ML20150F389
| ML20150F389 | |
| Person / Time | |
|---|---|
| Site: | Calvert Cliffs  |
| Issue date: | 07/12/1988 |
| From: | Tiernan J BALTIMORE GAS & ELECTRIC CO. |
| To: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| References | |
| EA-88-077, EA-88-77, NUDOCS 8807180271 | |
| Download: ML20150F389 (15) | |
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BALTIMORE GAS AND ELECTRIC CHARLES CENTER P. O. BOX 1475 BALTIMORE, MARYLAND 21203 JOSEPH A.TIERNAN Vict PassiDENT NUCLEAR ENERGY July 12,1988 U. S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION:
James Lieberman, Esquire Director, Office of Enforcement
SUBJECT:
Calvert Cliffs Nuclear Power Plant Unit Nos.1 & 2; Docket Nos. 50-317 & 50-318 Reolv and Answer to Notice of Violation. EA 87-77
REFERENCE:
(a) Letter from Mr. W. T. Russell (NRC) to Mr. J. A. Tiernan (BG&E),
dated April 28, 1988, Notice of Violation and Proposed Imposition of Civil Penalty (NRC Inspection Reports Nos. 50-317/87-07; 50-318/87-08)
Gentlemen:
Pursuant to the provisions of 10 CFR 2.201 and 2.205, vie hereby provide, in Attachment A, our reply to the Notice of Violation EA 87-77, and in Attachment B our answer to the Notice of Violation.
As set forth in Attachment A, we admit the identified violations, set forth why those violations occitred, explain the extensive corrective actions which have been taken, and provide the dates when full compliance was achieved. As explained in Attachment B, we believe that the proper application of NRC enforcement policy should result in either the full or partial mitigation of the proposed civil penalty.
8807180271 880712 PDR ADOCK 050 7
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s L.s Mr. Jame,s Lieberman July 12,1988 -
Page 2 Should you have any further questions regarding this matter, w will be pleased to discuss them with you.
Very truly yours
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/dW STATE OF MARYLAND :
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TO WIT -
28/)x% N L).A/)W I I hereby ce tify that on the
[)fl; day of _._ 24 M 19 88, before me, the subjeriber, a Notary Public of the State of Muylanddin and for M///>f-rB//M'64.
_, personally appeared Joseph A. Tiernar being duly sworn, and states that he isdVice President of the Baltimore Gas and Electric Company, a corporation of ti.e State of Maryland; that he provides the foregoing response for the purposes therein set forth; that the statement.* rnade are true and correct to the best of his knowledge, information, and belief; and that he was authorized to provide the response on behalf of said Corporation.
WITNESS my IIand and Notarial Seal:
b/A61 d
Notary Public
/l[4 /. Nf0 My Commission Expires:
$ ate' JAT/ WPM / dim Attachment ec:
D. A. Brune, Esquire J. E.
Silberg, Esquire R. A.Capra, NRC S. A.McNeil, NRC W. T. Russell, NRC D. C. Trimble, NRC NRC Document Control Desk
1 ATTACHMENT A
-l REPLY to NOTICE of VIOLATION,
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EA 87-77 i
REFERENCES:
(a) Letter from Mr. W. T. Russell (NRC) to Mr. J. A. Tiernan (BG&E),
dated April 28, 1988, Notice of Violation and Proposed Imposition of Civil Penalty (NRC Inspection Reports Nos. 50-317/87-07; 50-318/87-08)
(b) Letter from Mr. J. A. Tiernan (BG&E) to Mr. W. T. Russell (NRC),
dated May 22, 1987, Environmental Qualification of Unit One Electrical Equipment (c) Letter from Mr. J. A. Tiernan (BG&E) to Mr. W. T. Russell (NRC),
dated May 29, 1987, Environmental Qualification of Unit Two Electrical Equipment The reply given below is consistent with instructions provided to us in Reference (a).
(1)
Admission or Denial of the Allened Violations We admit the identified violations.
(2)
Reasons for the Violations The violations occurred because, for certain electrical equipment subject to our environmental qualification (EQ)
- program, installation details were not adequately specified by our design organization. Details were not snecified in our Qualification Maintenance Requirements Sheets.
These sheets provide direction to the craftsmen in the field. Additionally, these details were not communicated to the technicians and Quality Control Inspectors wh7 conducted inspect'ons.
(3)
Corrective Sttos That Have Been Taken and the Results Achieved A.
Insoection and Modification Program During a March 23-27, 1987 NRC inspection of the Calvert Cliffs EQ program, two solenoid valve; on each unit were found to have undocumented taped electric splices. BG&E then conducted an immediate follow-up EQ inspection on Unit 2 and found additional unqualified tapc splices. At the time, Unit 2 was shut down for refueling. Based on these results, BG&E decided to shutdown Unit 1,
then operating at full power, on April 1,
1987, tc-review the installed configuration of 10 CFR 50.49 equipment. We ecmmitted not to start up either unit until we were satisfied that we had identified and corrected our envircnmental qualification discrepencies. Additionally, we committed not to start up either unit until we obtained NRC :oncurrence.
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ATTACHMENT A g
REPLY to f NOTICE of VIOLATION, EA 87-77 ~
The ensuing inspection and modification program, was extensive. Twenty engineers. and technicians inspected every piece of equipment on' our environmental qualification list (excluding -cables) in both units. logging over 3700 manhours. Craft. - Quality Control, and Radiation Control forces combined for an additional 5300 manhours.
The comprehensive inspection and modification program resulted in the following:
All splices on EQ equipment were inspected in detail.
The installed configuration of EQ equipment was compared to the EQ files and discrepancies. were resolved.
Our Quality Assurance organization reviewed the inspection. and modification program to ensure proper inspection docut..entation and re-inspection documentation following corrective maintenance.
The program was' successful in that after two months we were satisfied that we had identified and corrected our EQ-c'iscrepancies and we received NRC concurrence in this determination.
A summary of all EQ equipment inspected and a summary of all corrective rr.easures for Unit One are provided in Reference (b). Unit Two's summaries
- are provided i Reference (c).
B.
Intgom Controls imerim controls were establisheC during and following the inspection and modification program described above, to ensure clear communication of EQ maintenance requirements to the ; raftsmen and to ensure work was completed as directed in those requirements. That program required additional information in EQ Maintenance Orders, such as:
EQ requirements checMist i
j Pertinent Qua!!fkatiot; Maintenance Requirement Sheets Excerpts from our Electrical Design and Construction Standard Each Mainten,mee Order was reviewed by a qualified reviewer prior to working the j@. After work was completed, a quality control inspector and a craftsman completed the post-maintenance checklist and a qualified reviewer reviewed it to ensure the work complied with the EQ files. A l
more detailed explanation of the interim controls that were established is provided in Reference (b) for Unit One and Reference (c) for Unit Two. l
^i ATTACilMENT A REPLY to NOTICE of VIOLATION, EA 87-77 C.
EO Pronram Management We have improved management of the EQ program by assigning a program manager, currently a Principal Engineer. Procedures were upgraded to institute a permanent matrix organization under the EQ program manager.
An independent QA evaluation was performed on the EQ program by a team which inclucd EQ expertise.
(4)
Corrective Steos That Will be Taken to Avoid Furthei Violations Our response to item (3) above addresses the work we did from when the discrepancies were identified in March 1987, to when both units were restarted in May 1987.
Much has been accomplished since the May 1987 restart to enhance the EQ programs at Calvert Cliffs. These enhancements have made it easier for us to maintain a high-caliber EQ program in the future.
A.
A complete revision of the Calvert Cliffs Instructions detailing the requirements and responsibilities associated with the EQ Program was performed.
B.
An enlarged and updated version of Construction Standard E 406 was issued which presents extensive details of EQ connections and documentation requirements.
C.
A more comple.e Qualification Maintenance Requirements Sheet (QMRS) was l
created using input from engineering, craft and QC personnel. New QMRSs l
were created and approved for all 10 CFR 50.49 equipment.
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D.
A new Design Engineering Section EQ Manual, which presents the design data relating to qualification in one document, was created and approved.
E.
A three-day training course on EQ, including hands-on training on i
connections, was developed and approved. All EQ-qualified craft personnel have successfully completed the training course.
l F-program to upgrade the qualification files for all 10 CFR 50.49 equipment was initiated and is well underway. Over 10,000 manhours have been spent in this effort. Several thousand manhours remain. Completion is scheduled for Octobe 31, 1988.
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A detailed review of all documentation relating to scheduled cable for l
10 CFR 50.49 equipment has been completed. It is possible now to easily i
retrieve cable EQ data for almost all 10 CFR 50.49 components. Data is now being finalized for the last ten components.
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rq-ATTACHMENT A REPLY to NOTICE 'of VIOLATION, EA 87-77
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Date When Full Comoliance Was Achieved We were in compliance with the applicable requirements of 10 CFR 50.49 for the items cited in your Notice of Violation by the following dates:
Unit One, May 22-1987 (See Reference b.)
Unit Two, May 29,1987 (See Reference c.)
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ATTACIIMENT B
. ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION The Baltimore Gas and Electric Company (BG&E), by way of Answer and Request for Additional Mitigation in response to Notice of Violation and Proposed Imposition of Civil Penalty dated April 28, 1988, admits the violations identified in the Notice.
BG&E does, however, contend that the application of the NRC's most recent EQ Enforcement Policy was m*sapplied, and i that other reasons exist why the proposed civil penalty should not be imposed.
I.
A FINDING of SIGNIFICANT SAFETY VIOLATIONS is NECESSARY In order to impose civil penalties for violations of the Commission's Modified Enforcement Policy relating to 10 CFR 50.49 (Generic Letter 88-07), the NRC must first make a finding that the -violation which is the subject of the civil penalty is, in fact, safety significant. This initial determination is a requirement that is inherent to portions of the policy, and also is clearly stated in Appendix C to 10 CFR Part 2.
s A.
"Significant" Safety Violations Test Under the Modified EQ Enforcement Policy civil pen (i.e., at or above The Modified Policy is drafted so that a significant violation."gityThe philosophy is
$50,000) is assessed only for "a
significant EQ apparent through the modified Policy. For example:
The Generic Letter identifies as a change from prior enforcement policy the fact that NRC will "aggregate sinnificant EQ violations together
." (p.1).
The Generic Letter states NRC's intention to impose a minimum civil penalty of 550,000 for "a sinnificant EQ violation in most cases" (p.1).
Section III of the enclosure to the Generic Letter announces that "all violations of the rule (need not) be considered for escalated enforcement or assessed a civil penalty." The statement concludes:
although not in the qualification file, if sufficient data exists or is developed during the inspection to demonstrate qualifica-tion of the equijment or, based on other information available to the inspector, the specific equipment is qualifiable for the application in
- ouestion, the qualification deficiency is not considered sufficientiv sinnificant for assessment of civil penalties.
These violations would be considered to be Severity Level IV or Severity IThis is true for part of the Modified Policy, other portions are inconsistent, as will be shown later.
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ATTACIIMENT B ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION Level V violations based on a violation of 10 CFR R 49 muirements at the time of the inspection" (enclosure, p.2).
Section ~lV of the enclosure states that "Sinnificant EQ violations for which the licensee clearly should have known that they had equipment for which qualification had not been established, are to be considered together (enclosure, pp.2-3).
Similarly,Section IV states, "The three EQ violation categories reflect the overall pervasiveness and the general safety sinnificance of significant EO-violations" (enclosure, p.3).
Finally,Section IV states that the three EQ violations categories "do not includt those EQ violations which have been determined to be not su ffi-cientiv sinnificant standing alone to be considered for escalated enforcement -
and which will normally be considered as Severity Level IV or V violations..
." (enclosure, p.3).
Although the enclosure which provides details of the Modified Policy states that the NRC "will make a conservative judgment as to the overall safety significance of the EQ violations based on the number of safety systems affected" (p.4), the Modified Policy does not appear to treat all EQ violations equally in determining which should be counted towards determining "significance." Thus, as noted above, the enclosure also states that EQ violations are not incl ded in the violation categories if, starJing alone, they would not be considered for escalated enforcement and would no" ?!!y be considered as Severity Level IV or V.
B.
Safety Sinnificance As Provided in Anoendix C to 10 CFR Part 2 The importance of safety considerations for purposes of NRC enforcement is one of the key elements embedded in the NRC's enforcement regulations contained in 10 CFR Part 2, Appendix C. The regulatory considerations for NRC enforcement leave no doubt that the significan' e of an alleged violation is one of the principal considerations that safety c
must be tax:n into account. This concept is stated at several points, including:
"The purpose of the NRC enforcement program is to promote and protect the radiological health and safety of the oublic.
(Section I,
1st Paragraph)
"Regulatory requirements have varying degrees of
- safety, safeguards or environmental sinnificance.
Therefore, the relative importance of each violation must be identified as the first step in the enforcement process."
(Section 111,1st Paragraph)
"Severity Level I and 11 violations are of very sinnificart rent!.* tory concern.
In general, violations that are included in these seserity categories involve actual or high notential imoset on the ou blic." Severity Level III violations are caused (sic) for significant concern. Severity Level IV violations are less serious, but are more than minor concern; i.e.,
if left uncorrected, they could.
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ATTACHMENT B t
ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION lead to a more serious concern. Severity Level V violations are of minor safety or environmental concern. (Section III, 3rd Paragraph)
"To encourage lic. nsee self-identification and correction of violations and to avoid potential concealment of problems of safety sienificance, application of the adjustment factors set forth below may result in no civil penalty being assessed -for violations which are identified, reported (if required),
and effectively corrected by the licensee," (Section V B,
6th Paragraph)
These provisions, as with the rest of 10 CFR Part 2, Appendix C, are part of the NRC's rules of practice and have the legal force of regulations adopted in accordance with the Administrative Procedure Act. No such deference is due Generic Letter 88-07, a staff pronouncement which does not have the Administrative Procedure Act pedigree. As such, inconsistencies or conflicts between the two must be resolved in favor of Appendix C. This consideration, presumably, underlies the changes embodied in Generic Letter 88-07:
"Upon review, the Commission found that the EQ Enforcement Policy promulgated in Generic Letter 86-15, could result in imposition of civil penalties that did not properly reflect the safety significance of EQ violations with respect to civil penalties imposed in the past." (Page 1)
"The NRC's view is that the Modified Policy more closely reflects the relative l
safety importance of EQ violations with other enforcement issues." (id.)
Thus, NRC enforcement actions must conform to 10 CFR Part 2, Appendix C. Should
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Generic Letter 88-07 result in proposed civil penalties that would be inappropriate under Appendix C, those civil penalties cannot stand. In the present case, because the l
proposed civil penalties have not considered the safety significance of the violations, the civil penalties are inappropriate.
Therefore, some analysis must be made of the significance of individual violations before they can become the basis for escalated enforcement or civil penalties. No such analysis appears in the Notice of Viol.tiva. As set forth below, BG&E respectfully submits that none of the violations are safety significant.
Cs'vn t Cliffs' Violations C.
Lack of Safety Sinnificance Renardiia t
As has been previously discussed in Attachment A of this letter at page one, upon l
discovery of the taped splices during the inspection of March 1987, the Company promptly shutdown the unit which was still in operation and conducted a thorough and far-ranging investigation at t>oth units in order to establish conclusively the extent of any deficiencies which may have existed at that time. In doing so, LG&E also stressed the importance of testing all equipment about which there was a question regarding environmental qualifications to establish whether or not it could have been qualified or determined to be operable. As a result of the Company's extensive efforts i
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A'ITACIIMENT B ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION in this regard, it compiled a comprehensive list of equ pment about which EQ questions were raiscd. We were able to show that all of the equipment was qualified, qualifiable, or in a few instances, operable. All the equipment was found to be operable. The overwhelming majority of items were found to be either qualified or qualifiable. Ta other words, while some of BG&E's equipment did not have documentation at the time of the inspection, there was no impact on the public health and safety.
While the Company's investigation was not complete before the NRC inspectors' exit interview on March 27, 1987, nonetheless, it was completed before either of the reactors were allowed to resume operation.
II.
EQ DEFICIENCIES SilOULD NOT BE COi4SIDERED FOR ESCALATED ENFORCEMENT WIIEN DATA IS AVAILABLE PRIOR TO RESTART The Modified Enforcement Policy makes it very clear that certain types of EQ violations are not to be considered for escalated enforcement. Section 111 of the enclosure to Generic Letter 88-07 states that violations resulting from qualification files that did not demonstrate or support qualification of the equipment could be "cu red," and no civil penalties assessed. Two examples were provided for how this could take place:
(1)
"if sufficient data exists or is developed during the inspection to demonstrate qualification," and (2)
"(if), based on other information available to the inspector, the specific equipment is qualifiable for the application in question Such violations would only be considered to be Severity Level IV or V violations under 10 CFR Part 2, Appendix C.
This language is not precise and leaves open a number of questions for interpretation.
The first situation, data existing or developed "during the inspection," poses the question of defining "during the inspection," and especially defining when the inspection terminates. There would not seem to be any logical reason to exclude from this "curing" procese, data supplied in response to an inspector's questions or reque s, even if it was delivered or developed after the inspector had physically left the premises. This seems particularly appropriate where no possible safety l
consequences could attach from the timing of the subsequent submission (for example, in a case where the units are shut down from the time of the inspection until the information was submitted). Similarly, EQ deficiencies should not be considered for civil penalties or escalated enforcement where they are uncovered by licensee investigations initiated angt an NRC inspection is terminated and "cured" while the unit remains out-of-service, in those circumstances, it is obviously impossible to "cu re" ti.e deficiency during the inspection (since the inspection was completed pilor to discovery of the vjolations), yet the significance of the violation is certainly no greater than one discovered by an NRC inspector and cured during the inspection.
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A'ITACIIMENT B ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION The second situation, the determination that equipment is qualifiable "based on other information available to the inspector," is subject to similar ambiguities and should be interpreted in the same manner. Allowing EQ deficiencies to be "cured" based on "information - available to the inspector" which demonstrates qualification or qualifiability encourages the licensee to undertake the most complete and thorough examination of EQ deficiencies - and to correct those as promptly as possible, even when that information might not be available until after the inspection.
Applying these principles to BG&E dire f.ly impacts the number of EQ deficiencies which could be considered sufficiently significant to form the basis for a civil penalty.
The unqualified tape splices initially discovered during the NRC inspection were replaced by qualified cable splices before the NRC inspectors left the site. This remedial step should receive at least as much enforcement "credit" as providing l
additional data during the inspection to demonstrate qualification. Any doubt on this account should be resolved by the fact that BG&E subsequently demonstratec' that the undocumented tape splices were in fact qualifiable, information that was "available to the inspector." Thus, these EQ deficiencies should not be considered "sufficiently significant" to support civil penalties.
The remaining EQ deficiencies were discovered by the Company's own investigation and self-identified during walkdowns after the inspectors had left the site, it was thus physically impossible to "cure" the deficiencies while the inspectors were onsite.
But, because the deficiencies were discovered and corrected while the units were shut down (and also prior to the issuance of the inspection report), and because the information demonstrating that the equipment was qualifiable "based on information available to the inspectors" (again prior to issuance of the inspection report and I
restart), these deficiencies should also be deemed not "sufficiently significant" to l
support a civil penalty. In sum, none of the equipment which is the subject of l
escalated enforcen ent in this case actually constitmed a safety significant violation; l
yet, the Company is foreclosed from using this fact on its own behalf.
i None of the deficiencies identified following the March inspection should be counted as "sufficiently significant" because (a) all items were either qualifiable or operable, and (b) it is unfair, inappropriate and inequitable to apply such timing restrictions to deficiencies which are self-identified after an inspection. As has already been l
stated, any other result would be a disincentive for utility self-identification and l
extensive corrective action program.
III.
IT IS INAPPROPRIATE TO ASSUME TIIAT TIIE UNQUAI.lFIED EQUIPMENT l
IS INOPERABLE l
l Another aspect of the modified Enforcement Policy which is at odds with an appropriate l
consideration of safety significance is its unsupported assumption that uncualified equipment could affect system operability. This assumption is inconsistent with other provkions of the modified Enforcement Policy. Generic Letter 88-07 (bottom of Page 1 and top of Page 2) requires a licensee to make a prompt determination of operability l
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ATTACHMENT B ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION and to take immediate steps to establish a plan with a reasonable schedule to correct potential deficiencies. The Letter goes on to explain _ that such operability _ may be established using analysis and partial test data to provide reasonable assurance that the equipment will perform its safety function. The enclosure to the Generic Letter,
- however, takes a totally inconsistent position, in describing how EQ violations are to be categorized for civil penalty purposes, the concept of operability is summarily cast asidr "The NRC will assume, for escalated enforcement cases, that the unqualified equipment could affect operability of the associated system. The NRC will agi consider refinementa on the operability arguments such as... the degree to which the operability of a system is affected, or that through additional analyses or testing, the equipment may be demonstrated to be qualified or qualifiable.
This assumption is made for enforcement purposes in order to reduce the resources anticipated to be spent by licensees and the NRC to evaluate in detail whether system operability was in question."
(Section IV A, 4th Paragraph)
Thus, while the licensee is obligated to show operability on the one hand, the NRC assumes (for enforcement purposes) inoperability on the other hand. This inconsistent assumption is unsupportable.
Since licensees are obligated to make operability determinations in any event (which the NRC Staff may well review) the claimed justification for assuming the inoperability -- the saving of resources -- is illusory.
In addition, the Modified Policy states that the NRC will make a "conservative judgment" as to the overall safety significance of the EQ violations based on the number of safety systems affected. (Section IV A, 5th Paragraph) The actual impact of this "conservative" judgment is to implant a liberal interpretation upon the number of l
systems affected. While the approach may grant the benefit of a quick view of overall l
impact, it is once again rather inconsistent to consider the results of such an approach to have any actual bearing on what the real safety consequences are likely to t
be, it is simply inappropriate to assume -- for purposes of convenience -- that every EQ violation (even those that are purely "paper" deficiencies) results in an inoperable component or system.
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IV.
IN TIIE EVENT A PENAI,TY IS ASSESSED. IT SIIOULD BE MITIGATED i
Based on the above, BG&E believes that its documentation violations constitute, at l
best, only Severity Level IV or V, and no penalty is warranted. If, however, the NRC l
is able to make the necessary determination for imposition of a civil penalty, it should be substantially mitigated.
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' ATTACHMENT B ANSWER to NOTICE of VIOLATION, nnd REQUEST for ADDITIONAL MITIGATION A.
Anotication of Safety Sionificance Considerations to BG&E Civil Penalty Subpart IV A of the enclosure to Generic Letter 88-07 discusses the classification of proposed civil penalties and establishes three categories establishing differing base civil penalties depending on the number of systems and components affected. The base civil penalties are set forth in the Policy as follows:
EO Violation Catenorv Base Civil Penalty A.
Extensive; EQ violations affecting
$300,000 many systems and many components.
B.
Moderate; EQ violations affecting
$150,000 some systems and some components.
C.
Isolated; EQ violations affecting a
$75,000 limited number of systems and components.
In the Notice of Violation, it is stated that "many systems and many components" were affected. In fact, most, if not all, of the items that were classified as being in violation of EQ requirements should have been considered "not sufficiently significant for assessment of civil penalties." If this standard, as we understand it, had been applied, th vi lat ns w uld have more appropriately been placed in Category C, not in 2
Category A,
In essence, the new Enforcement Policy has resultid in a skewed categorization because of a failure to first screen each separate violation using the safety significance test.
If only 'the safety significant violations had been considered, very few, if any, would have been counted and the Notice of Violation would not have concluded that many components and systems were affected.
Likewise, if the violations charged had been considered under 10 CFR Part 2,
Appendix C, which would have been the case had the Plant begun initial operation after November 30, 1985, a radically different conclusion would likely have resulted. The penalty for EQ violations potentially affecting numerous safety-related systems, where
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the licensee had prior notice, would more likely have been a Severity Level 111 violation based on 10 CFR Part 2, Appendix C. A Severity Level 111 violation has a base civil penalty of $50,000, as opposed to our $300,000 base civil penalty. If basic fairness and equity among licensees is to be achieved, there must be comparability between penalties under Appendix C and those assessed pursuant to Generic Letter 88-07.
l 2This assumes that there was at least one significant violation. Even l
this assumption is debatable.
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6 ATTACilMENT B ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION B.
Additional Mitination Should be Allowed The new Enforcement Policy, ia Subpart IV B, discusses Mitigation / Escalation Factors.
It reads as follows:
Maximum Mitigation /
Escalation Amount (from base civil Mitigation / Escalation Factors cenalty) 1.
Identification and prompt reporting, if
+/- 50%
required of the EQ violations (including opportunities to identify and correct the deficiencies).
2.
Best efforts to complete EQ within the deadline.
+/- 50%
3.
Corrective actions to result in full compliance
+/- 50%
(including the time taken to make an operability or qualification determination, the quality of ar,y supporting analysis, and the nature and extent of the licensee's efforts to come into compliance).
4.
Duration of violation which is significantly below
- 50%
100 days.
As had already been emphasized, extensive corrective actions were taken in order to achieve full compliance, including (among other things) shutting down an operating reactor for a period of two months, extensive analysis and testing of equipment, hiring of outside experts and, in general, focusing considerable Company attention on the scope and nature of the problem. In short, it is difficult to conceive of any corrective activity or measure which could have been taken by BG&E that was not taken in this case. Nor is it reasonable to claim that, once the violations were discovered, that corrective action could have been more prompt. It is noted with interest, however, that in applying the above mitigation / escalation factors to this particular case, the NRC, instead of allowing the full 50% mitigation under Factor No. 3, only allowed BG&E 25%. The reason stned for not granting the full 50% mitigation is that BG&E's corrective action should have been initiated sooner. The wording of Factor Iri this instance, BG&E has in essence been penalized three times for the same offense.
First, NRC determined that BG&E "should have known" of the existence of a violation.
This conclusion necessarily assumes a delay in recognizing the underlying deficiency.
Second, BG&E's penalty was escalated 25% pursuant to Factor No. I because it failed to discover the violations soon enough. Third, the mitigation available under the factor No. 3 was reduced by 25%, abairs because the violations were not discovered promptly enough. We believe this ' triple-counting" was erroneous and, in fact, it tends to provide a disincentive for other licensees to follow BG&E's example upon the discovery of similar problems in the future. It is suggested that, not only for the fair
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ATTACHMENT B ANSWER to NOTICE of VIOLATION, and REQUEST for ADDITIONAL MITIGATION application of the Enforcement Policy in BG&E's case, but, in fact, for the more efficient and appropriate application to the industry as a whole, this type of precedent is ill advised.
CONCLUSION For the above reasons, BG&E requests that:
1.
the-violations be re-classified as Severity Level IV or V and/or 2.
additional mitigation be granted, thereby -reducing or eliminating the proposed civil penalty No. 3, however, can only be interpreted to encompass an evaluation of the licensee's corrective actions. The promptness or delay in identifying the underlying deficiencies which led to the corrective actions is more properly within the scope of Mitigation / Escalation Factor No.1.
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