tha: this finding =4an: i:

did not have to hold a hearing.

Several ci:izens' groups filed sui:s :o s:op the ven:ing but as courts did not inte rve ne, the gas was vented in June and J uly.

NRC cook i:s ven:ing action by modifying the operating license of :he IMI-i i

2 plant.

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of 195L only permi:s the NRC "to The Cour: ruled tha: the A:omic Energy Act que s :. ", license a=end=e nt, w'ithout a hearing ' ihe n~'~the re has bee n no he a j

Chairman Ahe1:ne no:ed that the ruling seems to indicate that NRC will have to hold public hearings on all license changes except for =ajor emergencies, and wi:h hundreds of proposed changes pending, it could hinder the agency's work 7

tremendously.

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EMARKS BY THOMAS F. FLUNKETT PLANT MANAGER CLINTON POWER STATION ILLIN0IS POWER COMPANY GENTLEMEN:

THANK YOU FOR GIVING E TE 0??ORTUNITY TO CO>CIENT ON THE PROPOSED l

CHANGES TO 10CFR2.

ALTHOUGH I AM SPEAKING AS AN ILLINOIS ?OWER COMPANY REPRESENTATIVE, j

MY BACKGROUND HAS BEEN IN THE AREA 0F NUCLEAR FOWER PLANT STARTUP l

AND OPERATION.

THUS, I WOULD HOPE THAT I AM ALSO SPEAKING FOR SOME-.

0F MY COLLEAGUES '.TF.0 ARE WORKING IN THE POWEF. P.LAN.TS _TO..D_AY AND CA.N. N..O..T_

B. E HEE.-.T. HES.I A. RE T.._HE P.. E..O.P. L. E WH.O...A.RE__THE.. _O__N_E_S T.H.A.T HA LIVE WITH AND INTE.R? RET T.H.E. PLETHORA. 0.F.EGULATIONS THAT FALL ON THE. I_R.._ BACKS DAILY.

MY REMARKS AE AS FOLLOWS :

1.

THE NRC NEEDS TO PROVIDE TRUE INCENTIVES FOR ACCURATE, HONEST PROMPT REPORTING.

CONSEQUENTLY, THERE SHOULD BE NO PUNITIVF OR REGULATORY ACTION ASSOCIATED WITH SUCH EPORTING.

I DOU3T 7ERY MUCH IF THE REDUCTION OF THE CIVIL PENALTY 3Y AS MUCH AS 50 PERCENT FOR LICENSEE EPORTED VIOLATIONS WILL HAVE THE AFFECT INTENDED.

FURTHEP30E, THE PROPOSEu REDUCTION IN FINES AS INCENTIVFS IS NOT CLEARLY DEFINED AND PLACES RELIANCE ON SUBJECTIVE DECISIONS FROM I & E RELATING TO THE GOOD FAITH OF LICENSEES, THE PROMPTNESS OF THE REPORT AND THE COMPREHENSIVENESS OF CORRECTIVE ACTION.

SU3JECTIVE DECISIONS ARE NOT ACCE?TA3LE IN LIGHT OF THE LARGE FINES SEING PROPOSED.

PUNI~IVE OR REGULATORY ACTIONS ARE ONLY A??ROPRIATE WHEN THEE IS A FAILUE TO REPORT OR_ A FAI*.URE TO IDENTIFY A VIOLATION.

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l FACILITIES, FOR EXA':FLE, CAN 3E GREATER THAN AT POWER EACTORS.

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I AN OVEREXPOSUE IS EQUAL AT ALL LICENSEES, THE CIVIL ?I"ALTY SHOULD BE EQUAL AS WELL.

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IMPOSING CIVIL PENALTIES FOR EVERY DAY THAT A VIOLATION OCCURS l

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IS CONTRARY TO THE APPRO ACH THAT SHOULD BE TAKEN TO DI? ROVE l

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PERFORMANCE.

IT IS FAIRLY WELL RECOGNIEED THA~ EWA2.DS AND l

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WOULD SUGGIST THE AUTHORS OF THIS DOCU12NT MAY WA'IT TO INVEST-t i

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IGATE OTHER TYPES OF MOTIVATIONAL TECHNIQUES.

I WOULD ALSO ECO'eEND THAT ALL FINES MUST 3E APPROVED 3Y THE CO'O!!SSION.

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P THE INCLUSION OF AN APPEAL PATH WITH NO ACTION TARIN UNTIL I

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THE A??EAL IS RULED ON SHOULD ALSO 3E INCLUDED.

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THE PROPOSED' RULE CHANGE REFERS TO ADHERENCE TO INFORMAL P,

OBLIGATIONS AND INFORMAL AGEEMENTS.

IT WOULD CLEAR THE AIR.

j CONSIDERA3LY IF THE WORD " WRITTEN" WAS PLACID IN FRONT Or j

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THE WORD INFORMAL.

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I CAN UNDERSTAND THE NEED FOR PROGESSIVE ESCALATION ACTIONS i

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WITH ESPECT TO NONRIS?ONSIVE LICENSEES.

HOWEVER, I FEEL f,

THAT TA3LE 2 WOULD EVENTUALLY RESULT IN THE SHUTDOWN OF MOST-l 0 *. = R. A"..'.1 G C"a '.'. S.

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A CONSIDERA3LE NDI3ER OF SEVERITY CATEGORY EXAMFLES.

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i FINES FOR FJ.RDWA?2 FAILURES.

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A FEW BRIEF COM!ENTS ?ETAINING TO THE SEVERITY CATEGORIES AE I

AS FOLLOWS:

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MATTER IS WITHIN THE BOUNDS OF TECHNICAL SPECIFICATION LIMITING l

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CONDITIONS FOR OPERATION, TREE SHOULD BE NO PENALTY j

HEALTH PHYSICS

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NO ALLOWANCE IS MADE FOR ONE TDE DERGENCY EXPOSURES h~iEE FOSSI3LE EA?31 TO HDLAN LIFE IS CONCERNED.

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"FAILUE TO DECONTAMINATE PLANT AEAS AS REO,UIED" IS j

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I AM UNAWAE OF NRC STANDARDS FOR DECONTAMINATION.

l IN GEERAL, TE SEVERITY CATEGORIES ARE ?00RLY DEFINED AND PRONE 4

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TO SUBJECTIVE JUDGMENTS OF THE NRC FI'1 ALLY, I A'4 ?IRSONALLY TIED AND OFFENDED WITH THE USE.OF THE WO.RD S i

CRIM. I._NAL, CR.IMINAL OFFENSE, ETC. WiiICli A?? EARS THROUGHOUT THIS 1

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l COMPLIANCE WITil ALI. REGULATIG"S CAN BE ACliIEVED.

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?ERFORMAN.CE. ".

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t THANK YOU AGAIN FOR GIVING ME AN 0??ORTLNITY TO CCDENT.

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