NRC-20-0035, Response to Apparent Violations in NRC Inspection Report 05000341/2020403; EA-19-138

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Response to Apparent Violations in NRC Inspection Report 05000341/2020403; EA-19-138
ML20150A598
Person / Time
Site: Fermi DTE Energy icon.png
Issue date: 05/29/2020
From: Peter Dietrich
DTE Energy
To:
Document Control Desk, Office of Nuclear Reactor Regulation
References
EA-19-138, IR 2020403, NRC-20-0035
Download: ML20150A598 (11)
v • d • e


Text

Peter Dietrich Senior Vice President and Chief Nuclear Officer DTE Energy Company 6400 N. Dixie Highway, Newport, MI 48166 Tel: 734.586.4153 Fax: 734.586.1431 Email: peter.dietrich@dteenergy.com May 29, 2020 EA-19-138 NRC-20-0035 U.S. Nuclear Regulatory Commission Attention: Document Control Desk Washington, DC 20555-0001 Fermi 2 Power Plant NRC Docket No. 50-341 NRC License No. NPF-43

Subject:

Response to Apparent Violations in NRC Inspection Report 05000341/2020403; EA-19-138

References:

1) Fermi Power Plant, Unit 2 - Security Baseline Inspection Report 05000341/2020403; NRC Investigation Report No. 3-2019-004 and Apparent Violations (ML20120A443)
2) DTE Letter NRC-20-0034, Notification of Intention Regarding NRC Inspection Report 05000341/2020403; EA-19-138, dated May 11, 2020 (ML20132A244)

This letter constitutes the DTE Electric Company (DTE) response to the Apparent Violations (AV) addressed in Reference 1. The NRC provided DTE with the option of (1) respond in writing to the apparent violations addressed in the referenced inspection report within 30 days of the date of the letter, (2) request a Pre-decisional Enforcement Conference (PEC), or (3) request Alternative Dispute Resolution (ADR). As DTE informed the NRC in Reference 2, it chose to provide the NRC with a written response.

The NRC has also evaluated these issues under the risk significance determination process as having very low security significance (green). DTE concurs with the NRC significance determination outlined in Reference 1 and is providing its response to the apparent violations as an enclosure to this letter.

USNRC NRC-20-0035 Page 2 No new commitments are being made in this submittal.

Should you have any questions or require additional information, please contact Ms. Margaret Offerle, Manager - Nuclear Licensing, at (734) 586-5076.

Sincerely, Peter Dietrich Senior Vice President and Chief Nuclear Officer

Enclosure:

Response to the NRC Notice of Apparent Violations cc: NRC Project Manager NRC Resident Office Regional Administrator, Region III Mr. David Curtiss, Acting Director, Division of Reactor Safety

Enclosure to NRC-20-0035 Fermi 2 NRC Docket No. 50-341 Operating License No. NPF-43 Response to the NRC Notice of Apparent Violations

Enclosure to NRC-20-0035 Page 1 RESPONSE TO THE APPARENT VIOLATIONS DTE Electric Company (DTE) has reviewed the April 29, 2020 letter from the NRC and provides its response below. In summary, DTE admits the apparent violations. Furthermore, DTE agrees with the NRC that it has taken prompt and responsive corrective actions once it discovered the deliberate violations by its former employee. Lastly, DTE notes that as the NRC considers whether a civil penalty for the violations is warranted, please consider that Fermi has not been cited with an escalated willful violation within the past two years, DTE identified the violations, and DTE took prompt corrective actions that addressed the violations. As such, a valid basis exists for the NRC not issuing a civil penalty in this instance. Additional specific information regarding each violation is provided below. The NRC has referenced a majority of this information in its April 29, 2020 letter, but it is repeated here for context.

Restatement of Violation 1 10 CFR 73.56(j) requires, in part, that licensees or applicants shall establish, implement, and maintain a list of individuals who are authorized to have unescorted access to specific nuclear power plant vital areas during non-emergency conditions. The list must include only those individuals who have a continued need for access to those specific vital areas in order to perform their duties and responsibilities. The list must be approved by a cognizant licensee or applicant manager or supervisor who is responsible for directing the work activities of the individual who is granted unescorted access to each vital area, and updated and re-approved no less frequently than every 31 days.

From July 26, 2018, to January 16, 2019, the licensee failed to maintain a list of individuals who are authorized to have unescorted access to specific nuclear power plant vital areas during non-emergency conditions and to approve the list by a cognizant licensee or applicant manager or supervisor who is responsible for directing the work activities of the individual who is granted unescorted access to each vital area, and updated and re-approved no less frequently than every 31 days. Specifically, a licensee manager directed an individual, who was not a cognizant licensee or applicant manager or supervisor responsible for directing the work activities, to update and re-approve access to vital areas for multiple individuals. As a result, the requirements of 10 CFR 73.56(j) were not met.

Response

DTE agrees that the required monthly vital area status verifications had not been accurately completed in accordance with 10 CFR 73.56(j) from July 26, 2018, until January 16, 2019.

Reason for the Violation On January 14, 2019, the Access Authorization Group conducted a validation of all individuals active in PADS (Personnel Access Data System) at DTE and all individuals active in SSIS (Security Screening Information System). Through this validation, it was discovered that one individual was currently active in SSIS but terminated in PADS and terminated in the Security

Enclosure to NRC-20-0035 Page 2 System. The group also discovered that the same individual was active in SSIS and was outprocessed on the day of data conversion for the implementation of SSIS (July 26, 2018). All data was correct at the time of validation, but the outprocessing was completed with an outprocessing form rather than in SSIS. As a result, the individual's access was terminated out of PADS and the Security System using the applicable form, but never terminated in SSIS.

Corrective Actions Taken As the NRC noted in its April 29, 2020 letter, DTE took immediate compensatory measures including removing all individuals who reported to the manager from the protected area and placing all badges on hold for those individuals. Corrective actions taken included:

  • Performed the required validations for the affected individuals. This action resulted in the revocation of unescorted access for 14 individuals who, upon further review, no longer required access. (Completed January 16, 2019)
  • Reviewed safety related work supervised by the manager and concluded that no adverse consequences had occurred as a result of his actions. (Completed January 22, 2019)
  • Individual interviews were conducted with Managers and Directors along with their administrative assistants to determine the extent of condition. The interviews revealed that the behaviors exhibited by the manager and his assistant who are the subject of this violation were isolated occurrences. (Completed January 23, 2019)
  • Conducted a one on one review with the managers replacement to ensure alignment on the required process to complete the reviews in SSIS. (Completed January 25, 2019)
  • Issued a Site-wide communication clearly defining the 30-Day Access Level validation and Behavior Observation Program (BOP) requirements. (Completed January 30, 2019)
  • Conducted a face to face review with site leadership of Unescorted Access Authorization (UAA) program requirements during the next available Leader Brief. (Completed February 7, 2019)
  • Conducted a review of the SSIS email notification sent to BOP supervisors to identify any improvement opportunities. From this review the SSIS revalidation reminder email was revised to include the following: MGA09, Access Control, Section 5.5 provides guidance on completing your revalidation. Contact Access Authorization with questions or concerns regarding this assignment." (Completed February 27, 2019)
  • Significant personnel actions were taken regarding the manager and assistant for inappropriate conduct.
  • Revised Fermi Conduct Manual MGA09 (Revision 48) Section 5.5 to clearly instruct and clarify the 30-Day Revalidation Process in SSIS and the responsibilities of the DTE BOP Supervisor. (Completed April 15, 2019)

Enclosure to NRC-20-0035 Page 3 Date When Full Compliance Was Achieved Full compliance of 10 CFR 73.56(j) requirements for maintaining a list of individuals with authorized unescorted access was achieved on January 16, 2019 when the required personnel validations were completed for the affected individuals.

Restatement of Violation 2 Title 10 CFR 50.9(a) requires that information provided to the Commission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the applicant or the licensee shall be complete and accurate in all material respects.

Title 10 CFR 73.56(j) requires, in part, that licensees or applicants shall establish, implement, and maintain a list of individuals who are authorized to have unescorted access to specific nuclear power plant vital areas during non-emergency conditions. The list must include only those individuals who have a continued need for access to those specific vital areas in order to perform their duties and responsibilities. The list must be approved by a cognizant licensee or applicant manager or supervisor who is responsible for directing the work activities of the individual who is granted unescorted access to each vital area, and updated and reapproved no less frequently than every 31 days.

From July 26, 2018, to January 16, 2019, the licensee failed to maintain information required by statute or by the Commission's regulations, orders, or license conditions to be complete and accurate in all material respects. Specifically, the list of individuals who were authorized to have unescorted access to vital areas was not accurate, in that it contained individuals who were no longer onsite. As a result, the requirements of 10 CFR 50.9(a) were not met.

Response

DTE agrees that it did not satisfy the requirements of the cited regulations from July 26, 2018, until January 16, 2019.

Reason for the Violation DTE determined that the Fermi manager required to provide certain access information instructed his administrative assistant to complete vital area status verifications on his behalf. As a result, from July 26, 2018, to January 16, 2019, the list of individuals who were authorized to have unescorted access to vital areas was not accurate, in that it contained individuals who no longer required site access.

Enclosure to NRC-20-0035 Page 4 Corrective Actions Taken As the NRC noted in its April 29, 2020 letter, DTE took immediate compensatory measures including removing all individuals who reported to the manager from the protected area and placing all badges on hold for those individuals. As previously described herein, corrective actions included:

  • Performed the required validations for the affected individuals. This action resulted in the revocation of unescorted access for 14 individuals who, upon further review, no longer required access. (Completed January 16, 2019)
  • Reviewed safety related work supervised by the manager and concluded that no adverse consequences had occurred as a result of his actions. (Completed January 22, 2019)
  • Individual interviews were conducted with Managers and Directors along with their administrative assistants to determine the extent of condition. The interviews revealed that the behaviors exhibited by the manager and his assistant who are the subject of this violation were isolated occurrences. (Completed January 23, 2019)
  • Conducted a one on one review with the managers replacement to ensure alignment on the required process to complete the reviews in SSIS. (Completed January 25, 2019)
  • Issued a Site-wide communication clearly defining the 30-Day Access Level validation and BOP requirements. (Completed January 30, 2019)
  • Conducted a face to face review with site leadership of UAA program requirements during the next available Leader Brief. (Completed February 7, 2019)
  • Conducted a review of the SSIS email notification sent to BOP supervisors to identify any improvement opportunities. From this review the SSIS revalidation reminder email was revised to include the following: MGA09, Access Control, Section 5.5 provides guidance on completing your revalidation. Contact Access Authorization with questions or concerns regarding this assignment." (Completed February 27, 2019)
  • Significant personnel actions were taken regarding the manager and assistant for inappropriate conduct.
  • Revised Fermi Conduct Manual MGA09 (Revision 48) Section 5.5 to clearly instruct and clarify the 30-Day Revalidation Process in SSIS and the responsibilities of the DTE BOP Supervisor. (Completed April 15, 2019)

Enclosure to NRC-20-0035 Page 5 Date When Full Compliance Was Achieved Full compliance was achieved on January 16, 2019 when the required validations were completed for all affected individuals.

Restatement of Violation 3 Title 10 CFR 26.27(a) requires that each licensee and other entity shall establish, implement, and maintain written policies and procedures to meet the general performance objectives and applicable requirements of this part.

Title 10 CFR 26.33 requires, in part, that licensees and other entities shall ensure that the individuals who are subject to this subpart are subject to behavioral observation. Behavioral observation must be performed by individuals who are trained under 10 CFR 26.29 to detect behaviors that may indicate possible use, sale, or possession of illegal drugs; use or possession of alcohol on site or while on duty; or impairment from fatigue or any cause that, if left unattended, may constitute a risk to public health and safety or the common defense and security. Individuals who are subject to this subpart shall report any FFD concerns about other individuals to the personnel designated in the FFD policy.

Title 10 CFR 26.71(b) requires that if an authorized individual is not subject to an FFD program that meets the requirements of this section for more than 30 continuous days, then the licensee or other entity shall terminate the individual's authorization and the individual shall meet the requirements in this subpart, as applicable, to regain authorization.

Section 5.5.1.1 of Revision 47 to Fermi Conduct Manual MGA09 implements the 10 CFR 26 requirements and states, in part, that revalidations satisfy the continuing 30-day behavior observation and access level revalidations as required in 10 CFR 26.71 and 10 CFR 73.560).

Section 5.5.3.3 of Revision 47 to Fermi Conduct Manual MGA09 states, in part, that effective behavioral observation depends on the supervisor's judgment and working knowledge of each employee.

Section 5.5.3.4 of Revision 47 to Fermi Conduct Manual MGA09 states, in part, that behavioral observation does not have to be completed by the employee's direct supervisor, but shall be completed by qualified BOP with current unescorted access and verified by the BOP Supervisor prior to electronically signing the revalidation.

From July 26, 2018, to January 16, 2019, the licensee failed to implement written policies and procedures as required by 10 CFR 26.27(a) to meet the behavioral observation requirements specified in 10 CFR 26.33 and 10 CFR 26.71. Specifically, the licensee failed to satisfy the continuing 30-day behavior observation specified in Fermi Conduct Manual MGA09 in that a BOP supervisor failed to complete the behavioral observations and electronically sign the revalidation. As a result, the requirements of 10 CFR 26.27(a), and subsequently 10 CFR 26.33 and 10 CFR 26.71(b) were not met.

Enclosure to NRC-20-0035 Page 6

Response

DTE agrees that it did not completely satisfy the requirements of the cited regulations and procedure requirements from July 26, 2018, until January 16, 2019. This action by the licensee manager [and assistant] resulted in 8 individuals not being subject to a behavioral observation program for greater than 30 days (as required by 10 CFR 26.71).

Reason for the Violation It was determined that the licensee manager provided access information and instructed the administrative assistant to complete the behavioral observations. The administrative assistant was not qualified to perform behavioral observations nor was the assistant in a supervisory position (as required by 10 CFR 26.33).

Corrective Actions Taken As the NRC noted in its April 29, 2020 letter, DTE took immediate compensatory measures including removing all individuals who reported to the manager from the protected area and placing all badges on hold for those individuals. As previously described herein, corrective actions included:

  • Performed the required validations for the affected individuals. This action resulted in the revocation of unescorted access for 14 individuals who, upon further review, no longer required access. (Completed January 16, 2019)
  • Reviewed safety related work supervised by the manager and concluded that no adverse consequences had occurred as a result of his actions. (Completed January 22, 2019)
  • Individual interviews were conducted with Managers and Directors along with their administrative assistants to determine the extent of condition. The interviews revealed that the behaviors exhibited by the manager and his assistant who are the subject of this violation were isolated occurrences. (Completed January 23, 2019)
  • Conducted a one on one review with the managers replacement to ensure alignment on the required process to complete the reviews in SSIS. (Completed January 25, 2019)
  • Issued a Site-wide communication clearly defining the 30-Day Access Level validation and BOP requirements. (Completed January 30, 2019)
  • Conducted a face to face review with site leadership of UAA program requirements during the next available Leader Brief. (Completed February 7, 2019)
  • Conducted a review of the SSIS email notification sent to BOP supervisors to identify any improvement opportunities. From this review the SSIS revalidation reminder email was revised to include the following: MGA09, Access Control, Section 5.5 provides

Enclosure to NRC-20-0035 Page 7 guidance on completing your revalidation. Contact Access Authorization with questions or concerns regarding this assignment." (Completed February 27, 2019)

  • Significant personnel actions were taken regarding the manager and assistant for inappropriate conduct.
  • Revised Fermi Conduct Manual MGA09 (Revision 48) Section 5.5 to clearly instruct and clarify the 30-Day Revalidation Process in SSIS and the responsibilities of the DTE BOP Supervisor. (Completed April 15, 2019)

Date When Full Compliance Was Achieved Full compliance was achieved on January 16, 2019 when personnel subject to behavioral observation and revalidation as required to maintain unescorted access was corrected and reassessments of their unescorted access authorization was promptly performed by a DTE supervisor or manager.

Additional Considerations Safety Significance and Violation Characterization The NRC noted in its April 29, 2020 letter that the violations have low safety significance.

However, due to the value placed on willful violations that could mislead the NRC, it considered the violations for escalated enforcement. DTE believes that notwithstanding the willful nature of the violations, the set of violations should not be cited at greater than a Severity Level III.

DTE also requests that the NRC take note of Enforcement Manual, Section 1.3.5, which states that it may be appropriate in certain circumstances to group multiple violations into one problem (at the same severity level). One of the justifications in the Enforcement Manual for this grouping is when violations are closely related and do not represent separate regulatory breakdowns.

DTE believes that this enforcement action qualifies DTE for NRC consideration to issue one Severity Level III Problem instead of three separate violations. Consistent with the Enforcement Manual criteria, the violations are closely related and the circumstances do not represent separate regulatory breakdowns. DTE also suggests that since the three violations evolved from the same instance and cause, and the same corrective actions were taken as a result of the event, this enforcement action could be categorized as a single problem rather than three individually cited violations.

Grouping the three violations into one Problem also is consistent with Inspection Manual Chapter (IMC) 0611, Power Reactor Inspection Reports, paragraph 13.06. This paragraph states, Multiple examples of the same performance deficiency that share the same cause and require the same corrective actions shall be documented as a single finding. Note that each example must be able to stand alone as a finding. Do not use the number of finding examples to aggregate the significance; base the significance off the most significant example. Provide an

Enclosure to NRC-20-0035 Page 8 accounting of the examples after stating the performance deficiency. DTE believes that this guidance also supports NRC issuance of one Problem instead of multiple violations.

In summary, DTE agrees that each of the identified violations have merit to be a separate violation; however, it is clear that the three violations evolved from the actions of one individual (and his assistant), and involved one regulatory area (i.e., performing behavioral observations to allow continued unescorted access authorization of personnel). The deliberate act by this individual does not warrant separate violations. In addition, the Enforcement Manual recommends grouping violations with a nexus of a cause and effect relationship that are directly related to the same event. Based on this, DTE respectfully requests that the NRC group the three violations into one Severity Level III Problem.

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