ML20209F565

Remits Fee in Payment of Civil Penalty in Response to Jg Keppler 860506 Notice of Violation & Proposed Imposition of Civil Penalty.Util Strongly Disagrees W/Statements in Jm Taylor

ML20209F565
Person / Time
Site:	Byron
Issue date:	04/27/1987
From:	Reed C COMMONWEALTH EDISON CO.
To:	Lieberman J NRC
References
2848K, EA-86-048, EA-86-48, NUDOCS 8704300317
Download: ML20209F565 (5)

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Commonwealth Edison Plaza Y}

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One First National, cago, Illinois Chi kk' / Chicago, Illinois 60690-07677 Address Reply t2 Post Office Box 767 April 27, 1987  :

Mr. James Lieberman, Director Office of Enforcement U.S. Nuclear Regulatory Commission Washington, DC. 20555

Subject:

Byron Station Unit 1 Enforcement Action 86-48 NRC Docket No. 50-454 References (a): February 26, 1987 letter from J. M. Taylor to J. J. O'Connor (b): July 3, 1986 letter from B. L. Thomas to J. M. Taylor (c): May 6, 1986 letter from J. G. Keppler to J. J. O'Connor

Dear Mr. Lieberman:

t Reference (a) transmitted the Nuclear Regulatory Commission's ("NRC" or " Commission") reply to Commonwealth Edison Company's (" Edison") response, reference (b), to the Notice of Violation and an Order for payment of the civil penalty proposed in reference (c). On March 9, 1987, Edison was granted a thirty day extension on the due date for the response to the Order.

Edison strongly disagrees with certain statements in reference (a).

For the reasons discussed in the attachment, Edison believes that these statements are inconsistent with established Commission practice. However, after long and careful deliberation, Edison has decided not to appeal these matters but to pay the civil penalty.

Edison's decision turns on its expectation that those NRC statements which are inconsistent with established NRC practice will be confined to this proceeding and, thus, will not be followed in future enforcement proceedings.

This expectation dissuaded Edison from expending further resources on an appeal that could be more costly than the penalty.

Under these circumstances, Edison has enclosed a check for $50,000.

Very truly yours, 0

Cordell Reed Vice President l

/klj l 8704300317 870427 PDR G

ADOCK 05000454

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2848K

i ATTACIWWplT 1

1. The Refusal To Consider An Expert Engineering Analysis Solely Because That Analysis Was Prepared After The Event Was Inconsistent With NRC Practice.

Under established NRC practice, a licensee in an enforcement i proceeding may provide a post-event analysis addressing the operability of 2 the equipment involved and the safety significance of the event at issue.

In this proceeding, a post-event analysis was rejected solely because it was prepared after the event in question. Except_for this proceeding, Edison knows of no other enforcement proceeding in which such an analysis t has been rejected solely because it was prepared after the event in question. Not only was this rejection inconsistent with established NRC practice but, more importantly, it prevented Edison from making its case on the critical issue of operability.

a. The refusal to consider the independent, expert evaluation of operability constituted a serious denial of Edison's due process rights in an enforcement proceeding.

The alleged inoperability of the Emergency Core Cooling System ("ECCS")

was the essential basis for the violation of the Technical Specifications in this proceeding and the subsequent imposition of a civil penalty.

< Under these circumstances, the accurate determination of operability was critical to the correct application of the Commission's Enforcement Policy.

The Commission's Enforcement Policy in this case applies only to events that actually violate the NRC's requirements. Where the NRC staff premises a violation on the allegation that equipment was not operable as required by the Technical Specifications, then the licensee, as a matter of due process, must be given an opportunity to show that the equipment was operable. And where the Technical Specifications referred to by the NRC staff only address operability at the time of the event, the only relevant inquiry for the purpose of determining a violation is whether, in fact, the equipment was operable during the event in question. The ,

l unrelated question of whether the licensee knew that the equipment was  !

operable may give rise to a separate enforcement action, but it is not relevant to a determination of whether the equipment was operable or inoperable for the purposes of a Technical Specification.

In this instance, Edison provided an independent, expert, engineering evaluation of operability during the alleged event. However, solely because that evaluation was prepared after the event at issue, the NRC refused even to consider the evaluation. i l

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1 That refusal constituted a denial of due process. An essential element of due process is the opportunity to be heard. That opportunity is significantly eroded where the " hearer" can raise irrelevant barriers to what can be heard. But that is just what happened here. The NRC Staff'

refused to even consider the independent expert evaluation because it was prepared after the event and, thus, could not have demonstrated operabi-lity during this event. This reasoning improperly confuses the stated basis for enforcement action, the actuality of operability, with the clearly distinct issue of knowledge of operability. The fact that the i evaluation was prepared after the event is irrelevant to this issue of the actuality of operability.

Thus, by refusing to consider that evaluation, the NRC wrongfully refused to " hear" critical evidence which went to the most basic issue in this enforcement proceeding, whether a violation even occurred. Under these circumstances, the NRC staff's refusal to consider the evaluation was a violation of Edison's due process right to be heard. Moreover, if followed, such a refusal to consider reports would repeat that due process violation every time a licensee presented a retrospective report on the actual circumstances during an event. Edison expects that such a procedural bar to the consideration of relevant information will not be raised in future enforcement proceedings

b. The refusal to consider the independent, expert evaluation of the safety significance of this event constituted a clear departure from established NRC practice.

Where a determination of the Severity Level of an event for the purposes of enforcement depends on the safety significance of that event, the NRC Staff cannot, as a matter of law, ignore an expert, independent report bearing on the accurate determination of safety significance solely

because that report was prepared after the event in question. An accurate determination of the safety significance of an event is essential to the

consistent, reasoned implementation of the Commission's Enforcement Policy. Recognizing this principle, the NRC staff has not, to Edison's knowledge, previously rejected a report on the safety significance of an event leading to an enforcement action.

Of necessity, such a report has almost always been prepared after the event in question because such events often involve unanticipated modes of operation. Nevertheless, such reports have been accepted because nothing about their timing affected their validity. As long as all of the necessary information is available, the safety significance of an event can be determined accurately any time after its occurrence.

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In this proceeding, however, contrary to long-established NRC practice, an expert, independent assessment of the safety significance of the event in question was rejected solely because that assessment was prepared after '.

the event. No other reason was given for rejecting this assessment.

' In particular, there was no reliance on the only possible timing issue on which the svaluation could have been rejected, i.e. that the assessment was performed so long after the event as to be inaccurate due to loss of-information. Under these circumstances, the NRC refusal to follow long-established practice must be considered to be fundamentally unfair to licensees.

Indeed, if followed rigorously, such rejections of post-event evaluations would read safety significance out of the Commission's Enforcement Policy in almost all cases. Surely, such a result cannot be squared with the Commission's explicit language in the Enforcement Policy. That Policy requires the NRC to determine accurately the safety significance of an event as part of the determination of that event's severity level. Thus, the explicit language of the Enforcement Policy as well as fundamental fairness and consistency with prior practice require the NRC staff to consider post-event assessments of safety significance. Edison expects,

' therefore, that these considerations will result in future adherence to that well-established practice.

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2. The NRC Staff Cannot Substantially Restate the Commission's Enforcement Policy by SignificantlY Expanding the Scope of a Severity Level to go Beyond the Actual circumstances of an Event.

I The scopes of the Severity Levels established by the Enforcement policy represent the Commission's deliberate, carefully considered policy judgements on the suitable penalities for actual events. This careful structure was radically modified by the NRC staff's creative interpolation of language which significantly expanded the scope of a Severity Level III violation.

A Severity Level III penalty may be imposed for:

i A system designed to prevent or mitigate a serious safety event

) not being able to perform its intended function under certain j conditions---[ examples omitted]

10CFR Part 2, App. C, Supp. I, C.2.

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! By its plain language, this example applies only to actual system failures. Despite this clear language, the NRC staff significantly expanded the scope of this example by restating it as:

i the event did involve a situation in which a system i designed to prevent or mitigate a serious safety question was not able (or was not known to be able_l to perform its intended function under certain conditions-

, (emphasis supplied) l

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The additional language stretches the scope of a Severity Level III violation from the actual occurrence of a safety significant deficiency to the mere lack of knowledge of a system's ability to function.

Such a change imbalances the Commission's carefully crafted Enforcement Policy. If allowed to stand, this interpolation will dramatically increase the number of events considered for escalated enforcement and substantial civil penalties. Because this interpolation is clearly inconsistent with the Commission's explicit statement of policy, Edison expects that in the future the Enforcement Policy will be applied as formulated by the Commission.

3. The Term _"_ Operability" Has Been Expanded Improperly Beyond Its Explicit Definition In The Technical Specifications To Incorporate Broader Criteria Derived From The Final Safety Analysis Report ("FSAR").

The Technical Specifications define operability as the capability of performance of intended function. That definition must be adhered to rigorously where, as here, that definition is critical to the determination ,

of whether the Technical Specifications have been violated. By expanding that definition to include broader criteria based on the PSAR systems descriptions or certain analysis assumptions, the NRC staff has,-in effect, broadened the scope of violations as described in the Enforcement Policy. Here, again, this broadening undoes the careful balance struck by the Commission. So here, too, Edison expects that the definition of operability contained in the Technical Specifications will be adhered to rigorously in the future.

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