Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Notices 21569

civil penalties are imposed, in part, to

deter future violations by not only the

involved licensee, but other licensees

conducting similar activities. See

Enforcement Policy, Section VI.B.

Contrary to the Licensee’s statements,

the civil penalties proposed in this case

are within the authority of the NRC. The

Licensee’s comparison of the civil

penalties in this case with civil

penalties in other cases does not bring

the NRC’s exercise of its lawful

authority into question. Of decisive

importance is the NRC’s clear authority

to exercise discretion in the choice of

enforcement sanctions and the ordering

of enforcement priorities. Advanced

Medical Systems, Inc., (CLI–94–6), 39

NRC 285, 320 (1994). A sanction is not

rendered invalid because it is more

severe than that issued in other cases.

Id. As explained above, the NRC acted

within its statutory authority and the

bounds of the Enforcement Policy when

NRC exercised its discretion to escalate

the civil penalties in this case. A rigid

uniformity is not required in

enforcement decisions, which

inherently involve the exercise of

informed judgment on a case-by-case

basis. Id. See also, Radiation

Technology, Inc., (ALAB–567), 10 NRC

533, 541 (1979).

NRC Conclusion

The NRC has concluded that the

violations occurred as stated in the

Notice and an adequate basis for

mitigation of the civil penalties was not

provided by the Licensee. Consequently,

the proposed civil penalties in the

amount of $280,000 should be imposed.

[FR Doc. 95–10731 Filed 5–1–95; 8:45 am]

BILLING CODE 7590–01–M

[Docket No. 50–278]

PECO Energy Company; Public

Service Electric and Gas Company;

Delmarva Power and Light Company;

Atlantic City Electric Company (Peach

Bottom Atomic Power Station, Unit 3);

Exemption

I

PECO Energy Company, et al. (PECo.,

the licensee), is the holder of Operating

License No. DPR–56, which authorizes

operation of the Peach Bottom Atomic

Power Station, Unit 3, at steady state

reactor core power levels not in excess

of 3293 megawatts thermal. The license

provides, among other things, that the

licensee is subject to the rules,

regulations and order of the

Commission now or hereafter in effect.

The plant is a boiling water reactor

located at the licensee’s site in York

County, Pennsylvania.

II

Section 50.54(o) of 10 CFR Part 50

requires that primary reactor

containments for water cooled power

reactors be subject to the requirements

of Appendix J to 10 CFR Part 50.

Appendix J contains the leakage test

requirements, schedules, and

acceptance criteria for tests of the leak

tight integrity of the primary reactor

containment and systems and

components which penetrate the

containment.

Section III.D.2(a) of Appendix J to 10

CFR Part 50 requires that Type B leak

rate tests, except for air locks, be

performed during reactor shutdown for

refueling, or other convenient intervals,

but in no case at intervals greater than

2 years. Type B tests are intended to

detect local leaks and to measure

leakage across each pressure-containing

or leakage-limiting boundary for certain

reactor containment penetrations.

Section III.D.3 of Appendix J to 10

CFR Part 50 requires that Type C leak

rate tests be performed during each

reactor shutdown for refueling but in no

case at intervals greater than 2 years.

Type C tests are intended to measure

containment isolation valve leakage

rates for certain containment isolation

valves.

III

By letter dated February 22, 1995, the

licensee requested a one-time

exemption from the requirements of

Appendix J, Sections III.D.2(a) and

III.D.3 for a period of 60 days for the

isolation valves or leakage boundaries

for 80 penetrations. In its request, the

licensee provided a list of the affected

penetrations and associated plantspecific leak test procedures, the date

when the leak tests had last been

performed and the date when the

current leak test will expire.

The licensee has implemented a 24-

month operating cycle schedule at the

Peach Bottom facility. The last refueling

outage for Unit 3, 3R09, commenced in

September 1993 and ended in

November 1993 and the next refueling

outage, 3R10 is scheduled to commence

no later than September 30, 1995. The

leak tests for which the licensee has

requested schedular exemption were

last conducted during the refueling

outage 3R09, based on the information

provided in the licensee’s application.

The licensee has stated that the affected

leak test require either that safety

systems be isolated or require access to

the drywell, either of which would

require the reactor to be shutdown.

The licensee has divided the affected

leak tests into two categories: (1) Those

that require shutdown reactor

conditions but come due prior to the

latest scheduled commencement of

3R10 on September 30, 1995, and (2)

those that require reactor shutdown

conditions and come due after the

scheduled commencement of 3R10.

There are 52 leak test surveillance

procedures affecting 47 penetrations or

penetration groups in the first category.

These tests and penetrations are listed

in Table 1 of the licensee’s February 22,

1995 request. The earliest of these tests

falls due on August 12, 1995, up to 49

days prior to the scheduled shutdown.

The licensee has requested an

exemption for 60 days which will allow

the unit to operate until the beginning

of the planned outage without shutting

down to perform leak tests and which

will allow for flexibility in planning the

leak tests during the outage.

There are 28 leak test surveillance

procedures affecting 29 penetrations in

the second category described

previously. These tests are listed in

Table 2 of the licensee’s February 22,

1995 submittal. The licensee has

requested an exemption of 60 days to

allow for flexibility in planning these

leak tests during the outage. The

licensee stated that all of the affected

penetrations will be leak tested prior to

restart from 3R10.

IV

The licensee presented information in

support of its request for a 60-day

extension of the Type B and C test

intervals. The maximum allowable

leakage rate for maintaining primary

containment (La—minimum pathway

leakage) is 125,417 cc/min. The asfound total Type B and C minimum

pathway leakage rate observed during

Unit 3 refueling outage 3R09 during the

fall of 1993 was 33,434 cc/min. The asleft leak rate for that same outage was

27,188 cc/min.

PECo stated that an extension of the

leak test interval to allow for 49 days of

operation in not likely to significantly

decrease the margin between as-found

leak rates and La.

PECo also stated that the remainder of

the total 60-day extension, requested for

outage planning flexibility, will have

minimal safety significance since the

unit will be in cold shutdown. Primary

containment integrity is not required

during cold shutdown.

The licensee provided information

regarding the requirements of 10 CFR

50.12, ‘‘Specific Exemptions.’’ With

respect to the requirements of 10 CFR
21570 Federal Register / Vol. 60, No. 84 / Tuesday, May 2, 1995 / Notices

50.12(a)(1), the licensee stated that the

requested action is authorized by law in

that no prohibition of law exists which

would preclude the activities which

would be authorized by the exemption.

In addition, the licensee stated that, for

the reasons discussed above, the

requested exemption does not present

an undue risk to the public health and

safety. Finally, the licensee stated that

containment leak rate testing is not

considered in the common defense and

security of the nation.

With respect to the requirements of 10

CFR 50.12(a)(2)(iii), the licensee stated

that special circumstances are present

because compliance with the strict

requirements of Appendix J would

result in hardships significantly in

excess of those contemplated when the

regulation was adopted. The licensee

stated that at the time the regulation was

adopted, a presumption was made that

a 2-year test interval would easily

accommodate performance of the

required tests during an operating cycle.

However, development of new core

designs have resulted in cycles of 24

months, or longer. Performance of the

tests at the 24-month frequency would

result in undue financial hardship

resulting from extended reactor

shutdown beyond that intended by the

regulation with little or no

compensatory increase in the level of

safety or quality.

V

Based on the above, the staff finds

there is reasonable assurance that the

containment leakage-limiting function

will be maintained and that a forced

outage to perform Type B and C tests is

not necessary. Therefore, the staff finds

the requested exemption, to allow the

Type B and C test intervals for the

penetrations listed in the licensee’s

February 22, 1995 request to be

extended for 60 days from their current

expiration date, to be acceptable. The

exemption request has been evaluated

in a safety evaluation dated April 25,

1995.

Accordingly, the Commission has

determined that, pursuant to 10 CFR

50.12(a), the requested exemption is

authorized by law, will not present an

undue risk to the public health and

safety, and is consistent with the

common defense and security. The

Commission finds that the special

circumstances as required by 10 CFR

50.12(a)(2) are present. The

Commission’s finding is based on the

information provided by the licensee

regarding 10 CFR 50.12(a)(2)(iii). In

addition, as specified in 50.12(a)(2)(ii),

special circumstances are present

whenever the application of the

regulation in the particular

circumstance would not serve the

underlying purpose of the rule or is not

necessary to achieve the underlying

purpose of the rule. The underlying

purpose of the rule is to ensure that the

components comprising the primary

containment boundary are maintained

and leak tested at periodic and

appropriate intervals. The 24-month

maximum interval was originally

expected to bound the typical operating

cycle, including a limited amount of

mid-cycle outage time. The advent of

advanced fuel types has made it

possible to operate the facility for the 24

months with minimal, if any mid-cycle

outage time. Strict adherence to the 24-

month maximum interval is not

necessary to meet the underlying

purpose of the rule in that, taking into

consideration the 60-day extension, the

components that comprise the primary

containment boundary will still be

tested at a frequency that is appropriate

to those components and their

application. In addition, the 60-day

extension represents a minimal increase

in the existing 24-month interval

required by the rule. Therefore, the staff

finds the requested temporary

exemption, to allow the Type B and C

test intervals for penetrations described

in the licensee’s February 22, 1995

letter, to be extended for 60 days, to be

acceptable.

An exemption is hereby granted from

the requirements of Sections III.D.2(a)

and III.D.3 of Appendix J to 10 CFR Part

50, which requires that Type B and C

tests be performed during each reactor

shutdown for refueling but in no case at

intervals greater than 2 years, for a

period of 60 days from the expiration of

the current leak test for the affected

penetrations.

Pursuant to 10 CFR 51.32, the

Commission has determined that the

granting of this exemption will have no

significant impact on the quality of the

human environment (60 FR 19968).

This exemption is effective upon

issuance.

Dated at Rockville, Maryland this 25th day

of April 1995.

For the Nuclear Regulatory Commission.

Steven A. Varga,

Director, Division of Reactor Projects—I/II,

Office of Nuclear Reactor Regulation.

[FR Doc. 95–10733 Filed 5–1–95; 8:45 am]

BILLING CODE 7590–01–M

[Docket No. 030–32493; License No. 29–

28685–01; EA 93–072]

Radiation Oncology Center at Marlton,

Marlton, New Jersey; Order Imposing a

Civil Monetary Penalty

I

Radiation Oncology Center at Marlton

(Licensee) is the holder of Byproduct

Materials License No. 29–28685–01

(License) issued by the Nuclear

Regulatory Commission (NRC or

Commission) on January 17, 1992. The

License authorizes the Licensee to

possess and use certain byproduct

materials in accordance with the

conditions specified therein. The

License is due to expire on January 31,

1997. By a Confirmatory Action Letter

dated February 5, 1993, the Licensee

agreed to not obtain any sources of

radioactive material authorized under

the License until specifically authorized

by NRC Region I. By a Confirmatory

Order Modifying License (Effective

Immediately) dated March 9, 1993, the

Licensee was required to maintain any

NRC-licensed material in a locked,

stored, and shielded condition, and was

prohibited from receiving any NRClicensed material.

II

An NRC inspection of the Licensee’s

activities was conducted on February 2

and 4, 1993. The results of this

inspection indicated that the Licensee

has not conducted its activities in full

compliance with NRC requirements. A

written Notice of Violation and

Proposed Imposition of Civil Penalty

(Notice) was served upon the Licensee

by letter dated May 31, 1994. The Notice

states the nature of the violation, the

provisions of the NRC requirements that

the Licensee had violated, and the

amount of the civil penalty proposed for

the violation.

The Licensee responded to the Notice

in letters dated August 31, 1994,

October 4, 1994, and December 1, 1994.

In its responses the Licensee denies

Examples A.3, A.4, B.1, B.2, D., and G.

of the violations, denies in part and

admits in part Examples A.1, A.2, and

C. of the violation, and admits Examples

A.5, E., and F. of the violation. The

Licensee also protests the amount of the

civil penalty proposed and requests

mitigation of the penalty as appropriate.

III

After consideration of the Licensee’s

response and the statements of fact,

explanation, and argument for

mitigation contained therein, the NRC

staff has determined, as set forth in the

Appendix to this Order, that, with the