ML20236H224
| ML20236H224 | |
| Person / Time | |
|---|---|
| Site: | Farley  |
| Issue date: | 10/30/1987 |
| From: | Mcdonald R ALABAMA POWER CO. |
| To: | NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM) |
| References | |
| TAC-65399, NUDOCS 8711030533 | |
| Download: ML20236H224 (10) | |
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j Alabama Power Company 600 North 18th Street Post Office Dox 2641 Birmingham, Alabama 35291-0400 Telephone 205 250-1835 L
he"Ofte"0 ioent AbWau October 30, 1987 Docket Nos. 50-348 j
S0-364 i
U. S. Nuclear Regulatory Commission ATTU: Document Control Desk l
Washington, DC 205S5
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Gentl emen:
Joseph M. Farley Nuclear Plant - Units 1 and 2 NRC Inspection of November 7-14, 1986 I.
INTRODUCTION AND
SUMMARY
In its Notice of Violation (NOV) issued on January 26, 1987, the NRC Region II Staff alleged that Alabama Power Company had violated 10CFR Part 50, Appendix J.
Specifically, the Staff alleged that Alabama Power Company violated Section III.A.1.(a) of Appendix J because it failed to determine the "as found" leakage rate condition of two containment penetrations (i.e., the fuel transfer tube and the containment equipment hatch) which were used during the 1986 Farley Nuclear Plant Unit i refueling outage.
In its response dated February 26, 1987, Alabama Power Company denied that its actions violated Appendix J.
By letter dated August 31, 1987, the Regional Staff concluded that the alleged violation was correct as issued and l
requested within thirty days an additional response to the NOV.1 This will serve as Alabama Power Company's additional response and is intended as a supplement to the February 26, 1987 response.
For the reasons provided herein, Alabama Power Company maintains that the NRC should withdraw its NOV because, in the circumstances surrounding use of the two penetrations at issue, Appendix J did not require Alabama Power Company to determine the "as found" conditions. Any interpretation of Appendix J to require determining "as found" conditions in these circumstances is contrary to the plain meaning of the regulations and not supported by the regulatory history of Appendix J.
Further,. it is contrary to sound regulatory practice and an abuse of agency discretion to take enforcement action based on a regulation which, by the NRC's own admission, is ambiguous.
1 By letter of September 30, 1987, Alabama Power Company sought an additional thirty days to file its response.
8711030533 871030 gDR ADOCK 05000348 I(o PDR
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U. S. Nuclear Regulatory Commission October 30, 1987 Page 2 l
l Nevertheless, consistent with past practices, Alabama Power Company will continue to provide to the NRC, as a supplement to Farley Containment -
i Integrated Leak Rate Test (CILRT) reports, the "as found" Type B and C
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leakage rates, to the extent that "we are capable of measuring them." See q
Inspection Report Nos. 50-348/82-21 and 50-364/82-20, dated August 30, j
1982, at 3.
Further, Alabama Power Company will now perform, to the extent l
practical, "as found" leakage rate tests prior to normal refueling outage usage of the penetrations at issue here.
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I II. BACKGROUND
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i The factual background concerning the Farley Containment Integrated Leak Rate Testing program is set forth in Alabama Power Company's February 26, 1987 response to the NOV at pages 2-6.
We will only briefly summarize the l
pertinent facts here.
Farley Nuclear Plant Unit 1 was licensed for operation in 1977. Prior to licensing, the NRC reviewed Alabama Power Company's proposed containment leak rate testing program and found that it " complies with the requirements of Appendix J to 10CFR Part 50."
NUREG-75/034 at 6-6.
The approved program was utilized for preoperational tests on both Farley units as well as for the three inservice tests conducted to date on Unit 1 and the one inservice test conducted on Unit 2.
The results of these tests' were reported to the NRC and were within the Appendix J acceptance criteria.
In October 1986, Unit 1 was shut down for refueling. During the outage but before commencement of the Containment Inspection for the Type A test (see Section V. A, Appendix d), the fuel transfer tube and containment equipment hatch were opened to permit routine refueling outage activities. At the conclusion of such activities, Alabama Power Company inspected the seals on the two penetrations, in accordance with routine practice, found no deterioration or damage, and resealed the penetrations in accordance with written, approved procedures which allowed re-use of the equipment hatch seals, but required, as a matter of routine maintenance,. replacement of the fuel transfer tube seals. Alabama Power Company had not measured the local leakage rate prior to opening these penetrations since such measurements l
were not called for by procedures, nor, in our view, by the regulations.
However, Alabama Power Company did perform local leakage rate tests following refueling activities using the penetrations.and prior to performance of the Type A test. The' results of-the local leakage rate tests were acceptable. On November 6,1986, the Containment Inspection for the third periodic Type A test on Unit 1 was initiated.2 2 Use of the fuel transfer tube was completed before the Containment t
Inspection began while use of the equipment hatch was completed after the Containment Inspection began, but before the Type A test. Alabama Power Company's February 26, 1987 response (at 3) may have inadvertently suggested that use of the equipment hatch was completed prior to initiation of the Containment Inspection.
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~7 Octoher 30, 1987 s
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In the NOV, the Region II Staff alleged that' Alabama Power Comp'any violated.
l Appendix J by failing to perform-local leakage rate.tes'ts to determine the-l "as found" conditions of these two penetrations.
j III. DISCUSSION' A.
Appendix J Does Not Require Determining /the i
I "As Found" Condition of the Two Penetrations
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Appendix J to 10CFR Part 50 states in pertinent part as follows:
A. Type A test--1.
Pretestrequirbmentf.
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v (a) Containment inspection in accordancf with V.A.QhalI be performed as a prerequisite to the performance of Ty' ' e A) tests.
Duri ng, the 4
p period between the initiation of the containme'nt )nspection and the h '
e performance of the Type A test, no repairs o'r adjustments shall be4made I
so that the containment can be tested in as close to'the "as is" /
condition as practical. [SectionIII.A.1(a)]
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This section clearly states that' during the period hekween initiation of' the Containment Inspection (as described in Section ViA.;of Appendix J) and l
completion of the Type A test, no " repairs or adjustannts" shall-be made so j
l that the containment can be tested in as close to theS"as is" condition (at the time of the Containment Inspection) as. practical.{0ther provisions of -
Appendix J relieve the proscription against " repair er ' adjustment" during this period only if valves / penetrations are +"maloperat!<ng" or leaking, or if there is evidence of structural deterioration which Jinay affect containment integrity or leak-tightness.
(See' e.g.,' Sect ionrf III. A.1(b) and V.A of Appendix J.)
However, the regulation does not restrict s
activities other than " repairs or adjustments" during fnis. period.nor doe;/
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it restrict activities outside this period.
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y Against this regulatory framework, Alabama Power Company begd normal
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refueling activities at the start of the Unit 1 seventh refueling outage -
J[y using the fuel transfer tube and ; equipment hatch.
At ~ the conclusion of these activities, pursuant to written procedures, Alabama Power Company inspected seals on.both penetrations for evidence of. degradation.
There was none.
In accordance with procedures,- Alabama Power Company replaced the seals on the fuel transfer tube and re used the se'als on the equipment a
hatch. The two penetrations: were then tested and found to be acceptable.
Af ter the Containment Inspection, the Type A test -was successfully' conducted following approved procedures.
No " repairs or adjustments" were made during this period. Alabama Power Company submits that in this case its actions were in full accord with Appendix J.
Specifically, the 3
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activities associated with the two penetrations were not " repairs or j
adjustments," but normal, usage of the penetrations.
Indeed, as previously i
noted there was no evidence' that the two penetrations were "maloperating" or leaking, or had sustained any deterioration or structural damage.
l Written procedures required the replacement of the fuel transfer tube seals
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and permitted reuse of.the equipment hatch seals upon use of the penetrations.3 In short, Alabama Power Company's actions were in accord with both the spirit'and letter of Appendix J and no enforcement action is g
warranted.
Alaoua Power Company recognizes that Appendix J is currently in the process of being revised. 51 Fed., Reg. 39538 (October 29, 1986).
Revisions proposed will address thetbsue raised by the Staff here. See proposed Section III.A.7, 51 Fed. Rey, at 39543.
Further, pending promulgation of any revisions to Appendix J, Alabama Power Company commits to continuing to report "as found" leakage. rates of Type B and C tests as a supplement to the Type A test report "to the extent we are capable of
, measuring [the leakage]..." See Inspection Report Nos. 50-348/82-21 and 50-364/82-20, dated August 30, 1982, at 3.
Alabama-Power Company also commits to now perform, to the extent practical, "as found" leakage rate tests prior to normal refueling outage 6 sage of the penetrations at issue here. However, consistent with the foregoing, Alabama Power Company does not commit to adjust the Type A test Jesults for the Type B and C "as 1
found" leakage rates.
f B.
The Staff Interpretation is not Consistent with the Plain Meaning. of Appendix J or its Regulatory ilistory The NOV reflects. a Staf f position which, in our view, goes beyond the regulation; that is, licensees are' required to factor into the Type A test the leakage rate test results from "as found" local penetration tests (Type B anu C tests) to derive the "as found" overall containment condition.
1 Appendix J by its terms does not require a determination of "as found" Type B and C leakage rates. The NRC's proposed rule published in October.1986 l
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3 It should be noted that the Staff's apparent position is inconsistent with sound practice and, if implemented,Iwould result'in numerous exemption requests on all dockets. That is, if all activities that could impact leakage must be considered part of the Containment Inspection (and-any " normal use" must be considered " repairs and adjustments"), then exemptions would be needed for normal use such as routine replacement of fuel transfer tube seals, while exemptions would not be needed where visible deterioration or structural damageg is present.
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U. S. Nuclear Regulatory Commission October 30, 1987 Page 5 1
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l would expressly add such a requirement.4 Nevertheless, as a supplement to its Type A test reports, Alabama Power Company currently reports "as found"'
Type B and C leakage rates to the extent they can be neasured. This is reported in accordance with a verbal understanding neween Farley Nuclear Plant personnel and the Regional Staff following a 692 inspection.6 For example, the April 25, 1985 supplement to the Type A test report for the Unit 1 fifth refueling outage (submitted on July 13,1984) provided "as found" Type B and C test results for the third, fourth and fifth refueling outages. Alabama Power Company believes that this practice provides the Staff with sufficient information to establish compliance with Appendix J, o
and we will continue to follow this practice in the future.
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Alabama Power Company also does not believe that Appendix J requires that the difference between,"as found" and "as lef t" Type B and C tests be f actored into the Type A test results. First of all,Section III.A.1.(a) of Appendix J does not by its terms prohibit activities such as use of penetrations prior to the Type A test and does not provide that tthe change in leakage from such activities be added to:tne Type A test result.
The j
provision of Section Ill. A.1.(a) that the cJniainment is to be " tested in i
as close to the 'as is' condition as practical" only restricts repairs and adjustments correcting problems (e.g., leaking or visible damage) during "the period between the initiation of the containment inspection and the i
performance of the Type A test."
In Alabama Power Cornpany's case, the use of the fuel transfr canal was completed prior to initiation of the Containment Inspection, and use of the equipment hatch was completed prior to the Type A test.
In any event, since no " repairs or adjustments" were 4
made for either the equipment hatch or fuel transfer. canal id response to any problems, there was no violation of. the plain language of this provision.
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i 4 51 Fed. Reg. 39538,39543(October 19, 1986). That this'is not required by Appendix J as written is borne out by the fact that the NRC's cost analysis on the proposed revisions to Appenaix J recognized that this 1s, for all practical purposes, a new burden on licensees.
Cost Analysis of Revisions to 10CFR Part 50, Appendix J, Leak Tests for Primary and Secondary Containments of Light-Water-Cooled Nuclear Power Plants, dated April 15, 1985, at 54-55.
5 This verbal understanding was documented by the Staf f in the Staff's Inspection Report for the Farley Nuclear Plant dated August,30,1982 at 3.
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l U. S. Nuclear Regulatory Commission October 30, 1987 Page 6 1
The Staf f apparently interprets the "as is" provision in Section III. A.1(a) to restrict all use of penetrations prior to the Type A test, and to
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require that the change in leakage rate from such activities, if any, be 1
determined and added to the Type A test results.6 However, the Staff cites no specific language from Appendix J to support this interpretation.7 1
In f act, the Staff's interpretation is contradicted by a review of the j
history of the Appendix J rulemaking.
When the proposed Appendix J was i
published for comment in 1971, it contained a proposed provision that was exactly what the Staff seeks to impose in its NOV. The proposed rule stated as follows (proposed Section III. A.2.(a), 36 Fed. Reg. 17053, 17054 (August 27,1971)).
If leak repairs of testable components are performed prior to the conduct of the Type A test, the reduction in leakage shall be measured j
and added to the Type A test result.
If this measured reduction in j
laakage exceeds the acceptance criteria of Section III.A.7., this i
i information shall be included in the report submitted to the Commission as required by Section V.B.
Significantly, this proposed provision was deleted in the final rule.
It is fair to conclude, therefore, that the Commission rejected such a j
provision as a binding part of the regulation.
Indeed, the reason this provision was rejected is apparent from the change made by the Commission in the acceptance criteria for Type A tests as between the original proposed rule and the final rule.
L 6 Appendix J does require the reporting of the change in leakage rate from repairs and adjustments made during the Type A test.
See e.g., Appendix J,@lII.A.1(a).
7 The Staff attempts to derive support for its position from Section 4.2 of ANSI N45.4-1972 which was incorporated by reference into Section III.A.3 of Appendix J.
See NOV at 1.
Section III.A.3 governs " test methods" and provides that Type A tests "shall be conducted in accordance with the provisions" of ANSI N45.4-1972. However, the provisions of Section 4.2 of ANSI N45.4 are vague, confusing and ambiguous.
For example, some terms of Section 4.2 such as " preparatory repairs" are not defined in the standa rd.
It is also not at all clear that Section 4.2 is even applicable here. The standard itself was incorporated by reference only insof ar as it specifies acceptable " test methods" for Type A tests (the absolute and reference-vessel methods).
See Appendix J, QIII. A.3.
Section 4.F. relates to matters other than test methods, namely, pretest
' requirements and sequence of testing.
It even conflicts with Appendix J in that it requires that some form of initial test precede the integrated test. Thus, Section 4.2 cannot be read to modify the specific language of Appendix J itself.
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h V. S. Nuclear Regulatory Commission October 30, 1987 Page 7 The proposed rule would have essentially required a determination of the f
"as found" and "as lef t" leakage (though, as in the current version of Appendix J, these terms were not used). With respect to the "as found" j
determination, for which the above language would have required that leakage repairs be f actored into the Type A test result, the proposed rule 1
would have specified an acceptance criterion of 100% of allowable leakage (L ).
See proposed Sections III. A.2.(a) and III. A.7.(b), 36. Fed. Reg. at a
17054 and 17055.
The use of a 100% La acceptance criterion obviously reflected the fact that the "as found" requirement is backward-f looking--i.e., it is intended to ascertain whether the containment leakage j
rate in the past has exceeded the maximum allowable leakage.
In contrast, with respect to the forward-looking "as left" determination, the original proposed rule would have specified an acceptance criterion of 75% of L -
a See proposed Section III.A.7(c), 36 Fed. Reg. at 17055.
The 75% La acceptance criterion was expressly intended "to provide a margin for j
possible deterioration of the containment leakage integrity during the i
service interval extending to the subsequently scheduled Type A test..."
Ibid.
In the final rule adopted in 1973, the Commission deleted the backward-looking acceptance criteria and required only consideration of the forward-looking acceptance criterion of 75% of allowable leakage for Type A tests.
Section III.A.S.(b). At the same time, the Commission deleted the provision that would have required leakage repairs to be factored into Type A test results to determine the "as found" condition.
It is a fair inference that the Commission concluded that the "as found" requirement would be incompatible with a 75% La acceptance criterion. Since the only reason to determine the "as found" condition is to measure the degradation in containment leakage rate since the previous Type A test, the proper "as found" acceptance criterion would be 100% of allowable leakage.
To use 75%
of allowable leakage would be overly conservative, since this icwer figure is designed to provide margin for deterioration in leakage integrity during future operation.
That the Commission understood this when it promulgated Appendix J in 1973 is apparent from a review of its recent proposed revisions to Appendix J.
The proposed rule published in October 1986 would expressly require a determination of the "as found" Type A leakage rate but would prescribe an acceptance criterion of 100% La, while maintaining 75% La for the "as lef t" condition.
See proposed Section III. A.(7)(b), 51 Fed. Reg. at 39543.8 Thus, the proposed rule recognizes that it is inherently inconsistent to combine the Appendix J 75% La acceptance criterion with a requirement to determine the "as found" condition.
This persuasively shows that Appendix J as currently written does not require an "as found" determination.
8 A number of commenters on the proposed revisions, including Alabama Power Company, have argued that the new provision for determining the "as found" condition constitutes a backfit under 10CFR 50.109. See Comments of Alabama Power Company, dated April 24, 1987.
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U. S. Nuclear Regulatory Commission October 30, 1987 Page 8 l
1 In conclusion, Appendix J contains no provisions that provide direct support for the Region II Staff position in-the HOV. The plain _ language of
- Appendix J itself, the history of the rulemaking,'and the accepted practice in > previous Type A tests at the two Farley units all refute the Staff's interpretation of Appendix J as it relates to this issue.
Alabama Power Company understands that the NOV was largely predicated on the NRC Staff interpretation reflected in Information Notice 85-71.9 4
However, an Information Notice by definition does not constitute a
'l requirement and cannot represent a binding NRC interpretation of the regul ati ons.
C.
Enforcement Action in this Case Would be a
Contrary to Sound Agency Practice and Would Constitute an Abuse of Discretion it is well established that an agency may not impose a sanction or base enforcement action on an interpretation that is outside the terms of the regulations.
In Tenneco Oil Company v. Federal Energy Administration, 613 F.2d 298 (Em. App.1979), the Court overturned the _ agency's finding of a violation of oil pricing regulations on the grounds-that the agency's interpretation was 'not supported by the language of the regulations. The Court pointed out that it was fundamentally unfair for the agency to subject regulated entities to civil or criminal penalties on the basis of 1
ambiguous language in the regulations or an agency interpretation not supported by the terms of the regulation. Quoting Longview Refining Co.
- v. Snore, 554 F.2.d 1006, 1014, n. 20 (Em. App.), cert. denied. 434 U.S.
l 836 (1977), the Court pointed out that "[f]undamental f airness requires that the regulations be clear so that men of common intelligence need not guess at the meaning and differ as to the application... One can have l
knowledge of a legal duty imposed by regulations only when there is adequate notice." 613 F.2d at 303.
With respect to the alleged violation here -- rooted in the alleged failure j
to determine the "as found condition of Type B and C testable components and to factor this into the Type A test results -- the NRC itself has repeatedly recognized that the regulation is vague and ambiguous on this point and that its interpretation may well lack support in the plain terms 9 Information Notice 85-71 was issued on August 22, 1985.
While this was prior to the effective date of the revised Section 50.109 (October 21, 1985), it was after the effective date of Manual Chapter 0514 on plant-specific backfits (May 1,1985).
The Staff position contained in the.Information Notice therefore is subject to challenge as a backfit under the Manual Chapter.
U. S. Nuclear Regulatory Commission October 30, 1987 Page 9 of Appendix J.
As early as 1977 the NRC Staff recognized that "certain requirements of [ Appendix J] have been found to be conflicting, impractical for implementation, or subject to a variety of interpretations...a10 Information Notice 86-71, issued August 22, 1985, also recognized the ambiguities of Appendix J on this issue in stating that "many utilities are misinterpreting the relationship between local leak rate testing and CILRTs." With reference to this issue, the NRC's 1985 cost analysis of planned revisions to Appendix J (at page 30) observed that the regulation
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by its terms does not unambiguously require licensees to determine the "as j
found" Type A condition:
j The CILRT tests surveyed indicated that reporting of the "as found" condition for the Type A test does not appear to be presently done.
The NRC has been requesting that the utilities supply sufficient data from the Type B and C tests results to derive an "as found" condition j
for the containment.
However, because of ambiguities in the current l
regulation this requirement or request has not been enforced in all NRC regions.
More recently, in publishing the 1986 proposed rule to revise and clarify Appendix J, the NRC again recognized the fact 23t the existing regulation is silent -- or at best highly ambiguous -- on this point.
The NRC l
requested comments on "[h]ow to effectively adjust Type A test results to reflect individual Type B and C test results obtained from inspections, j
repairs, adjustments, or replacements of penetrations and valves in the years in between Type A tests." 51 Fed. Reg. at 39539.
Significantly, the proposed rule also noted that the NRC had under consideration a possible requirement that
[all] Type B and C tests performed during the same outage as a Type A test, or performed during a specified time period (nominally 12 months) prior to a Type A test, be factored into the determination of a Type A test "as found" condition. 11 These statements clearly show that the NRC itself has acknowledged the lack l
of support in the plain terms of Appendix J for the Regional Staff's l
position on the need for licensees to determine the "as found" condition for Type B and C testable components as part of the Type A test. Given the lack of support for the Staff position in the underlying requirements, j
enforcement action is inappropriate.
It would be fundamentally unf air and l
l an abuse of discretion for the NRC to take enforcement action against a j
licensee where the NRC itself has recognized that the Staff position lacks support in the actual language of the regulation.
10 Task Action Plan, Task No.'A-23, Containment Leak Testing (TAC-4585),
j dated August 30, 1977, at 1.
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11 51 Fed. Reg. 39539 l
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i U. S. Nuclear Regulatory Commission.
October 30, 1987 l
Page 10 IV. CONCLUSION For the foregoing reasons, the Staff enforcement action is not supported by the regulations and constitutes an abuse of discretion. Accordi ngly,
Alabama Power Company requests that the NRC withdraw the subject NOV.
If the NOV is not withdrawn, the NRC should identify this Staff position as a backfit for the Farley units and perform the appropriate analysis under 10CFR S0.109.
Alabama Power Company is confident that its CILRT program provides reasonable assurance that containment leakage rate during a design basis event will not exceed the leakage rate limits specified in binding licensing documents or assumed in the pertinent accident analyses.
Further, Alabama Power Company believes that the commitmen+' 1ade in this
's iue.
If you letter fully resolve any future NRC concerns regarding have any questions regarding the information contained
_. 2 letter or would like to meet to discuss the issue further, please advise.
Respectfully submitted, ALABAMA POWE N4PANY W
R. P. Mcdonald RPM /J AR :ds t-D-T.S.7 l
2 cc: Mr. L. B. Long Dr. J. N. Grace Mr. E. A. Reeves Mr. W. H. Bradford i
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