ML23289A211

DPO-2022-003 Case File (Public Redacted Version)

ML23289A211
Person / Time
Issue date:	10/17/2023
From:	Figueroa G NRC/OE
To:
References
DPO-2022-003
Download: ML23289A211 (1)

Text

DPO Case File for DPO-2022-003 The following pdf represents a collection of documents associated with the submittal and disposition of a differing professional opinion (DPO) from an NRC employee involving 50.72, 50.73 Reporting Requirements.

Management Directive (MD) 10.159, NRC Differing Professional Opinions Program, describes the DPO Program. https://www.nrc.gov/docs/ML1513/ML15132A664.pdf The DPO Program is a formal process that allows employees and NRC contractors to have their differing views on established, mission-related issues considered by the highest-level managers in their organizations, i.e., Office Directors and Regional Administrators. The process also provides managers with an independent, three-person review of the issue (one person chosen by the employee).

Because the disposition of a DPO represents a multi-step process, readers should view the records as a collection. In other words, reading a document in isolation will not provide the correct context for how this issue was reviewed and considered by the NRC.

It is important to note that the DPO submittal includes the personal opinions, views, and concerns of an NRC employee. The NRCs evaluation of the concerns and the NRCs final position are included in the DPO Decision.

The records in this collection have been reviewed and approved for public dissemination.

Document 1: DPO Submittal Document 2: Memo Establishing DPO Panel Document 3: DPO Panel Report Document 4: DPO Decision

Document 1: DPO Submittal

Page 1 of 9 NRC FORM 680 (09-2019)

NRC FORM 680 U.S. NUCLEAR REGULATORY COMMISSION (09-2019)

NRC MD 10.159 DIFFERING PROFESSIONAL OPINION DPO Case Number DPO-2022-003 Date Received 12/28/2022 Name(s) and Title(s) of Submitter(s)

Chris Miller - DIRECTOR, DIVISION REACTOR OVERSIGHT Organization NRR/DRO Work Email Chris.Miller@nrc.gov Name and Title of Supervisor Mike King - DEP DIR FOR REACTOR SFTY PRGS & MISON Organization NRR Work Email Michael.King2@nrc.gov When was the prevailing staff view, existing decision, or stated position established?

09/29/2022 Where (i.e., ADAMS ML#, if applicable):

NCP-2021-004 and NCP-2021-005 Subject of DPO The resolution of the non-reporting of a reportable event at LaSalle as not being cited as a violation. The issue was reviewed and closed with no violation. See the NCP packages for details Summary of prevailing staff view, existing decision, or stated position; Reason for DPO, potential impact on mission, and proposed alternatives.

Region III inspection staff and NRR staff with responsibility for the 50.72, 50.73 reporting requirements believed that just as in previous similar cases, the failure of the HPCS safety system and the HPCS EDG was reportable under 50.72. The licensee made an argument that it was not reportable because the Technical SPecification action statement for the HPCS EDG was not exceeded. Although TS operability is not mentioned in 50.72 requirements for reporting, some thought it was part of the requirements. A not very clear part of NUREG 1022 that was iincluded in the NUREG to help clarify which systems were in play for reportability was cited out of context to imply that TS do apply. Of course a NUREG cannot supercede the requirements of the regulation and should not be used to overturn the precedence of previous reportability cases. These points are well described in the non-concurrence, but some detail is provided below:

Combined Statement of Issues for NCP-2021-004 & NCP-2021-005 Chronology of Events Prior to Initiation of the Non-Concurrence Process The following chronology of events is proffered per the mutual agreement of the NCP submitters and the NCP Approver:

• On July 28, 2020, during performance of station procedure LOS-DG-M3, "2B Diesel Generator Operability Test," a steady stream leak of water was identified on the jacket water return piping of the cooling water system for the LaSalle County Generating Station (LaSalle) Unit 2 Division 3 diesel generator (DG3) and the diesel generator was shut down.

o Operations personnel documented that with the identified leakage there was not reasonable assurance that the DG3 would remain within the maximum operating temperature if required and, therefore, was declared inoperable.

o The licensee entered Technical Specification (TS) 3.8.1 that allows a 72-hour action to restore the required DG to operable status or else commence a plant shutdown.

o The licensee determined that the high-pressure core spray (HPCS) system remained operable with normal offsite power available and able to fulfill its safety function to provide a high-pressure water source to the reactor vessel. This determination was checked with regulatory assurance. The licensee documented this in the corrective action program as Action Request 4359288.

• Immediately after the event, the NRC Senior Resident Inspector (SRI) questioned the licensee about reporting the event under 10 CFR 50.72 and was told that the licensee determined it was not reportable.

o After hearing the licensees basis, the NRC resident inspectors reached out to the reportability subject matter experts in the Division of Reactor Oversight (DRO) to discuss. After that consultation, the NRC

Page 2 of 9 NRC FORM 680 (09-2019) resident inspectors informed the licensee that the failure was reportable and explained its basis.

• The SRI exited the 3rd quarter inspection results with the licensee, proposing two violations pursuant to 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D).

• The issue was pulled from the 3rd quarter inspection report for 2020.

• On Sep. 2, 2020, Region III staff and the reportability subject matter experts in DRO held a call with the licensee to discuss the reportability of the DG3 inoperability event.

o Individuals within Region III management had differences of opinion as to whether the licensee had violated 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D). In addition, the licensee had voiced concerns regarding the viability of the violations (without claiming that it would necessarily contest the violations, if imposed).

SECTION C In the following months, there were a series of NRC-internal discussions, as well as conversations with the licensee, to further explore the DG3 reportability issue.

• On April 30, 2021, the licensee transmitted to the NRC a position paper articulating its position that the declared inoperability of the DG3 was not reportable pursuant to 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D).

• After several months of additional discussion, o However, in light of what it considered to be a lack of clarity concerning the viability of the violation, Region III senior management decided not to pursue the violation further.

• The NRR Executive Team aligned with the Region III senior management to incorporate in the draft inspection report for the 2nd quarter of 2021 the decision to not cite the LaSalle licensee for failure to report a HPCS failure.

o The current iteration of the draft inspection report, cited in both NCP submittals, states the following:

Because the HPCS system remained operable, Region III determined that the inoperability of the diesel was not reportable, or the reportability was not clear given consideration of TS, FSAR, Title 10 Code of Federal Regulations (CFR), and the NUREG 1022 guidance.

Undisputed Attestations

Page 3 of 9 NRC FORM 680 (09-2019)

The NCP submitters and the NCP review agree that the ensuing attestations are not in dispute:

• It is undisputed that in the event of a design basis accident, such as a loss of coolant accident with a simultaneous loss of offsite power (LOOP/LOCA), as postulated in the LaSalle Updated Final Safety Analysis Report, the DG3 would have been relied upon to power the HPCS system to allow it to perform its intended safety function.

• It is undisputed that the DG3 is the only safety-related source of power to the division 3 safety bus and cannot be cross tied to the other unit nor can a different DG (division 1 or 2) be used to power the safety bus.

• It is undisputed that in the case of the LaSalle equipment failure in July 2020, the DG3, as the only credited onsite power source for this system, would not have reliably powered the HPCS system in a design basis LOOP/LOCA.

• It is undisputed that TS 3.8.1 allows the licensee 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> to restore the DG3 to an operable status; if the DG3 is not restored within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, the TS requires the licensee to be in MODE 3 (shutdown the plant) within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.

• It is undisputed that the licensee did not report the declared inoperability of the DG3 to the NRC pursuant to 10 CFR § 50.72(b)(3)(v)(D), nor has the licensee submitted a licensee event report (LER) pursuant to 10 CFR

§ 50.73(a)(2)(v)(D).

SECTION C

• It is undisputed that the LaSalle Updated Final Safety Analysis Report (UFSAR), Section 8.1.3 Identification of Class 1E Loads, states the following: Nuclear safety-related systems and components that require electrical power to perform their nuclear safety function are defined as Class 1E loads. Table 8.1-1 lists systems that require power to perform their nuclear safety functions. All electrical loads within these systems that are essential to the system nuclear safety function are therefore Class 1E loads.

o It is likewise undisputed that the DG3 is listed on table 8.1-1.

• It is undisputed that Section 6.3.1.2.c of the LaSalle UFSAR, Functional Requirement Design Bases (The emergency core cooling systems are capable of startup and operation regardless of the availability of offsite power supplies and the normal generating system of the plant.) could only be accomplished through use of the DG3.

• It is undisputed that Section 3.2.7, Event or Condition that Could Have Prevented Fulfillment of a Safety Function, of NUREG-1022, Rev. 3, Event Report Guidelines 10 CFR 50.72 and 50.73, provides the following:

o The level of judgment for reporting an event or condition under this criterion is a reasonable expectation of preventing fulfillment of a safety function. In the discussions that follow, many of which are taken from previous NUREG guidance, several different expressions, such as would have, could have, alone could have, and reasonable doubt, are used to characterize this standard. In the staffs view, all of these should be judged on the basis of a reasonable expectation of preventing fulfillment of the safety function. A SSC that has been declared inoperable is one in which the SSC capability is degraded to a point where it cannot perform with reasonable expectation or reliability. These criteria cover an event or condition in which scoped in SSCs could have failed to perform their intended function because of one or more personnel errors, including procedure violations; equipment failures; inadequate maintenance; or design, analysis, fabrication, equipment qualification, construction, or procedural deficiencies and no redundant equipment in the same system was operable.

o As a result, for SSCs within the scope of this criterion, a report is required when 1) there is a determination

Page 4 of 9 NRC FORM 680 (09-2019) that the SSC is inoperable in a required mode or other specified condition in the TS Applicability, 2) the inoperability is due to one or more personnel errors, including procedure violations; equipment failures; inadequate maintenance; or design, analysis, fabrication, equipment qualification, construction, or procedural deficiencies, and 3) no redundant equipment in the same system was operable.

o As a result, reports are not required when systems are declared inoperable as part of a planned evolution for maintenance or surveillance testing when done in accordance with an approved procedure and the plants TS (unless a condition is discovered that would have resulted in the system being declared inoperable).

o The event must be reported regardless of whether or not an alternate safety system could have been used to perform the safety function. For example, if the onsite power system was declared inoperable due to equipment failures, the event would be reportable, even if the offsite power system remained operable.

• It is undisputed that, as a general practice of interpretation, that in instances in which there is some disagreement between NRC guidance and the explicit text of a NRC regulation, the explicit text of the regulation would control.

SECTION C NCP Approver Evaluation of Non-Concurrence and Rationale for Decision I would like to thank the NCP submitters for raising these issues and the NCP Coordinator for his independent, conscientious, detailed and collaborative approach as he endeavored to have all views fully vetted in reaching a decision on this NCP. And without question, I would be remiss if I did not acknowledge that the NCP submitters have demonstrated extraordinary patience and understanding as I and the NCP Coordinator have sought over an extended period of time to respond to the issues they have raised. Thus, the NCP submitters have thoroughly embodied, throughout the entire course of this process, the NRC organizational values of cooperation and respect.

The crux of NCP-2021-004 concerns the wording of the draft inspection report for the 2nd quarter of 2021 regarding the proposed decision to not cite LaSalle for the failure to report a HPCS failure: Because the HPCS system remained operable, Region III determined that the inoperability of the [DG3] was not reportable, or the reportability was not clear given consideration of TS, FSAR, Title 10 Code of Federal Regulations (CFR), and the NUREG 1022 guidance. The submitters aver that the licensee was required to report the declared inoperability of the DG3, occurring on July 28, 2020, pursuant to 10 CFR § 50.72(b)(3)(v)(D) as an event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to mitigate the consequences of an accident.

Likewise, for identical reasons, the submitters contend that the licensee was required to submit a LER for the declared inoperability of the DG3 pursuant to 10 CFR § 50.73(a)(2)(v)(D). The issue at hand is a question of reportability, not a question of how the licensee handled and corrected the actual failure. There is a uniqueness to this issue in that it is dealing with a single train system and the DG3 that is dedicated to this single train.

The fundamental question raised by NCP-2021-005 is the same as that of NCP-2021-004. Given that, the submitters of the two NCPs agreed to a proposal to conduct joint discussion sessions and to the production of a combined statement of issues for both NCPs. Likewise, and consistent with that, the NCP Approver is herein responding to both NCP submittals.

What is in dispute here, as can be discerned from both the statement of issues and the arguments propounded by the submitters, is how the pertinent regulations and associated guidance should be

Page 5 of 9 NRC FORM 680 (09-2019) interpreted. Does the operation of the DG3, as its own system, fulfill a safety function needed to mitigate the consequences of an accident? With reference to section 3.2.7 of NUREG-1022, should the DG3, in itself, be regarded as a safety-related system, structure, and/or component required by the TS to be operable so as to mitigate the consequence of an accident discussed in Chapter 6 of Updated Final Safety Analysis Report for the LaSalle County Generating Station? Does the fact that the licensee was not required to declare the HPCS system as inoperable mean that the licensee was not required to report the inoperability of the DG3 pursuant to 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D)?

As recounted in the chronology of events included as part of the combined statement of issues, when the proposed violations were first under consideration, individuals within Region III management had differences of opinion as to whether the licensee had violated 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D).

Region III management was also aware the licensee had voiced concerns with the viability of the violations.

Region III management recognized then, as it does now, SECTION C Hence, Region III senior management, with alignment of members of the NRR Executive Team, chose to incorporate in the draft inspection report for the 2nd quarter of 2021 the decision to not cite the licensee for failure to report the loss of the DG3. The language of the inspection report acknowledges the uncertainty concerning the issue: Because the HPCS system remained operable, Region III determined that the inoperability of the diesel was not reportable, or the reportability was not clear given consideration of TS, FSAR, Title 10 Code of Federal Regulations (CFR), and the NUREG 1022 guidance.

Dissatisfied with this lack of clarity and the resulting decision not to cite the proposed violations, the submitters contend that it is the ability of the system or component to fulfill its safety function for the accident sequence involved that determines whether the NRC should be informed pursuant to 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D). Section A of NCP-2021-005, p.5. Hence, as [w]ithout the

[DG3] to power the HPCS system in a design basis accident, the system would not have performed its intended safety function and as [t]here is no other credited backup power or redundant train to perform the HPCS safety function during a LOOP/LOCA accident, the submitters argue that the loss of the DG3 should have been reported pursuant to 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D). Section A of NCP-2021-005, p.4.

The submitters acknowledge that section 3.2.7 of NUREG-1022, Rev. 3, Event Report Guidelines 10 CFR 50.72 and 50.73, states that systems, structures, and/or components (SSCs) within scope include only safety-related SCCs required by the TS to be operable that are intended to mitigate the consequences of an accident as discussed in Chapters 6 and 15 of the Final Safety Analysis Report (or equivalent chapters). To the submitters, though, it is clear that the DG3 is an SSC that is required by TS, is a safety-related SSC and has a safety function to provide power to the division 3 safety bus to mitigate the consequences of an accident. Section A of NCP-2021-004, p.6. And, as stated above, there is no dispute that the DG3 was not available for a portion of time to fulfill its intended safety function.

Page 6 of 9 NRC FORM 680 (09-2019)

The submitters also agree that the LaSalle HPCS system remained operable by TS definitions and criteria; however, the submitters argue that the TS criteria is inappropriate to apply to 10 CFR 50.72 and 50.73 reportability criteria. Section A of NCP-2021-005, p.5. According to the submitters, the relevant inquiry is whether there occurred an event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems needed to mitigate the consequences of an accident. In other words, [the purpose of the reportability requirements are separate and unique from TS requirements. Section A of NCP-2021-005, p.5. As further stated on page 2 of Section A of NCP-2021-004, the 50.72 regulation does not mention TS operability, and the Statements of Consideration, which give insight into why the regulation was established but are not regulatory requirements, indicate that the regulation was clearly not meant to limit[] reporting requirements only to those systems that exceeded TS LCOs. If that were the case, a lot of important safety information regarding mitigating system failures would have been eliminated from the required reporting data.

SECTION C Regarding 10 CFR § 50.73(a)(2)(v), as cited by the submitters, the Statements of Consideration provide that

[i]t should be noted that there are a limited number of single-train systems that perform safety functions (e.g., the High Pressure Coolant Injection System in BWRs). For such systems, loss of the single train would prevent the fulfillment of the safety function of that system and, therefore, must be reported even though the plant Technical Specifications may allow such a condition to exist for a specified limited length of time.

Licensee Event Report System, 48 FR 33,850, 33,854 (July 26, 1983). This position is echoed in section 3.2.7 of NUREG-1022: The event must be reported regardless of whether or not an alternate safety system could have been used to perform the safety function. For example, if the onsite power system was declared inoperable due to equipment failures, the event would be reportable, even if the offsite power system remained operable. Thus, according to the submitters, as [t]he HPCS is a single train BWR system and the loss of this train would have prevented it from performing its safety function during a LOOP/LOCA, the loss of the DG3 must [have been] reported to the NRC. Section A of NCP-2021-005, p.5.

Page 7 of 9 NRC FORM 680 (09-2019) 50.73(a)(2)(v)(D)?

SECTION C OE took the position that the violations should not be cited. However, OE recognized that there is a need for clarification in the existing guidance and has stated that it will take the lead in coordinating within the agency to improve such guidance.

After a thorough vetting of the issues raised by the NCP,

, the NCP Approver has decided that the proposed violations of 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D) should not be cited. The regulations require reporting of any event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to mitigate the consequences of an accident. The plain language of the regulations do not include components, but only structures or systems. DG3, in this case, is a component of the HPCS system and, as such, it is neither a system nor a structure. Since the regulation clearly refers to structures or systems, and the DG3 is neither, the regulation does not require reporting of that EDGs inoperability because, per the TS, the HPCS systemof which the DG3, is a component was not required to be declared inoperable.

Since the regulations address reporting of any event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to mitigate the consequences of an accident, a question is whether a LOOP needs to be considered with the LOCA for reportability purposes. Despite efforts to obtain clarity on the matter of applying a LOOP with a LOCA for reportability of the event in question, as related to the system being able to provide its safety function, the issue could not be resolved. At the time of this event, the HPCS system was operable and (assuming that offsite power was available) capable of performing its safety function. While it is understood that HPCS system would not have been able to perform its safety function if a LOOP and LOCA had occurred at the

Page 8 of 9 NRC FORM 680 (09-2019) time the DG3 was inoperable, it could not be clearly established that the regulations require the licensee to assume the occurrence of a LOOP with a LOCA in evaluating reportability. As a result, the decision on reportability is to be focused upon the operability of the HPCS system, as a whole, versus the DG3, as a component of that system.

Section 3.2.7 of NUREG-1022 includes the following guidance, There are a limited number of single-train systems that perform safety functions (e.g., the HPCI system in BWRs). For such systems, inoperability of the single train is reportable even though the plant TS may allow such a condition to exist for a limited time.

Because the HPCS system is a single-train system that SECTION C performs a safety function, this language means that inoperability of the HPCS is reportable even when the TS allow the condition to exist. However, this language also does not establish that a condition in which the HPCS is operable must be reported (and, again, the HPCS was operable at the time of this event in question).

Lastly, given the controversy and differing opinions regarding this issue, it seems that the NRCs guidance on the issue lacks sufficient clarity to justify moving forward with the violations. As such, in view of the outstanding controversy, issuing the violations would be inappropriate and inconsistent with the principles of good regulations.

Given the sequence of events outlined above, and that many of the questions raised by the submitters remain outstanding, this NCP has made clear the need to clarify the relevant guidance. As mentioned above, and a direct result of its engagement in the review of this NCP, OE has indicated that it will initiate actions to provide the needed clarity. Region III management appreciates the initiative by OE and commits to working with OE and other offices as they endeavor to achieve such clarity. Such recommendation was included as an alternative in the NCP submittals. However, as any such effort to update relevant guidance goes far beyond the matter in concurrence (i.e., Region IIIs draft inspection report) and, consequently, beyond the authority of Region III to implement itself, any changes to guidance must be left to future cross-agency initiatives.

Describe the (a) importance of prompt action on the issue, (b) safety significance of the issue, and (c) the complexity of the issue.

The "no-action" option taken on this issue (ostensibly in the name of VLSSIR-speculating that failure to get this information is of low risk significance to the NRC, the industry, and the public) poses several troubling issues that still need resolution.

1. There is still a lack of clarity on whether a single train safety system such as HPCS that cannot meet its given safety function at any point in time, is reportable. And it is unclear if the HPCS EDG itself not being able to fulfil its safety function, being the sole safety related power supply for the HPCS system, is reportable under 50.72. Past precedence in reporting and the statements of consideration in the rule would indicate that failures of these systems are reportable and do NOT depend on how the equipment fared in a TS LCO.

2.

Page 9 of 9 NRC FORM 680 (09-2019) 3.

4.

Do you believe the issue represents an immediate public health and safety concern?

Yes Is the issue directly relevant to a decision pending before the Commission?

No If Yes, Reference Document (i.e., ADAMS ML#):

Did informal discussions take place?

Yes If Yes, with whom and during what time frame?

yes within the context of the NCP cited above my supervisor, and Region III staff and management Proposed panel members are:

Caty Nolan (She/Her); Robert Elliott; Vic Cusumano List of area(s) of technical expertise needed to properly assess the issue (e.g., electrical engineering, operator licensing).

Techical SPecifications, Reportability and Operating experience, Rulemakng, specifically for 50.72 and 50.73 When the process is complete, I would like management to determine whether public release of the DPO case file (with or without redactions) is appropriate (Select No if you would like the DPO case file to be non-public):

Yes Please note that your DPO submittal may be shared on a need-to-know basis in an effort to resolve the concern, determine the most appropriate regulatory actions in response to the concern, and identify key agency resources to evaluate the concern.

DPO Accepted:

DPO Accepted / Rejected By DPO Accepted / Rejected On 12/30/2022 Gladys Figueroa-Toledo

Document 2: Memo Establishing DPO Panel

1 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 February 27, 2023 MEMORANDUM TO:

John Tappert, Panel Chair Office of Nuclear Regulatory Research Robert Carpenter, Panel Member Office of the General Counsel Victor Cusumano, Panel Member Office of Nuclear Reactor Regulation THRU:

Tania Martinez-Navedo, Deputy Director Office of Enforcement FROM:

Nadim Khan, Differing Views Program Manager Office of Enforcement

SUBJECT:

AD HOC REVIEW PANEL - DIFFERING PROFESSIONAL OPINION ASSOCIATED WITH 50.72, 50.73 REPORTING REQUIREMENTS (DPO-2022-003)

In accordance with Management Directive (MD) 10.159, The NRC Differing Professional Opinion Program; and in my capacity as the Differing Views Program Manager (DVP PM); and in coordination with Tania Martinez-Navedo, Deputy Director, Office of Enforcement, John (Jack) Giessner, RIII Regional Administrator, and the Differing Professional Opinion (DPO) submitter; you are appointed as members of a DPO Ad Hoc Review Panel (DPO Panel) to review a DPO submitted by a group of U.S. Nuclear Regulatory Commission (NRC) employees.

The DPO (Enclosure 1) involves 50.72, 50.73 Reporting Requirements. The DPO has been forwarded to Mr. Giessner for consideration and issuance of a DPO Decision.

The DPO Panel plays a critical role in the success of the DPO Program. Your responsibilities for conducting the independent review and documenting your conclusions in a report are addressed in the handbook for MD 10.159 in Section II.F and Section II.G, respectively. The DPO Web site also includes helpful information, such as a Differing Views Best Practices Guide, tables with status information and timeliness goals for open DPO cases, and closed DPO case files (which include previous DPO panel reports). We will also send you additional information that should help you implement the DPO process.

CONTACT:

Nadim Khan, OE (301) 415-1119

J. Tappert, et al.

2 Timeliness is an important DPO Program objective. Thus, the disposition of this DPO should be considered an important and time sensitive activity. Although MD 10.159 identifies a timeliness goal of 75 calendar days for the DPO panel review and report and 21 additional calendar days for the issuance of a DPO Decision, the DPO Program also sets out to ensure that issues receive a thorough and independent review. Therefore, the overall timeliness goal will be based on the significance and complexity of the issues, schedule challenges, and the priority of other agency work. Process milestones and timeliness goals specific to this DPO will be discussed and established at a kick-off meeting.

Communication of expected timelines and status updates are important in the effectiveness and overall satisfaction with the Differing Views Program. If you need an extension beyond the timeliness goal, please send an e-mail to Ms. Martinez-Navedo, Mr. Giessner, the DPO submitter, and DPOPM.Resource@nrc.gov that includes the reason for the extension request and a proposed completion date.

An important aspect of our organizational culture includes maintaining an environment that encourages, supports, and respects differing views. As such, you should exercise discretion and treat this matter appropriately. To preserve privacy, minimize the effect on the work unit, and keep the focus on the issues, you should simply refer to the employees as the DPO submitters. Avoid conversations that could be perceived as hallway talk on the issue and refrain from behaviors that could be perceived as retaliatory or chilling to the DPO submitters or that could potentially create a chilled environment for others. It is appropriate for employees to discuss the details of the DPO with their co-workers as part of the evaluation; however, as with other predecisional processes, employees should not discuss details of the DPO outside the agency. If you have observed inappropriate behaviors, heard allegations of retaliation or harassment, or receive outside inquiries or requests for information, please notify the Office of Enforcement.

On an administrative note, please ensure that all DPO-related activities conducted by staff are charged to Activity Code ZG0007. Managers should report time to their Management/Supervisor Activity Code. Administrative Assistants should report time to their Secretary/Clerical Activity Code.

We appreciate your willingness to serve on the DPO Panel and your dedication to completing a thorough and objective review of this DPO. Successful resolution of the issues is important for the NRC and its stakeholders. If you have any questions or concerns, please feel free to contact me. We look forward to receiving your conclusions and recommendations.

Enclosures:

1. DPO-2022-003 Submittal (ML23055A103)

2. Process Milestones and Timeliness Goals (ML23055A091) cc: J. Giessner, RIII M. Shuaibi, RIII D. Pelton, OE T. Martinez-Navedo, OE D. Solorio, OE G. Figueroa-Toledo, OE N. Khan, OE

J. Tappert, et al, 3

SUBJECT:

AD HOC REVIEW PANEL - DIFFERING PROFESSIONAL OPINION ASSOCIATED WITH 50.72, 50.73 REPORTING REQUIREMENTS (DPO-2022-003)

DATE: 2/27/2023 ADAMS Package: ML23055A048 MEMO: ML23055A049 - ML23055A091 - ML23055A103 OE-011 OFFICE OE: DPO/PM OE: DD NAME NKhan TMartinez-Navedo DATE 2/24/2023 2/27/2023 OFFICIAL RECORD COPY

Document 3: DPO Panel Report

MEMORANDUM TO:

John Giessner Regional Administrator, Region III FROM:

John R. Tappert, DPO Panel Chair /RA/

Office of Nuclear Regulatory Research Robert Carpenter, DPO Panel Member /RA/

Office of the General Counsel Victor Cusumano, DPO Panel Member /RA/

Office of Nuclear Reactor Regulation

SUBJECT:

DIFFERING PROFESSIONAL OPINION PANEL REPORT ASSOCIATED WITH 50.72 and 50.73 REPORTING REQUIREMENTS (DPO-2022-003)

In a memorandum dated February 27, 2023, the Differing Views Program Manager, in coordination with the Office of Enforcement, Region III, and the Differing Professional Opinion (DPO) submitter, appointed us as members of a DPO Ad Hoc Review Panel (DPO Panel) to review a DPO associated with 50.72 and 50.73 reporting requirements. The DPO Panel has reviewed the DPO in accordance with the guidance in Management Directive 10.159, The NRC Differing Professional Opinion Program.

The results of the DPO Panels evaluation of the concerns raised in the DPO are detailed in the enclosed DPO Panel Report. Based on our review of concerns raised in the DPO, the DPO Panel made the following conclusions:

The DPO Panel agrees with the submitter and concludes that the July 28, 2020 failure of the LaSalle Unit 2 Division 3 diesel generator (the only source of safety related power to the single-train High Pressure Core Spray (HPCS) system) should have been reported under 50.72(b)(3)(v) and 50.73.(a)(2)(v) as Any event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to :

.(D) Mitigate the consequences of an accident.

CONTACT: John Tappert, Acting Deputy Office Director, RES (301)415-2486 July 6, 2023

J. Giessner 2

Additionally, notwithstanding that conclusion, given the ambiguity in NRC guidance, lack of consistent previous enforcement, and low safety significance, the panel concludes that the decision in this instance to decline to issue a notice of violation to LaSalle was reasonable.

We also offer the following recommendations for your consideration:

The panel recommends that NUREG-1022, Event Report Guidelines 10 CFR 50.72 and 50.73, should be revised to make clear that a failure of a single train onsite A/C power system that is relied on to mitigate the consequences of an accident is reportable under 10 CFR 50.72(b)(3)(v) and 50.73.(a)(2)(v). Given the very specific circumstances of the issue and relatively low safety significance, the panel recommends that such revisions be made in conjunction with next scheduled update.

Please do not hesitate to contact us if you have any questions regarding the enclosed report.

Enclosure:

DPO Panel Report cc:

D. Pelton, Director, OE G. Figueroa-Toledo, DPO PM

Differing Professional Opinion (DPO)

ASSOCIATED WITH 50.72 and 50.73 REPORTING REQUIREMENTS (DPO-2022-003)

DPO Panel Report

/RA/

John R. Tappert, Panel Chair

/RA/

Robert Carpenter, Panel Member

/RA/

Victor Cusumano, Panel Member Date:

July 6, 2023

2 Introduction A member of the NRR staff submitted DPO-2022-003 on December 28, 2022. On February 27, 2023, the Differing Views Program Manager, in coordination with the Office of Enforcement, Region III, and the Differing Professional Opinion (DPO) submitter, established the DPO Panel to review the issues described in the DPO. On May 26, 2023, the Panel confirmed the statement of concerns with the submitter by email. The concerns are directly related to issues that were raised in non-concurrences NCP-2021-004 and NCP-2021-005. The Panel reviewed the entire record of the non-concurrences as well as relevant regulations and regulatory guidance in their analysis of the issues described below.

Summary of Issues (SOI)

It is the submitters opinion that the July 28, 2020 failure of the LaSalle Unit 2 Division 3 diesel generator (the only source of safety related power to the single-train High Pressure Core Spray (HPCS) system) should have been reported under 50.72(b)(3)(v) and 50.73.(a)(2)(v) as Any event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to :.(D) Mitigate the consequences of an accident. Further, the failure of the licensee to make the reports should have been cited as a violation of those reporting requirements.

This DPO is directly related to issues that were raised in non-concurrences NCP-2021-004 and NCP-2021-005. After reviewing those non-concurrences, regional management dispositioned the issue as follows: Because the HPCS system remained operable, Region III determined that the inoperability of the diesel was not reportable, or the reportability was not clear given consideration of TS, FSAR, Title 10 Code of Federal Regulations (CFR), and the NUREG 1022 guidance.

The non-concurrences documented a significant amount of background information regarding the timeline and agreed upon facts, which is reproduced here for context.

Chronology of Events Prior to Initiation of the Non-Concurrence Process The following chronology of events was proffered per the mutual agreement of the NCP submitters and the NCP Approver:

On July 28, 2020, during performance of station procedure LOS-DG-M3, "2B Diesel Generator Operability Test," a steady stream leak of water was identified on the jacket water return piping of the cooling water system for the LaSalle County Generating Station (LaSalle) Unit 2 Division 3 diesel generator (DG3) and the diesel generator was shut down.

Operations personnel documented that with the identified leakage there was not reasonable assurance that the DG3 would remain within the maximum operating temperature if required and, therefore, was declared inoperable.

The licensee entered Technical Specification (TS) 3.8.1 that allows a 72-hour action to restore the required DG to operable status or else commence a plant shutdown.

The licensee determined that the HPCS system remained operable with normal offsite power available and able to fulfill its safety function to provide a high-pressure water

3 source to the reactor vessel. This determination was checked with regulatory assurance. The licensee documented this in the corrective action program as Action Request 4359288.

Immediately after the event, the NRC Senior Resident Inspector (SRI) questioned the licensee about reporting the event under 10 CFR 50.72 and was told that the licensee determined it was not reportable.

After hearing the licensees basis, the NRC resident inspectors reached out to the reportability subject matter experts in the Division of Reactor Oversight (DRO) to discuss. After that consultation, the NRC resident inspectors informed the licensee that the failure was reportable and explained its basis.

The SRI exited the 3rd quarter inspection results with the licensee, proposing two violations pursuant to 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D).

The issue was pulled from the 3rd quarter inspection report for 2020.

On Sep. 2, 2020, Region III staff and the reportability subject matter experts in DRO held a call with the licensee to discuss the reportability of the DG3 inoperability event.

Individuals within Region III management had differences of opinion as to whether the licensee had violated 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR §50.73(a)(2)(v)(D). In addition, the licensee had voiced concerns regarding the viability of the violations (without claiming that it would necessarily contest the violations, if imposed).

In the following months, there were a series of NRC-internal discussions, as well as conversations with the licensee, to further explore the DG3 reportability issue.

On April 30, 2021, the licensee transmitted to the NRC a position paper articulating its position that the declared inoperability of the DG3 was not reportable pursuant to 10 CFR § 50.72(b)(3)(v)(D) and 10 CFR § 50.73(a)(2)(v)(D).

However, in light of what it considered to be a lack of clarity concerning the viability of the violation, Region III senior management decided not to pursue the violation further.

4

The NRR Executive Team aligned with the Region III senior management to incorporate in the draft inspection report for the 2nd quarter of 2021 the decision to not cite the LaSalle licensee for failure to report a HPCS failure.

Undisputed Attestations The NCP submitters and the NCP Approver agree that the ensuing attestations are not in dispute:

In the event of a design basis accident, such as a loss of coolant accident with a simultaneous loss of offsite power (LOOP/LOCA), as postulated in the LaSalle Updated Final Safety Analysis Report, the DG3 would have been relied upon to power the HPCS system to allow it to perform its intended safety function.

The DG3 is the only safety-related source of power to the division 3 safety bus and cannot be cross tied to the other unit nor can a different DG (division 1 or

2) be used to power the safety bus.

In the case of the LaSalle equipment failure in July 2020, the DG3, as the only credited onsite power source for this system, would not have reliably powered the HPCS system in a design basis LOOP/LOCA.

TS 3.8.1 allows the licensee 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> to restore the DG3 to an operable status; if the DG3 is not restored within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, the TS requires the licensee to be in MODE 3 (Hot Shutdown) within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.

The licensee did not report the declared inoperability of the DG3 to the NRC pursuant to 10 CFR § 50.72(b)(3)(v)(D), nor has the licensee submitted a licensee event report (LER) pursuant to 10 CFR § 50.73(a)(2)(v)(D).

The LaSalle Updated Final Safety Analysis Report (UFSAR), Section 8.1.3 Identification of Class 1E Loads, states the following: Nuclear safety-related systems and components that require electrical power to perform their nuclear safety function are defined as Class 1E loads. Table 8.1-1 lists systems that require power to perform their nuclear safety functions. All electrical loads within these systems that are essential to the system nuclear safety function are therefore Class 1E loads.

The DG3 is listed on table 8.1-1.

Section 6.3.1.2.c of the LaSalle UFSAR, Functional Requirement Design Bases (The emergency core cooling systems are capable of startup and operation regardless of the availability of offsite power supplies and the normal generating system of the plant.)

could only be accomplished through use of the DG3.

Section 3.2.7, Event or Condition that Could Have Prevented Fulfillment of a Safety Function, of NUREG-1022, Rev. 3, Event Report Guidelines 10 CFR 50.72 and 50.73, provides the following:

The level of judgment for reporting an event or condition under this criterion is a reasonable expectation of preventing fulfillment of a safety function. In the discussions that follow, many of which are taken from previous NUREG guidance, several different expressions, such as would have, could have, alone could have, and reasonable doubt, are used to characterize this standard. In the staffs view, all of these should be judged on the basis of a reasonable expectation of preventing fulfillment of the safety function. An SSC that has been declared inoperable is one in which the SSC capability

5 is degraded to a point where it cannot perform with reasonable expectation or reliability.

These criteria cover an event or condition in which scoped in SSCs could have failed to perform their intended function because of one or more personnel errors, including procedure violations; equipment failures; inadequate maintenance; or design, analysis, fabrication, equipment qualification, construction, or procedural deficiencies and no redundant equipment in the same system was operable.

As a result, for SSCs within the scope of this criterion, a report is required when

1) there is a determination that the SSC is inoperable in a required mode or other specified condition in the TS Applicability, 2) the inoperability is due to one or more personnel errors, including procedure violations; equipment failures; inadequate maintenance; or design, analysis, fabrication, equipment qualification, construction, or procedural deficiencies, and 3) no redundant equipment in the same system was operable.

As a result, reports are not required when systems are declared inoperable as part of a planned evolution for maintenance or surveillance testing when done in accordance with an approved procedure and the plants TS (unless a condition is discovered that would have resulted in the system being declared inoperable).

The event must be reported regardless of whether or not an alternate safety system could have been used to perform the safety function. For example, if the onsite power system was declared inoperable due to equipment failures, the event would be reportable, even if the offsite power system remained operable.

As a general practice of interpretation, that in instances in which there is some disagreement between NRC guidance and the explicit text of a NRC regulation, the explicit text of the regulation would control.

Evaluation 10 CFR 50.72(b)(3)(v) and 50.73.(a)(2)(v) require reporting of any event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to mitigate the consequences of an accident. The key question that is being raised is whether, for purpose of assessing whether the DG3s condition could have prevented the fulfillment of a safety function, the DG3 should be analyzed for its role as part of the Division 3 onsite A/C power system or instead as a component of the HPCS system, which remained operable throughout this event. After reviewing the system configuration, the plain language of the regulation, and supporting guidance, the panel determined that the most reasonable interpretation on these facts is that inoperability of the DG3 should be reported under 10 CFR 50.72(b)(3)(v) and 50.73.(a)(2)(v). This conclusion is based on several factors.

First, the panel determined that a more reasonable conclusion is that the DG3 is not part of the HPCS system, but rather part of the Division 3 onsite A/C power system. According to the LaSalle Unit 2 FSAR, the HPCS system does not include the supporting diesel generator

6 (DG3).1 The FSAR also specifically lists the sites diesel generators as part of the onsite A/C power system.2 Second, because Division 3 onsite A/C power is a single train system, failure of the DG3 would prevent the onsite A/C power system from fulfilling its safety function.3 The obligation to report is not underpinned by the inoperability of HPCS, but rather by the inoperability of the Division 3 onsite A/C power system, the safety function of which would not be available to mitigate the consequences of an accident due to the DG3 outage. Inoperability of the onsite A/C power system would prevent mitigation of a LOOP/LOCA, which is a design basis accident. Finally, the panels conclusion is further supported by language in the guidance that specifically refers to onsite and offsite power as systems.4 Because onsite A/C power is itself a system fulfilling a safety function needed to mitigate the consequences of an accident, its unavailability due to the DG3 outage would itself require reporting, regardless of whether HPCS remained operable.

Therefore, because the Division 3 onsite A/C power system would be needed to mitigate the consequences of a design basis accident, and outage of DG3 would prevent the onsite A/C power system from performing its safety function, regulations require reporting the inoperability of the onsite A/C power system.

Nevertheless, after careful consideration of the facts of this case, the panel concluded that issuing a violation of 10 CFR 50.72(b)(3)(v) and 50.73.(a)(2)(v) was not warranted for LaSalle under the instant circumstances. Previous Regional analysis indicated that there have been six instances over the last 20 years where the LaSalle licensee did not report EDG inoperability for the HPCS, and the staff did not issue a violation of 50.72(b)(3)(v) or 50.73.(a)(2)(v) in any of those instances.

Although the panel determined that LaSalle should have reported the failure of the DG3 because of the effect on the Division 3 onsite A/C power systems safety function, the panels view is that in light of the ambiguity in NRC guidance, lack of consistent previous enforcement, and low safety significance, the decision in this instance to decline to issue a notice of violation to LaSalle was reasonable.

1 See FSAR Section 6.3.2.2.1 stating that [t]he high-pressure core spray system consists of a single motor-driven pump located outside the primary containment and associated system piping, valves, and instrumentation.

2 See FSAR Section 8.3.1.1.2 stating that The main components of the unit Class 1E a-c power system for Unit 1 (or Unit 2) are three diesel generators, one of which is common to Unit 1 and Unit 2...

3 NUREG 1022 states that [t]here are a limited number of single-train systems that perform safety functions (e.g.,

the HPCI system in BWRs). For such systems, inoperability of the single train is reportable even though the plant TS may allow such a condition to exist for a limited time.

4 See NUREG 1022 at 39 stating that an event must be reported regardless of whether or not an alternate safety system could have been used to perform the safety function. For example, if the onsite power system was declared inoperable due to equipment failures, the event would be reportable, even if the offsite power system remained operable. In the instant case, the onsite A/C power system was inoperable and, therefore, not available to mitigate the consequences of an accident.

7 Conclusions The DPO Panel agrees with the submitter and concludes that the July 28, 2020 failure of the LaSalle Unit 2 Division 3 diesel generator (the only source of safety related power to the single-train High Pressure Core Spray system) should have been reported under 50.72(b)(3)(v) and 50.73.(a)(2)(v) as Any event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to :.(D) Mitigate the consequences of an accident.

Additionally, notwithstanding that conclusion, given the ambiguity in NRC guidance, lack of consistent previous enforcement, and low safety significance, the panel concludes that the decision in this instance to decline to issue a notice of violation to LaSalle was reasonable.

Recommendation The panel recommends that NUREG-1022, Event Report Guidelines 10 CFR 50.72 and 50.73, should be revised to make clear that a failure of a single train onsite A/C power system that is relied on to mitigate the consequences of an accident is reportable under 10 CFR 50.72(b)(3)(v) and 50.73.(a)(2)(v). Given the very specific circumstances of the issue and relatively low safety significance, the panel recommends that such revisions be made in conjunction with next scheduled update.

ML23178A251 OFFICE OGC/GCHA/AGCMLE

/NLO NRR/DSS/STSB RES/DRA NAME RCarpenter VCusumano JTappert DATE Jul 5, 2023 Jul 5, 2023 Jul 6, 2023

Document 4: DPO Decision

July 19, 2023 MEMORANDUM TO:

Chris Miller FROM:

John B. Giessner Regional Administrator, Region III Digitally signed by John B.

Giessner Date: 2023.07.19 15:53:34 -05'00'

SUBJECT:

DIFFERING PROFESSIONAL OPINION DECISION INVOLVING DPO-2022-003 The purpose of this memorandum is to inform you of my review and conclusions regarding the Differing Professional Opinion (DPO) you submitted on December 28, 2022. The DPO raised concerns about the U.S. Nuclear Regulatory Commission not issuing a violation for a reportable event at LaSalle. The issue was reviewed and closed with no violation in 2020. Your DPO also discussed your disagreement with Non-Concurrence-Process NCP-2021-004 and NCP-2021-005 decision, which upheld that no violation occurred.

My conclusion is below. In developing my conclusion, I took into consideration the DPO Panels analysis and recommendations as documented in its independent report (ML23178A251) which I accept. I also reviewed the non-Concurrence evaluations. For detailed assessment please review the DPO Panel analysis.

Summary:

This DPO focuses on reporting and has low safety significance. The issue needs to be addressed to ensure future clarity and consistency in NRC processes.

The DPO Panel asserts that the July 28, 2020 failure of the LaSalle Unit 2 Division 3 diesel generator (the only source of safety related power to the single train High Pressure Core Spray (HPCS) system) should have been reported under 50.72(b)(3)(v) and 50.73.(a)(2)(v) as Any event or condition that at the time of discovery could have prevented the fulfillment of the safety function of structures or systems that are needed to : (D) Mitigate the consequences of an accident. It is important to note that the DPO panel conclusions are focused on inoperability of the Division 3 diesel generator as the system that was not able to fulfill its electrical safety function vice earlier efforts that focused on the HPCS system as a whole. For example, the panel noted that The obligation to report is not underpinned by the inoperability of HPCS, but rather by the inoperability of the Division 3 onsite A/C power system, the safety function of which would not be available to mitigate the consequences of an accident due to the DG3 outage.

The DPO panel stated: given the ambiguity in NRC guidance, lack of consistent previous enforcement, and low safety significance, the panel concludes that the decision in this instance to decline to issue a notice of violation to LaSalle was reasonable.

John B. Giessner

I have concluded that a violation was more likely to exist than not; however, it is hard to derive this with enough confidence with the current rules, information, and guidance. I therefore agree there will be no violation issued. I will request NRR to enhance the guidance.

Action:

I am requesting NRR:

Consider revising NUREG-1022, Event Report Guidelines 10 CFR 50.72 and 50.73, to make clear that a failure of a single train system of onsite A/C power that is relied on to support a single train system used to mitigate the consequences of an accident is reportable under 10 CFR 50.72(b)(3)(v) and 50.73.(a)(2)(v).

Given the very specific circumstances of the issue and the low safety significance, I recommend that such revisions be made in conjunction with next scheduled update and via normal established processes and associated stakeholder engagement.

I want to thank you for bringing your concerns to my attention. I appreciate you taking the time to document and share your concerns. Your willingness to raise concerns through the DPO process is consistent with our organizational values of Openness and Commitment. Our agency relies on dedicated professionals, such as yourself, who are willing to raise concerns that could impact the NRC mission.

ML23201A039 OFFICE RIII-ORA NAME JGiessner:bw DATE 7/19/2023