[Federal Register Volume 64, Number 147 (Monday, August 2, 1999)]
[Notices]
[Pages 41975-41978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19699]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-245]


Northeast Nuclear Energy Company, Millstone Nuclear Power 
Station, Unit 1; Issuance of Final Director's Decision Under 10 CFR 
2.206

    Notice is hereby given that the Director of the Office of Nuclear 
Reactor Regulation has issued a Final Director's Decision with regard 
to a Petition dated August 21, 1995, and supplemented on August 28, 
1995, submitted by George Galatis and We the People, Inc. (the 
Petitioners), requesting action under

[[Page 41976]]

Title 10 of the Code of Federal Regulations, Section 2.206 (10 CFR 
2.206). The Petition pertains to Millstone Nuclear Power Station, Unit 
1, operated by Northeast Nuclear Energy Company (licensee).
    The Petitioners requested that the NRC (1) suspend the license for 
the Millstone Unit 1 facility for a period of 60 days after the unit is 
brought into compliance with the license and the design basis; (2) 
revoke the operating license until the facility is in full compliance 
with the terms and conditions of its license; (3) perform a detailed 
independent analysis of the offsite dose consequences of the total loss 
of spent fuel pool water; and (4) take enforcement action pursuant to 
10 CFR 50.5 and 50.9. As bases for their requests, the Petitioners 
raised the following three issues: (1) the licensee has knowingly, 
willingly, and flagrantly operated Millstone Unit 1 in violation of 
License Amendment Nos. 39 and 40; (2) License Amendment Nos. 39 and 40 
for Millstone Unit 1 are based on material false statements made by the 
licensee in documents submitted to the NRC; and (3) the license 
amendment proposed in a letter dated July 28, 1995, should be denied 
and the licensee should be required to operate in full conformance with 
License Amendment No. 40. By letter dated October 26, 1995, the staff 
informed the Petitioners that Issue 3 was determined to be a request 
for a licensing action and therefore, was beyond the scope of 10 CFR 
2.206.
    In a Partial Director's Decision dated December 26, 1996, the 
Acting Director of the Office of Nuclear Reactor Regulation partially 
granted Requests 1, 2, and 3 of the Petition on the basis of the 
staff's technical review of the core offloading issues presented by the 
Petitioners. The reasons for that decision were explained in the 
``Partial Director's Decision Pursuant to10 CFR 2.206'' (DD-96-23).
    As stated in the Partial Director's Decision, the staff noted that 
the focus of the Petition was on assertions of wrongdoing on the part 
of the licensee in certain of its actions and, at the time, that the 
assertions were still being reviewed by the staff. The staff has 
completed its review in this area and for the reasons given in the 
``Final Director's Decision Pursuant 10 CFR 2.206'' (DD-99-09), Request 
4 of the Petition is partially granted.
    Additional information is included in the ``Final Director's 
Decision Pursuant to 10 CFR 2.206'' (DD-99-09), the complete text of 
which follows this notice and which is available for public inspection 
at the Commission's Public Document Room, the Gelman Building, 2120 L 
Street, NW., Washington, DC 20555-0001, and at the local public 
document room located at the Learning Resources Center, Three Rivers 
Community-Technical College, 574 New London Turnpike, Norwich, 
Connecticut 06360 and at the Waterford Library, Attn: Vince Juliano, 49 
Rope Ferry Road, Waterford, Connecticut 06385.
    As provided in 10 CFR 2.206(c), a copy of this Final Director's 
Decision will be filed with the Secretary of the Commission for the 
Commission's review. This Decision will constitute the final action of 
the Commission 25 days after issuance unless the Commission, on its own 
motion, institutes review of the Decision within that time.

    Dated at Rockville, Maryland, this 27th day of July 1999.

    For the Nuclear Regulatory Commission.
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation.

Final Director's Decision Pursuant to 10 CFR 2.206

I. Introduction

    On August 21, 1995, George Galatis and We the People, Inc. 
(Petitioners), filed a Petition with the Executive Director for 
Operations of the U.S. Nuclear Regulatory Commission (NRC) pursuant to 
Section 2.206 of Title 10 of the Code of Federal Regulations (10 CFR 
2.206). A supplement to the Petition was submitted on August 28, 1995. 
These two submittals will hereinafter be referred to as the 
``Petition.''
    The Petition raised three issues regarding the Millstone Nuclear 
Power Station, Unit 1 (Millstone Unit 1), operated by Northeast Nuclear 
Energy Company (NNECO or the licensee). First, the Petitioners asserted 
that the licensee has knowingly, willingly, and flagrantly operated 
Millstone Unit 1 in violation of License Amendment Nos. 39 and 40. 
Specifically, Petitioners asserted that NNECO had offloaded more fuel 
assemblies into the Millstone Unit 1 spent fuel pool (SFP) during 
refueling outages than permitted under these license amendments. 
Second, Petitioners asserted that License Amendments Nos. 39 and 40 for 
Millstone Unit 1 are based on material false statements made by the 
licensee in documents submitted to the NRC. Third, Petitioners asserted 
that the license amendment proposed by the licensee under cover of a 
letter dated July 28, 1995, regarding offloading of the entire core of 
spent fuel assemblies at Millstone Unit 1, should be denied and the 
licensee should be required to operate in full conformance with License 
Amendment No. 40.
    On the basis of these assertions, the Petitioners requested that 
the NRC (1) institute a proceeding under 10 CFR 2.202 to suspend the 
license for the Millstone Unit 1 facility for a period of 60 days after 
the unit is brought into compliance with the licensing basis and the 
design basis, (2) revoke the operating license for the Millstone Unit 1 
facility until it is in full compliance with the terms and conditions 
of its license, (3) perform a detailed independent analysis of the 
offsite dose consequences of the total loss of SFP water, before 
reinstatement of the license, and (4) take enforcement action against 
NNECO pursuant to 10 CFR 50.5 and 50.9. Finally, Petitioners requested 
that the proposed license amendment sought by NNECO be denied.
    In the supplement to the Petition dated August 28, 1995, the 
Petitioners made additional assertions in support of their first and 
third issues. Specifically, in support of Issue 1, the Petitioners 
asserted that the licensees for Millstone Units 2 and 3 and Seabrook 
Unit 1 also performed full core offloads in violation of their 
licenses. In support of Issue 3, the Petitioners asserted that there is 
a material false statement in a submission used to support a previous 
Millstone Unit 3 license amendment request, and that there is an 
unanalyzed condition in the Millstone Unit 3 Updated Final Safety 
Analysis Report in that system piping had not been analyzed for the 
full core offload normal end-of-cycle event. Also, with regard to 
Seabrook Station Unit 1, the Petitioners asserted that there are 
Technical Specification violations related to criticality analysis and 
gaps in Boraflex material.
    By letter dated October 26, 1995, the NRC informed the Petitioners 
that the Petition had been referred to the Office of Nuclear Reactor 
Regulation pursuant to 10 CFR 2.206 of the Commission's regulations for 
preparation of a response. The NRC also informed the Petitioners that 
the NRC staff would take appropriate action within a reasonable time 
regarding the specific concerns raised in the Petition. Additionally, 
the NRC staff informed the Petitioners that their request with regard 
to issues associated with the requested license amendment (i.e., 
Petitioners' third issue) was not within the scope of 10 CFR 2.206 and 
thus was not appropriate for consideration under 10 CFR 2.206.
    In a Partial Director's Decision (DD-96-23) dated December 26, 
1996, the staff documented its technical review of the full core 
offload issue at Millstone Units 1, 2, and 3 and Seabrook Unit 1.

[[Page 41977]]

The staff concluded that Millstone Units 1 and 3 and Seabrook Unit 1 
could safely offload full cores. Additionally, the staff found that 
Millstone Unit 2 was not routinely performing full core offloads as 
asserted by the Petitioners. However, the staff's followup of SFP 
issues raised by the Petitioners led, in part, to the identification of 
a broad spectrum of configuration management concerns that had to be 
corrected before the Commission allowed restart of any Millstone unit.
    On August 14, 1996, the NRC staff issued a Confirmatory Order 
establishing an Independent Corrective Action Verification Program 
(ICAVP) for each Millstone unit to ensure that the plant's physical and 
functional characteristics were in conformance with its licensing and 
design basis. The ICAVP was performed and completed for Millstone Units 
2 and 3 to the satisfaction of the NRC before the Commission allowed 
the plants to restart.1 To the extent that Millstone Unit 1 
permanently ceased operation, as stated in the Partial Director's 
Decision, the staff determined that the Petitioners' requests for 
suspension and revocation of the Millstone Unit 1 operating license was 
partially granted. The staff further stated that it had evaluated spent 
fuel accidents beyond the design bases and, to this extent, the 
Petitioners' request to perform analyses of such accidents was also 
partially granted.
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    \1\ The staff notes that by letter dated July 21, 1998, the 
licensee informed the NRC of its decision to permanently shut down 
Millstone Unit 1. Upon the permanent shutdown of Millstone Unit 1, 
the staff determined that the requirement to perform an ICAVP at 
Millstone Unit 1 was no longer necessary.
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    In the Partial Director's Decision, the staff stated that since the 
Petitioners' letter of August 28, 1995, contained assertions relating 
to the third issue (that the license amendment proposed by the licensee 
under cover of a letter dated July 28, 1995, should be denied) and that 
the issue was not appropriate for consideration under 10 CFR 2.206, the 
staff would forward its findings to the Petitioners by separate 
correspondence. In a letter to the Petitioners dated July 1, 1999, the 
staff addressed these assertions.
    In the Partial Director's Decision, the staff stated that it was 
still considering the Petitioners' assertions that the licensee 
knowingly, willingly, and flagrantly operated Millstone Unit 1 in 
violation of License Amendment Nos. 39 and 40 and submitted material 
false statements to obtain License Amendment Nos. 39 and 40 (as they 
support the Petitioners' fourth request). As explained below, the NRC 
staff has taken actions that, in part, grant the Petitioners' request.

II. Discussion

Request for Enforcement Action Against NNECO Pursuant to 10 CFR 50.5 
and 50.9
    The Petitioners based their requests on their assertion that the 
licensee has knowingly, willingly, and flagrantly operated Millstone 
Unit 1 in violation of License Amendments Nos. 39 and 40 and that 
License Amendment Nos. 39 and 40 for Millstone Unit 1 are based on 
material false statements. Specifically, the Petitioners stated that 
the licensee conducted full core offloads as a routine practice when 
its licensing basis analyses assumed one-third core offloads as the 
normal refueling practice. In their supplemental letter of August 28, 
1995, the Petitioners asserted that the licensees for Millstone Units 2 
and 3 and Seabrook Unit 1 also performed full core offloads in 
violation of their licenses. The Petitioners further contend that the 
licensee's actions subjected the public to an unacceptable risk.
    As explained in the Partial Director's Decision, the staff 
concluded that Millstone Units 1 and 3 and Seabrook Unit 1 could safely 
offload full cores. Additionally, the staff found that Millstone Unit 2 
was not routinely performing full core offloads as asserted by the 
Petitioners.
    In a letter to the licensee dated May 25, 1999, regarding a Notice 
of Violation and Exercise of Enforcement Discretion, the staff stated 
that it had completed the investigations concerning the performance of 
fuel offloads at Millstone Unit 1. Regarding the Petitioners' assertion 
concerning the Millstone Unit 1 full core offload practice, the NRC has 
drawn a distinction between routinely conducting full core offloads and 
conducting any offloads before the delay times assumed in the Final 
Safety Analysis Report (FSAR). The NRC has concluded that enforcement 
action is not warranted at Millstone Unit 1 and other nuclear 
facilities for conducting full core offloads on a routine basis. The 
NRC determined that the use of the terms ``abnormal'' and ``emergency'' 
in describing the full core offload scenario in the FSAR did not appear 
to be presented by the licensee nor understood by the staff as a 
commitment to limit the frequency with which full core offloads were 
conducted at Millstone Unit 1. In this regard, the licensee informed 
the NRC staff of its practice of offloading the full core at Millstone 
Unit 1 in a meeting on June 16, 1988, associated with the License 
Amendment No. 40 request pertaining to SFP reracking. Further, although 
the analytical constraints and assumptions for the full core offload 
were generally less restrictive than those for a partial core offload, 
in licensing actions (typically rerack amendments) for nuclear plants, 
including Millstone Unit 1, the NRC found the plant design for removing 
the full core acceptable. Finally, as a way of addressing shutdown 
risk, the NRC encouraged, and still does, the practice of full core 
offloads. Thus, consistent with the conclusions drawn for all other 
plants that routinely performed full core offloads, enforcement is not 
being proposed for the Millstone Unit 1 full core offloading practices.
    The staff's followup of spent fuel pool issues raised by the 
Petitioners, however, led, in part, to the identification of a broad 
spectrum of configuration management concerns that had to be corrected 
before the Commission allowed restart of any Millstone unit. On the 
basis of information developed during the investigation by the NRC's 
Office of Investigations, the NRC cited the licensee for four 
violations of NRC requirements. Specifically, the NRC determined that, 
in careless disregard of NRC requirements, the licensee (1) performed 
both partial and full core offloads before the delay times assumed in 
the FSAR without the appropriate engineering analysis; (2) utilized 
unapproved and unanalyzed system configurations to augment SFP cooling 
during refueling outages, without procedures to govern those 
activities; and (3) in two instances, submitted incomplete and 
inaccurate information to the NRC (violations of 10 CFR 50.9(a)) 
related to the performance of fuel offloads that were actually 
commenced before the delay times assumed in the analysis submitted to 
the NRC.
    In its May 25, 1999, letter transmitting the Notice of Violation, 
the NRC also stated that these violations, which existed for a long 
time, appeared to be the result of the deficient safety culture, which 
contributed to the shutdown of all three Millstone units for an 
extended period and resulted in a number of other violations for which 
the NRC issued a $2,100,000 civil penalty to the licensee on December 
10, 1997. That penalty was based, in part, on (1) the licensee's 
failure to ensure that the plant was maintained in the configuration as 
designed and specified in the licensing basis and (2) the licensee's 
failure to promptly correct nonconforming conditions. The NRC concluded 
that the failure of licensee management to

[[Page 41978]]

establish standards to ensure that the plant was maintained and 
operated as designed, and to ensure that nonconforming conditions were 
promptly identified and corrected, constituted careless disregard of 
requirements. As such, the violations that resulted from that deficient 
safety culture, which fostered such disregard, were considered willful 
in accordance with the ``General Statement of Policy and Procedures for 
NRC Enforcement Actions NUREG-1600'' (Enforcement Policy).
    In its May 25, 1999, letter, the NRC further stated that in 
consideration of (1) the undesirable consequences of performance of 
unanalyzed core offloads and the licensee's failure to ensure that SFP 
heat removal was conducted in accordance with approved procedures; (2) 
the significance of the licensee's providing incomplete and inaccurate 
information to the NRC; and (3) the significance that the NRC places on 
careless disregard of its requirements, the four violations had been 
classified, in the aggregate, as a Severity Level III violation in 
accordance with the NRC Enforcement Policy. For the reasons outlined in 
its letter of May 25, 1999, the staff exercised enforcement discretion 
and did not issue a civil penalty for the violations. In its letter, 
the NRC staff stated that discretion is appropriate because the 
licensee already implemented corrective actions to address the 
underlying performance problems at Millstone and further enforcement 
action is not necessary to achieve additional remedial actions.
    In their Petition, the Petitioners requested that the NRC take 
enforcement action against the licensee pursuant to 10 CFR 50.5 and 
50.9. Although not specifically for the reasons cited by the 
Petitioners (the Petitioners based their requests on their assertion 
that the licensee has knowingly, willingly, and flagrantly operated 
Millstone Unit 1 in violation of License Amendment Nos. 39 and 40 and 
that License Amendment Nos. 39 and 40 for Millstone Unit 1 are based on 
material false statements), the NRC did find that in two instances the 
licensee submitted incomplete and inaccurate information to the NRC 
related to the performance of fuel offloads that were actually being 
commenced before the delay times assumed in the analysis submitted to 
the NRC. Therefore, for the reasons previously given, the NRC's actions 
constitute a partial granting of the Petitioners' request regarding 
enforcement action pursuant to 10 CFR 50.5 and 50.9.

III. Conclusion

    The staff has completed the investigations concerning the 
performance of fuel offloads at Millstone and has taken enforcement 
action as outlined in its letter and Notice of Violation to the 
licensee dated May 25, 1999. Therefore, to this extent, Petitioners' 
request for enforcement action against NNECO pursuant to 10 CFR 50.5 
and 50.9 is partially granted.
    As provided in 10 CFR 2.206(c), a copy of this Final Director's 
Decision will be filed with the Secretary of the Commission for the 
Commission's review. This Final Director's Decision will constitute the 
final action of the Commission (for Petitioners' Request 4) 25 days 
after its issuance, unless the Commission, on its own motion, 
institutes review of the Decision within that time.

    Dated at Rockville, Maryland, this 27th day of July 1999.

    For the Nuclear Regulatory Commission.
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation.
[FR Doc. 99-19699 Filed 7-30-99; 8:45 am]
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