ML20147F323

Order Imposing Civil Monetary Penalty in Amount of $100,000 within 30 Days of Order Date

ML20147F323
Person / Time
Site:	McGuire
Issue date:	03/03/1988
From:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	DUKE POWER CO.
Shared Package
ML20147F299	List: ML20147F293 ML20147F323
References
EA-87-163, NUDOCS 8803070320
Download: ML20147F323 (9)

Text

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4 L'NITED STATERS NUCLEAR REGULATORY CCftMISSION In the Matter of l' Decket No. 50-369 DUKE POWER COMPANY ) License No. NPF-9 McGuire Nuclear Station Unit 1 ) EA 87-163 ORDER IMPOSING CIVIL MONETARY PENALTY I

Duke Power Company (licensee) is the holder of Operating License No. NPF-9 issued by the Nuclear Regulatory Comission (NRC/Comission) on July 8,1981.

The license autherizes the licensee to operate McGuire Nuclear Station, Unit i in accordance with the conditions specified therein.

II A special inspection of the licensee's activities war conducted on August 3-7, 1987. The results of that inspection indicated that the licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Preposed Imposition of Civil Penalty was served upon the licensee by letter dated October 28, 1987. The Notice states the nature of the violations, the provisions of the NRC's requirerrents that the licensee had violated, and the amount of the civil penalty proposed for the violations. The licensee responded to the Notice of Violation and Proposed Imposition of Civil Penalty by letter dated November 25, 1987 admitting the violations, but disputing the proposed escalatien of the base civil penalty.

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& ADOCK 05000369 III PDR l After consideration of the licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the Deputy Executive

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Director for Regional Operations has determined as set forth in the Appendix to this Order that the escalation of the penalty proposed for the violations designated in the Notice of Violatico and Proposed Imposition of Civil Fenalty should be imposed.

IV In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2262, and 10 CFR 2.205, IT IS HEREBY ORDER THAT:

The licensee pay a civil penalty in the arount of One Hundred Thousand Dollars ($100,000) within 30 days of the date of this order, by check, draft, or money order, payable to the Treasurer of the United States and mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, ATTN: Occument Control Desk, Washington, D.C. 20555.

The licensee may request a hearing within 30 days of the date of this Order. 5 request for a hearing should be clearly marked as a "Request for an Enforcemer.t Hearing" and shall be addressed to the Director, Office of Enforcement.

U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, liashington, D.C. 20555, with a copy to the Regional Aoministratcr, Region II, and a copy to the NRC Resident Inspector, McGuire Nuclcer Stat'.on, i If a hearing is requested, the Commissico will issue an Order designating the time and place of the heat 'ng. If the licensee fails to request a hearing within 30 days of the dat! of this Order, the provisions of this Order shall be

t' effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Atterney General for collection.

In the event the licensee requests a hearing as provided above, the issue to be considered at such hearing shall be whether the portion of the proposed penalty above the base civil penalty should be imposed, in whole or in part.

FOR NUCLEAR REGULATORY CCMMISSION

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6 Ja sM.TaylkLiputyExecutiveDirector

' or f Regional Opet stions Dated at Bethesda, Maryland this M day of March 1988 O

APPENDIX EVALUATIONSANDfCONCLUSIONS On October 28, 1987, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for violations identified during a routine NRC inspection. Duke Power Company responded to the Notice of November 25, 1987.

In its response, the licensee admitted that the subject violations occurred and did not contest the base civil penalty or the proposed Severity level of the

, violations; however, the licensee did contest escalatien of the base civil penalty. The NRC's evaluations and conclusions regarding the licensee's arguments are as follows:

A. General Arguments Sumary of Licensee's Response The licensee contends that the NRC escalated the base civil pen <

because of past poor performance and inadequate corrective ac* eelated to independent verification and failure to follow procedures in the area of plant operations. The licensee believes that reasons given by the NRC for escalatien are either inconsistent with the factors set forti in the Enforcement Policy or are otherwise inproper.

NRC Evaluation of Licensee's Respense The NRC letter of October 28, 1987, included the following stateme"c:

The base civil penalty amount was increased by 100 percent occiuse of: (1) past poor performance in the area of concern as .Lcume ted generally by Systematic Assessmer.t of Licensee Perf;r'/nce (SALP) in the operations area and .cifically by the similar occ urrencet discussed earlier (see pane 2 of the October 28, 191,7 iatter paragraphs 9 and 3 regarding IVP), (?) the corrective actions taken on JL',y 29, 1987, were not only inadequate and non-conservative in that it was assumed the prcblem was in the control panel indicators and ret in the diesel generator itself, but untimely in that it was rot recognized prenptly that the indicator light was out. Specifically, mu'.tiple shift turnoverc cecurred during the time the diesel generator was inoperable yet, none of the licensed operators involved ";ccgnized the significance of the multiple indicatices of the probler availeble to them.

The NRC staff's evaluation of the licensee's arguments ccreerning the details associated with the above summary statement will be addressed in specific below.

B. Arguments Regardir.g Past Performance

1. Effectiveness of previcus corrective action

a. Independent Verification Program (IVP)

Licensee Assertion The licensee cites a number of effcrts to improve their IVF subsequent to a March 1983 incident ct Oconee in an effort te

Appendix demonstrate how these preyious corrective actions have been successful in minimizing future problems. In the licensee's view, this fastifies removal of the escalation for prior pocr performance.

NRC P,aluation Five changes were made to the McGuire IVP prior to 1984. No sub-sequent changes are relied upon in the licensee's trgument prior to the current incident. The licensee then cites statistics to show a declining trend in the number of related incidents over four years from three per year to one per year.

The reason for escalation was poor performance. The NRC staff made no contention that there had been no progress in improving the IVP. Using the licensee's statistics, we note that all eight problems cited by the licensee in the IYP have occurred since full implementation of the five changes to the program. No subsequent changes were made to the IVP over a four year period preceding the current incident even though additional violations have occurred. Thus, it cannot be found that earlier changes in the IVP constituted adequate corrective action insofar as the subject violations are concerned. Therefore, escalation based on continued poor performance in IVP is appropriate.

b. Personnel Failure to Follow Precedures Licensee Assertion The licensee cites ccrrective actions and a decreasing number of Repertable Events which are argued to be indicative of a declining number of personnel errors. It is the licensee's view that such trends support removal of escalation for prior '

poor performance.

NRC Evaluation It is the staff's position that the licensee's statistical trends alone are not sufficient to weigh against escalation. First, the relationship between the corrective actions cited by the licensee and the trends is not readily apparent given the dates of implementation of the corrective actions ard the intervening unfavorable SALP findings. Second, statistics indicating an '

overall declining trend in personnel errors do not provide assurance that progress has been made in a specific area such as IVP or that recurring problens are being prevented. Finally, the occurrence of a significant problem such as the inoperability of DG-1A, which involved a number of procedural as well as cognitive personnel errors, calls into question the effectiveness of past corrective actions regardless of statistical trends.

This incident underscores the need to make the determination of whether escalation is appropriate on a qualitative as well as quantitative basis.

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Appendix 2. Overall Performance (prior SALP,' reports)

Licensee Assertion The licensee contends that recent events weigh against the NPC's reliance upon the SALPs for the purpose of escalation, specifically the recently awarded category 2 SALP rating in Operations.

NRC Evaluation The licensee relies heavily on the most recent SALP as evidence of improvement. The licensee assumes that the most recent category 2 SALP rating should be considered as the primary indication of previous performance for escalated enforcement.

There are several points that must be noted in this regard:

(a) previous performance, for purposes of escalated enforcement, includes more than consideration of numerical SALP ratinas or the fact that the previous SALP rating shows improvement, (b) despite the recent improverent in the SALP rating, the licensee's past performance in specific areas has not been good, (c) a SALP rating of 2 does not necessarily mean that a penalty may not be escalated.

3. Prior Enforcement Histcry LicenseeAssertion ine licensee asserts that the two events discussed should not be used as a basis for escalating a civil penalty for prior enforcement history because one of the events was not cited in a Notice of Violation and because the events occurred more than two years ago (January 3 and October 22, 1985).

NRC Evaluation The NPC is not recuired by the Enforcement Policy to limit in its consideration of the basis fer escalation for "Past Performance" (10 CFR Part 2, Appendix C, Section V.c.3) to the licensee's prior enforcement history. (See also "Prior Notice of Similar Events" fdV.c.4.) Information in inspection reports, whether or not used to support a violation, is relevant for past performance and provides notice for the need for corrective action. Accordingly, the NRC's reference, in the October 28, 1987 letter, to the two events, which were noted as similar to the incident for which the instant notice was issued, was appropriate. It is further noted that the emphasis of the NRC's reference to the two events was that the corrective action for those events was not successful in preventing the current incident.

The NRC typically reviews events over an approxinate two year period in evaluating past performance. In this case the Notice of Violation was issued on October 28, 1967, the inspection took place en August 3-7, 1987; and the violations occurred between July 20 and 3J. 1987. There-fore, consideration of the two events that occurred in 1965 is appropriate especially given the distinct similarities that exist between the recent incident and those events.

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Appendix C. Arguments Regarding Corrective Actions Licensee Assertion The licensee contends that there are two separate reasons for objecting to the NRC's assertion that improper corrective action should serve as the basis for escalating the base civil penalty. The licensee's reasons for

, objecting are listed below:

1. such use constitutes improper dcuble counting (i.e., improper corrective action cannot serve as basis for both the violation and the escalation), and

2. conflict with the Enforcement Policy (i.e., the licensee asserts that the policy prohibits considering actions taken before discovery of the problem as "corrective.")

NRC Evaluation The violation for failure to take corrective actions (Violation C of the Notice of Violation) was cited because of the operator's failure to recognize the significance of the multiple indications of the problem available to him. Further, when the problem was identified, it was improperly diagnosed as a faulty switch. The basis for escalation rests on the fact that multiple shift turnovers occurred, with the diesel generator lA (DG-1A) in fact inoperable for approxinately 90 hours0.00104 days <br />0.025 hours <br />1.488095e-4 weeks <br />3.4245e-5 months <br />.

Each turnover provided an opportunity to identify and correct the violation. The Enforcement Policy (10 CFR 2 Appendix C) allows for escalation based on duration of the violation. Paragraph B.V.5(3) cf the Policy states that whether or not a licensee is aware or should have been aware of a violation that continues for more than a day, the civil penalty imposed for the violatice may be increased to reflect the added significance resulting from the curation of the violation. The reference to corrective action in the October 28, 1987 cover letter's discussion of escalation was not intended to address the factor of inadequate corrective action but rather the durction caused by inadecuate action on July 29, 1987.

In sumary, the violation (Violation C of the Notice of Violation) is based I

on the failure of the operator to recognize the significance of the multiple indications of DG-1A inoperability, as n ll as the improper diagnosis of the problem, while the escalation is based on the duration of the event. It is not impermissible to issue a citatien for failure to take corrective action and at the a me time escalate a penalty based on the significance of that failure.

D. NRC Conclusion The purpose of this penalty is remedia~i. It is designed to emphasize (1) the need to maintain % sting corrective action and (2) that performance cf the type underlying this civil penalty actier cannot be accepted. The staff recognizes efforts Duke is making to improve its performance. But for those actions the penalty might have been H gher.

y 4 .C' Appendix 'An adequate basis for reduction of the 100 percent escalation of the base civil penalty has not been aresente8 by the licensee. Consequently, the proposed civil penalty in t1e amount of One Hundred Thousand-Dollars

($100,000) should be imposed.

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