ML20150E866

Ack Receipt of Appealing NRC 871029 Denial of Util 870901 Backfit Claim Re Containment Integrated Leak Rate Testing Requirements Per App J of 10CFR50.Matter Currently Under Review

ML20150E866
Person / Time
Site:	Oconee, Mcguire, Catawba, McGuire, 05000000
Issue date:	07/12/1988
From:	Murley T Office of Nuclear Reactor Regulation
To:	Tucker H DUKE POWER CO.
References
68446, TAC-68443, TAC-68444, TAC-68445, TAC-68446, TAC-68447, TAC-68448, TAC-68449, NUDOCS 8807180017
Download: ML20150E866 (4)

Text

._ _ _ .

Docket Nos.: 50-413/414 .

d i I 2 ,' _". _"

, 50-369/370 50-269/270/287:

Mr. H. B. Tucker, Vice President Nuclear Production Department Duke Power Ccmpany -

422 South Church Street  ;

Charlotte,florth Carolina 28242

SUBJECT:

BACKFIT APPEAL SCijEDULE - CATAWBA, MCGUIRE, AND OCONEE liUCl, EAR STATIONS (TACSSp443/68444/68445/68'46/68447/68448/68449)

This acknowledges receipt of your letter dated June 20, 1988, which  !

appeals the NRC staff's October 29, 1987, denial of Duke Power Company's September 1,1987, backfit claim regarding containment integrated leak rate testing requirements under Appendix J of 10 CFR Part 50 for the Catawba, ,

McGuire, and Oconee Nuclear Stations. This matter is currently under my review. fly reply to your appeal will be forwarded in the near future.

Sincerely, origical ::ig:v,3 37 -

rhesaa E. Murley 3 Thomas S. Murley, Director Office of Nuclear Reactor Regulation cc:

See next page _l DISTRIBUTION:

[.DocketF1Jef Catawba Reading J. Sniezek HRC PDR Oconee Reading T. liurley Local PDR (w/ incoming McGuire Reading F. Maraglia  !

4 PDII-3 Reading D. Mossburg, PMAS 12G-18 A. Thadani 77 4 l

, S. Varga 14E-4 Yellow Ticket No. 0889120 l G. Lainas 14H-3 K. Jabbour (w/ incoming) V. Stello,~ ED0 17G-13 o D. Matthews ed8 M. Rood D. Hood (w/

H. Pastis (w/incoming incoming) )  !

E8' oo i

88 LA:PDII-3* PM:PDII-3* D:PDII-3* SAD:NRR* .ADR2:DRP:NRR*

y2 MRood DHood:pw DMatthews AThadani GClainas l gg 7/6/88 7/6/88 7/6/88 7/7/88 7/7/88 fO( l

, h 8

D:DRP:NRR*

SAVarga ADP:NRR FtWraglia D

J

NRR ek y

"TI lurley RR' ll\

\

88 7/7/88 7/7/88 .. 88 j /l1 /88 l m a. o.

u- ,

i l

l

Mr. H. C. Tucker Duke Power Company Catawba Nuclear Station cc:

A.V. Carr, Esq. North Carolina Electric Membership Duke Power Company Corp.

422 South Cherch Street 3400 Sumner Boulevard Charlotte, North Carolina 28242 P.O. Box 27.iO6 Raleigh, North Carolina 27611 J. Michael McGarry, III, Esq.

Bishop, Liberman, Cook, Purcell Saluda River Electric Cooperative, and Reynolds Inc.

1200 Seventeenth Street, N.W. P.O. Box 929 Washington, D. C. 20036 Laurens, South Carolina 29360 North Carolina MPA-1 Senior Resident Inspector Suite 600 Route 2, Box 179N 3100 Smoketree Ct. York, South Carolina 29745 P.O. Box 29513 Raleigh, North Carolina 27626-0513 Regional Administrator, Region II U.S. Nuclear Regulatory Commissica S. S. Kilborn 101 Marietta Street, NW, Suite 2900 Area Manager, Mid-South Area Atlanta, Georgia 30323 ESSD Projects Westinghouse Electric Corp. Mr. Heyward S. Shealy, Chief MNC West Tower - Bay 239 Bureau of Radiological Health P.O. Box 355 South Carolina Departnent of Health Pittsburgh, Pennsylvania 15230 and Environmental Control 2600 Bull Street County Manager of York County Columbia, South Carolina 29201 York County Courthouse York, South Carolina 29745 Karen E. Long Assistant Attorney General Richard P. Wilson, Esq, N.C. Department of Justice Assistant Attorney General P.O. Box 629 S.C. Attorney General's Office Raleigh, North Carolina 27602 P.O. Box 11549 Columbia, South Carolina 29211 Spence Perry, Esquire General Counsel Piedmont Municipal Power Agency Federal Emergency Management Agency 100 Memorial Drive Room 840 Greer, South Carolina 29651 500 C Street Washington, D. C. 20472 Mr. Michael Hirsch Federal Emergency Management Agency Brian P. Cassidy, Regional Counsel Office of the General Counsel Federal Emergency Management Agency Room 840 Region I 500 C Street, S.W. J. W. Mc^,ormach P0CH Washington, D. C. 20472 Boston, Massachusetts 02109

Mr. H. B. Tucker Duke Power Company McGuire Nuclear Station cc:

Mr. A.V. Carr, Esq. Dr. John M. Barry Duke Power Company Department of Environmental Health P. O. Box 33189 Mecklenburg County .

422 South Church Street 1200 Blythe Boulevard Charlotte, North Carolina 28242 Charlotte, North Carolina 28203 County Manager of Mecklenburg County Mr. Dayne H. Brown, Chief 720 East Fourth Street Radiation Protection Branch Charlotte, North Carolina 28202 Division of Facility Services Department of Human Resources 701 Barbour Drive Mr. Robert Gill Raleigh, North Carolina 27603-2008 Duke Power Company Nuclear Production Department P. O. Box 33189 Charlotte, North Carolina 28242 J. Michael McGarry, III, Esq.

Bishop, Liberman, Cook, Purcell and Reynolds 1200 Seventeenth Street, N.W.

Washington, D. C. 20036 Senior Resident Inspector c/o U.S. Nuclear Regulatory Commission Route 4, Box 529 Hunterville, North Carolina 28078 Regional Administrator, Region 11 U.S. Nuclear Regulatory Commission 101. Marietta Street, N.W., Suite 2900 Atlanta, Georgia 30323 S. S. Kilborn Area Manager, Mid-South Area ESSD Projects Westinghouse Electric Corporaxion MNC West Tower - Bay 239 P. O. Box 355 Pitts' uurgh, Pennsylvania 15230

Mr. H. B. Tucxer Oconee Nuclear Station Duke Power Company Units Nos. 1, 2 and 3 cc:

Mr. A. V. Carr, Esq. Mr. Paul Guill Duke Power Company Duke Power Company P. O. Box 33189 Post Office Box 33189 422 South Church Street 422 South Church Street Charlotte, North Carolina 28242 Charlotte, Ncrth Carolina 28242 J. tiichael McGarry, III, Esq.

Bishop, Liberman, Cook, Purcell & Reynolds c 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 fir. Robert B. Borsum Babcock & Wilcox Nuclear Power Generation Division Suite 525 1700 Pockv111e Pike Rockville, Maryland 20852 Manager, LIS NUS Corporation 2536 Countryside Boulevard Clearwater, Florida 33515 Senior Resident Inspector U.S. Nuclear Regulatory Commission Route 2, Box 610 Seneca, South Carolina 29678 Regional Administrator, Region II U.S. Nuclear Regulatory Commission 101 Marietta Street. N.W., Suite 2900 Atlanta, Georgia 30323 Mr. Heyward G. Shealy, Chief Bureau of Radiological Health South Carolina Department of Health and Environmental Control 2600 Bull Street Columbia, South Carolina 29201 Office of Intergovernmental Relations 116 West Jones Street Raleigh, North Carolina 27603 Honorable James M. Phinney County Supervisor of Oconee County

Walhalla, South Carolina 29621

.t Y

f..%.' . ' . - .

m Y IV' DUKE POWER GOMPANY P.O. BOX 33180 CHARLOTTE. N.C. 98949 e a ,a (70 J 3 4531

.m....._.

n0 Wh June 20, 1988 gJ oj e U. S. Nuclear Regulatory Coamission Attention: Document Control Desk

[ 1f d

Washington, D. C. 20555 #

Re: Oconee Nuclear Station, Docket Nos. 50-269, -270, -287 (& t McGuire Nuclear Station, Docket Nos. 50-369, -370 Catawba Nuclear Station, Docket Nos. 50-413, -414 I Ig Appeal of Dcaial of Backfitting Claim Regarding / / P4 Containment Integrated Leak Rate Testing g

Gentlemen:

By lettyr dated September 1, 1987 Duke Power Company, pursuant to 10 CFR 550.109 , presented a claim that two NRC Staff positions on containment integrated leak rate testing requirements under Appendix J to 10 CFR Part-50 constitute backfits. These two Staff posit (1) the Staff's refusal to permituseoftheMass-Plot (orMass-Point){onswere: analysis technique for a test duration of less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, and (2) the Staff's insistence, based on Information Notice 85-71, that Type A test results be adjusted by certain leakage measured during local leak rate tests. The Staff denied the backfitting claim by letter dated October 29, 1987.

Duke Power Company hereby appeals the Staff's denial of its backfitting claim.

l It remains Duke's view that the two Staff positions are not supported by Appendix

! J and constitute bar . fits for Duke's facilities.

DISCUSSION P

A. Test Duration For Mass-Point Analysis Technique i

This isrue concerns the duration of the Type A test for which the Mass-Point l technique for evaluating test results may be used. In its April 1, 1986 review of leak rate testing nethodology, the Staff stated that the only acceptable test of less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> is that using the "Total Time" analysis technique, as i

l Duke understands that despite the decision in Union of Concerned Scientists

v. NRC, 824 F.2d 108 (D.C. Cir. 1987), the NRC is continuing the adhere to the policy and procedures of Section 50.109 and Manual Chapter 0514 until the new backfitting rule is finalized. ,,

Duke has used the term "Mass-Plot" while the Staff uses the term "Mass-Point"; the meaning of the terms is identical. For consistency's sake, 1 Duke will use the term "Mass-Point" throughout this letter, e

2-- '

l

+

l l

20: t!V C2 tvT 99.

N011V7n938 801?vl8 BV3730N 3'8 N s'n

. ... J..

U S .Nuclsar Regulatory Commission

,' June 20, 1988 i Page 2 justified in Bechtel Corporation Topical Report BN-TOP-1, dated November 1 '1972.

For this technique, the Staff has approved a test duration of six hours. It is Duke's position, however, that a test duration of less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> using the Mass-Point analysis technique is consistent with Appendix J requirements. In fact, this technique has been accepted by the NRC in previous integrated leak rate testa with durations less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. The current Staff position, therefore, constitutes a backfit.

Before proceeding to a discussion of the merits of this issue, Duke notes that it is willing to continue to work with the Steff in an effort to reach agreement under Paragraph 7.6 ANSI N45.4-1972 on a test duration of less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> I

using the Mass-Point analysis technique. SeeDukeLetterdatedSepgember17, 1987. Given the fact that the current version ef the ANSI standard adopts the Mass-Point technique with an 8-hour minimum test duration, the Staff should be prepared to consider such an agreement. Duke's appeal on this issue may be rendered moot if a timely, and favorable, response to our September 17, 1987 letter is received, or if the issue is favorably resolved in the Staff's Proposed Rule. However, Duke needs a resolution of this issue prior to April, 1989, as that is the next scheduled ILRT.

Turning to the metits, the Staff's view that Appendix J requires a 24-hour test duration is not supported by t'.e regulacion. Appendix J itself is completely silent on the subject of test duration.Section III.A.3(a) of Appendix J, which .

governs "Test Methods", simply provides that "{alll Type A tests shall be conducted in accordance with the provisions of the American National Standards N45.4-1972 . . . ." The Staff relies upon the fact that paragraph 7.6 of ANSI .

N45.4-1972 states that the test period shall be 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of retained internal  !

pressure, unless "it can be demonstrated to the satisfaction of those responsible  ;

1. or the acceptance of the containment structure that the leakage rate con be accurately determined during a shorter test period ...." Although Duke relies primarily upon other arguments herein, it would point out that "those responsible for acceptance of the containment struc ture," as used in the ANSI standard, normally refers to the owner and :perator of the facility and the authorized representative of the ANSI.

It is also not clear that the Commission intended that paragraph 7.6 be included within the scope of the incorporation by reference under Appendix J $III.A.3(a).

It seems apparent that the Commissien did not intend to incorporate as a

requirement every provision of the ANSI standard. Because the incorporation by

reference is in the "Test Methods" section of Appendix J, it may be that the j Commission intended to incorporate the ANSI standard only as far as Section 5 of the standard provided acceptable test methods -- namely, the absolute and 1

~A good description of the three data analysis techniques is provided in the Staff's recent proposed rule to amend Appendix J by expressly allowing the use of the Mass-Point technique (though for a test duration of 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />). 53 Fed. Reg. 5985 (February 29, 1988). As the Staff notes, the Mass-Point analysis technique is of more recent development and has been accepted by the NRC as the preferred' data analycis technique at this time. Ibid. The more recent versions of the ANSI standard, beginning in 1981, adopt this technique. ANSI /ANS56.8-1987 (at paragraph 5.4) specifies a minimum test duration of 8 hoars.

1

U. S.. Nuclear Regulatory Commission

/ ,. June 20, 1988 )

Page 3 l reference-vessel methods. The 24-hour test duration provision is not part of the "Test Methods" section of the ANSI standard, and therefore may not have been intended to be incorporated by reference into Appendix J".

The recent proposed rule on the Mass-Point technique would prescribe an explicit ,

24-hour test duration requirement. The fact that the NRC sees a need to add an i explicit provision on test duration strongly suggests that such a requirement is l not now clearly reflected in the regulation. The proponed-rule provides no basis I for the 24-hour provision but merely states that this reflects "prior exemption approval." 53 Fed. Rt.g. at 5985. No exemption approval of that nature has been issued for Duke. Thus, any such positions in exemptions for other facilities do not establish a Staff position applicable to Duke, Manual Chapter 0514 at 21. )

i Even assuming the 24-hour test provision has been properly incorporated as a  ;

binding requirement, the NRC has previous'.y accepted the use of the Mass-Point I technique for Duke for test periods less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. Ac explained at page 3  ;

of our September 1, 1987 claim NRC inspectors have previously observed two integrated leak rate tests at Oconee where test durations of less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> ,

were used with the Mass-Point analysis technique. The inspectors observed the l tests and reviewed the ILRT summary test report and found that the tests were condugted in conformance with Appendix J with no related violations or unresolved itcms . The Inspection Reports are consistent with the fact that the later revisions to the ANSI standard (see ANSI /ANS-56.8-1981), which adopted the Mass-Point technique, provide for a minimum test duration of eight hours.

In its October 29, 1987 denial, the Staff dismissed this fact on the around5 that approval in an NRC Inspection Report does not suffice to grant a deviation from an explicit regulatory requirement. As explained above, it is not clear that che  :

24-hour test duration provision of ANSI N45.4-1972 was incorporated as a specific requirement of Appendix J. Assuming for the sake of argument that it was, i nothing in the ANSI standard precludes an NRC Inspection Report from being an For a publication to be incorporated as a binding requirement, the NRC must comply with the regulations of the Office of the Federal Register governing incorporation by reference. Those regulations provided that "[t]he language incorporating a publication by reference sball be as precise and complete as I possible...." 1CFR $51.9(a). Where a document is not properly incorporated by l reference, it cannot be considered binding. See PPG Industries Inc. v. Costle.

639 F.2d 1239, 1250 (D.C. Cir. 1981) (citing Administrative Procedure Act ,

$552(a)(1)). It has been held that "an incorporation by reference must give one l affected enough knowledge so that he may easily and certainly ascertain the l conditions by which he is to be bound". Applachian Power Company v. Train 566 F_.Jd 451, 457 (4th Cir. 1977).

Thu reference to ANSI N45.4-1972 in Section III.A.3(a) of Appendix J arguably I does not give licensees the reasonable and certain notice regarding test duration that is required by law.

5 Inspection Report No. 50-270/83-35, dated December 15, 1983 (test duration of 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> 25 minutes); Inspection Report No. 50-287/81-04, dated April 6, 1981 (test duration of 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> 45 minutes).

-U. S . Nuclear Regulatory Commission i ,

. June 20, 1988 Page 4 i

appropriate means for an agreement on a shorter test duration by "those ,

responsible for the acceptance of the containment structure" within the meaning of Section 7.6 of the standard.

Moreover, the Staff cannot so easily disavow the findings of NRC Inspection Reports. Manual Chapter 0514 makes clear that a backfit arises when something previously accepted by the NRC as adequate is later precluded. Manual Chapter ,

0514 at 22, 28-29. According to NRC Staff policy, Inspection Reports are to receive management review and approval as to content and are to reflect only 6 approved, NRC positions as opposed to an individual inspector's personal views .

In view of the Staff policy, the NRC Inspection Reports from 1981 and 1983 accepting test durations of less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> with the Mass-Point technique should be considered to establish the "applicable Staff position" r Duke. A contrary requirement now must therefore be identified as a backfit  :

In conclusion, Duke contends that the Staff position precluding the use of Mass-Point technique for tests of less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> represents a backfit for its facilities. Nevertheless, Duke is willing to work with the Staff in an effort to reach an agreement on test duration. In addition, Dt.ke will commit to a minimum test duration of eight hours, for the Mass-Foint technique, which is consistent with Duke's past practice as approved in NRC Inspection Reporte and with ANSI /ANS-56.8-1987.

I B. "As Found" Type A Leakage This issue concerns the Staff position in Information Notice 85-71 on the need to correct Type A test results for certain Type B and C leakage to derive an "as

$S_ee, e a , NRC Inspection Manual Chapter 0610, at page 6 (contents of inspection reports to receive appropriate management approval); NRC Inspection Manual Chapter 0611, at page 1 (inspection reports not to reflect an inspactor's personal opinion, but rather an "NRC position, opinion or recommendation or the inspector's presentation of technical positions on items and areas inspected").

The Staff's October 29, 1987 denial (at page 2) lists three docuunts as reflecting a "long-standing policy" on this issue, namely,'a transcript of a workshop held in San Diego in 1982, a Region I letter to a licensee, and the EPRI repc:t entitled "Contp M ent Integrated Leak-Rate Testing Improvements," dated Noveruber, 1982. At 1m. two of the m documents support Duke's position. The 4 Region I correspondence with another licensee indicated that, because the plant's Technical Specification required a 24-hour test duration, a Technical Specification change would be necessary prior to conducting a test or less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. However, the enclosure to the letter indicates that with such a change, a test duration of 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> would be acceptable using the Mass-Point technique. Duke has no simils.r Technical Specification requiring a 24-hour test.

Thus the Region I letter actually supports Duke's position here. Similarly, the i EPRI report, while noting the Staff position here. Similarly, the EPRI report, i while noting the Staff poeition, supports Duke by noting (at 3-32) that "[t]here

, is no engineering or scientific reason for a minimum leak test duration of 24 i hours."

-.~ - _ .- . -

. .i...' . ,

U. S., Nuclear Regulatory Co.nmission i ,

Juns 20, 1988 Page 5 found" overall containment leakage rate. In its October 29, 1987 denial, the Staff concluded (1) that the Staff position in Information Notice 8571 "is not

~

subject tc the provisions of the backfit rule because [the Notice] was issued before the effective date of the rule"; and (2) that the Staff position is supported by the explicit requirements of Appendix J. Duke respectfully disagrees with these two conclusions.

4 With respect to whether the Staff position is subject to the backfitting rule, the critical point in time is not the date of publication of the Information ,

Notice (August 22, 1985), but rather the date the Staff position reflected in the Notice was specifically imposed on the licensee. See 10 CFR 550.,109(a); Manual Chapter 0514 at 21. Indeed, it is Staff polley that an Information Notice does not establish requirements or "applicable Staff positions" for purposes of Section 50.109. Se_e Manual Chapter 0514 at 21-22.

For Duke, the Staff position was first imposed in 1986, when one unit of the  ;

McGuire Nuclear Station was ruled to have failed an ILRT. Inspection Report 50-370/86-16. Because the position was imposed after the effective date of the revised Section 50.109 (October 21, 1985), it is subject to the backfitting standards of that rule. Even if one assumes that Information Notice 85-71 could have established an applicable Staff position predating (by two months) the revised Section 50.109, it is still subject to the NRC backfitting policy. NRC Manual Chapter 0M4 is expressly agplicable to backfits imposed on or after May 1, 1985. Manual Chapter 0514 at 3 . Thus, contrary to the view expressed in the October 29, 1987 denial, the timing of Informat n Notice 85-71 does not shield it from review under the NRC backfitting policy We now turn to whether the position in Information Notice 85-71 is actually j supported by Appendix J. In our view, the Staff position is inconsistent with the language, and history of Appendix J. .

1 8

Staff management has made clear that even for backfits imposed prior to the

. effective dates of Section 50.109 or the Manual Chapter, the Staff will not stand  ;

on ceremony and refuse to apply the backfitting policy to these items. Region I l Backfitting Workshop at TR. 81 (statement of Mr. Olmstead); Region II Dackfitting Workshop, Vol. 2, at TR.48-49 (statement of Mr. Sniezek). Indeed, the 1985 backfitting rule was merely a revision to the backfitting rule that had been or. l the books since 1970 and which required a showing that the backfit would produce j (substantial, additional protection...." The NRC also adopted an interim ,

backfitting policy in Generic Letter 84-08, which also antedated Information

] Notice 85-71.

9 None of the four cases listed in Information Notice 85-71 in which the Staff applied its positions prior to the Information Notice involved a Duke facility. Thus these plant-specific cases cannot have established a Staff position "applicable" to Duke,. Manual Chapter 0514 at 21. Indeed, as explained -

in Duke's September 1, 1987 backfitting claim, in Inspection Report No.

4 50-269/80-06, dated March 20, 1980, the NRC did not require incorporation of

) as-found Type B and C leakage into Type A test results. This NRC Inspection Report -- not inspection findings at other licensees facilities - establish the j "applicable" Staff position for Duke.

1 l

a r__ .__ .__

1 U. S., Nuclear Raguistory Commission 1 ,- June 20, 1988 j Page 6 j Appendix J does not require licensees to adjust Type A test results in the manner i required by the Staff. Appendix J $III.A.1(a) states in pertinent part as follows:

Containment inspection in accordance with V.A. shall be performed as a prerequisite to the performance of Type A tests. During the period between the initiation of the containment inspection and the performance of the Type A test, no repairs or adjustments shall be made so that the containment can ,

be tested in as close te the "as is" condition as practical. l This section clearly prohibits "repairs or adjustments" during the period between i initiation of the containment Inspection (as described in Section V.A. of Appendix J) and completion of the Type A test, so that the containment can be tested in as clo m to the "as is" condition (at the time of the Containment i Inspection) as practicable. Appendix J permits "repair or adjustment" during this period if valves / penetrations are "maloperating" or leaking, or if there is evidence of structural deterioration which may affect containment integrity or leak-tightness. See, e.a.,Section III.A.1(b) and V.A. of Appendix.  ;

However, the regulation does not restrict activities outside this period or require that licensees factor Type B and C leakage from tests outside this period ,

into the gpe A test results to derive an "as found" overall containment J condition . l The Staff apparently interprets the "as is" provision in Section III.A.l(a) to  ;

require that leakage tates from Type B and C tests, including those taken for any required repairs or adjustments, performed before the Containment Inspection be determined and added to the Type A test results. However, the Staff cites no ,

specific language from Appendix J to support this interpretation. In fact, the i Staff's interpretation is inconsistent with the history of the Appendix J l j rulemaking. The proposed Appendix J published for comment in 1971 would have l contained a provision consistent with the Staff position. The proposed rule stated as follows (proposed Section III.A.2.(a), 36 Fed. Reg. 170053, 17054

)

(August 27, 1971)):

If leak repairs of testable components are performed prior to the conduct of the Type A test, the reduction in leakage shall be measured and added to the Type A test result. If this measured reduction in leakage exceeds the acceptance criteria of Section III.A.7., this information shall be included in the report submitted to the Cor:raission as required by Section V.B.

The Cammission, however, did not adopt this proposed provision in the final rule. I Thus, it must be concluded that the Commission did not intend such a provision to I

! be a binding part, of the regulation. This is clear from a review of the NRC's

' l recent proposed rule to revise Appendix J. In the proposed rule issued in Octobar 1986, the Commission r.oted that thn Staff was considering an additional requitemes.t (outside the scope of the proposed revisions) that I

1 '

l 0

Appendix J $1II.A.1(a) requires the reporting of the change in leakage rate from repairs and adjustments during the type A test. I j

l, i

1

U. S..Nucicar R:gulatory Commission June 20, 1988 Page 7 All Type B and C tests perfsrmed during the same outage as a Type A test, or !

performed during a specified time period (nominally 12 months) prior to a Type A te g be factored into tha determination of a Type A test "as found" condition .

Given the Commission's statement, it is clear that such a requirement is beyond the present scope of appendix J and would constitute a backfit. The NRC's Cost Analysis for the Appendix J rulemaking also noted that the proposed requirement to determin nd report "as found" Type A test results represented a new requirement Furthermore, the Staff position is inconsistent with the present Type A acceptance criteria.Section III.A.5(b) of Appendix J specifies an acceptance criterion of .75 of allowable leakage (La) for Type A tests. This 25% margin is intended to allow for possible degradation of containment leakage during the future period of operation until the next Type A test. The requirement to derive Type A "as fnund" leakage is intended to reveal leakage degradation during past operation. For this purpose, a 1.0 La acceptance criterion is sufficient. To combine an "as found" leakage requirement with a .73 La acceptance criterion would result in double-counting.

Again, the Commission itself has recognized this. Tha 1986 proposed rule would expressly require a determination of "as found" Type A leakage but would adopt an i acceptance criterion of 1.00 La for the "as left" condition. 51 Fed. Reg. et ,

39543. The Commission, therefore has clearly recognized the inherent <

inconsistency of requiring a determination of the "as found" Type A condition with Appendix J's current .75 La criterion. This excess conservatism has already resulted in an unnecessary failure of the ILRT at one McGuire unit.

In its October 29, 1987 denial, the Staff relied upon paragraph 4.2 of ANSI l N45.4-1972 as the regulatory basis for its position. As the Staff stated, that paragraph simply provides "that, for periodic CILRTs, a test be conducted before any preparatory repairs are made to the containment boundary in order to disclose 1 the nonaal state of the containment." However, for the reasons explained above, i it is not at all clear that paragraph 4.2 has been incorporated by reference into l Appendix J since it does not relate to "test methods" within tb meaning of  ;

Section III.A 3 of Appendix J. Paragraph 4.2 concerns pretest requirements and l aequence of testing. Indeed, paragraph 4.2 uses terms such as "!ucial record '

proof test" and "preparatory repairs" which are not defined and seem to conflict with the more specific Appendix J provisions. In short, the provisions of I Section 4.2 of the ANSI standard are vague and confusing and can hardly be considered a elect regulatory basis for the Staff position.

" Leakage Rate Testing of Containments of Light-Water-Cooled Nuclear Power Plants, 51 Fed. Reg. 39538, 39539 (October 29, 1986).

12 Final Report, Cost Analysis of Revisions to 10 CFR Part 50, Appendix J.

Leak Tests for Primary and Secondary Containments of Light-Water-Cooled Nuclear Power Plants, dated April 1985, at 30.

.- l..

U. S., Nuclear Regulatory Commission June 20, 1988 Page'8

-In summary, the Staff's position that Type A test results must be adjusted for j Type B and C tests, including necessary repairs and adjuatments, prior to initiation of the Containment Inspection is inconsistent with Appendix J and previous Staff positions applicable to Duke facilities. It should therefore bo ,

i identified as a backfit. Nevertheless, as noted above Duke commits to continue its practice of supplying information on such Type B and C tests as a supplement to its ILRT reports. ,

1

-CONCLUSION '

i Duke is confident that its integrated leak rate testing program complies with applicable requirements and is adequate to ensure containment leakage integrity.

As shown by our past practices and the commitments herein, Duke has been willing .

to go beyond the express requirements of Appendix J to provide additional inforriation to the Staff in a spirit of cooperation. However, we believe cur. .

previous backfitting claim was fully justified and ask that the Executive  !

Director for Operations reverse the Staff. denial and grant the claim.

Very truly yours, f b' Q

-Hal B. Tu6ker PGL/29/sbn  !

j xc: Dr. J. Nelson Grace, Regional Administrator "

U. S. Nuclear Regulatory Commission

Region II 101 Marietta Street, NW, Suite 2900

, Atlanta, Georgia 30323 Dr. K. Jabbour ,

Office of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission J

Washington, D. C. 20555 1

Ms. Helen Pastis i

Office of Nuclear Reactor Regulation i U. S. Nuclear Regulatory Commission Washington, D. C. 20555 i Mr. Darl Hood Office of Nuclear Reactor Regulations U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. P. K. Van Doorn

. NRC Resident Inspector Catawba Nuclear Station 1

s ..

U. S.,Nuclotr Rsgulatory Commission Junn 20, 1988 Page 9 Mr. W. T. Orders NTC Resident Inspector McGuire Nuclear Station Mr. P. ii. Skinner NRC Resident Inspector Oconee Nuclear Station Mr. Victor Stello, Jr.

Executive Director for Operations U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Thomas E. Murley Director, Of fice of Nu': lear Reactor Regulation U. S. Nuclear Regulatory Commission Washington, D. C. 20555