ML17207A855

Responds to NRC 791219 Ltr Re Violations Noted in IE Insp Repts 50-250/79-35,50-251/79-35,50-335/79-33 & 50-389/79-22. Contends That NRC Is Citing Previously Accepted Practices Against New Interpretation of 10CFR21 W/O Notification

ML17207A855
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	01/18/1980
From:	UHRIG R E FLORIDA POWER & LIGHT CO.
To:	OREILLY J P NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
Shared Package
ML17207A853	List: ML17207A855
References
L-80-27, NUDOCS 8002280136
Download: ML17207A855 (9)

See also: IR 05000250/1979035

Text

P.O.BOX 529100, MIAMI, FL 33152 US%BC B~(~I>-),.

~JITI P t>I g;"~0 JP,tr25<lI: pg i~~"'~JJR4 c,~FLORIDA POWER 8 LIGHT COMPANY January 18, 1980 L-80-27 Mr.James P.O'Reilly, Director, Region II Office of Inspection

and Enforcement

U.S.Nuclear Regulatory

Commission

101 Marietta Street, Suite 3100 Atlanta, Georgia 30303 Dear Mr.O'Reilly: Re: RII:TEB Docket Nos.50-335/79-33, 50-389/79-32, 50-250 79-35, 50-251 79-35 Florida Power 8 Light Company has reviewed the subject inspection

report and a response is attached.There is no proprietary

information

in the report.Very truly yours, Robert E.Uhrig Vice President Advanced Systems 8 Technology

REU/GDW/ah

Attachments

cc: Harold F.Reis, Esquire 8 00s28~l+&g(X~PEOPLE...SERVING PEOPLE

~~ATTACHMENT

Re: RII:TEB~~Docket Nos.50-335/79-33, 50-389/79-32, 50-250/79-35, 50-251/79-35

~Findin: Based on the NRC inspection

November 27-30, 1979, certain of your activities

were apparently

not conducted in full compliance

with NRC requirements

as indicated below.These items have been categorized

as described in correspondence

to you dated December 31, 1974.As required by Section 21.21(a)of 10 CFR Part 21, each entity subject to these regulations

shall adopt appropriate

procedures

for evaluation

of deviations

and assure that a Director or responsible

officer is informed if the construction

or operation of a facility, or activity, or a basic component supplied for such a facility or activity fails to comply with the Atomic Energy Act of 1954, as amended, or any applic-able rule, regulation, order or license of the Commission

relating to a substantial

safety hazard or contains a defect.Section 21.21(b)(3)

delineates

the information

to be included in the written report.Section 21.51 delineates

the maintenance

of record requirements.

FPL QA Manual Procedure No.QP 16.4, Rev.0, April 23, 1979 has been developed to specify the measures and responsibilities

to ensure compliance

to 10 CFR Part 21.Contrary to the above Part 21 requirements, FPL Corporate QA Manual QA Procedure, QP 16.4, Paragraph 5.2 and Figure 16.4-1 does not require that all deviations

be formally evaluated and documented

as Part 21 evaluations.

Since formal Part 21 evaluations

are not performed and documented

in all cases, it follows that the following Part 21 require-ments cannot be met: (1)informing of the responsible

officer (21.21 (a)(2);(2)the written reports to the Commission

contain the required information

(21.21(b)(3);

and (3)the required records be maintained

(21.51).~Res ense: Florida Power 8 Light Company has reviewed the foregoing Notice of Violation and respectfully

requests reconsideration

based on the following information.

The Notice of Violation states that"Contrary to the above Part 21 requirements, FPL Corporate QA Manual QA Procedure, QP 16.4, Paragraph 5.2 and Figure 16.4-1 does not require that all deviations

be formally evaluated and documented

as Part 21 evaluations." Section 206 of the Energy Reorganization

Act of 1974 provides, in pertinent part, that:

Qe (a)Any individual

director, or responsible

officer of a firm constructing, owning, operating, or supplying the components

of any facility or activity which is licensed or otherwise regulated, pursuant to the Atomic Energy Act of 1954 as amended, or pursuant to this Act, who obtains information

reasonably

indicating

that such facility or activity or basic components

supplied to such facility or activity-(1)fails to comply with the Atomic Energy Act of 1954, as amended, or any applicable

rule, regulation, order, or license of the Commission

relating to substantial

safety hazards, or (2)contains a defect which could create a substan-tial safety hazard, as defined by regulations

which the Commission

shall promulgate, shall immediatel

notif the Commission

of such failure to comply, or of such defect, unless such person has actual knowledge that the Commission

has been ade uatel informed of such defect or failure to comply.I(bk A y d h 1 1 1 d (ly f 11~id h d by b 1 ((f hl 11 h 11 b subject to a civil penalty in an amount equal to the amount provided by Section 234 of the Atomic Energy Act of 1954, as amended.(Emphasis added.)Section 206 thus establishes

only a reporting requirement.

Beyond that, it does not impose an obligation

for the classification

of deviations.

Consistent

with Section 206, the"Purpose" section of Part 21 provides: The regulations

in this part establish procedures

and require-ments for im lementation

of Section 206 of the Ener Reor anization Act of 1974.That section re uires any individual

director or responsible

officer of a firm construct-

ing, owning, operating or supplying the components

of any facility or activity which is licensed or otherwise regulated pursuant to the Atomic Energy Act of 1954, as amended,.or the Energy Reorganization

Act of 1974, who obtains information

=.reasonably

indicating: (a)That the facility, activity or basic component supplied to such facility or activity fails to comply with the Atomic Energy Act of 1954, as amended, or any applicable

rule, regulation, order, or license of the Commission

relating to substantial

safety hazards or (b)that the facility, activity, or basic component supplied to such facility or activity contains defects, which could create a substantial

safety hazard, to immediatel

notif the Commission

of such failure to comply or such defect, unless he has actual knowledge that the Commission

has been adequately

informed of such defect or failure to comply.

(10 CFR 21.1)Consistent

with its stated purpose, nowhere does Part 21 require the evaluation

of all deviations.

The regulations

prescribe no procedures

for evaluation

beyond those needed to support the notification

requirements

of Section 206 which, in turn, are embodied in Part 21.In sum, both Section 206 and Part 21 deal with notification.

Neither requires the evaluation

of all deviations.

The proper submission

of reports is all that is necessary.

In fact, the NRC Staff has stated: It is the Staff's position that the licensee is not required to report under Part 21 an occurrence

that falls=within

the scope of either Part 21 or 50.55 (e)or Reg.Guide 1.16 if that occurrence

is reported in accordance

with 50.55(e)or Reg.Guide 1.16 requirements.(Letter to John W.Gore (AIF), from Ernst Volgenau (NRC), dated April 21, 1978, Attachment, p.1.)Implicit in that statement is the position that, so long as proper reports are made-such as pursuant to the requirements

of 50.55(e)or Reg.Guide 1.16--a separate evaluation (which would result only in a determination

as to the applicability

of Part 21)is not required.The Notice of Violation further states,"Since formal Part 21 evaluations

are not performed and documented

in all cases, it follows that the following Part 21 requirements

cannot be met: (1)informing of the responsible

officer (21.21(a)(2);(2)the written reports to the Commission

contain the required information

(21.21(b)(3);

and (3)the required records be maintained

(21.51)." guality Procedure 16.4 in part requires that the Vice President of Advanced Systems 8 Technology

be notified of any item which is evaluated to meet the reporting requirements

of 10 CFR 21 and which has not been reported to the NRC by another means...guality Procedure 16.6 states that the Vice President of Advanced Systems 8 Technology

is responsible

through the Manager of Nuclear Licensing for reviewing and issuing all reports of 10 CFR 50.55(e)deficiencies

to NRC for plants u'nder construction.

Power Resources Procedure 3421.1 requires that all Licensee Event Reports be signed by the Vice President, Power Resources or his designee.Licensee Event Reports (or reportable

occurrences)

are reported in accordance

with Facility Technical Specifications

which implement Regulatory

Guide 1.16.Thus the respon-sible officer is required to be notified of all items deter'mined

to be reportable

to the NRC under 10 CFR 21, 10 CFR 50.55(e)and Technical Specifications.

On April 28, 1978, Mr.Ernst Volgenau as Director of the NRC Office of Inspection

and Enforcement

wrote a.letter to Mr.John W.Gore of the Atomic Industrial

Forum, Inc., cited above.'.in response to certain questions raised by Mr.Gore relative to 10 CFR 21.In that letter Mr.Volgenau stated: "It is the Staff's osition that the licensee is not re uired to re ort under Part 21 an occurrence

that falls within the sco e of either Part 21 or 50.55 e or Re.Guide 1.16 if that occurrence

is re orted in accordance

with 50.55 e or Re.Guide 1.16 re uirements.

In such cases, it is also the Staff's the time requirements (oral, 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> and Reg.Guide 1.16;written, 30 days and 14 days under Reg.Guide 1.16)of method used would be controlling

and, the Part 21 reporting times would not position that under 50.55(e)under 50.55(e)the reporting for the licensee, applicable." (Emphasis added.)Based on the foregoing, the information

requirements

of items reported in accordance

with 10 CFR 50.55(e)or Technical Specifications

are governed by 10 CFR 50.55(e)and the Facility Technical Specifications

and not 10 CFR 21.Records are maintained

of all items determined

to be reportable

under 10 CFR 50.55(e)and Facility Technical Specifications.

It is questionable

whether 10 CFR 21.51 applies to items reported in accordance

with 10 CFR 50.55(e)and Facility Technical Specifications.

Nevertheless, FPL practices and procedures

meet the 10 CFR 21.51 requirements

for record keeping.Following the publication

of 10 CFR 21, many meetings were held between NRC and utility representatives

to determine the meaning of the new regulation.

Utility representatives

were assured at these meetings and later in writing that Part 21 was aimed at suppliers and that the utilities had only to continue their past practices of reporting in accordance

with 10 CFR 50.55(e)and Facility Technical Specifications

to be in compliance

with 10 CFR 21.FPL procedures

for implementing

10 CFR 21 were reviewed by NRC inspectors

following the issuance of 10 CFR 21.Our procedures

were determined

at that time to satisfactorily

implement 10 CFR 21 requirements.

It is disturbing

to have NRC inspectors

cite our previously

accepted practices against an apparently

new interpretation

of 10 CFR 21 without benefit of rulemaking

or even prior notification.

In summary, based on the foregoing, FPL requests that the Notice of Violation be reconsidered.

We will be pleased to discuss this matter further with you or your representatives.