ML20236U622
| ML20236U622 | |
| Person / Time | |
|---|---|
| Issue date: | 07/14/1998 |
| From: | Mcgaffigan E NRC COMMISSION (OCM) |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| COMEXM-98-004, COMEXM-98-4, NUDOCS 9807300349 | |
| Download: ML20236U622 (4) | |
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coMEXM-98-004 MMissi NER RELEASEDTOTHE PDR July 14, 1998
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MEMORANDUM FOR:
John C. Hoyle. Secretary FROM:
Edward McGaffigan. Jr.
SUBJECT:
POLICY FOR GRANTING ENFORCEMENT DISCRETION AS A RESULT OF NATURAL EVENTS I have significant concerns about larger public health and safety consequences l
2 that arise from the existing enforcement policy and implementation guidance for granting enforcement discretion as a result of natural events. such as T.'ere weather.
I understand that at some' point in the past, the NRC staff was able to grant enforcement discretion in the form of a Notice of Enforcement Discretion (NDED) in such instances without seeking Commission consultation.
I am proposing a return to a policy that would empower the staff to grant N0EDs in cases involving severe weather.
The relevant provision of the implementation guidance is that "[I]n emergency situations, where natural events affect the overall public safety (rather than the radiological safety). N0EDs are not appropriate; but enforcement
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' Commission consultation is required in ten situations described in Section lit of the Enforcement g
Policy (NUREG-1600). The relevant provision in Section 111 of the enforcement policy states that "..the Commission. vill be consulted prior to taking action in the following situations (unless the urgency of the situation dictates immediate action):
0 $D3 (1) An action affecting a licensee's operation that requires balancing the public t.ealth and safety or common defense and security implications of not operating with the potential radiological or other hazards associated with continued operation:
(2).."
Policy guidance for issuing notices of enforcement discretion (NOEDs) is provided in Chapter 6 of the Enforcement Manual (NUREG/BR-0195).
2See NRC Administrative Letter 95-05," Revisions to Staff Guidance For implementing NRC Policy on Notices of Enforcement Discretion," dated November 7,1995; NRC Inspection Manual Part 9900:
Technical Guidance," Operations - Notices of Enforcement Discretion," NUREG-1600 (Issue Date 11/02/95);
Project Managers Handbook, Section 4.13.
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discretion, as provided in Section III of the Enforcement Policy, may be exercised, after Comission consultation, if possible." [ emphasis added]
I It is my understanding that there is no legal distinction between enforcement
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l discretion and a notice of enforcement discretion (NOED).
Thus, they are alike in that they both involve granting enforcement discretion for a violation that has occurred or is likely to occur.
They differ in that N0EDs are a set process for routine exercise of enforcement discretion by the staff.
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whereas the severe weathe~r " discretion" is not routine and, in the past, the
'C6fnmission has required the staff to seek Commission consultation N0EDs differ from other forms of enforcement discretion in that the NRK staff j
developed a specific process, close to an exigent license amendment review process, to handle " emergency" requests for relief which seemed to be submitted (in the mid-1980s) at a frequency of 1-2 per week.
The Office of the Executive Legal Director (OELD) became concerned that this would be considered an attempt to amend licenses without complying with AEA S189 Sholly I
notice procedures and recommended that a different process be formalized to make it clear that an NOED was not a license amendment but enforcement discretion.
I am not advocating lowering the threshold for granting enforcement discretion or N0EDs. But I do believe that enforcement discretion is appropriate where natural events affect the overall public safety.
I am in favor of expedited regulatory action in such cases, and I see no benefit in Commission consultation f~r issuing weather-related enforcement discretion.
I applaud the staff for the steps that have been taken over the past few years to limit the inappropriate use of N0EDs, and to make appropriate use of N0EDs under the policy since the firsi quarter of 1997.
With the sole exception I am concerned about, the enforcement discretion and N0ED implementation procedures appear sound, in my view. What also concerns me is the perception some licensees have that the unwritten NRC policy is to "just say no" to enforcement discretion involving natural events, such as severe weather.
I can understand how this misunderstanding arises, given the enforcement policy requirement that only the Commission can approve such requests for enforcement discretion, which, as I mentioned above, has not always been the case.
l According to the North American Electric Reliability Council (NERC), the i
probability of exceeding the margin available for contingencies for this i
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summer is.the highest ever projected in parts of the Midwest.3 The staff is to be commended for its recent interactions with NERC. DOE. and NRC licensees
'to ensure that all parties are prepared to deal with potential grid stability challenges.
Nonetheless. I believe that staff needs to have the authority and confidence of the Commission to quickly respond to requests for weather-related NOED/ enforcement discretions.
I am in favor of granting enforcement discretion when a licensee requests to delay surveillance testing due to the fragile condition of the grid.
As the staff informed the Commission in SECY-98-115. recently the Northern States Power Company electrical grid that contains both Prairie Island units was under " grid condition 5" for several days because of hot weather and fossil unit scheduled maintenance outages.
Under this condition, so little excess capacity margin was available that the licensee was required to contact the System Control Center prior to performing any maintenance or surveillance activities on operating units that had the potential to shut down a unit.
Certain surveillance tests pose greater risks to continued plant operations, as evidenced by the scrdm that occurred at Quad Cities Unit 1 while performing surveillance testing on the evening of Saturday, June 27, 1998. while the grid was already in a tenuous condition given the loss of Davis-Besse due to tornado damage. Zion shutdown, the long outages at D.C. Cook, Clinton, and LaSalle, etc.
I do not believe that the problem with insufficient reserve power is likely to abate after this summer. According to some industry analysts, economic deregulation is likely to create favorable market conditions that will encourage utilities to sell power that in the past was held in reserve for. peak periods.
Furthermore. I.am not convinced that only the Commission can decide cases where radiological health and safety is juxtaposed with the larger public health and safety arising from a need for power due to severe weather conditions.
Precisely because of the grid stability concerns, the licensee for Fermi-2 sought a one-time license amendment to extend the intervals for 105 18-month surveillance requirements in order to delay the start of the next refueling outage (originally scheduled for mid-August 1998).
Commission consultation is not required to approve such a license amendment request.
I note that in this instance, the licensee foresaw the potential for grid
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instability well in advance of severe weather conditions and laudably pursued
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$See NERC's "1998 Summer Assessment Reliability of Bulk Electricity Supply in North America, dated May 1998. This assessment applies to the East Central Area Reliability Coordination Agreement (ECAR).
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4 a license amendment.
Nonetheless, unforseen circumstances can lead to the situation where the enforcement discretion is the sole option available to a licensee.
If the staff is capable of judging the adequacy of a license amendment based ^ severe weather conditions, the staff can also make a determination on granting enforcement discretion for severe weather conditions.
It is my view that public health and safety would be best served by empowering the staff to grant enforcement discretion in the form of a N0ED in cases involving severe weather without consultation with (or interference by) the Commission as a whole or any single member of the Commission.
However, to ensure the Commission is cognizant of how this policy is being implemented, I j
would also propose that the staff inform the Commission whenever a severe I
weather N0ED has been issued.
By this memorandum. I am requesting the Commission to promptly make a decision on the merits of my proposal.
Finally, because the heat of summer is upon us.
l I do not believe that this proposal should be subsumed in the larger effort to revise the NRC Enforcement Policy.
If a majority of the Commission agrees with my proposal. I strongly recommend that this be added to the staff's discussion of N0EDs at the Utility /NRC i
Licensing Managers Workshop scheduled for July 20-21, 1998.
In the interim, I have informed the EDO that I have pre-approved under the existing policy the staff's use of eriforcement discretion in cases where natural events affect overall public health and safety and that he need not l-consult with me further if the staff determines that weather-related l
enforcement discretion is appropriate and he would otherwise recommend l
Commission approval.
l SECY, please track.
cc:
Chairman Jackson Commissioner Diaz EDO OGC CFO CIO l
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