ML24137A336
| ML24137A336 | |
| Person / Time | |
|---|---|
| Site: | BWX Technologies |
| Issue date: | 10/27/2021 |
| From: | Lindsey Cooke, Masters A, Eric Michel NRC/RGN-II/DFFI |
| To: | |
| References | |
| NCP-2021-008 | |
| Download: ML24137A336 (1) | |
Text
NRC FORM 757 (06-2019)
Page 1 of 1 Use ADAMS Template NRC-006 (ML063120159)
NRC FORM 757 U.S. NUCLEAR REGULATORY COMMISSION (06-2019)
NRC MD 10.158 NON-CONCURRENCE PROCESS COVER PAGE The U.S. Nuclear Regulatory Commission (NRC) strives to establish and maintain an environment that encourages all employees to promptly raise concerns and differing views without fear of reprisal and to promote methods for raising concerns that will enhance a strong safety culture and support the agencys mission.
Employees are expected to discuss their views and concerns with their immediate supervisors on a regular, ongoing basis. If informal discussions do not resolve concerns, employees have various mechanisms for expressing and having their concerns and differing views heard and considered by management.
Management Directive (MD) 10.158, NRC Non-Concurrence Process, describes the Non-Concurrence Process (NCP).
The NCP allows employees to document their differing views and concerns early in the decision-making process, have them responded to (if requested), and include them with proposed documents moving through the management approval chain to support the decision-making process.
NRC Form 757, Non-Concurrence Process, is used to document the process.
Section A of the form includes the personal opinions, views, and concerns of a non-concurring NRC employee.
Section B of the form includes the personal opinions and views of the non-concurring employees immediate supervisor.
Section C of the form includes the agencys evaluation of the concerns and the agencys final position and outcome.
NOTE: Content in Sections A and B reflects personal opinions and views and does not represent the official agencys position of the issues, nor official rationale for the agency decision. Section C includes the agencys official position on the facts, issues, and rationale for the final decision.
1.
Was this process discontinued? If so, please indicate the reason and skip questions 2 and 3:
Process was not discontinued 2.
At the completion of the process, the non-concurring employee(s):
Continued to non-concur 3.
For record keeping purposes:
This record has been reviewed and approved for public dissemination
NRC FORM 757 (06-2019)
Page 2 of 2 Use ADAMS Template NRC-006 (ML063120159) programs and would represent a significant departure from the implementation of the fuel facility oversight program. It could also have considerable impact to, and represent significant regulatory burden (i.e. comprehensive facility hazard analyses and corrective actions) to the fuel cycle industry with minimal or no commiserate increase in nuclear safety.
8.
Reviewed By / Reviewed On Suggs, LaDonna - DIVISION DIRECTOR 2021-11-17
NRC FORM 757 (06-2019)
Page 2 of 3 Use ADAMS Template NRC-006 (ML063120159)
NRCs fire protection oversight under Part 70 exists to ensure that a fire, as an initiating event, does not result in damage to special nuclear material (SNM) that will cause a radiological or chemical hazard to a worker or member of the public, and that Part 70 does not impose requirements for controls to prevent or mitigate fire, in and of itself, as a hazard to the worker or member of the public.
The non-concurring employees contend that the three AVs imply that such controls should exist, which represents a new agency position, and therefore should not be documented and proposed as escalated enforcement in an upcoming Inspection Report/Pre-Decisional Enforcement Conference letter. I commend the Region II staff for their thorough review and analysis of this event, review of the licensees actions, and the NRCs proposed regulatory actions. I agreed that the points in the non-concurrence and the supervisors assessment have merit and should be considered by the NRCs Office of NMSS as the lead for the fuel facility licensing program prior to the issuance of the inspection report documenting the AVs. Accordingly, I requested that a review be conducted by NMSS to provide confidence that the proposed AVs do not represent a backfit and do not represent a significant departure from how the fuel cycle oversight program has been implemented to date. While I do agree that there is merit to the concerns highlighted in the non-concurrence, the agency has previously issued enforcement action which is relevant in this case (see reference EA-08-204). However, this prior enforcement action was issued before the Commissions most recent Staff Requirements Memorandum (SECY 18-049) on Management Directive and Handbook 8.4, Management of Backfitting, Issue Finality, and Information Collection, and therefore the prudent approach was to request that NMSS review these documents prior to proceeding with any enforcement approach on the current BWXT matter. The NMSS review and assessment is included in this package (ML22021B572). The NMSS review concluded that there appears to be no backfitting issue associated with the AVs. The previous enforcement actions issued by the NRC to BWXT may be considered established staff positions and are consistent with the AVs in the report. NMSSs review acknowledged that there are diverse staff views on how to interpret licensing basis commitments for the fire protection program at BWXT. NMSSs review ultimately concluded that, because the fire event occurred in a radiologically controlled area, the aforementioned AVs are considered to be within the licensing basis. Therefore, NMSS supports the view that the AVs would not create a new or changed staff interpretation of an NRC requirement. The failure to assess and disposition these violations would raise an issue of consistency in the agencys enforcement decisions. As mentioned above, a similar violation (involving a chemical spill that occurred within the radiologically controlled area of the facility) was cited to BWXT in 2008 (EA-08-204). In that instance, the staff found that radioactive materials could have been commingled with the spilled liquid and the performance issue fell under the NRCs regulatory purview. The staff issued escalated enforcement action in that prior case even in the absence of radiological consequences because the performance issues were of regulatory concern to the NRC. In the instant case of a fatality in the supercompactor area, a trace amount of radioactive material was in fact commingled with the spilled alcohol. In addition to the review conducted by NMSS, the AVs have been fully vetted by the Office of General Counsel (OGC). Prior to the issuance of the IR documenting the AVs, it is my understanding that OGC will provide a no legal objection, thereby expressing its support for the legal viability of the AVs and support for proceeding with the proposed enforcement approach. Additionally, the Office of Enforcement is fully supportive of the five AVs and supportive of proceeding with the escalated enforcement process. Based on the above, I intend to proceed with the normal escalated enforcement action approach with the issuance of five AVs, consistent with the Enforcement Policy and Enforcement Manual. In this case, BWXT will be requested to attend a Pre-Decisional Enforcement Conference (PEC),
during which the licensee will have the opportunity to provide its perspective on the legality of the AVs, the significance of the AVs, any mitigating factors, any areas in which the licensee would like the NRC to consider for enforcement discretion, and any items related to the NRCs civil penalty assessment process. After the PEC, NRC staff of all interested Offices will have an opportunity to review and discuss any information provided by BWXT and make a final enforcement decision. Again, I appreciate the professionalism and willingness of the non-concurring staff to highlight the concerns expressed in the non-concurrence. Our regulatory oversight of licensees, including proposed enforcement actions, should be able to withstand internal scrutiny, and I appreciate the concerns you have brought forward with this non-concurrence.
9.
Coordinated By / Coordinated On Cooke, Lindsey - FUEL FACILITY INSPECTOR 2022-04-29 10.
Approved By / Approved On Dudes, Laura - REGIONAL ADMINISTRATOR 2022-04-29
NRC FORM 757 (06-2019)
Page 3 of 3 Use ADAMS Template NRC-006 (ML063120159)
5 dose in excess of the radiological thresholds for workers in 10 CFR 70.61. Acute chemical exposures are also addressed in 10 CFR 70.61 and are further described in Appendix A to NUREG-1520, which refers to published exposure standards including Acute Exposure Guideline Levels (AEGL) or Emergency Response Planning Guidelines (ERPG). Exposure limits, like in AEGLs and ERPGs, are airborne chemical concentrations associated with inhalation hazards. A fire in itself is not an acute chemical exposure but it may cause an event that exceeds an exposure limit. The fire event that occurred in the SC cell did not exceed any exposure limits related to an acute chemical exposure, nor did it did increase the potential for an exposure limit to be exceeded because there were no chemicals having AEGL or ERPG thresholds of concern located at the SC.
MANAGEMENT MEASURES (AV-2):
Safety Condition S-1 of Special Nuclear Material License SNM-42 requires that licensed material be used in accordance with the statements, representations, and conditions in the license application. The commitments in Section 11.0 of the SNM-42 License Application provide bounding conditions for the applicability of management measures, in that the purpose of management measures is to ensure IROFS are available and reliable to perform their intended function when called upon. AV-2 correctly captures the language contained within the cited portions of the SNM-42 License Application and are part of the licensing basis.
The decision that AV-2 correctly captures the licensing basis considered alternate views from some staff. These staff have noted that the commitments establish eight key elements, including the use of procedures, that are applied to IROFS as necessary to assure availability and reliability. The commitments made by the licensee in Section 11.0 of the SNM-42 License Application correlate to the staff position articulated in Section 11.1 of NUREG-1520 and the approach is considered to be compliant with the requirements of 10 CFR Part 70. The only IROFS identified by the licensee that pertains to SC operations is the site-wide criticality limit on the amount of SNM contained within each 55-gallon waste drum. Therefore, in accordance with 10 CFR 70.61(e), the safety program, established and maintained pursuant to 10 CFR 70.62, is applicable to the SC as it pertains to that criticality IROFS.
RELEVANT PREVIOUS ENFORCEMENT ACTIONS (AV-1, AV-2, & AV-3):
Non-Cited Violation Issued for the 2007 SC Fire In May 2007, there was a fire event during the compaction of a waste drum within the SC cell at BWXT NOG-L. During that event, the compaction of a drum containing metal waste caused a spark which ignited excess flammable liquid (i.e., residual IPA from rags). The licensees investigation report indicated that the root cause of that pool fire was a lack of procedural controls. The failure to establish procedural controls was determined by NRC inspectors to be a violation of Chapter 11, Management Measures, Section 11.4, Procedures, of the SNM-42 License Application which required activities involving SNM to be conducted according to written procedures. The inspectors determined that the radiological risk of the fire was low based on the amount of SNM contained in the drum. Similar to present day operations, the only IROFS identified by the licensee that pertained to SC operations was the site-wide criticality limit on the amount of SNM contained within each 55-gallon waste drum. Although the failure to establish procedural control over the NRC-licensed activity was identified through an event, the licensee was provided identification credit due to the completion of the comprehensive root cause assessment. In addition, the immediate and planned corrective actions appeared effective to
6 preclude recurrence. Therefore, this nonrepetitive, licensee-identified, and corrected event was treated as a non-cited violation. Planned corrective actions at the time, as documented by the inspectors, included implementation of procedural controls to prevent the compaction of flammable material, which was consistent with the commitment the licensee made in relation to its insurer recommendation. The NRC documented its findings in Inspection Reports 70-27/2007-003 (ADAMS Accession No. ML081480227) and 70-27/2007-005 (ADAMS Accession No. ML072540491).
Escalated Enforcement for 2008 HF Spill In April 2008, a Recovery Operator (RO) noticed a spill of hydrogen fluoride (HF) near the HF tank drain valve in the uranium recovery process area at BWXT NOG-L. In an attempt to neutralize the spill, the RO incorrectly used sodium hydroxide rather than sodium carbonate (i.e., soda ash). The RO sustained injury to his face, eyes, and arm that required offsite medical attention. The licensee did not have procedures for neutralizing HF spills nor did the licensee utilize quantitative standards to assess the consequences from this type of an acute chemical exposure. The NRC concluded that the licensee violated 10 CFR 70.61(c)(4)(i) by not identifying engineering and/or administrative controls to prevent an acute chemical exposure from a hazardous chemical produced from licensed material, specifically an HF spill within the process area for recovering special nuclear material (i.e., integral to the licensed fuel fabrication process), that could have led to irreversible or other serious, long-lasting health effects to the process operator.
On October 12, 2010, the Atomic Safety and Licensing Board (ASLB) issued an Order (ADAMS Accession No. ML102850481) approving a settlement agreement between the licensee and the NRC. The original enforcement action associated with this incident, which was retracted and reissued on February 23, 2010 (ADAMS Accession No. ML100540701), was issued on October 20, 2008 (ADAMS Accession No. ML082960026). In accordance with the ASLB Order, the NRC agreed to: (1) withdraw the Order imposing a monetary civil penalty in the amount of $32,500 issued on June 15, 2010 (ADAMS Accession No. ML101580256); and (2) recategorize the violation issued on February 23, 2010, from a Severity Level III violation to a violation with no severity level. In accordance with the ASLB Order, the licensee agreed to: (1) not challenge the existence of a violation of NRC requirements related to the HF spill and withdraw its request for a hearing; (2) pay a settlement fee of $32,500 in lieu of the withdrawn civil penalty; (3) perform one quarterly emergency drill within a twelve-month period related to a chemical exposure event; and (4) give a presentation addressing lessons learned at the 2011 Fuel Cycle Information Exchange.
EXCERPTS FROM CERTAIN
REFERENCES:
APPLICABLE REGULATIONS:
Title 10 of the Code of Federal Regulations (10 CFR) - Part 70, Domestic Licensing of Special Nuclear Material From 10 CFR 70.4, Definitions:
Management measures mean the functions performed by the licensee, generally on a continuing basis, that are applied to items relied on for safety, to ensure the items are available and reliable to perform their functions when needed. Management measures include