ML20214A211

Responds to 860911 Inquiry Re 10CFR50.54(x) & (Y) Concerning Responsibility for Plant Response During Emergency.Response to Inquiry Not Formal Opinion Under 10CFR50.3 & Binds Staff Only,Not Commission

ML20214A211
Person / Time
Site:	Big Rock Point File:Consumers Energy icon.png
Issue date:	11/05/1986
From:	Zwolinski J Office of Nuclear Reactor Regulation
To:	Berry K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.)
References
TAC-62852, NUDOCS 8611190305
Download: ML20214A211 (6)

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.... [ November 5,1986 Docket No. 50-155 Mr. Kenneth W. Berry Director, Nuclear 1.icensing Consumers Power Company 1945 West Parnall Road Jackson, MI 49201

SUBJECT:

CONSUMERS 50.54(y) (TACPOWER 62852) COMPANY (CPC) REQUEST FOR INTERPRETATION OF 10 C de: Big Rock Point Plant In your letter of September 11, 1986, to the Director of the Office of Nuclear Reactor Reoulation you asked various leoal questions about how 10 CFR 50.54(x) and (y) affect who has ultimate responsibility for plant response in an emer-gency. The Office of the General Counsel has provided the following response.

At the outset, please note that, although this interpretation orioinates from the Office of the General Counsel, it is not a formal opinion under 10 CFR 50.3 and binds the staff only, net the Consnission. CPC questions were essentially as follows: (1) Does the Site Emergency Director, who is not a licensed senior j operator, or does the Shift Supervisor, who is a licensed senior operator, have ultimate responsibility in an emergency? (2) Must the Shift Supervisor imple-l

! ment an action ordered by the Site Emergency Director under 10 CFR 50.54(xl whether or not he agrees with it? (3) What are the legal consequences for a Shif t Supervisor under his senior operator's license if he implements an action that he disagrees with and that in retrospect was imprudent or incorrect?

CPC gave the follcwing hypothetical scenario for perspective. "During an emergency situation, the Site Emergency Director with the concurrence of his technical support staff, ascertains the need to complete an action which is a recognized violation of a technical specification. This decision is forwarded to the Shif t Supervisor for implementation. Independent of the Site Emergency Director's decision making process, the Shift Supervisor also recognizes the need to complete an action which produces the same end result but utilizes a different method. The Shift Supervisor's method is also a recognized violation of a technical specification. This results in a real difference of opinion bet, teen the Site Emergency Director and the Shift Supervisor. Is the Shift Supervisor required to implement the Site Emergency Director decision even though he disagrees with it? If subsequent evaluation determines the Site l

E.nergency Director decision to have been wrong and the Shift Supervisor did implement it, who (i.e., the initiator or the implementor) would be at fault and subject to potential enforcement sanctions?"

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Under 10 CFR 50.54(x) the facility licensee "may take reasonable action that departs from a license condition or a technical specification (contained in a license issued under this part [Part 501) in an emergency when this action is inmediately needed to protect the public health and safety and no action con-

sistent with license conditions and technical specifications that can provide adequate or eouivalent protection is immediately apparent." CPC pointed out correctly that 10 CFR 50.54(y) restricts paragraph (x) by requiring that a facility licensee can only take an action permitted under paragraph (x) if that action, as a minimum, is first approved by a licensed senior operator. CPC may i

not realize, however, that the rule focuses on the responsibilities of facility licensees and only peripherally includes licensed senior operators.

The Commission explained various provisions of the final rule in some detail in the Statement of Considerations that accompanied the rule's promulaation in the Federal Register. See enclosed 48 FR 13966, April 4, 1983. Since many of these explanations are relevant to your auestions, it is worthwhile to repeat them here. The Commission noted that " technical specifications or license condi-tions can be amended by HD.C. and the rule is not intended to apply in circum-a stances where time allows this process to be followed. The rule would apply only to those emergency situations where action by the licensee is required immediately to protect the public health and safety -- action which~may be contrary to a technical specification or a license condition. It is the intent of the rule to allow deviations from license requirements only in the special circumstances described. It is not intended that licensees be allowed to deviate from procedures and other license requirements where these are applicable."

i The Commission pointed out that, "in addition to seeking the usual public

comment as to any aspects of the proposed rule, the Federal Reoister Notice of the proposed rule stated: 'The proposed rule does not provide sianificant 4

' guidance to Part 50 licensees for identifying those situations in which devia-tions from license conditions or technical specifications are allowable. In addition, the proposed rule and the supplementary information does not contain standards to be used by the NRC staff in determinino whether to take enforce-ment action against Part 50 licensees who deviate from license conditions or technical specifications in these types of situations. The Commission partic-

' ularly solicits comments on these two areas.' Thirty-four comments were received in response to this reauest, and most were strongly opposed to the Commission providing additional deviation guidance or enforcement standards."

"As for deviation guidance, one comment, which was opposed to such was typical:

4 '[wel do not believe that it is feasible to provide detailed guidance as to when deviations are permissible. The whole purpose of the proposed amendments i is to provide flexibility in situations that cannot be anticipated. Any effort i to provide more detailed standards is likely to defeat that purpose by unintentionally excluding a situation in which a deviation is necessary or appropriate.' The Commission agrees with this comment, and feels that any attempt to define in more detail the precise circumstances under which a a

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- I deviation is permissible is bound to exclude a circumstance where deviation might be entirely appropriate. Whereas the conditions under which a deviation is allowed are not described at length, nevertheless, the deviation criteria are quite specific: the [facilityl licensee must be faced with an emeraency situation in which compliance with the license is posing a barrier to effective protective action and rapid protective action is needed. Based on the fore-going and public coments received, no chances have been made to the rule with respect to the conditions under which the rule may be invoked."

"In response to the Comission's request for coments on the need for enforce-ment standards, most comenters stated that the matter of enforcement should be based on the specific circumstances surrounding the event, and that enforcement standards would be difficult to frame for the unusual circumstances under which the rule might be used. One comenter pointed out that enforcement standards would tend to limit actions that could or could not be taken and thereby serve to provide deviation guidance which most felt was inappropriate (discussed above). The Comission has concluded that enforcement standards, as such, are not needed. The Comission agrees that providing such standards would tend to define the circumstances under which the rule could be used (deviation guidancel. As discussed above, this has been judged to be undesirable. The rule does, however, contain implicit enforcement guidance. The NRC'would review a licensee's use of the rule to determine the answers to the following types of questions. (a) Did the [ facility) licensee have to act imediately to avert possible adverse consequences to the public health and safety? (b) Was adequate or equivalent protective action that is consistent with the license imediately apparent? (c) Was the action reasonable? Based on information available at the time did it serve to protect the public health and safety?

i Did the [ facility] licensee deviate from its license only to the extent neces-sary to meet the emergency? (d) Was there time for an amendment of the license to be approved by MRC? Answers to these ouestions should be adeouate to determine if the rule had been violated. Specific enforcement action would have to depend on the specific circumstances. Ten persons made comments to the effect that overly critical reviews or overzealous enforcement action following the use of the rule would cause licensees to hesitate to use the rule. The Comission agrees with these comments. The Commission recognizes that a

[facilityl licensee will need to exercise .iudoment in applyina the rule and in its after-the-fact review, it may not agree in every instance with the licensee's actions. However, enforcement action for a violation of the rule will not be taken unless a Ifacilityl licensee's action was unreasonable considering all the relevant circumstances having to do with the emercency."

The Comission also said in the Statement of Considerations that "the Federal Register Notice for the proposed rule contained additional coments of Commissioner Gilinsky, in which he stated: 'I believe the decision to operate outside the Technical Specifications should be made by a senior reactor operator since I understand that reactor operators are not trained or tested on both the basis and importance of the Technical Specifications. I would be L

interested in receiving comments on this issue.' Nineteen comments were received in response to this request and most all agree that such a decision should be made, as a minimum, by a licensed senior operator. Those opposed expressed the opinion that such concurrence should not be mandatory or that higher concurrence should be obtained if possible. A minor clarifying change has been made in response to these comments and another which stated that the rule was confusing because the first paragraph of the proposed rule discussed licensees and the second discussed operators. The second paragraph now reads:

' licensee action permitted by paragraph (x) of this section shall be approved, as a minimum, by a licensed senior operator.' This change makes it clear that if a ffacilityl licensee takes emergency action allowed by paragraph (x), such action must be approved by, et least, a licensed senior operator actina for the licensee. Under the provision, any licensed senior operator (licensed for the unit involved) would be sufficient. However, as one commenter pointed out, more senior licensee personnel would probably be available. If so, the decision to depart from tne license in an emeraency would pass to them (as higher authorities in the chain of command). If, however, an emeroency requiring prompt action should occur on a back shift, no (facility) licensee representative higher in the chain of command is likely to be available. To require other approvals could serve to defeat the purpose of the rule."

The Commission also explained that the " rule requires a [ facility) licensee, under %50.72, to notify the NRC Operations Center by telephone of emergency circumstances requiring it to take any action that departs from a license condition or a technical specification. When time permits, the notification is made before the protective action is taken; otherwise, it is made as soon as possible thereafter." Finally, the Commission noted that "a commenter sug-gested that an evaluation be made of each instance in which a deviation was made to prevent possible future need for similar deviations. The Commission will review each use of the rule both to confirm that the intent of the rule was satisfied and also to analyze the circumstances leading to the emergency to see what permanent corrective action may be appropriate.";

With the above explanations in mind, here are the answers to your cuestions.

Ultimate responsibility for plant response in an emergency resides in the highest authority in the chain of command of the facility licensee available to make a decision about the response. Any senior operator licensed for a unit and acting for the facility licensee can make the decision for that unit, unless more senior licensee personnel are available and are authorized to make the decision; however, no one below a licensed senior operator can make the 1

decision. The facility licensee's procedures for handling an emergency, including the personnel who can and must make decisions within the chain of command, must be clear and precise. Personnel working for a facility licensee should understand the consequences in an emergency of not following the orders of their superiors. All personnel working for the facility licensee should use their best judgment in an emergency, and a licensed senior operator should give that judgment to his superiors. If a licensed senior operator is overruled

and the decision of his superiors turns out in retrospect to be wrong, it is highly unlikely that NRC will take any enforcement action against him. As explained above, however, it will review the decision from the perspective of the facility licensee considering the decision's reasonableness under all the relevant circumstances having to do with the emergency.

The NRC staff trust that this information has been helpful. If you need additional information, please contact your NPC Big Rock Point Pro,iect Manager.

Sincerely, Original signed by John A. Zwolinski, Director BWR Pro,iect Directorate #1 Division of BWR Licensina

Enclosure:

As stated cc: Mr. Ralph R. Frisch Senior Licensing Analyst Consumers Power Company 1945 West Parnall Road Jackson, Michioan 49201 DISTRIBUTION Docket File EJordan NRC PDP BGrimes Local PDR JPartlow PVD#1 Reading NThompson RBernero ACRS (10)

TNovak EAdensam HThompson DMuller FMiraglia WButler CJamerson Glainas

. TRotella BRP file 4

JZwolinski BBerson, RIII JLiberman, OGC-Beth TDorian, OGC-Beth OGC-Beth (Info Only)

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NAME :CJamerson :TRotella .JZwolinski :  :  :  :

DATE : ll /s)/86  : lI/e4/86 : 0/tY/86  :  :  :  :

0FFICIAL RECORD COPY

Mr. Kenneth W. Berry Consumers Power Company Big Rock Point Plant CC:

Mr. Thomas A. McNish, Secretary Consumers Power Company 21? West Michigan Avenue Jackson, Michigan 44201 Judd L. Bacon, Esquire Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 Pig Rock Point Plant ATTN: Mr. David P. Hoffman Plant Superintendent Route 3 Post Office Box 591 Charlevoix, Michigan 49720 Mr. I. Lee Moerland Chairman, Board of Commissioners P. O. Box 218 Charlevoix, Michigan 49720 Office of the Governor Room 1 - Capitol Building lansing, Michigan 48913 Regional Administrator Nuclear Regulatory Commission, Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137 i

Nuclear Facilities and Environmental Monitoring Section Office Division of Radiological Health P. O. Box 30035 lansing, Michigan 48909 Resident Inspector Big Rock Point Plant c/o U.S. NRC RR #3, Box 600 Charlevoix, Michican 49720

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