ML23151A396
| ML23151A396 | |
| Person / Time | |
|---|---|
| Issue date: | 12/08/1989 |
| From: | NRC/SECY |
| To: | |
| References | |
| PR-002, 54FR50610 | |
| Download: ML23151A396 (1) | |
Text
ADAMS Template: SECY-067 DOCUMENT DATE: 12/08/1989 TITLE: PR-002 - 54FR50610 - POLICY AND PROCEDURES FOR ENFORCEMENT ACTIONS :POLICY STATEMENT CASE
REFERENCE:
PR-002 54FR50610 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete
STATUS OF RULEMAKING PROPOSED RULE: PR-002 RULE NAME: POLICY AND PROCEDURES FOR ENFORCEMENT ACTIONS: POL ICY STATEMENT PROPOSED RULE FED REG CITE: 54FR50610 PROPOSED RULE PUBLICATION DATE: 12/08/89 NUMBER OF COMMENTS: 22 ORIGINAL DATE FOR COMMENTS: 02/06/90 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 54FR50610 FINAL RULE PUBLICATION DATE: 12/08/89 NOTE Jlf)N COMMISSION APPROVED POLICY AND PROCEDURES RELATED TO MAINTENANCE D STATUS EFICIENCIES BY A 3-1 VOTE {SRM-M891205).
OF RULE FILE LOCATED ON Pl.
TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-002 1 ,
RULE _~ E: POLICY AND PROCEDURES FOR ENFORCEMENT ACTIONS: POL ICY STATEMENT PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 89-325 SRM DATE: I I SIGNED BY SECRETARY: 12/05/89 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 90-094 SRM DATE: 04/12/90 SIGNED BY SECRETARY: 12/05/89 STAFF CONTACTS ON THE RULE CONTACT! : JAMES LIBERMAN MAIL STOP: 7 H5 PHONE: 492-0741 CONTACT2: MAIL STOP: PHONE:
DOCKET NO. PR- 002 (54FR50610)
In the Matter of POLICY AND PROCEDURES FOR ENFORCEMENT ACTIONS : POL ICY STATEMENT DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT
- 12/05/89 12/05/89 NRC POLICY STATEMENT ANNOUNCEMENT SENT TO THE FEDERAL REGISTER FOR PUBLICATION 02/06/90 02/02/90 COMMENT OF DETROIT EDISON (B. RALPH SYLVIA, SR. VICE PRESIDENT) ( 1) 02/06/90 02/05/90 COMMENT OF SOUTHERN CALIFORNIA EDISON COMPANY (R.M. ROSENBLOOM) ( 2) 02/06/90 02/06/90 COMMENT OF NUMARC (JOE F. COLVIN , EXECUTIVE VICE PRES.) ( 3) 02/06/90 02/05/90 COMMENT OF NORTHEAST UTILITIES (E. J. MROCZKA, SR. VICE PRESIDENT) ( 4) 02/06/ 90 02/05/90 COMMENT OF B&W NUCLEAR TECHNOLOGIES (J. H. TAYLOR) ( 5)
- 02/06/90 02/06/90 COMMENT OF NUMARC (NICHOLAS S. REYNOLDS) ( 6) 02/06/90 02/05/90 COMMENT OF DUKE POWER COMPANY (ALBERT V. CARR, JR., ASSOC . G. C. ) ( 7) 02/07/90 02/05/90 COMMENT OF ALABAMA POWER COMPANY (W. G. HA IRS TON, II I) ( 8) 02/07/90 02/05/90 COMMENT OF GEORGIA POWER COMPANY (W. G. HAIRSTON, III) ( 9) 02/07/90 02/06/90 COMMENT OF NUMARC (JAY SILBERG & JOHN O' NEILL , JR.) ( 10) 02/07/90 02/06/90 COMMENT OF PHILADELPHIA ELECTRIC COMPANY (G. A. HUNGER, JR.) ( 11) 02/08/90 02/06/90 COMMENT OF WISCONSIN PUBLIC SERVICE CORPORATION (K. H. EVERS) ( 12) 02/12/90 02/05/90 COMMENT OF COMMONWEALTH EDISON COMPANY (T. J. KOVACH) ( 13)
DOCKET NO . PR-002 {54FR50610)
DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 02/12/90 02/06/90 COMMENT OF PENNSYLVANIA POWER AND LIGHT COMPANY
{H. W. KEISER) { 14) 02/12/90 02/06/90 COMMENT OF SOUTH CAROLINA ELECTRIC & GAS COMPANY
{O.S . BRADHAM) { 15) 02/12/90 02/06/90 COMMENT OF TENNESSEE VALLEY AUTHORITY {M. J. RAY) { 16) 02/12/90 02/06/90 COMMENT OF BOSTON EDISON
{RALPH G. BIRD, SR. VICE PRESIDENT) { 17)
- 02/12/90 02/06/90 COMMENT OF VIRGINIA ELECTRIC AND POWER COMPANY
{W. L. STEWART, SR. VICE PRESIDENT) { 18) 02/13/90 02/07/90 COMMENT OF FLORIDA POWER CORPORATION
{ROLF C. WIDELL) { 19) 02/13/90 02/06/90 COMMENT OF UNION ELECTRIC
{DONALD F. SCHNELL, SENIOR V. P.) { 20) 02/13/90 02/06/90 COMMENT OF ARIZONA PUBLIC SERVICE COMPANY
{WILLIAM G. CONWAY, EXECUTIVE V.P.) { 21) 02/15/90 02/06/90 COMMENT OF CONSOLIDATED EDISON COMPANY OF NY, INC.
{MICHAEL L. MIELL) { 22)
~~~:r:~id~~tBram DQCKeT NUMBER PR ,6 PROPOSED RULE - -
Consolidated Edison Company of New York, Inc.
Indian Point Station LO f ;::/5cJ{; / O) COCKE fED US ~HC Broadway & Bleakley Avenue February 6, 1990 Buchanan, NY 10511 "90 FEB 15 P3 :48 Telephone (914) 737-8116 Re: Indian Point Unit No. 2 Docket No. 50-247 OFF!Cf OF SECRETARY DOCKETING & SEil VICf.
BRA NCH Mr. Samuel J. Chilk Secretary of the Commission US Nuclear Regulatory Commission Washington, DC 20555 Attn.: Docketing a nd Service Branch
SUBJECT:
10 CFR Part 2, Policy and Procedures for Enforcement Actions; Policy Statement 54 FR 50610 (December 8, 1989)
Dear Mr. Ch ilk:
Consolidated Edison Company of New York, Inc., ("Con Edison") welcomes the opportunity to express its views to the Commission on the subject policy statement concerning modifications to the enforcement policy for violations involving maintenance deficiencies.
As a member of the Nuclear Management and Resources Council, Inc.
("NUMARC"), we actively participated in the formulation of an industry-wide positioo . on tni s- policy statement. We have reviewed and fully endorse the NUMARC. stiomi t tal *s ent to you under separate cover. We also endorse and join the comments submitted by Bishop, Cook, Purcell & Reynolds on behalf of some twenty nuclear utilities. Additionally, Con Edison offers the following comments.
- There is a question of fairness to the industry in directing such extra attention to maintenance violations. This treatment presumes that maintenance deficiencies may contribute more to safety issues at nuclear power plants than do other activities. We do not agree with the implied conclusion that maintenance is more important to safety than other activities, such as operations. Furthermore, we believe from feedback received on NRC maintenance inspections at various plants that there is no evidence to support this view.
Even if NRC desires to escalate the penalty for a violation there is no need for an additional adjustment factor. NRC regulations currently allow a civil penalty to be increased by 50% if initiation of "corrective action to prevent recurrence" is not prompt or if the corrective action is only minimally acceptable. In weighing this factor, consideration is given to the comprehensiveness of the corrective action, such as whether the action is focused narrowly to the specific violation or broadly to the general area of concern. This adjustment could be applied to deficiencies in maintenance programs as a general area of concern.
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Additionally, NRC regulations allow for a civil penalty to be increased by 100% for prior poor performance. In weighing this "past performance" factor, consideration is given to the effectiveness of previous corrective action for similar problems and prior performance, such as evaluated in previous inspections. If improvements are not forthcoming as a result of maintenance inspections, this adjustment could be applied to deficiencies in maintenance programs. These adjustment factors are already applicable to maintenance program deficiencies, therefore, there is no need for an additional adjustment factor highlighting maintenance.
At Indian Point Unit No. 2, attention to maintenance has contributed to significant improvements in availability and capacity factor and fewer trips and safety systems actuations. Through our ongoing efforts we expect to continue these trends, and we continue to strive for excellence in these areas.
- Should you or your staff have any questions regarding this matter, please contact Mr. Charles W. Jackson, Manager, Nuclear Safety and Licensing.
Very truly yours, cc: Document Control Desk US Nuclear Regulatory Commission Mail Station Pl-137 Washington, DC 20555 Mr. William Russell Regional Administrator - Region I US Nuclear Regulatory Commission 475 Allendale Road King of Prussia, PA 19406 Mr. Donald S. Brinkman, Senior Project Manager Project Directorate I-1 Division of Reactor Projects I/II US Nuclear Regulatory Commission Mail Stop 14B-2 Washington, DC 20555 Senior Resident Inspector US Nuclear Regulatory Commission PO Box 38 Buchanan, NY 10511
~OCKETEQ USNHC Arizona Public Service Company P.O. BOX 53999
- PHOENIX , ARIZONA 85072-3999
- 90 FEB 13 P4 :16 WILLIAM F . CONWAY EXECUTIVE VICE PRESIDENT 161-0285 1-WFC/ACR/GAM NUCLEAR Fe bruar y 6
- 1990 0FFfC:: OF SECRUAK v DOCKEilNG l, SttlVICI BR.l\NCH Mr. Samuel J. Chilk Secretary U. S. Nuclear Regulatory Commission Uashingtan, D. C. 20555 Attn: Docketing and Se rvice Branch
Dear Mr . Ch ilk:
Subject:
Comments Concerning 10 CFR 2, App e ndix C, Policy and Procedures for Enforcement Actions; Policy Statement Modification File: 90-056-026 This letter provides comments from Arizona Public Service (APS) in response to the request of the U. S. Nuclear Regulatory Commission . The comments pertain to 10 CFR Part 2, Policy and Procedures for Enforcement Actions; Policy Statement (54 Federal Register 50610 - December 8, 1989) .
APS appreciates that the intent of the modified policy statement, which adds a civil penalty adjustment factor for violations involving maintenance deficiencies, is to provide a further incentive to ensure that all licensees place appropriate attention on maintenance of equipment whose failure could significantly impact safety. However, APS believes that the existing regulations and enforcement provide sufficient incentive for licensees to produce and maintain high-quality maintenance progra ms, and that this revision is unnecessary. As discussed in the Federal Register , Vol. 54 No . 235, Friday, December 8, 1989, in the announcement concerning this policy statement modification, the industry has made noticeable progress over the past four years in the area of nuclear power plant maintenance and is committed to continue to improve maintenance.
Additionally, the phrase "programma tic failure," is not defined in the policy, and is therefore open to individual interpre tation and is subjective . This can lead to an uncertain understanding of the requirements and inequitable enforcement. The same concerns apply to the inclusion of the words "among other things," when describing things to be conside r e d in ass e ssing the civil penalty adjustment factor. These words are not defined and are subject to arbitrary interpretation and enforcement .
APS also supports the NUMARC position and endorses the comments submitted by NUMARC regarding this policy statement modification.
Aclcnowfedged by card.~-;;;;:;;;;;..,;~-
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Mr. Samuel J. Chilk, Secretary 161-02851-WFC/ACR/GAM U. S. Nuclear Regulatory Commission February 6, 1990 Page 2 If you have any questions relative to this letter, please contact A. C. Rogers of my staff at (602) 340-4041.
WFC/ACR/GAM/jle cc: A.H. Gutterman A. C. Gehr T. E. Tipton
1901 Gratiot Street Post Office Box 149 St. Louis, Missouri 63166 DOCKET NUMBER PROPOSED RULE PR z/ }
314-554-2650 {}5 tf FL '50 (t:)/IJ OOC:KETED USNRC
~ FEB 13 P4 :16 Donald F. Schnell UNION E LECTRIC February 6, 1990 OFFICE OF SECRElAi<Y DOCKE1 ING & S[HVICf.
Senior Vice President Nuclear
~s Mr . Samuel J. Chilk BRANCH Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ULNRC-2153 Attention: Docketing and Services Branch Gentlemen:
DOCKET NUMBER 50-483 CALLAWAY PLANT
Reference:
10 CFR Part 2, Appendix C Policy and P r ocedures for Enforcement Actions; Policy Statement (54 Fed. Reg. 50610-December 8, 1989)
These comments are submitted by Union Electric Company in response to the request of the U.S. Nuclear Regulatory Commission (NRC) for comments on the changes to the referenced 10 CFR Part 2, Pol*cy and Procedures for Enforcement Actions; Policy Stat ment (54 Fed. Reg. 50610 - December 8, 1989).
We are very concerned with the Commission's decision to focus escalated enforcement actions in the area of maintenance and request that the Commission reconsider this action. Union Electric has participated with the Nuclear Management and Resources Council (NUMARC) in the development of comments on the revised policy statement. We endorse the detailed comments which are being submitted by NUMARC on this issue.
However, in summary, we believe this policy misdirects emphasis to maintenance deficiencies to the detriment of other areas of equal or greater concern in the safe operation of nuclear facilities. While it is recognized by both the Commission and the industry that some maintenance deficiencies may adversely impact safety, maintenance deficiencies should not be considered differently that other safety issues. The safe operation of a nuclear plant is dependent on all functions being carried out effectively and safely. The escalation penalty, as drafted, sends the wrong message AcknowJedgedbyca,tt.~
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to the industry . It in effect creates a hierarchy of regulatory interest, headed by maintenance, thus creating the potential that a licensee might direct a disproportionate level of resources to a minor maintenance problem to the detriment of an issue that should be of higher priority. We urge the Commission to reconsider the finalization of this enforcement policy.
We appreciate the opportunity to comment on the Enforcement Policy Statement and ask that the Commission reconsider the modification to single out maintenance-related violations for special attention.
Very truly yours, Donald F . Schnell DS/sla
cc: Gerald Charnoff, Esq.
Shaw, Pittman, Potts & Trowbridge 2300 N. Street, N. W.
Washington, D.C. 20037 Dr. J. 0. Cermak CFA, Inc.
4 Professional Drive (Suite 110)
Gaithersburg, MD 20879 R. C. Knop Chief, Reactor Project Branch 1 U.S. Nuclear Regulatory Commission Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137 Bruce Little Callaway Resident Office U.S. Nuclear Regulatory Commission RR#l Steedmam, Missouri 65077 S. V. Athavale (2)
Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission 1 White Flint, North, Mail Stop 13E21 11555 Rockville Pike Rockville, MD 20852 Manager, Electric Department Missouri Public Service Commission P.O. Box 360 Jefferson City, MO 65102 NUMARC Nuclear Management and Resources Council 1776 Ey e Street, N.W. Suite 300 Washington, D.C. 20006-2496
bee: D. Shafer/Al60.761
/QA Record (CA-758)
Nuclear Date E210.0l DFS/Chrono D. F. Schnell J. E. Birk J. v. Laux M. A. Stiller G. L. Randolph R. J. Irwin H. Wuertenbaecher
- w. R. Campbell A. c. Passwater R. P. Wendling D. E. Shafer D. J. Walker
- o. Maynard (WCNOC)
N. P. Goel (Bechtel)
T. P. Sharkey NSRB (Sandra Auston)
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BRANCH Power CO R PO RA TIO N February 7, 1990 DNSS-90-0001 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docket and Service Branch Re: 10 CFR Part 2, Appendix C Policy and Procedures for Enforcement Actions; Policy Statement (54 Fed. Reg. 50610 - December 8, 1989)
Dear Mr. Chilk:
Florida Power Corporation (FPC) strongly endorses the comments provided by NUMARC on the subject policy change . FPC would emphasize the need to avoid adding increasingly subjective criteria to an already broad Enforcement Policy. FPC would add one issue not expressly contained in the NUMARC comments. That is, if maintenance being identified as a root or primary contributory cause to an event carries added enforcement risk, it could bias root cause analysis activities away from maintenance. Such a bias would impede improvements in the very maintenance program we are endeavoring to improve.
The bottom line is that the revised policy is unnecessary and inappropriate .
We strongl y re c ommend re c ons i de r at i on a nd r e vi s i on of t he po licy .
Sincerely, Director Nuclear Operations Site Support RCW/ sdw cc: P. M. Beard, Jr.
G. L. Boldt
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VIRGINIA ELECTRIC AND Po~! {~~f /(}) l. OCK[ilu U~ NHC RICHMOND, VIRGINIA 23261 February 6, 1990 *90 FEB 12 A10 :30 OFF!Cr OF Si:.CrH:TAR"'
Mr. Samuel J. Chilk, Secretary Serial ~B~KET,iNG ~ ~g.,gcr.
United States Nuclear Regulatory Commission NO/CGL:vlh BRA .
Attention: Docketing and Service Branch Washington, D. C. 20555
Dear Mr. Chilk:
VIRGINIA ELECTRIC AND POWER COMPANY COMMENTS CONCERNING 10 CFR PART 2, APPENDIX C POLICY AND PROCEDURES FOR ENFORCEMENT ACTIONS:
POLICY STATEMENT ON NUCLEAR POWER PLANT MAINTENANCE Virginia Electric and Power Company has reviewed the proposed changes to the referenced 10 CFR Part 2, Policy and Procedures for Enforcement Actions; Policy Statement on nuclear power plant maintenance, which was published in the Federal Register dated December 8, 1989. We endorse the NUMARC position documented in their letter dated February 6, 1990, to Mr. Samuel J. Chilk, Secretary of the Commission, from Mr. Joe F. Colvin, Chief Operating Officer of NUMARC. As stated in conclusion by NUMARC, ". . . this policy misdirects emphasis to maintenance deficiencies to the detriment of other areas of equal or greater concern in the safe operation of nuclear facilities . While it is recognized by both the Commission and the industry that some maintenance deficiencies may adversely impact safety , maintenance deficiencies should not be considered differently than other safety issues. The safe operation of a nuclear plant is dependent on all functions being carried out effectively and safely. "
Very truly yours,
~
W. L. Stewart Senior Vice President - Nuclear cc: Mr. Joe F. Colvin Chief Operating Officer Nuclear Management and Resources Council Suite 300 1776 Eye Street NW Washington, DC 20006-2496 Aeknowledged by caret.~.
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lff pg 5Jfp Io G 'KUED BOSTON EDISON USNRC Pilgrim Nuclear Power Station Rocky Hill Road Plym o uth, Massachusetts 02360 *S1Q FEB 12 AlO :29 ci:-r,c:: OF SECRJTAR'(
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Ralph G. Bird Senior Vice President - Nuclear BRA~~to 90- 02 1 Feb r ua r y 6, 1990 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch License DPR-35 Docket 50-293 BOSTON EDISON COMPANY COMMENTS ON REVISIONS TO THE ENFORCEMENT POLICY OF 10CFR PART 2. APPENDIX C (54FR50610)
Reference:
NUMARC Letter to Mr. S. J. Chilk, Secretary, USNRC, dated February 6, 1990
Dear Mr. Chilk:
Boston Edison Company (BECo) endorses the nuclear power industry comments and positions offered to the Nuclear Regulatory Commission (NRC) by the referenced Nuclear Management and Resources Council, Inc. (NUMARC) letter on revisions to the Enforcement Policy of 10CFR Part 2, Appendix C.
The revision adds an additional civil penalty adjustment factor for violations involving maintenance deficiencies. We urge the Commission to rescind this Enforcement Policy revision because maintenance issues should not be treated differently than other safety issues .
PMK/4067 cc: Mr . M. Fa irti le, Proje ct Manage r Division of Reactor Projects - 1/11 Office of Nuclear Reactor Regulation Mail Stop: 14Dl U. S. Nuclear Regulatory Commission 1 White Flint North 11555 Rockville Pike Rockville, MD 02852 (cc: Continued on next page)
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Boston Edison Company February 6, 1990 U.S. Nuclear Regulatory Commission Page 2 U. S. Nuclear Regulatory Commission Region I 475 Allendale Road King of Prussia, PA 19406 Senior NRC Resident Inspector Pilgrim Nuclear Power Station Mr. Warren Hall NUMARC 1776 Eye Street N.W.
Suite 300 Washington, DC 20006-2496
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TENNESSEE VALLEY AUTHORITY {:sfrr<- COJfJJ[D CHATTANOOGA. TENNESSEE 37401 SN 1578 Lookout Place FEB 061990 U.S. Nuclear Regulatory Commission, ATTN: Docketing and Service Branch Washington, D.C. 20555 Gentlemen:
NRC POLICY AND PROCEDURES FOR ENFORCEMENT ACTIONS; POLICY STATEMENT (10 CFR PART 2, APPENDIX C)
TVA has reviewed and is pleased to provide comments on the revised Maintenance and Enforcement Policy noticed in the December 8, 1989 Federal Register (54FR 50610) regarding Maintenance of Nuclear Power Plants - Revised Policy statement and Policy and Procedures for Enforcement Actions; Policy Statement.
TVA does not believe that escalating enforcement actions is an effective or necessary means of emphasizing the importance of maintenance or prompting more serious maintenance efforts by the nuclear industry in lieu of an NRC rulemaking.
Ou r major disagreements with the proposed enforcement policy modification are as follows:
o The establishment of escalate d enforcement action in one programmatic area may tend to divert attention and resources away from other prog r ammatic areas just as important as maintenance .
o The action may cause utilities to spen d too much ti me "looking bac kward" to previous open items to pr event fines rather than "looking forward" to innovative programs to imp rov e maintenance pe rformance.
o Existing escalation clauses within the cu rr ent enfor cement policy give the Commission methods to escalate based on the merits of each case which encourage utilities to focus on ill prog rams.
o Through our continued dialogue with other utilities, it is obvious t o us the industry is making imp rovements in the maintenance area, and th i s progress will continu e without the proposed change in the enforcement policy .
All of these comments are consistent with and endor se the utility- wide comments formulated by NUMARC.
TVA is committed to achieving excelle nce in nuclea r plant maintenance, and th e Commi ssion has acknowledg ed the nucle ar in dustry's effor ts and prog r es s di rected toward maintenance imp rovements . TVA ha s assu med responsi bi lity fo r dev eloping, im plemen ting, and maintaining effe ctive maintenance prog r ams at ea ch of it s nuclea r facilitie s. We reali ze th e impor tance of effec t ive pl ant maintenance as a means of inc reasing plant l ife and assur ing public safety .
An Equal Opportunity Employer
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U.S. Nuclear Regulatory Commission FEB 06 1990 We appreciate the opportunity to comment upon the modified Policy Statement.
Very truly yours, TENNESSEE VALLEY AUTHORITY
~t Manager, Nuclear Licensing and Reg ulatory Affairs cc: Ms. S. C. Black, Assistant Director for Projects TVA Projects Division U.S. Nuclear Regulatory Commission One White Flint, North 11555 Rockville Pike Rockville, Maryland 20852 Mr. B. A. Wilson, Assistant Director for Inspection Programs TVA Projects Division U.S. Nuclear Regulatory Commission Region II 101 Marietta Street, NW, Suite 2900 Atlanta, Georgia 30323
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South Carolina Electric & Gas Company Ollie S. Bradham P.O. Box 88 Vice President ..:..J Jenkinsville, SC 29065 NUMBER PR z Nuclear Operations V
(803) 345-404~ OCKET SCE&G LOCKUED PROPOSED RUL,E U'.:>NRC A SCJINJI Company
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-SU FEB 12 AlO:30 February 6, 1990 OFF!CE: OF SEGRE fARY DOCKETING~ SE.i Vlf.L BRANCl-i Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Wash i ngton, D. C. 20555 Attention: Docketing and Service Branch
Subject:
Virgil C. Summer Nuclear Station Docket No. 50/395 Operating License NPF-12 Comments on 10 CFR 2, Appendix C and 10 CFR 50, Maintenance Policy Stat ement
Dear Mr. Chil k:
South Carolina Electric & Gas Company has reviewed the modification to Appendix C of 10 CFR 2, 11 General Statement of Pol i cy and Proceudres for NRC Enforcement Actions, 11 and revis ion to the 10 CFR 50, 11 Policy Statement on Maintenance, 11 which were promulgated in the Federal Reg i ster (54 FR 50610) dated December 8, 1989. SCE&G fully endorses the comments provided by the Nuclear Management and Resources Council on this subject and requests that the Commission reconsider the enforcement policy modification. SCE&G does not have additional comments.
Very truly yours,
&U~
- 0. S. Bradham ARR/OSB:lcd c: D. A. Nauman/0. W. Dixon, Jr./T. C. Nichols, Jr.
E. C. Roberts R. V. Tanner J. J. Hayes, Jr.
General Managers G. D. Moffatt C. A. Price R. R. Mahan W. J. Smith (NUMARC)
File (811.02, 855.00AA)
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Pennsylvania Power & Lighl.: Company cocKE,rn Two North Ninth Street
- Allentown, PA 18101
- 215 / 770-5151 USNHC
'90 FEB 12 P 4 :49 Harold W. Keiser Senior Vice President-Nuclea r OFF!CE OF 5ECRE1AHY 215/770-4194 00CKfTIHG .~ su,v1cr-BRANCH FEB - 6 1900 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn.: Docketing and Service Branch SUSQUEHANNA STEAM ELECTRIC STATION COMMENTS ON THE NRC POLICY AND PROCEDURES FOR ENFORCEMENT ACTIONS: ADDITIONAL CIVIL PENALTIES FOR VIOLATIONS INVOLVING MAINTENANCE DEFICIENCIES PLA-3335 FILE A17-ll
Dear Mr. Chilk:
Enclosed are Pennsylvania Power and Light Company's comments submitted in response to the proposed modification to the commissions enforcement policy that adds a civil penalty adjustment factor allowing escalation for violations of requirements where the root cause involves programmatic maintenance-related deficiencies (54 Fed. Reg. 50610, December 8, 1989).
The subject proposed policy revision has substantial implications.
We believe that the proposed policy is sufficiently vague so as to invite inconsistent discretionary application founded on judgement calls rather than hard data. It is particularly noted that there is no distinction recognized between a maintenance failure as the root cause of a violation and other factors such as inadequate training, personnel error, or management inattention. The test rather appears to be whether "the violation could have been prevented by implementing a maintenance program consistent with the scope and activities defined by the Revised Policy Statement on the Maintenance of Nuclear Power Plants." Because of the broadness of the Policy Statement, it is arguable that any equipment failure, with the benefit of hindsight, could have been prevented by better maintenance. Clearly, the unanswered questions is: When does improperly performed or neglected maintenance rise to the level of a programmatic failure?
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FILE A17-11 PLA-3335 Mr. Samuel J. Chilk Additionally, we noted and concurred with concerns expressed by The Advisory Committee on Reactor Safeguards and Commissioner Remick regarding the potential for the proposed policy to have a net negative impact on public safety. The policy, because it proposes to penalize errors in maintenance more severely than other errors with the same consequences on public safety, appears to encourage licensees to divert resources from other safety-related activities into maintenance. Although we do not believe this is the intent of the commission, such a reaction by licensees is conceivable and has the clear potential of negatively impacting overall public safety.
Finally, the proposed policy serves to highlight a fundamental disagreement between licensees and the commission regarding the emphasis of enforcement policy. The proposed policy emphasizes a punitive rather than constructive approach to regulation through its reliance upon penalties. The proposed policy circumvents the issue of formal rule making on maintenance through the threat of escalated enforcement. However, the action places maintenance at a regulatory priority level equivalent to that which would have been achieved by a rule making. We believe this approach to regulation to be improper and sends the wrong message to both the licensees and the public in general.
Very truly yours, H.
CJ/~
- w. Keiser Enclosure cc: NRC Document Control Desk (original)
NRC Region I Mr. G. s. Barber, NRC Sr. Resident Inspector - SSES Mr. M. c. Thadani, NRC Project Manager
e Commonwealth Edison One First National Plaza, Chicago, Illinois Address Reply to: Post Office Box 767 Chicago, Illinois 60690 - 0767 DOCKET NUMBER ~
i'\{OPOSED RUlJr-7 (61/-h so61b February 5, 1990 OOCKEiED USNRC "90 FEB 12 AB :37 Mr. Samuel J. Chilk Secretary OfF!Cf. OF SEC~pA~Y Docketing and Service Branch uOCKEiiNG <!, St.t<VICf.
U. S. Nuclear Regulatory Commission BRANCH One White Flint North 11555 Rockville Pike Rockville, MD 20852
Dear Mr. Chil k:
Subje c t: Modification to NRC Policy Statement:
Policy and Procedures for Enforcement Actions; Policy Statement (54 FR No . 235, 12/8/89)
This provides Commonwealth Edison Company's (CECo's) comments on the revision to the Enforcement Policy to include a civil penalty adjustment factor for violations involving maintenance deficiencies. In addition to the comments submitted herein, CECo concurs with and endorses the comments submitted by Nuclear Management and Resource Council (NUMARC), on the subject.
We believe that an effective maintenance program is a precept for the utilities that operate and maintain nuclear power plants. An effective maintenance program enhances the safety aspects and economically benefits the utility, its customers and the public . We also believe that NRC action in the form of a separate maintenance rule, regulatory guide, or policy statement is r edundant to existing regulations and, therefore, unnecessary. Sufficient flexibility exists under current regulation and enforcement policies to improve the standards of those utilities which demonstrate ineffective maintenance programs.
CECo has had a commitment to a formal maintenance program since the issuance of its first Corporate Conduct of Maintenance Directive in 1983. Through the years, the program has been appropriately reviewed and enhanced. In March of 1988, a complete revision to the maintenance directive was made, based on INPO's "Guidelines for the Conduct of Maintenance at Nuclear Power Station" (INPO 85-038). This upgrade of our maintenance program is an extensive undertaking. The new directive will require full implementation by December, 1991. This amount of time is required to assure that the program is implemented properly and effectively at all our sites. Since our available resources are already committed to the fullest extent practicable toward the implementation of the new program, the use of escalated enforcement actions cannot expedite implementation. Progress could be impeded by the introduction of the revised policy statement . It could divert our present focus and prio r ities, and potentially have a negative i mpact on safety and reliability as program elements are modified to meet the special treatment of maintenance violations and the broadly worded definition of maintenance. To make effective use of our resources, we should not be diverted from our present pro- a c tive course.
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The NRC's broad and vaguely worded definition of maintenance, is of particular concern. Through interpretation, the NRC could characterize any inconsistency between NRC expectations and utility programs as unacceptable programmatic deficiencies. We are concerned that such differences of opinion may result in escalation that is based on judgement calls rather than on factual data.
This inherently judgemental nature of some maintenance activities, also implies that guidance must be provided to assure that it is possible to conclude that maintenance is the root cause of a violation. If guidance is not provided, the utilities are vulnerable to escalated enforcement if the NRC uses the policy to impose its views regarding maintenance by finding maintenance deficiencies to be a root
- cause or a contributing factor to a disproportionate number of violations.
Also, the use of a vaguely worded enforcement policy statement to prod utilities to revise their maintenance policies, undermines the regulatory process by discounting the opportunity for public comment.
In conclusion, CECo and the rest of the industry, have made substantial progress in developing, implementing and evaluating maintenance programs, and has ongoing self-initiatives to continue program enhancements. CECo encourages the NRC to reconsider the need for a revised policy statement. We believe that it is possible to focus attention through existing regulations to correct areas of weak performance, and that the revised policy statement may adversely effect current maintenance improvement efforts.
We appreciate the opportunity to comment on the revised policy statement.
T. J.
Nuclear Licensing Manager 0008w/LEH:wj
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BRANCH February 6, 1990 10 CFR Part 2 54 FR 50610 Secretary of the Commission Attention: Docketing and Service Branch U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Gentlemen:
Docket 50-305 Operating License DPR-43 Kewaunee Nuclear Power Plant Comments on Revised Policy Regarding Civil Penalty Escalations for Maintenance-Related Violations Wisconsin Public Service Corporation (WPSC) participated in the formulation of the comments submitted to the NRC by the Nuclear Management and Resources Council (NUMARC), regarding civil penalty escalations for maintenance-related violations. Although WPSC is in general support of NUMARC's comments, we offer the following additional comments to emphasize our concerns with this type of enforcement practice.
We are pleased that the NRC acknowledged the industry's maintenance improvements to date, and commitment to continued improvement, in the Federal Register posting of the enforcement policy change. Specifically, the following three statements, which were part of the posting, indicate that the industry is devoting the appropriate level of attention to maintenance:
- 1. The Commission recognizes that the industry and individual licensees have made improvements in their maintenance programs.
- 2. Indeed, the Commission has seen noticeable progress by the industry over the past four years in the area of nuclear power plant maintenance.
- 3. The Commission also recognizes that the industry is committed to continue to improve maintenance.
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Secretary of the Commission February 6, 1990 Page 2 These accomplishments were the result of the industry's continuing quest for excellence. We realize that further improvements are desirable and reaffirm our commitment to that task through the continued implementation of industry initiatives. These efforts should be allowed to continue without the inducement of onerous regulation.
As stated in our previous comments to the NRC regarding the proposed maintenance rule, any new regulations specifically directed at maintenance would be redun-dant to existing regulations. Effective maintenance on safety-related com-ponents is necessary to assure adequate public protection. Existing regulatory requirements, both explicit and implicit, empower the NRC with enforcement capa-bilities in this area. The following two statements from the supplementary information in the Federal Register posting are in concert with our previous comments:
- 1. . . . the Commission stated its intention to emphasize maintenance in enforcing existing requirements for power reactors.
- 2. The special escalation will only apply if the violation or problem area (aggregated violations) has a maintenance root cause.
With these NRC premises it is clear that safety-related maintenance activities are under the NRC's purview through existing regulations. This obviates the need for a maintenance rule. Additionally, because of the seriousness of Severity Level I, II, or III violations, further enforcement emphasis of main-tenance through civil penalty escalations is unnecessary.
Given the NRC's accolades of maintenance improvements to date, we are confused by the NRC's perceived need for an additional regulatory incentive in the area of maintenance. The proposition of a maintenance rule, and the issuance of a draft maintenance regulatory guide for comment, have adequately emphasized the importance of maintenance. The industry has aggressively responded to identified concerns and is committed to continue maintenance improvement efforts. It is apparent that the NRC's and industry's goals for maintenance are mutual.
However, additional regulatory intervention in this area could result in a disproportionate allocation of both NRC and industry resources with no commen-surate benefit, jeopardizing other areas of equal or greater safety signifi-cance.
Furthermore, we disagree with the NRC's contention that the use of the enforce-ment program, to provide incentive for the improvement of maintenance, is warranted because of the decision to hold the maintenance rulemaking in abeyance.
We were of the understanding that the purpose for the abeyance was to allow the NRC to observe the industry's improvement without regulatory intervention. The observations and degree of improvement would be factors in determining whether promulgation of a maintenance rule is necessary. The institution of regulatory incentives during this time circumvents the purpose of the abeyance period, in that it will not allow the NRC to impartially judge the effectiveness of the industry initiatives on their own merit.
Secretary of the Commission February 6, 1990 Page 3 We are also concerned with the potential for discretionary application of the modified enforcement policy. It is not clear what methods will be used by the NRC in determining root causes of violations. All methods are somewhat subjec-tive, rendering them inconsistent and unreliable. A true root cause can only be definitely determined in retrospect, after an implemented corrective action has demonstrated to have precluded recurrence. We would caution the use of any root cause analysis method which relies on personal judgment or interpretation, given the serious consequences and ramifications of a mainte~ance root cause finding.
In summary, industry trends and commitments in the maintenance area do not indi-cate that added regulatory emphasis of maintenance is warranted. All safety concerns, including those attributed to maintenance, can be appropriately and adequately addressed by the NRC through the implementation of existing regula-tion. Civil penalty adjustment factors aimed at a specific functional area, such as the already prominent maintenance area, inordinately focus the attention of both the NRC and the industry on that area. An undesirable result of this will be the associated inadvertent neglect of other operational areas of equal or greater safety significance. Another concern is the lack of objective cri-teria for determining what constitutes a maintenance root cause. This would undoubtedly result in arbitrary and inconsistent enforcement decisions. The modified enforcement policy will also preclude fair NRC judgment of the effec-tiveness of industry initiatives during the maintenance rule abeyance period.
These diversions are unwarranted based on the current industry performance trends in the maintenance area. Therefore, the modified enforcement policy should be withdrawn.
We appreciate the opportunity to comment on this policy statement modification.
Sincerely, K. H. Evers Manager - Nuclear Power PEM/jms cc - Mr. Patrick Castleman, US NRC US NRC, Region III US NRC, Document Control Desk
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WAYNE, PA 19087-5691 (215) 640-6000 Mr. Samual J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Attn: Docketing and Service Branch Washington, DC 20555
SUBJECT:
Comments Concerning the Nuclear Regulatory Commission 1 s Policy Statement Modification to 10 CFR 2, 11 Policy and Procedures for Enforcement Actions; Policy Statement 11 (54 FR 50610)
Dear Mr. Chilk,
This letter is being submitted in response to the Nuclear Regulatory Commission's (NRC 1 s) request for comments regarding the Policy Statement Modification 10 CFR 2, 11 Policy and Procedures for Enforcement Actions; Policy Statement, 11 published in the Federal Register (54 FR 50610, dated December 8, 1989).
The Philadelphia Electric Company (PECo) appreciates the opportunity to comment on this policy statement modification . The modification to the NRC 1 s Enforcement Policy described in 54 FR 50610 is to add an additional civil penalty adjustment factor for violations involving maintenance deficiencies . We are uncertain as to whether these changes to 10 CFR 2, Appendix C, 11 General Statement of Policy and Procedure for NRC Enforcement Actions, 11 are necessary.
We consider the existing Enforcement Policy an effective deterrent to continued poor performance in operations, including maintenance. In addition, we support the Nuclear and Management Resources Council 1 s (NUMARC 1 s) position and comments regarding this policy statement modification.
PECo is currently developing a Nuclear Maintenance Program Manual which is consistent with the scope and activities defined in the NRC Revised Policy Statement 10 CFR 50, 11 Maintenance of Nuclear Power Plants, Revised Policy Statement, 11 published in the Federal Register (54 FR 50611, dated December 8, 1989). Our Maintenance Program Manual incorporates guidance published in the Institute of Nuclear Power Operations* (INP0 1 s) document No.85-038, Guidelines for the Conduct of Maintenance at Nuclear Power Stations, 11 Revision 1. In addition, our Program will be patterned after similar maintenance programs developed by other nuclear utilities which are already in place. One of these programs has been viewed by the NRC as an effective maintenance program that
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Mr. Samual J. Chilk Page 2 meets the intent of the 10 CFR 50 Proposed Rule, 11 Ensuring the Effectiveness of Maintenance Programs for Nuclear Power Plants, 11 published in the Federal Register (53 FR 47822, dated November 28, 1988).
If you have any questions, please do not hesitate to contact us.
Very truly yours, J. advnr, f .
G. A. Hunger, Jr.
Director Licensing Section Nuclear Services Department
2300 N STREET, N_ W, WASHINGTON, D . C . 20037 VIRGINIA OF"FICE TELEX/CABLE 1501 FARM CREDIT DR IVE 89 -2693 (SHAWLAW WSH)
McLEAN, VIRGINIA 22102 (703) 790 -7900 TELEPHONE (202) 663 -8000 F"ACSIMILE (202) 663 -8007 WRITER' S D IRECT DIAL NUMBER February 6, Secretary of th e Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docke t ing and Service Branch Re: Modification To The General Statement Of The Policy And Procedure For NRC Enforcement Act ion s: Additional Civil Penalties For Violations Involving Maintenance Deficienc i es
Dear Sir:
On December 8, 1989, the Nuclear Regulatory Commission pub-lished its Revised Policy Statement on Maintenance of Nuclear Power Plants (54 Fed. Reg. 50,611). The Commission decided to hold in abeyance rulemaking directed toward improving the effec-tiveness of maintenance programs for a period of 18 months. The Rev i sed Policy Statement describes the Commission ' s expectations and future actions planned in the maintenance area and restates th e Comm i ssion's views with respect to what constitutes an effec-tiv e maintenance program.
Concurrently, the Commission published a modification to its General Statement of Policy and Procedure for NRC Enforcement Actions to add an additional civil penalty adjustment factor for "cases where a cause of a maintenance-related violation at a power reactor is a programmatic failure." (54 Fed. Reg. 50,610) fo r Severity Le vel I, II or III violations, the base civ il pen-alty may be in creased by as much as 50%.
Th~ Re v i sed Policy Statemen t went into effect on December 8,
~9 89. Th e modifi c ation to the NRC's Enforcemen t Poli c y also became e f fe ctiv e on th at day; however, it will only be applied for viol ati ons that occur after March 8, 1990. Th e Commission ha s in vi t ed the comment s of interested persons on the modifica-tion to th e NRC Enfor c ement Pol i cy.
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SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary of the Commission U.S. Nuclear Regulatory Commission February 6, 1990 Page Two We submit these comments on behalf of Baltimore Gas & Elec -
tric Company, Carolina Power & Light Company, The Cleveland Elec-tric Illuminating Company, Duquesne Light Company, GPU Nuclear Corporation, Louisiana Power & Light Company, Pennsylvania Power
& Light Company, The Toledo Edison Company, Union Electric Com-pany and Wisconsin Electr.ic Power Company, who are owners and operators of commercial nuclear power reactors. These comments are intended to complement those submitted on behalf of the industry by Nuclear Management and Resources Council, Inc.
While the industry recognizes the importance of maintenance, we are troubled by the modification to the Commission's Enforce-ment Policy. The Commission has not demonstrated a need for such a modification. The Commission has not established that the threat of escalated fines for "programmatic failures" of mainte-nance programs will improve maintenance at power reactors.
Indeed, the imposition of civil penalties for violations is gen -
erally an ineffective means of encouraging dedicated compliance with safety regulations. The standard to be applied in determin-ing whether a violation is (1) maintenance-related and (2) the result of a programmatic failure is vague and overly broad.
Thus, the application of the Enforcement Policy, as modified, is subject to unfettered discretion and potential abuse. We agree with the Advisory Committee on Reactor Safeguards that there is no justification for penalizing errors in maintenance more severely than other errors with the same safety consequences.
The impact could be a diversion of resources from other safety-related activities into maintenance, with a net negative impact on public safety. We concur with the blunt assessment o f the Advisory Committee on Reactor Safeguards: "it is manifestl y wrong."
We respectfully request that the Commission reconsider this modification to its Enforcement Policy for the reasons summarized above, as discussed in more detail in this letter.
There is no demonstrated need for the modification to the Enforcement Policy. In the supplementary information accompany -
ing the modification to the Enforcement Policy, the Commission acknowledged the improvements to maintenance programs and the expressed commitment by the industry to continue to improve maintenance:
The Commission recognizes hat the industry and individual licensees have made improve -
SHAW, PITTMAN , POTTS & TROWBRIDGE A PARTNERSHI P INCLUDING PROFESSIONAL CORPORAT IONS Secretary of t he Commission U.S. Nuclear Regulatory Commission February 6, 1990 Page Three ments in their maintenance programs. Indeed, the Commission has seen noticeable progress by the industry over the past four years in the area of nuclear power plant maintenance.
The Commission also recognizes that the industry is committed to continue to improve maintenance.
54 Fed. Reg. at 50,610. Empirical evidence of the substantial improvements in mai n tenance programs was presented to the Commission in comments on the proposed maintenance rule submitted b y the Nuclear Management and Resources Council, Inc. on e b r ua ry 27, 1 989 ( "NUMARC Comments"). While t h e nuclear indus-t ry is c ommit t ed to fu r the r improvements t o maintenance programs t o c ont i nue to enhance p l ant safety and reliability, there is no evidence that current industry practices do not afford "adequate protection" of public health and safety. Consequently, there is no justification for special attention and an extraordinary pro-vision for escalated civil penalties for maintenance-related violations.
There is no evidence that the threat of escalated fines for "programmatic failure" of maintenance programs will improve main-tenance at power reactors. We maintain that the civil penalty process at the NRC is unnecessarily adversarial and punitive, and has a negative impact both i n the eyes of the public and on the morale of the employees who must keep the plants operating safely. There are rare occasions when a civil penalty is the necessary and appropriate enforcement action. As presently implemented, the provision for civil penalties is already over-used. It fails to motivate; rather, it discourages hardworking and dedicated plant staffs.
The standard to be applied in determining whether a viola-tion is (1) maintenance-related and (2) the result of a program-matic failure is vague and overly broad. The modification to the Enforcement Policy would escalate civil penalties where the vio-lation is (1) maintenance-related and (2) a programmatic failure.
The modified Enforcement Policy states "a cause of the violation shall be considered to be maintenance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope and activities defined by the Revised Policy Statement on the Maintenance of Nuclear Power Plants."
The Revised Policy Statement is so broadly written that, with the benefit of hindsight, arguably any equipment failure can be deemed to be one that could have been prevented by better
SHAW, PITTMAN , POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary of the Commission U. S. Nuclear Regulatory Commission Februar y 6, 1990 Page Four maintenance. The Revised Policy Statement would encompass -- as part of a maintenance program -- planning, scheduling, staffing, shift cov erage, resource allocation, control of contractors, availabi l ity of spare parts, communication s, engineering support, radiation exposure control, personnel qualification and training, quality assurance, documentation and testing. Presumably a breakdown in any of t he above areas could be classified as a main t enance-related violation. Furthermore, there is no defini-t i on of when f ailure to perform maintenance or improperly per-formed maintenance becomes a "programmatic failure." The Revised Pol i cy Statement is sufficiently v ague and so overly broad that i t fails to provide a reasonable standard for enforcement action.
As s uch , it wi l l l ik ely result in confusion and inconsistent a pp l i cat ion by the NRC Regional of f ices.
It is particularly i nappropriate to establish civil penal-ties for maintenance-related violations where there is no consen -
sus as to the appropriate content of a maintenance program that would be required to ensure adequate protection of public health and safety. The NRC nevertheless proposes to penalize licensees for not meeting undefined and unarticulated standards that are not legal requirements.
Consequently, the Revised Policy Statement on Maintenance, in conjunction with the modification to the Enforcement Policy, provides little in the way of guidance, but rather looms as a threat of arbitrary enforcement. In light of the history of the Commission's proposals to adopt a maintenance rule, it is partic-ularly i nappropriate. Furthermore, it effectively circumvents the Adm i nistrative Procedure Act rulemaking requirements by attempt i ng to accomplish in the guise of its Enforcement Policy what it could not do by rulemaking -- adopt vague, unspecified, and unj ustified requirements.
There is no justification for penalizing errors in mainte-n ance more severely than other errors with the same safety conse-q u ences . Th e impact could be a diversion of r esources from other safety- r elated activities into maintenance, but with a net nega-t i ve impact on public safety . The Advisory Committee on Reactor Safeguards was harshly critical of the proposed modification to the NRC Enforcement Policy before it was issued. In a letter to NRC Chairman Carr, the ACRS found "contentious elements" which "surel y will not survive careful scrutiny. " The ACRS letter emphas i zed that the focus on maintenance-related violations could have a net negative impact on public safety:
SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary of the Commission U.S. Nuclear Regulatory Commission February 6, 1990 Page Five For example, the proposal that errors in maintenance be penalized more severely than other errors with the same public consequen-ces would encourage licensees to divert resources from other safety-related activi-ties into maintenance, with a net negative impact on public safety. That is surely not the Commission's in tent. We are loath to make a big i ssue of th i s one because it is so manifestly wrong (and the staff has committed to reconsider it).
(Letter to Kenneth M. Carr from Forrest J. Remick dated October 1 2, 1 989) We agree with th e Advisory Committee on Reactor Safeguards and with Commissioner Remick th at if the NRC ag gress i vely pursued escalated enforcement for "programmatic failures" in the maintenance area, licensees could be publicly pressured to divert resources to respond. It could result in a misallocation of resources that might have little positiv~ -- and perhaps even a net negative -- impact on safety.
For all of the reasons set forth in these comments, we agree with the Advisory Committee on Reactor Safeguards that the modi-fication to the Enforcement Policy is "manifestly wrong."
We appreciate the opportunity to comment on the Enforcement Pol i cy Statement. We suggest that the Commission request com-ments on modifications to its Policy Statements prior to their promulgation as "final." In this case, we ask that the Commis-sion reconsider the modification to single out maintenance-related violations for special attention *
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February 5, ~ u '!JKANCH Docket Nos. 50-321 50-424 HL-958 50-366 50-425 ELV-01296 Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch Comments on Proposed Policy Statement "Pol icy and Procedures for Enforcement Actions, Policy Statement" (53 Federal Register 50,610 of December 8, 1989)
Dear Mr. Chilk:
Georgia Power Company has reviewed revisions to the proposed rule, 10 CFR Part 2, "Policy and Procedures for Enforcement Actions, Policy Statement" and its companion document "Maintenance of Nuclear Power Plants, Revised Policy Statement", published in the Federal Register on December 8, 1989.
In accordance with the request for comments, Georgia Power Company hereby is in total agreement with the NUMARC comments to be provided to the NRC by February 6, 1990.
Should you have any questions, please advise.
Respectfully submitted, J./J .~
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Alabama Power Company 40 Inverness Center Parkway Post Office Box 1295 Birmingham , Alabama 35201 Telephone 205 868-5581 W. G. Hairston , Ill Senior Vice President -go FEB -7 P4 :Ol Nuclear Operations Alabama Power February 5, 1990 OFFICE OF S£CR~~1AWl'them electric system DOCKE11NG ,._ S[iiVICF BRANCl-i Docket Nos. 50-348 50-364 Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Wa shington, DC 20555 ATTN: Docketing and Service Branch Comments on Proposed Policy Statement 11 Policy and Procedures for Enforcement Actions, Policy Statement" (53 Federal Register 50,610 of December 8, 1989)
Dear Mr. Chilk:
Alabama Power Company has reviewed rev1s1ons to the proposed rule, 10 CFR Part 2, "Policy and Procedures for Enforcement Actions, Policy Statement" and its companion document "Maintenance of Nuclear Power Plants, Revised Policy Statement", published in the Federal Register on December 8, 1989.
In accordance with the request for comments, Alabama Power Company hereby is in total agreement with the NUMARC comments to be provided to the NRC by February 6, 1990.
Should you have any questions, please advise.
Respectfully submitted,
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Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555 Attention : Docketing and Service Branch Re : Revisions to Policy and Procedure for Enforcement Actions (54 Fed. Reg. 50610)
Dear Mr. Chilk:
Duke Power Company (Duke) hereby submits the following comments~/
regarding the Nuclear Regulatory Commission's (NRC or Commission) revision to its General Statement of Policy and Procedure for NRC Enforcement Actions published in the Federal Register on December 8, 1989. (54 Fed. Reg. 40610)
Duke does not support the concept embodied in the modified policy statement. Duke does not believe that present circumstances justify the Commission's amending its Enforcement Policy to add an additional civil penalty adjustment factor for violations involving maintenance deficiencies . As Duke understands the Commission's action, it has simultaneously modif i ed its Enforcement Policy (see 54 Fed. Reg.
50610-11) and revised its Policy Statement on Maintenance (see 54 Fed .
Reg. 50611-13). The net effect of these changes is to provide, in the modified Enforcement Policy, that for any enforcement action The base civil penalty may be increased as much as 50% for cases where a cause of a maintenance-related violation at a power reactor is a programmatic failure. For the purposes of application of this factor, a cause of the violation shall be considered to be maintenance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope and activities
~/ Duke recognizes that comments also will be filed by the Nuclear Management and Resources Council (NUMARC) and by the firm of Bishop, Cook, Purcell and Reynolds on behalf of several NRC Licensees, of which Duke is one. Duke adopts those comments as its own.
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Mr. Samuel J. Chilk February 5, 1990 defined by the Revised Policy Statement on the Maintenance of Nuclear Power Plants. In assessing this factor, consideration will be given to, among other things, whether a failure to perform maintenance or improperly performed maintenance was a programmatic failure. The degree of the programmatic failure will be considered in applying this factor. (Emphasis added) (54 Fed . Reg. 50611)
As noted, Duke supports, and adopts as its own, the comments filed by NUMARC and Bishop, Cook. In addition to those comments, however, Duke would point out that it believes that if the Commission amends its Enforcement Policy as it appears to intend to do, a likely result will be enforcement actions which are not uniformly applied. This is so because there is at present a lack of guidance from the Commission available to NRC Licensees and to the NRC Staff as to precisely what constitutes a "maintenance-related violation" which is a "programmatic failure. 11 As illustrated in the quote above, NRC says that a "maintenance-related" violation shall be deemed to exist if it could have been prevented by Licensee implementation of a maintenance program as defined by the Revised Policy Statement on Maintenance. NRC goes on to say that during the "next 18 months"~/ it will monitor Licensees and the industry as a whole to assess the need for additional rulemaking in the maintenance area . During that same 18-month time period, moreover, NRC "intends to emphasize maintenance [in enforcing existing requirements for power reactors] by assessing whether a safety significant violation . . . of license conditions or regulations could have been prevented if an effective maintenance program had been implemented . " (54 Fed. Reg. 50612) It is for that reason that the Commission is modifying its Enforcement Policy in the manner stated above.
One would assume from the foregoing that the Commission already has in place clear guidance and standards for its preferred maintenance program so that Licensees can measure their activities against those standards, and for individual NRC inspectors to use in assessing whether or not a violation (or a "problem area", defined as "aggregated violations") has a "maintenance root cause" (54 Fed . Reg. 50610) and thus should be escalated. This, however, is not the case. The Revised Policy Statement on Maintenance does not establish any clear standard with respect to maintenance programs. Likewise, it does not provide any criteria for applying the Enforcement Policy Revisions.
In its Revised Policy Statement on Maintenance, the Commission observes that it bel i eves that:
11 deve l opment and use of a comprehens i ve performance-based standard for maintenance, which pro vi des qui dance and requirements on the scope.
~/ The 18 months dates from December 8, 1989, the effective date of the Revised Policy Statement on Maintenance.
Mr. Samuel J . Chilk February 5, 1990 goals, performance and activities associated with an effective maintenance program, is important in assuring that maintenance is improved." (Emphasis added) (54 Fed. Reg. 50612)
The Commission's observation would seem to be correct. However, the NRC then goes on to say: "Therefore, during the next 18 months, the Commission intends to develop. on a cooperative basis with the industry and public , a maintenance standard for commercial nuclear power plants, 11 and that it "intends to have [such a] standard available for use in approximately 1 year . 11 (Id . )
Consequently it appears to Duke that, at a m1n1mum, NRC Licensees and inspectors will be operating from March 8, 1990, until at least early in 1991 , without the benefit of "guidance and requirements" from the Commi s sion as to what constitutes a standard for maintenance against which to measure the escalation factor to be applied under the revised Enforcement Policy . ~/ The lack of guidance to Licensees and to the individual inspectors could well be exacerbated by the fact that the Commission itself has told the Staff that it is taking a personal interest in Staff's actions under the modified Enforcement Policy Statement . In Duke's view, the situation described above is quite likely to lead to inconsistent and arbitrary enforcement actions which in turn will intensify the already-existing adversarial nature of the NRC I s enforcement process. Duke respectfully requests that the NRC withdraw its revisions to its Enforcement Policy at least until NRC has, as discussed in the Revised Policy Statement on Maintenance, promulgated (on a cooperative basis with the industry and the public) the standards for what it believes to be an adequate maintenance program.
Duke appreciates the opportunity to comment on the rev1s1ons to the Enforcement Policy and would welcome the opportunity to discuss further any comments with the appropriate NRC personnel.
$l; Albert V.
Associat cd
~/ Duke has had direct contact with members of NRC Headquarters Staff on these matters and is aware from those discussions that NRC Licensees (or at least Duke), NRC Headquarters and NRC Regional personnel do not have a consistent understanding of what the Commission intends by "maintenance."
BISHOP , COOK, 1400 L STR EET, N.W.
WA S H IN GTO N, D .C. 20 005 *3502 (202) 371*5 70 0 *90 FEB -6 P 2 :51
,r~**:r.: r- *:::c,c1r..rv W RITE R' S DIRECT DIAL ;_ ,) TEL EX, 44SJ57f IN'flj~~fUI TE L~COP l ~R (2_0 2) 3 71*59 5 0 February 6, 1990 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Revisions to Policy and Procedure for Enforcement Actions (54 Fed. Reg. 50610)
Dear Mr. Chilk:
On December 8, 1989, the Nuclear Regulatory Commission
("NRC" or "Commission") published in the Federal Register and made effective a revision to the NRC's General Statement of Policy and Procedure for NRC Enforcement Actions (10 C.F.R. Part 2, Appendix C}. See 54 Fed. Reg. 50610. Although the revisions are presently in effect, the Commission invited public comments. On behalf of several power reactor licensees,.1/ we respectfully submit the following comments.
We recognize that comments on this policy revision will also be filed by the Nuclear Management and Resources Council (NUMARC}. We support the comments filed by NUMARC; the comments below should be read as consistent with and complementary to NUMARC's effort .
.1/ Alabama Power Company; Arkansas Power & Light Company; Commonwealth Edison Company; Duke Power Company; Florida Power and Light Company; Georgia Power Company; Long Island Lighting Company; Niagara Mohawk Power Corporation; Northeast Utilit i es; Pacific Gas & Electric Company; Rochester Gas &
Electric Corporation; South Carolina Electric & Gas Company; system Energy Resources, Inc.; TU Electric; Washington Public Power Supply System; and Wisconsin Public Service Corp.
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Mr. Samuel J. Chilk February 6, 1990 Page 2
- 1. Summary The NRC's latest revision to the Enforcement Policy is, we believe, very significant. This modification adds an additional civil penalty adjustment factor for violations involving alleged maintenance deficiencies. Specifically, the revision provides the following:
The base civil penalty may be increased as much as 50% for cases where a cause of a maintenance-related violation at a power reactor is a programmatic failure. For the purposes of application of this factor, a cause of the violation shall be considered to be maintenance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope and activities defined by the Revised Policy Statement on the Maintenance of Nuclear Power Plants. In assessing this factor, consideration will be given to, among other things, whether a failure to perform maintenance or improperly performed maintenance was a programmatic failure. The degree of the programmatic failure will be considered in applying this factor.
We oppose this revision for several reasons.
First, the modification appears to represent an effort by the Commission to, at least temporarily, circumvent its previous sound decision to suspend the proposed maintenance rulemaking.
New maintenance requirements have not been justified from a safety perspective. The Commission should continue to defer action on the maintenance issue until a technical justification has been established.
Second, the revision to the Enforcement Policy will effectively impose new substantive requirements on licensees without the benefit of the prior notice and comment procedures mandated by the Administrative Procedure Act ("APA") or the prior analysis compelled by the NRC's backfit rule.
Third, the Enforcement Policy modification is unbounded with respect to the scope of "maintenance" problems that could be considered for escalation and therefore gives extremely broad sweep to this new escalation factor. This would almost
- inevitably lead to escalation decisions that are arbitrary and/or selectively applied.
Fourth, the modification provides no guidance to the NRC Staff on how to determine that "maintenance" was a root cause of
Mr. Samuel J. Chilk February 6, 1990 Page 3 a violation and establishes no objective criteria for applying the factor. This also could lead to extremely subjective enforcement decisions.
Fifth, the modification raises the question as to the proper definition of a "programmatic" failure and could enable the NRC Staff to evaluate any number of violations greater than two in the aggregate and deem them "programmatic." In addition, this raises the issue of whether the NRC Staff will use low severity level violations to establish a single escalated violation, and then use the same violations to increase the base civil penalty under the new escalation factor.
Finally, escalation factors based on root cause are contrary to sound policy. This escalation factor could unnecessarily color licensees' own root cause analyses. In addition, the Commission's action potentially heralds future adjustment factors aimed at other specific functional areas, depriving licensees and the NRC of the discipline inherent in proceeding to address new requirements through generic regulations.
For these reasons, we respectfully submit that the NRC should rescind this revision to the Enforcement Policy.
- 2. Discussion The Commission's Enforcement Policy modification could result in increased civil penalties in many different cases, involving many different types of violations and many different substantive requirements. The revision raises a number of significant legal and policy concerns.
First, the modification appears to represent an effort by the Commission to, at least temporarily, revise its prior decision on the maintenance issue and circumvent the normal rulemaking process. New maintenance requirements have not yet been justified from a safety perspective.
In the Statement of Consideration, the NRC claims support for its modification in the "decision to hold in abeyance the rulemaking on maintenance."Y However, contrary to the NRC's reading of this factor, we believe that this previous decision argues against the modification. Given the Commission's decision to hold off on a maintenance rule, based in part, on the "industry's commitment to improving plant maintenance,"l/ we are troubled that the agency is now bypassing that decision through 2/ 54 Fed. Reg. 50610.
lJ See Memorandum, s. Chilk to V. Stello, Jr., dated June 26, 1989.
Mr. Samuel J. Chilk February 6, 1990 Page 4 its Enforcement Policy. At a minimum, enforcement should not begin until after the maintenance initiatives have been implemented and accepted after the 18-month trial period.
Furthermore, although the Commission suspended development of its proposed rulemaking (originally published at 53 Fed. Reg. 47822) in June 1989 due to acknowledged improvements by industry,.1:./
in issuing the Enforcement Policy revision the NRC asserts that further improvements in maintenance-related activities are needed. We believe that this premise is not well-supported by the enforcement results associated with the NRC's ongoing maintenance team inspections. Our analysis of those programmatic inspections indicates that there have been no escalated enforcement actions resulting from maintenance team inspections
-- hardly a substantial indictment of industry's maintenance practices.~
Second, the Enforcement Policy revision will effectively impose substantive requirements on licensees. Licensees will be required to meet the "standards" of the Revised Maintenance Policy_§/ or face increased civil penalties. This backhand approach to regulation is inconsistent with the APA.1/ The APA specifies that new agency requirements may be imposed only through rulemaking or formal order. Rulemaking involves at least prior notice and opportunity for public comment.y Orders in individual cases must be backed by adequate technical justification.v The APA, in Section 551(4), agency "rules" in broad terms:
"rule" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the
~ In addition, the NRC's imposition of substantive maintenance requirements could force licensees to intensify attention to maintenance at the expense of other safety significant areas.
_§/ 54 Fed. Reg. 50611 (1989).
1./ 5 u.s.c. § 551 et seq. (1982 & Supp. IV 1986).
y 5 u.s.c. § 553; Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 523-24 (1978) .
.2./ 5 U.S.C. § 554; see also 10 C.F.R. § 2.204 and Part 2, Appendix c, § v.c.
Mr. Samuel J. Chilk February 6, 1990 Page 5 organization, procedure, or practice requirements of an agency . . . .
The agency cannot escape the procedural requirements of the APA simply by calling a rule an "enforcement policy."
When confronted with an agency communication such as a modification to agency policy, courts will specifically look behind the label attached to the agency statement to determine whether in reality it constitutes a substantive rule. See Batterton v. Marshall, 648 F.2d 694, 702-04 (D.C. Cir. 1980);
Chamber of Commerce of United States v. OSHA, 636 F.2d 464, 468 (D.C. Cir. 1980). If the agency statement establishes binding norms or substantially affects the rights or obligations of private parties, it constitutes a substantive rule. S e e , ~ ,
Morton v. Ruiz, 415 U.S. 199, 232 (1974); Batterton, 648 F.2d at 702; see also Pacific Gas & Electric Company v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974). Unless promulgated in accordance with the APA rulemaking procedures, such statements are legally defective.
See Batterton, 648 F.2d at 710 (Department of Labor method of calculating unemployment statistics held to constitute a substantive rule); Pickus v. United States Board of Parole, 507 F. 2d 1107, 1113-14 (D. C. Cir. 1974) ( "guidelines" for parole of federal prisoners held to constitute a substantive rule).
These cases make clear that when informal agency statements cross the line from setting only guidance or policy to establishing new substantive rules, the procedural requirements of the APA must be followed. The present modification to the Enforcement Policy clearly falls into the latter category, as it establishes enforcement sanctions for failure to meet NRC "policy" on maintenance -- an area where there never has been any NRC regulation. Accordingly, maintenance requirements, if justified at all, should be addressed under the APA rulemaking requirements.
Similarly, the NRC's own backfit rule, 10 C.F.R. § 50.109 (1989), requires that new rules or new Staff positions be formally justified in accordance with the backfitting standard.
The NRC no doubt believes that its "mere policy" is not subject to the backfit rule. However, as discussed above, the revision to the Enforcement Policy constitutes a new Staff position on maintenance and effectively establishes new substantive requirements. The NRC has, however, followed none of the procedures required by the backfit rule for the maintenance program requirements. This end run around the backfit rule deprives both licensees and the NRC Staff of the discipline provided by the rule.
Third, we are troubled by the mechanism that would be utilized under the revised policy to determine what constitutes. a "maintenance" problem. As the new adjustment factor states,
Mr. Samuel J. Chilk February 6, 1990 Page 6 supra, a "violation shall be considered to be maintenance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope of activities defined by the Revised Policy Statement on the Maintenance of Nuclear Power Plants." Not only does this raise the issue that the Commission is imposing the regulatory "standards" of its Revised Maintenance Policy through enforcement action (part of the concern discussed above), but it also brings into question whether the definition in the Revised Maintenance Policy Statement is appropriately bounded in any technical sense.
In this latter regard, we believe that there are at least two problems with the definition in the Revised Maintenance Policy. One involves the concept that maintenance should "prevent the degradation or failure" of systems or components.
Contrary to the implications of this concept, maintenance can at best only minimize degradation and/or failure. The sweeping definition suggested by the Revised Maintenance Policy seems to invite escalation for alleged maintenance problems in practically every enforcement case.
The other point, perhaps even more disturbing, is related to the broad scope of the definition, which includes "supporting" activities and functions. A brief review of the seven functions listed in the Revised Maintenance Policy1..Q/ makes it immediately clear that just about any activity can be deemed a "supporting function" to a maintenance program (e.g., maintenance management). This, therefore, also gives extremely broad sweep to the new enforcement escalation factor. This will almost inevitably lead to escalation decisions that are arbitrary and/or selectively applied.
Our fourth comment is related to the third above.
Specifically, we fail to see how the NRC Staff will be able to determine with precise clarity that maintenance was the root cause of a violation, as it is required to do by the new adjustment factor. The modification to the Enforcement Policy does not include any objective criteria to be used in applying the factor and does not provide any guidance for the Staff in how to isolate maintenance-related violations from other types of violations. Since the definition and potential interpretation of "maintenance" is so broad, there is no conceptual or practical method for the Staff to use to determine whether a violation is maintenance-related. Without such standards, and with the benefit of 20-20 hindsight, maintenance could be alleged to be a root cause of most, if not all, events at a nuclear power plant.
This creates the potential that practically all enforcement actions could be arbitrarily escalated under this factor.
1..Q/ 54 Fed. Reg. 50612-13.
Mr. Samuel J. Chilk February 6, 1990 Page 7 Indeed, in many situations, no subjective criteria exist for establishing specific maintenance requirements for a particular component. In those circumstances, a licensee may draw on expertise in specific disciplines(~, fire protection, electrical equipment qualification) to assure continued compliance with the substantive requirements of the particular discipline. Yet, the staff could find that a "maintenance-related" violation exists where the Staff simply disagrees with the application of discipline-specific criteria in establishing maintenance standards. Unfortunately, experience has taught that in the absence of clear direction for characterizing a violation, the Staff will simply "pick and choose" its characterization of a violation to fit its effort to aggregate violations or show a programmatic problem, irrespective of the actual root cause.
Fifth, the modification to the Enforcement Policy raises the question as to what constitutes a "programmatic" failure. The Enforcement Policy has never defined this concept. The Enforcement Policy has long provided that "[i]n some cases, violations may be evaluated in the aggregate and a single severity level assigned for a group of violations" (emphasis supplied) .11/ It is this mechanism that has served to define the term "programmatic." Thus, without a clear definition of the term, any number of violations greater than two could be, and have been, deemed programmatic in nature. We do not believe that this is a sufficiently principled, or technically defensible, basis for defining maintenance problems as "programmatic."
Misapplication of the "programmatic" determination is particularly likely where the nature of the violations involved is not well-defined in the first instance.
In this regard, the Enforcement Policy revision also raises the issue of whether the NRC Staff will not only use low severity level maintenance-related violations to establish a single escalated violation, but then use the same violations to increase the base civil penalty under the new escalation factor. This would constitute a kind of enforcement "double counting" that we believe to be inappropriate.
For example, in a case where a set of components is not maintained in strict adherence to the licensee's maintenance standards for those components ( ~ , where the licensee determines that a scheduled action can be delayed and the Staff later disagrees with that determination), the Staff conceivably could find a "maintenance-related" violation (see discussion above) and aggregate the violation to a "programmatic" problem because more than two components were involved. This could result in an increased severity level violation, an increased base civil penalty, and then civil penalty escalation. This
.l1/ 10 C.F.R. Part 2, Appendix C, Section III (1989).
Mr. Samuel J. Chilk February 6, 1990 Page 8 result may follow irrespective of the actual safety significance of the condition.
Finally, the Commission's action potentially heralds future civil penalty adjustment factors aimed at other specific functional areas. The logical extension of this would be a specific adjustment factor each time the NRC identifies a "hot" root cause. As discussed above, procedurally this strategy deprives the NRC and the licensees of the process and discipline inherent in the rulemaking procedures.
Escalation based on root cause is also inconsistent with the existing generalized Enforcement Policy escalation factors. This would clearly create overlapping escalation considerations. For example, substantive deficiencies in a licensee's program should be considered in the initial violation and the severity level determination. If they are again considered in the escalation factors, licensees will be penalized several times over for the same deficiency as discussed above.
In addition, escalation specifically based on root cause is contrary to sound policy. This policy revision creates an artificial factor that could potentially bias a licensee's own root cause determination regarding a violation. This will undermine the effectiveness of corrective actions -- a result contrary to one of the basic objectives of the NRC's Enforcement Policy.
- 3. Conclusion For the foregoing reasons, we urge the Commission to rescind this revision to the Enforcement Policy. As always, we greatly appreciate this opportunity to provide input into the enforcement process.
BISHOP, COOK, &
REYNOLDS 1400 L Street, N.W.
Washington, DC 20005-3502
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BRANCH Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch
Subject:
10 CFR Part 2, Appendix C Policy and Procedures for Enforcement Actions; Policy Statement (54 Fed. Reg. 50610 - December 8, 1989)
Dear Mr. Chilk:
B&W Nuclear Technologies hereby submits comments on the subject policy change.
B&W Nuclear Technologies endorses sound actions to further improve maintenance activities on U.S. nuclear plants. We seriously question, however, that the proposed maintenance-related change in the Commission's Enforcement Policy will contribute to maintenance improvements. In fact, the recent rate of improvement may actually decrease if this change is promulgated.
An Enforcement Policy which is based on a forced connection of unrelated activities is wrong. Such a policy is quite likely to dilute corrective actions on both the primary activities which were the original bases for an enforcement action and desirable improvements in a utility's maintenance program.
Exi sting regulation and enforcement practices are clearly adequate when focused on the consequences of any given event.
These current practices directly focus attention on specific problem areas including maintenance.
Because safety and performance improvements are likely to be slower or less effective and because current enforcement practices are quite adequate, B&W Nuclear Technologies recommends that the proposed change not be implemented in its current form.
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Mr. S. J. Chilk JHT/90-14 February 5, 1990 Page 2 In addition to the above comments, B&W Nuclear Technologies endorses the comments presented by NUMARC in their February 6, 1990 letter dealing with the same subject.
JHT/bcc cc: J. F. Colvin/NUMARC W. J. Smith/NUMARC C. W. Pryor J. R. Bohart
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- 90 FEB}f P 4 :04 February 5, 1990 OFF!Cf OF SC:CRElAK'f GOCKrT !NG .~ St:t, V!Cf tlR.ANCli Docket Nos. 50-213 50-245 50-336 50-423 813434 Re: 10CFR Part 2, Appendix C Secretary, U.S. Nuclear Regulatory Commission Attention: Docketing and Service Branch Washington, DC 20555 Gentlemen:
Haddam Neck Plant Millstone Nuclear Power Station, Unit Nos. 1, 2, and 3 Comments on Modified Enforcement Policy Appendix C to 10CFR Part 2 On December 8, 1989, the NRC published in the Federal Register (54 Fed. Reg. 50610) a modification to its Enforcement Policy, codified as Appendix C to 10CFR Part 2. This revision adds another civil penalty adjustment factor, allowing escalation for violations of NRC requirements where the root cause involves programmatic maintenance-related implications. This Enforcement Policy modification was effective on December 8, 1989, however, it will only be applied to violations which occur after March 8, 1990. The public comment period for this Enforcement Policy modification expires on February 6, 1990.
In accordance with this schedule, Connecticut Yankee Atomic Power Company (CYAPCO) and Northeast Nuclear Energy Company (NNECO) are providing the following comments on this policy modification.
The Commission's Enforcement Policy modification is significant and could result in increased civil penalties in many different cases, involving many different types of violations and many different substantive requirements.
The revision raises a number of concerns.
First, the modification appears to represent an effort by the Commission to, at least temporarily, circumvent the normal rulemaking process. In the Statement of Consideration, the NRC demonstrates support for its modification in the "decision to hold in abeyance the rulemaking on maintenance." Further, although the Commission suspended development of its proposed rulemaking in J une 1989 due to acknowledged improvements by industry, the Enforcement Policy revision asserts that further improvements in maintenance-related activities are needed.
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U.S. Nuclear Regulatory Commission B13434/Page 2 February 5, 1990 We believe that the NRC's current action is not well-supported by the enforce-ment results associated with maintenance team inspections. As an example, the NRC Staff conducted a special maintenance team inspection at our Millstone Nuclear Power Station, Unit Nos. 1, 2, and 3, from April 30 to June 16 and July 10-14, 1989, and has stated that there exists "an aggressive and effective maintenance program to ensure the reliability of components and equipment at Millstone . " Given the Commission's decision to hold off on a maintenance rule, we are troubled that the agency is now bypassing that decision through its Enforcement Policy.
Second, the Enforcement Policy revision will indirectly impose substantive requirements on licensees. Licensees will be required to meet the standards of the Revised Maintenance Policy or face increased civil penalties. This approach is inconsistent with the Administrative Procedure Act. The Act specifies that new agency requirements may be imposed only through rulemaking or formal orders in individual cases. In addition, the NRC's own backfit rule, 10CFR50.109, requires that new rules or new Staff positions be formally justified in accordance with the backfitting standards. It appears that the NRC has foll owed none of these procedures for maintenance program "require-ments."
Third, we are troubled by the mechanism that would be utilized under the revised policy to determine what constitutes a "maintenance" problem . As the new adjustment factor states, a "violation shall be considered to be mainte-nance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope of activities defined by the Revised Policy Statement on the Maintenance of Nuclear Power Plants." Not only does this raise the issue that the Commission is imposing the regulatory standards of its Revised Maintenance Policy Statement through enforcement action, but it also brings into question whether the definition in the Revised Maintenance Policy Statement is appropriately bounded in a technical sense.
In this latter regard, we believe that there are at least two problems with the definition in the Revised Maintenance Policy Statement. One involves the concept that maintenance should "prevent the degradation or failure" of systems or components. The fact is that no matter how effective one's mainte-nance program may be, the instant a component is installed and begins opera-tion, it starts to degrade. Thus, maintenance can at best only minimize degradation and/or failure. The other point, perhaps even more disturbing, is related to the broad scope of the definition, which includes "supporting" activities and functions. A brief review of the seven functions listed in the Revised Maintenance Policy Statement make it immediately clear that just about any activity can be deemed a supporting function to a maintenance program (e.g., maintenance management). This, in turn, gives extremely broad sweep to the new enforcement escalation factor.
U.S. Nuclear Regulatory Commission B13434/Page 3 February 5, 1990 Finally, the modification to the Enforcement Policy raises the question as to what constitutes a "programmatic" failure. The Enforcement Policy does not define this concept. Thus, without a clear definition of the term, any number of violations greater than two could be deemed programmatic in nature.
As the Commission acknowledged in the Statement of Consideration to the Enforcement Policy modification, the use of root cause as an adjustment factor is a significant departure from prior practice. The NRC has never before singled out a particular programmatic area for escalation in its Enforcement Policy. Rather, the factors have been directed at such general considerations as identification and reporting. The full effect of this departure will only be known in the future as the NRC Staff begins to apply the factor to esca-lated enforcement actions. However, we believe that this is potentially a very significant change. We believe that Commissioner Remick, who disapproved the enforcement portion of the maintenance policy, has identified some potential flaws in the revised policy. His concerns relate to reservations regarding the ability to conclusively determine that maintenance is a root cause of a regulatory violation, and with his concern that special treatment of maintenance violations could draw attention and resources from other areas of equal or even greater safety importances.
In addition to the comments offered above, CYAPCO and NNECO endorse the comments being filed by NUMARC on behalf of the industry. We trust these comments will be given careful consideration, and we remain available to discuss this matter at your convenience .
Very truly yours, CONNECTICUT YANKEE ATOMIC POWER COMPANY NORTHEAST NUCLEAR ENERGY COMPANY E.J.~
Senior Vice President cc: W. T. Russell, Region I Administrator A. B. Wang, NRC Project Manager, Haddam Neck Plant J. T. Shedlosky, Senior Resident Inspector, Haddam Neck Plant M. L. Boyle, NRC Project Manager, Millstone Unit No. 1 G. S. Vissing, NRC Project Manager, Millstone Unit No. 2 D. H. Jaffe, NRC Project Manager, Millstone Unit No. 3 W. J. Raymond, Senior Resident Inspector, Millstone Unit Nos. 1, 2, and 3
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Mr . Samuel J. Chilk Secretary U.S . Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch RE: 10 CFR Part 2, Appendix C Policy and Procedures for Enforcement Actions; Policy Statement (54 Fed. Reg. 50610 - December 8, 1989)
Dear Mr. Chil k:
These comments are submitted by the Nuclear Management and Resources Council, Inc. (NUMARC) in response to the request of the U.S. Nuclear Regulatory Commission (NRC) for comments on the changes to the referenced 10 CFR Part 2, Policy and Procedures for Enforcement Actions; Policy Statement (54 Fed. Reg. 50610 - December 8, 1989).
NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants and of other nuclear industry organizations in all matters involving generic regulatory policy issues affecting the nuclear power industry. Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addition, NUMARC's members include major architect-engineering firms and all of the major nuclear steam supply vendors.
We are very concerned with the Commission's decision to unnecessarily focus escalated enforcement actions in the area of maintenance and request that the Commission reconsider this action.
The Revised Policy Statement on the Maintenance of Nuclear Power Plants establishes broadly stated expectations for each licensee to " ... assume responsibility for assuring that an effective maintenance program is or has been developed .... " (emphasis added). The revised Policy Statement states that "the Commission has decided to hold rulemaking in abeyance for an 18-month period to monitor industry initiatives and progress." Clearly, industry progress and commitment to continued improvement of nuclear plant maintenance are recognized by both the NRC and the industry. The decision to proceed with escalated enforcement during the period in which the rule is held in abeyance to allow the industry to demonstrate continued improvements is not consistent with the NRC's fundamental decision.
Further, because the Policy Statement on Maintenance identifies expectations in a broad sense and does not establish criteria for application of the Enforcement Policy, the Enforcement Policy is vague and invites broad
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Mr. Samuel J. Chilk February 6, 1990 Page 2 interpretation. For example, it is not clear when a failure to perform maintenance or when improperly performed maintenance reaches a level that could be characterized as a programmatic failure. Additionally, criteria for determining the degree of the programmatic failure is not defined and contributes to further uncertainty as to the significance of a particular maintenance related problem. The test appears to be whether the violation could have been prevented by implementing a maintenance program consistent with the scope and activities defined by the Revised Policy Statement on Maintenance of Nuclear Power Plants. But the Policy Statement is so broad that it could be argued, with the benefit of hindsight, that any equipment failure could have been prevented by a different maintenance approach.
We share the ACRS concern stated in its October 12, 1989, letter to Chairman Carr that "the proposal that errors in maintenance be penalized more severely than other errors with the same public consequences would encourage licensees to direct resources from other safety-related activities into maintenance, with a net negative impact on public safety." Under existing regulations and enforcement practices, a decision to escalate a civil penalty is made on the merits of each case, which includes a careful review of the significance, timeliness and adequacy of corrective action taken to preclude recurrence and the licensee's past performance. This review is, and should be, conducted without regard to the causal contribution of a specific plant function such as maintenance.
In the supplementary information to the Policy Statement, the Commission recognizes that maintenance programs have improved and recognizes that "the industry is committed to continue to improve maintenance." However, the Commission states that escalated enforcement authority is warranted because
" ... (l) of the varying quality of licensee maintenance programs." Although there are variations in maintenance program implementation, there is no evidence that these variations result in serious safety concerns or that variations in maintenance programs warrant escalated enforcement action. The Commission also states in the same section that escalated enforcement authority is needed to to put licensees on notice that the decision to defer a maintenance rule does not mean that the Commission does not expect a serious effort in the maintenance area. We are concerned that establishing this escalated enforcement action could, in fact, have the opposite effect from that the Commission intends by diverting the industry's resources away from areas of safety significance to focus on improvements in maintenance.
In the Staff Requirements Memorandum of December 22, 1989 (Reference M891205), the Commission stated, "[t]he Commission should be advised of those instances where the Staff intends to take enforcement action in the maintenance area, based upon the revisions to the enforcement policy approved by the Commission." This approach is a significant departure from the approach taken by the Commission in the area of training. In the case of training, the Commission allowed the industry to demonstrate that the desired improvements were being undertaken, and the Commission reserved for itself all enforcement action during the period of program development so that industry efforts toward
Mr. Samuel J. Chilk Febr uary 6, 1990 Page 3 impr ovement would not be discouraged. We believe both the NRC and the industry would agree that the approach taken in training is working effectively. In the Policy Statement on Enforcement, the Commission has taken just the opposite approach. The Commission's intent to encourage continuing improvement in the development and implementation of nuclear power plant maintenance is clear and consistent with the industry's commitment. Penalty escalation on the basis that a violation could be attributed to a maintenance programs is punitive rather th-an supportive and is not consistent with the Commission's objectives to encourage improvement. Penalty escalation should at least be deferred to provide positive encouragement to the industry during the 18-month developmental period.
We are also concerned that the Commission decided to issue a "final" Policy Statement and not seek and consider public comment before making the modification to the Enforcement Policy effective. Although we recognize that the revised Enforcement Policy provision will only be applied for violations that occur after March 8, 1990, the Commission has already decided it is, in fact, needed. Publishing a Policy Statement prior to consideration of public comments conveys the signal that the decision has already been made and, as indicated above, does not allow the industry the opportunity to demonstrate continued improvement. This approach to regulation appears unnecessarily punitive in light of clearly recognized trends of industry progress.
In conclusion, this policy misdirects emphasis to maintenance deficiencies to the detriment of other areas of equal or greater concern in the safe operation of nuclear facilities. While it is recognized by both the Commission and the industry that some maintenance deficiencies may adversely impact safety, maintenance deficiencies should not be considered differently than other safety issues. The safe operation of a nuclear plant is dependent on all functions be i ng carried out effectively and safely. The escalation penalty, as drafted, sends the wrong message to the industry. It in effect creates a hierarchy of Commission priority, headed by maintenance, thus creating the potential that a licensee might direct a disproportionate level of resources to a minor ma i ntenance problem to the detriment of an issue that should be of higher pri ority. We urge the Commission to reconsider the finalization of this enforcement policy.
We appreciate the opportunity to comment on the enforcement policy and would welcome the opportunity to discuss any comments further with the appropriate NRC personnel.
Sincerely,
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~ e F. Colvin JFC\WJS:amw
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- 90 FEB -6 A9 :36 IRVINE, CA LI F"ORNIA 927 18 HAROLD 8 . R AY VICE PRESIDENT February 5, 1990 Mr. Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch
Subject:
10 CFR Part 2, Appendix c Policy and Procedures for Enforcement Actions; Policy Statement (54 Fed. Reg. 50610 - December 8, 1989)
Dear Mr. Chilk:
This letter provides comments from Southern California Edison (SCE) in response to your request concerning the subject matter. In addition, SCE is a participant in the NUMARC Ad Hoc Advisory Committee on Maintenance and has participated in the development of comments by NUMARC which are being submitted in parallel. Our comments are in addition to those submitted by NUMARC.
- 1. In the supplemental information to the Policy Statement, it is stated that:
"In the Revised Policy Statement ... the Commission stated its intention to emphasize maintenance in enforcing existing requirements for power reactors."
"Use of the Commission's enforcement program in this manner to emphasize the importance of meeting existing requirements related to maintenance is warranted because of ... the decision to hold in abeyance the rulemaking on maintenance."
(Emphasis added.) ".
In our view, there is no adequate definition of "existing requirements" which could serve as a basis for application of the special factor for violations which are thought to be related to maintenance. Indeed, this fact seems to be central to much of the recent discussion between the NRC and industry concerning maintenance. SCE believes that the development of requirements concerning maintenance should proceed in advance of specially escalated enforcement for their violation.
....,_
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j U s. NUCLEAR REGUl.AtoAY COMMISSAON DOCKET ING & SERVICE BRANCH OFFICE OF THE SECRETARY OF THE COMMISSION Docur, *11 statistics Post na*k :)<1te -
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Mr. Samuel J. Chilk February 5, 1990
- 2. The language of the change to 10 CFR 2 itself includes:
"For the purpose of application of this factor, a cause of the violation shall be considered maintenance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope and activities defined by the Revised Policy Statement ... In assessing this factor, consideration will be given to, among other things, whether a failure to perform maintenance or improperly performed maintenance was a programmatic failure." (Emphasis added.)
Again, we do not believe "existing requirements" adequately define what is necessary in a maintenance program in order for a licensee to reasonably be able to avoid application of the special factor. Therefore, we conclude that the language adopted is too vague for its purpose and must necessarily result in arbitrary interpretation after the fact.
In summary, we believe that licensees should be able to understand requirements in sufficient detail to take the action required to avoid sanctions such as those implemented by the subject Policy Statement with reasonable confidence. In this instance, we do not believe that is possible under the circumstances.
Thank you for your consideration, and if you have any questions, or if you would like additional information, please let me know.
cc: John B. Martin, Regional Administrator, Region V C. W. Caldwell, NRC Senior Resident Inspector, San Onofre Thomas E. Tipton, NUMARC
B. Ralph Sylvia UUVI a:, IWMtltR PR z Senior Vice President PiROPOSED RULE
(.54-;R. 5:)(p/()) UOGKE1ED Detroit 6400 North 01x1e Highway USNRC Edison Newport, Michigan 48166 (313) 586-4 t 50
- 90 FEB -6 A9 :35 February
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Secretary, USNRC Attn: Docketing and Service Branch Washington, D. C. 20555
References:
- 1) Fermi 2 NRC Docket No . 50-341 NRC License No. NPF-43
- 2) Federat Register Notice, FR Doc. 89-28742, "Poticy and Procedures for Enforcement Actions; Poticy Statement" dated December 8, 1989
Subject:
Comments on Revised Enforcement Poticy Detroit Edison has reviewed the modification to the enforcement poticy for maintenance-retated viotations. NUMA.RC is providing detaited comments on the enforcement poticy. In addition, Detroit Edison has the fottowing specific comments.
The change sends a ctear message that maintenance is an important activity at a nuctear power ptant. Detroit Edison futty understands the importance of maintenance activities to safe and retiabte ptant operation. However, it is imperative that the Commission be coherent in its message to the industry on this matter. Operations, radiation protection and engineering activities are/can be equatty as important to ptant safety. It is unctear why the Enforcement Poticy change appears to be shifting its emphasis towards the maintenance area . A proper batance between enforcement in att areas is essentiat .
White maintenance is an area that the industry has acknowtedged needs improvement, improvements are being made. Maintenance is not an overwhetming predominant cause of viotations, so emphasis on maintenance above att other areas is not appropriate. The enforcement poticy in 10CFR2, Appendix C, atready provides for increasing civit penatties due to muttipte occurrences or repeat events, which woutd be indicative of a programmatic probtem. Thus, the addition to the enforcement poticy deating with increasing the civit penatty for programmatic maintenance probtems is not onty inappropriate but atso unnecessary .
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U. $. NUCLEAR REGULATORY COMMISSION DOCKETING & SERVICE BRANCH OFFICE OF THE SECRETARY Of THl COMVll.:-::,iON 00l, 'CS Postrnark Dute c2j o/
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Secretary, USNRC February 2, 1990 NRC-90-0030 Page 2 If there are any questions, ptease contact Lynne Goodman at (313) 586-4211.
Sincerety, cc: A. B. Davis R. W. DeFayette W. G. Rogers J . F. Stang NUMARC
[7590-01]
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I* ~ t~ " 1' 10 CF};l - Part 2
.} Jl Policy and Procedures for Enforcement Actions; Policy Statement AGENCY: Nuclear Regulatory Commission.
ACTION: Policy Statement: Modification.
SUMMARY
- The NRC is publishing a modification to its Enforcement Policy to add an additional civil penalty adjustment factor for violations involving maintenance deficiencies. This policy
- is codified as Appendix C to 10 CFR Part 2.
EFFECTIVE DATE: December 8, 1989. However, it will only be applied for violations which occur after March 8, 1990. Comments submitted within 60 days of publication of this modification will be considered.
ADDRESS: Send comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Docketing and Service Branch. Deliver comments to One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 am and 4:15 pm, weekdays. Copies of comments received may be examined at the NRC Public Document Room, 2120 L Street N.W., Lower Level, Washington, D.C.
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- 2 [7590-01]
FOR FURTHER INFORMATION CONTACT: James Lieberman, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D. C. 20555, Telephone (301) 492-0741.
SUPPLEMENTARY INFORMATION: On March 23, 1988, the commission issued a Policy statement on Maintenance of Nuclear Power Plants (53 FR 9430) which stated the Commission's expectations in the area of maintenance and its intention to proceed with a rulemaking on maintenance. Subsequently, on November 28, 1988, the Commission published a Notice of Proposed Rulemaking (53 FR 47822) directed toward improving the effectiveness of maintenance programs. The Commission recognizes that the industry and individual licensees have made improvements in their maintenance programs. Indeed, the Commission has seen noticeable progress by the industry over the past four years in the area of nuclear power plant maintenance. The Commission also recognizes that the industry is committed to continue to improve maintenance.
Nevertheless, NRC maintenance team inspections have confirmed that further improvements are necessary, especially with regard to effective implementation of maintenance programs. Irt view of the progress made to date, as well as the industry's expressed commitment to continue to improve maintenance, the commission has decided to hold rulemaking in abeyance for a period of 18 months from the effective date of the Revised Policy Statement on Maintenance of Nuclear Power Plants which was published elsewhere in this issue. The Commission will assess the need for
3 [7590-01]
rulemaking at the conclusion of this 18 month period, based upon industry initiatives and progress in improving maintenance.
The commission believes ~hat a strong maintenance program can make a significant contribution to safety. In the Revised Policy Statement on the Maintenance of Nuclear Power Plants, the Commission stated its intention to emphasize maintenance in enforcing existing requirements for power reactors. Consistent with that position, the Enforcement Policy is being revised to provide such emphasis by adding maintenance failures as an escalating factor in assessing civil penalties where it has been concluded that the violation involves a significant regulatory concern. The Commission acknowledges that inclusion of the root cause of a violation as an escalation factor when considering a civil penalty is a change from past practice. Further, the commission recognizes that consideration of only one root cause (maintenance) as a specific escalating factor focuses on only a fraction of the possible casual factors that may be involved in a particular violation.
By this change, the Commission is not establishing a new group of civil penalty actions. Consistent with current practice, a violation will be considered for escalated action (Severity Level I, II, or III violations) based on the violation, including its impact, circumstances, and root causes. Special escalation will only apply if the violation or problem area (aggregated violations) has a maintenance root cause.
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The Commission concludes that modifying the Enforcement Policy to permit increased civil penalties for severity Level I, lI, or III violations which occur 90 days or later after the date of this notice and which result from maintenance deficiencies may provide a further incentive to ensure that all licensees place appropriate attention on maintenance of equipment whose failure could significantly impact safety. Use of the Commission's enforcement program in this manner to emphasize the importance of meeting existing requirements related to maintenance is warranted because of the varying quality of licensee maintenance programs, including implementation, and the decision to hold in abeyance the rulemaking on maintenance. By this revision to the Enforcement Policy, the commission is putting licensees on notice that the decision to defer a maintenance rule does not mean the commission does not expect a serious licensee effort in the maintenance area. It is expected that the revision to the Enforcement Policy will remain effective at least until the commission reconsiders the need for rulemaking in the maintenance area.
since this action concerns a general statement of policy, no prior notice is required and, hence, this modification to the Enforcement Policy is effective upon issuance. However, the modification for maintenance will only be applied for violations which occur 90 days or later after the date of publication.
List of Subjects in 10 CFR Part 2.
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Part 2 - Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Civil penalty, Enforcement, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, source material, Special nuclear material, Violations, and Waste treatment and disposal.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.
- 1. The authority citation for Part 2 continues to read in part as follows:
AUTHORITY: SEC. 161, 68 stat. 948, as amended (42 u.s.c.
2201); sec. 201, 88 Stat. 1242, as amended (42 u.s.c. 5841).
- 2. Appendix c.Section V.B is amended by adding Section V.B.7 directly after paragraph 3 of section V.B.6 to read as follows:
Appendix C - General statement of Policy and Procedure for NRC Enforcement Actions
- v. Enforcement Actions. * *
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B. Civil Penalty. * * *
- 7. Maintenance-Related cause.
The base civil penalty may be increased as much as 50% for cases where a cause of a maintenance-related violation at a power reactor is a programmatic failure. For the purposes of application of this factor, a cause of the violation shall be considered to be maintenance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope and activities defined by the Revised Policy statement on the Maintenance of Nuclear Power Plants. In assessing this factor, consideration will be given to, among other things, whether a failure to perform maintenance or improperly performed maintenance was a programmatic failure. The degree of the programmatic failure will be considered in applying this factor.
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Dated at Rockville, Maryland, this £~ day of u~ , 1989.
FOR COMMISSION