The initial commentary in this series of posts described how a three-person panel formed by the Nuclear Regulatory Commission (NRC) to evaluate concerns raised by an NRC worker concluded that the agency violated its procedures, policies, and practices by closing out a safety issue and returning the Columbia Generating Station to normal regulatory oversight without proper justification.
I had received the non-public report by the panel in the mail. That envelope actually contained multiple panel reports. This commentary addresses a second report from another three-person panel. None of the members of this panel served on the Columbia Generating Station panel. Whereas that panel investigated contentions that NRC improperly dismissed safety concerns, this panel investigated contentions that the NRC improperly sanctioned Cooper for issues that did not violate any federal regulations or requirements. This panel also substantiated the contentions and concluded that the NRC lacked justification for its actions. When will the injustices end?
Mountains at Cooper
The NRC conducted its Problem Identification and Resolution inspection at the Cooper nuclear plant in Brownville, Nebraska June 12 through June 29, 2017. The report dated August 7, 2017, for this inspection identified five violations of regulatory requirements.
An NRC staffer subsequently submitted a Differing Professional Opinion (DPO) contending that the violations were inappropriate. The basis for this contention was that there were no regulatory requirements applicable to the issues; thus, an owner could not possibly violate a non-existent requirement.
Molehills at Cooper
Per procedure, the NRC formed a three-person panel to evaluate the contentions raised in the DPO. The DPO Panel evaluated the five violations cited in the August 7, 2017, inspection report.
Fig. 1 (Source: Unknown)
- Molehill #1: The inspection report included a GREEN finding for a violation of Criterion XVI in Appendix B to 10 CFR Part 50. Appendix B contains 18 quality assurance requirements. Criterion XVI requires owners to identify conditions adverse to quality (e.g., component failures, procedure deficiencies, equipment malfunctions, material defects, etc.) and fix them in a timely and effective manner. The DPO Panel “…determined that this issue does not represent a violation of 10 CFR 50 Appendix B, Criterion XVI, inasmuch as the licensee identified the cause and implemented corrective actions to preclude repetition.” In other words, one cannot violate a regulation when doing precisely what the regulation says to do.
- Molehill #2: The inspection report included a GREEN finding for a violation of a technical specification requirement to provide evaluations of degraded components in a timely manner. The DPO Panel “…concluded that this issue does not represent a violation of regulatory requirements.” This is a slightly different molehill. Molehill #1 involved not violating a requirement when one does exactly what the requirements says. Molehill #2 involved not violating a requirement that simply does not exist. A different kind of molehill, but a molehill nonetheless.
- Molehill #3: The inspection report included another GREEN finding for another violation of Criterion XVI in Appendix B to 10 CFR Part 50. Appendix B. This time, the report contended that the plant owner failed to promptly identify adverse quality trends. The DPO Panel “concluded that monitoring for trends is not a requirement of Criterion XVI,” reprising Molehill #2.
- Mountain #1: The inspection report included another GREEN finding for failure to monitor emergency diesel generator performance shortcomings as required by the Maintenance Rule. The DPO Panel “…determined that the violation was correct as written and should not be retracted.” As my grandfather often said, even a blind squirrel finds an acorn every now and then.
- Molehill #4: The inspection report included a Severity Level IV violation for violating 10 CFR Part 21 by not reporting a substantial safety hazard. The DPO Panel discovered that the substantial safety hazard was indeed reported to the NRC by the owner within specified time frames. The owner submitted a Licensee Event Report per 10 CFR 50.72. 10 CFR Part 21 and NRC’s internal procedures explicitly allows owners to forego submitting a duplicate report when they have reported the substantial safety hazard via 10 CFR 50.72. The DPO Panel recommended that “…consideration be given to retracting the violation … because it had no impact on the ability of the NRC to provide regulatory oversight.”
The DPO Panel wrote in the cover letter transmitting their report to the NRC Region IV Regional Administrator:
After considerable review effort, the Panel disagreed, at least in part, with the conclusions documented in the Cooper Nuclear Station Problem Identification and Resolution Inspection Report for four of the five findings.
The DPO Panel report was dated April 13, 2018. As of August 8, 2018, I could find no evidence that NRC Region IV has either remedied the miscues identified by the DPO originator and confirmed by the DPO Panel, or explained why sanctioning plant owners for following regulations is justified.
UCS Perspective
At Columbia Generation Station, NRC Region IV made a molehill out of a mountain by finding, and then overlooking, that the plant owner’s efforts were “grossly inadequate” (quoting that DPO Panel’s conclusion).
At Cooper Nuclear Station, NRC Region IV made mountains out of molehills by sanctioning the owner for violating non-existent requirements or for doing precisely what the regulations required.
Two half-hearted (substitute any other body part desired, although “elbow” doesn’t work so well) efforts don’t make one whole-hearted outcome. These two wrongs do not average out to average just right regulation.
NRC Region IV must be fixed. It must be made to see mountains as mountains and molehills and molehills. Confusing the two is unacceptable.
Mountains and molehills (M&Ms). M&Ms should be a candy treat and not a regulatory trick.
NOTE: NRC Region IV’s deplorable performance at Columbia and Cooper might have remained undetected and uncorrected but for the courage and conviction of NRC staffer(s) who put career(s) on the line by formally contesting the agency’s actions. When submitting DPOs, the originators have the option of making the final DPO package publicly available or not. In these two cases, I received the DPO Panel reports before the DPOs were closed. I do not know the identity of the DPO originator(s) and do not know whether the person(s) opted to make the final DPO packages (which consist of the original DPO, the DPO Panel report, and the agency’s final decision on the DPO issues) public or not. If the DPO originator(s) wanted to keep the DPO packages non-public, I betrayed that choice by posting the DPO Panel reports. If that’s the case, I apologize to the DPO originator(s). While my intentions were good, I would have abided by personal choice had I had any way to discern what it was.
Either way, it is hoped that putting a spotlight on the issues has positive outcomes in these two DPOs as well as in lessening the need for future DPOs and posts about obstruction of injustice.