United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-97-530 - Nine Mile Point 1 & 2 (Niagara Mohawk Power Corporation)

January 22, 1998

EA 97-530

Mr. B. Ralph Sylvia
Executive Vice President
and Chief Nuclear Officer
Niagara Mohawk Power Corporation
Nuclear Learning Center
450 Lake Road
Oswego, NY 13126

SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY- $55,000
(NRC Inspection Report Nos. 50-220/97-07; 50-410/97-07)

Dear Mr. Sylvia:

This refers to the NRC inspection conducted between August 10 and October 4, 1997, at the Nine Mile Point Nuclear Station, the findings of which were discussed during an exit meeting on October 17, 1997. During the inspection, the NRC reviewed the circumstances associated with several apparent violations of transportation and radwaste program requirements which occurred at your facilities. The inspection report was sent to you on November 28, 1997. On December 19, 1997, a predecisional enforcement conference was held with you and members of your staff to discuss the violations, their causes, and your corrective actions.

Based on the information developed during the inspection and the information that you provided during the conference, four violations of NRC requirements are being cited and are described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty. The circumstances surrounding the violations are described in detail in the subject inspection report. The violations involve four shipments of radioactive material in a manner contrary to NRC requirements. In the first case, the radiation levels (within an occupied portion of the transport vehicle) were in excess of limits upon arrival of the shipment at its destination. In the second case, the wrong material was shipped such that the radiation levels upon receipt were four times higher than expected. In the other two cases, material was shipped to locations different than intended or authorized. Numerous instances of your staff being inattentive to details, and not adequately independently verifying information, contributed to the three failures within a two month period.

With respect to the first violation, on July 24, 1997, a package containing two metal samples from the Unit 1 core shroud, was sent to BWX Technologies, Inc., Lynchburg, Virginia, and upon receipt of the package at BWX, the dose rate in the normally occupied section of the vehicle was 2.8 mrem/hr, which is in excess of the regulatory limit of 2 mrem/hr. As you noted at the conference, adequate radiological surveys were not conducted prior to the shipment, in that the technician only surveyed that forward portion of the sleeper cab and did not survey the rear portion of the cab which was closest to the source.

With respect to the second violation, on September 3, 1997, a cask was shipped from Unit 2 to Molten Metal Technology, Oak Ridge, Tennessee, containing a liner that was different than the liner that was intended for shipment, contrary to the shipping manifest. The violation was identified when, during unloading of the cask, Molten Metal Technology recognized that the radiation levels in the area of the liner were approximately four times higher than expected. Subsequent investigation revealed that one of your radwaste operators inadvertently loaded the wrong liner into the shipping cask prior to transport. Although each liner had a unique identification number, the radwaste operator did not check the number on the liner with the number on the shipment schedule. Rather, he used only the storage location number which was in error. In addition, although a Unit 1 radiation protection (RP) technician conducted a radiation survey of the cask and sent the results to the Unit 2 RP technician prior to the shipment, the Unit 2 RP technician signed the associated shipping manifest authorizing the shipment without reviewing the radiation survey. Such a review may have disclosed the higher than expected radiation levels.

With respect to the third violation, on September 25, 1997, a package containing a metal sample removed from a tube sheet in the Unit 1 emergency cooling (EC) condenser, was shipped to a BWX contracts officer in an administrative office complex in Lynchburg, Virginia, rather than to the intended BWX laboratory. The office complex was not listed on the material License Certificate for receipt of radioactive shipments. A similar error, which constitutes the fourth violation, had occurred in May 1995, when a source range detector was shipped to the General Electric (GE) facility in San Jose, California, rather than to the intended GE facility in Twinsburg, Ohio. The San Jose facility similarly did not have a license to receive radioactive material. Although the manifests had been properly prepared in each case, your warehouse personnel nonetheless sent the package to the wrong address. On both occasions, inattention to detail and inadequate verification contributed to these violations.

The NRC recognizes that the actual safety consequence of these violations was low in each case. However, these violations indicate a lack of adequate oversight of the radioactive materials handling and transportation program to ensure appropriate attention to detail by staff in implementing the program. In addition, the fact that three of the violations occurred during a two-month period, between July 24, 1997 and September 25, 1997, indicates a potential for greater safety significance. Therefore, the violations are of a significant regulatory concern and are being classified in the aggregate as a Severity Level III problem in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $55,000 is considered for a Severity Level III problem. Because your facility has been the subject of escalated enforcement actions within the last 2 years, (1) the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. No credit was warranted for identification of the problem because the events were identified in each case by the recipients of the packages, and in each case, you had an opportunity to identify these deficiencies sooner. For example, in the case of the shipment in which dose rates in the occupied portions of the vehicle were found to have exceeded regulatory limits, an adequate survey prior to shipment may have identified the condition. In the case of the wrong liner of resins being dispatched from the site, review of the survey results by the Unit 2 RP technician would have identified the condition. Credit is warranted for your corrective actions which were considered prompt and comprehensive. Your immediate actions included disciplinary actions against responsible personnel, ceasing warehouse personnel responsibilities pertaining to shipment of radioactive materials by transferring those responsibilities to RP, and modifications of radiation survey protocols with respect to transport vehicles. Your long-term corrective actions included planned focus on improving human performance and leadership of the radioactive materials handling and transportation program.

Therefore, to emphasize the importance of appropriate attention to detail in the implementation and oversight of the radioactive transportation program, the need for identifying violations, and in recognition of your previous escalated enforcement action, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the base amount of $55,000 for the Severity Level III problem.

Three other apparent violations set forth in the inspection report, are not being cited, consistent with Section IV of the Policy, because they are of minor significance.

Those apparent violation involve (1) improperly maintained process control plans involving such issues as references to outdated Title 49 requirements and training procedures; (2) the failure to identify and correct the out of date references in the Process Control Program with respect to the Title 49 requirements; and (3) although your QA department identified during an audit the deficiency in the process control plan with respect to the references to outdated training procedures, this audit finding was closed prior to the deficiency being corrected.

With respect to the two remaining apparent violations described in the inspection report, the violations involved (1) transporting radioactive material in shipping containers owned by SEG, Inc., without complying with all quality assurance requirements as defined by 10 CFR 71, Subpart H; and (2) failure to verify that any vendors you utilized to process waste had a quality assurance program that met NRC requirements per the Unit 1 Process Control Program. At the conference, you disagreed with both of these apparent violations. With respect to the first issue, you contended that the QA requirements only applied to the shipper who was separately licensed. After further review of this matter and consultation of this matter with the Office of Spent Fuel Projects, the NRC maintains that you are responsible for adhering to the QA requirements, unless certain exemptions contained in 10 CFR 71.10 are met. The Statements of Consideration for this rule provide clarification on the rule's intent: "While information may be submitted by any interested person to the Commission in support of an application for package approval, it is the licensee who delivers a package of radioactive material to a carrier who must assure himself and the Commission that the quality assurance program, on which approval of the package design is based, has been followed." (42 FR 39364, published 8/4/77). However, in this case, a stated exemption in 10 CFR 71.10 (b)(2) was met in that the dose rates from the unshielded packages did not exceed 1 rem/hr at 3 meters. Therefore, the apparent violation is withdrawn. With respect to the second issue, you contended at the enforcement conference that this Unit 1 Process Control Program requirement had only been intended for vendors providing processing services on the premises of the Nine Mile Point Nuclear Station. The NRC is still reviewing this item and resolution will be handled by separate correspondence at a later date.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room (PDR).

Sincerely,



Hubert J. Miller
Regional Administrator

Docket Nos. 50-220 and 50-410
License Nos. DPR-63 and NPF-69

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl:
R. Abbott, Vice President & General Manager - Nuclear
C. Terry, Vice President- Safety Assessment and Support
J. Conway, Vice President - Nuclear Engineering
K. Dahlberg, Vice President - Nuclear Operations
D. Wolniak, Manager, Licensing
J. Warden, New York Consumer Protection Branch
G. Wilson, Senior Attorney
M. Wetterhahn, Winston and Strawn
J. Rettberg, New York State Electric and Gas Corporation
P. Eddy, Electric Division, Department of Public Service, State of New York
C. Donaldson, Esquire, Assistant Attorney General, New York Department of Law
J. Vinquist, MATS, Inc.
F. Valentino, President, New York State Energy Research and Development Authority
J. Spath, Program Director, New York State Energy Research and Development Authority


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY



Niagara Mohawk Power Corporation
Nine Mile Point Nuclear Station
Units 1 and 2
Docket No. 50-220, 50-410
License No. DPR-63, NPF-69
EA 97-530

During an NRC inspection conducted between August 10 and October 4, 1997, for which an exit meeting was held on October 17, 1997, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the NRC proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violations and associated civil penalty are set forth below:

A. 10 CFR 71.5 requires that each licensee who transports radioactive material comply with the applicable DOT regulations contained in 49 CFR Parts 170-189. 49 CFR 173.441 requires that radiation levels in any normally occupied space of the vehicle not exceed 0.02 milliSieverts per hour (2 mrem/hr).
Contrary to the above, on July 24, 1997, the licensee transported a package containing two metal samples from the Unit 1 core shroud, to BWX Technologies, Inc., Lynchburg, Virginia, and upon receipt of the package at BWX, the dose rate in the normally occupied section of the vehicle was 2.8 mrem/hr. (01013)
B. 10 CFR 71.5 requires, in part, that each licensee who delivers licensed material to a carrier for transport, comply with the applicable requirements stated in 49 CFR Parts 170-189.
Title 49 CFR 172.203(d)(4) requires that the activity contained in each package of the shipment in terms of the appropriate SI units or in terms of the appropriate SI units followed by the customary units shall be included on the shipping papers.
Title 49 CFR 172.204(a) requires, in part, that each person who offers a hazardous material for transportation shall certify that the material is offered for transportation in accordance with this subchapter (manually or mechanically) in the shipping paper containing the required shipping description the certification contained in paragraph (a)(1) of this section or the certification (declaration) containing the language contained in paragraph (a)(2) of this section.
Contrary to the above, on September 3, 1997, the licensee shipped a cask from Unit 2 to Molten Metal Technology, Oak Ridge, Tennessee, and
1. the cask contained a liner of spent resins that was different than the liner that was intended for shipment as noted on the shipment papers. As a result, the activity recorded on the shipping papers was not reflective of that contained in the liner as required by 49 CFR 172.203(d)(4); and
2. licensee personnel failed to carry out procedurally required steps to certify that the shipment was proper in accordance with 49 CFR 172.204(a). (01023)
C. 10 CFR 71.0(b) states that "the packaging and transport of licensed material are also subject to other parts of this chapter (e.g., Parts 20, 21, 30, 39, 40, 70, and 73) and to the regulations of other agencies (e.g., the US Department of Transportation and the US Postal Service) having jurisdiction over means of transport. The requirements of this part are in addition to, and not in substitution for other requirements."
Title 10 CFR 30.41 requires that before transferring byproduct material to a specific licensee of the Commission or an Agreement State or to a general licensee who is required to register with the Commission or with an Agreement State prior to receipt of the byproduct material, the licensee transferring the material shall verify that the transferee's license authorizes the receipt of type, form and quantity of byproduct material to be transferred."
1. Contrary to the above, on September 25, 1997, the licensee sent a package containing a metal sample removed from a Unit 1 emergency cooling condenser tube sheet, to a BWX Contracts Officer in an administrative office complex in Lynchburg, Virginia, and that office complex was not listed on the material License Certificate for receipt of radioactive shipments. (01033)
2. Contrary to the above, on May 24, 1995, the licensee sent a source range detector to the General Electric (GE) facility in San Jose, California, and that facility did not have a license to receive radioactive material. (01034)

This is a Severity Level III Problem (Supplement V).
Civil Penalty - $55,000

Pursuant to the provisions of 10 CFR 2.201, Niagara Mohawk Power Corporation (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an Order or a Demand for Information may be issued as why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violation(s) listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region I, and a copy to the NRC Resident Inspector at the facility that is the subject of this Notice.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated at King of Prussia, Pennsylvania
this 22nd day of January 1998


1. For example, on November 5, 1997, a Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $50,000 was issued for violations of the maintenance rule (Reference: EA 97-007). In addition, on April 19, 1997, a Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $200,000 was issued for several violations (Reference: EAs 96-474; 96-475; 96-494; 96-541).

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