ML19281D580
| ML19281D580 | |
| Person / Time | |
|---|---|
| Issue date: | 06/26/1980 |
| From: | Sniezek J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| To: | James Keppler NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| References | |
| FOIA-80-533, REF-SSINS-6020 NUDOCS 8009120328 | |
| Download: ML19281D580 (47) | |
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MEMORANDUM FOR:
J. G. Keppler, Director, Region III FROM:
J. H. Sniezek, Director,' Division of FFMSI r
SUBJECT:
NRC ENFORCEMENT PROGRAM I
Enclosed are comments regarding the subject document which was-distributed at the recent Management Meeting.
I am not provir'.ing any additional coments on the material which was discussed at the meeting I
as I believe there was sufficient discussion on the major areas covered.
t J. H. Sniezek, Director I
Division of FFMSI t
Enclosure:
Coments on NRC Enforcement Policy t
cc:
D. Thompson, IE J. Lieberman, ELD i
N. C. Moseley, IE 1
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COMMENTS ON NRC ENFORCEMENT POLICY Page 7 - It is stated that licensees are not ordinarily cited for violations resulting from equipment failures, etc.
I recommend that the paragraph be reworded to more :learly indicate that licensees are not ordinarily cited for violations which result from matters beyond the control of the licensee.
In this respect, I believe that the paragraph should state that licensees are cited for violations resulting from equipment failures which result from matters under the control of the licensees such as inadequate maintenance, inadequate procedures, inadequate surveillance, etc. The paragraph should then go on to say that licensees are not ordinarily cited for violations resulting from failures beyond their control such as acts of natu a and failures that occur despite licensee having taken all reasonable action.
Page 11 - Near the top of the page it discusses that a continuing violation for a severity I or II violation is generally not to exceed three times the maximum at a severity I level.
I infer that this means that the maximum could not exceed $300,000 without obtaining specific Commission approval.
I believe that this paragraph needs clarification.
Page 15 - The discussion on Cease and Desist Orders should also include a statement that they are used to terminate activities that are required to be licensed but are being conducted by non-licensed personnel / corporations.
Page 18, V. RESPONSIBILITIES, A - It is stated that the staff provides prior notification to the Commission on all elevated enforcement actions involving civil penalties or orders. There should be an exception to this statement if the urgency of the situation dictates immediate action by the staff.
Page 19, C - It states that all orders revoking licenses must have Commission approval. License revocatico, especially in the materials area, is not an uncommon occurrence. For extmple, the recent Gorstra x-ray case resulted in license revocation.
I recommend that orders revoking licenses have Commission approval only if such action is the initial enforcement action associated with a particular case.
Table I - I question if the monetary penalties established for the total group of Materials Licensees provides sufficient flexibility to really apply the
" ability to pay" policy.
For example, many large Material Licensees such as Union Carbide, major pharmaceutical manufacturers and distributors are large corporations and have an ability to pay. The same may be said for hosoitals and other institutions.
Attachments A through G - Severity Level III and Severity Level IV have the same wording regarding intimidation of employees. Having identical wording regarding intimidation of employees as both a Severity III and Severity IV item destroys the logic of the graded approach that is used to exemplify the other types of violations by severity.
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For:
The Cocraission From:
Victor Stello, Jr., Director Thru:
Executive Director for Operations t
Subidct:
NRC ENFORCEMENT PROGRAM
Purpose:
To request Commission approval of a General Statement of Enforcement Policy.
Discussion: An earlier draft of a paper on the NRC Enforcement Program was provided to the Commission un March 10, 1980 (SECY 80-139).
The matter was discussed with the Commission during a meeting on March 19, 1980.
A r.eco dated March 28, 1980 from Chilk to Sircks summarized the major matters to be given further consideration.
Other comments were also received from individual Commissioners, the staff and the industry. shows those who made coments.
It also identifies the specific comments
.The Commission which were not accommodated in the revisior,and the reason for not adopting the comments.
The major areas of concern and the staff's resolution of each item are set forth below:
1.
Discretion in application of the enforcement policy -
t The policy clarifies that Office Directors exercise technical discretion and regulatory discretion accord-g ing to the enforcement policy, but defines levels at which the Commission is informed or consulted, regard-ing enforcement actions taken, and describes those actions which are deferred to the Commission.
The provisions for issuing orders to revoke or suspend licenses are more flexible than described in the earlier paper.
2.
Enforcement against individual licensed operators -
The policy now allows for civil penalties against individual licensed operators but continues to advo-cate that such sanctions be used rarely.
This is because license action may be more effective in view of the short license term (2 years), the ability of i
employees to pay the individual's fines, and since IBEW representatives indicate that they will bargain for insurance on fines. is the result of a survey of other agencies' actions in this area.
.The Commission 3.
Gradations of civil penalties - The policy continues to show categories of licensees and provides a scale of civil penalties for the gravity of the violation with general consideration given to ability to pay.
The EPA enforcement program was reviewed and shcsed i
that their assessment of civil penalties is based on several factors, including seriousness and ability to 5
pay. shows the results of a survey of other agencies' actions in this area.
4.
Proposed Planning and Policy Guidance - The provisions of the 'PPPG have been included throughout the policy statement.
Specific areas where the PPPG provisions are included are identified by an asterisk. The matter
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of regionalization is not addressed in the policy, but is considered a procedural matter to be addressed separately.
5.
Criminal considerat1on - The Policy states that potential criminal matters will be referred to the 00J for investigation and possible prosecution.
The terms " deliberate" (showing intent) has been distinguished fr:m " willful" (careless disregard).
The Commission Both deliberate and willful violations may result in escalated enforcement action.
6.
The role of bulletins and other " informal" enforce-4 ment actions - The differentiation between " formal" r
and " informal" actions has been eliminated.
The poliqy states that failure of a licensee to follow
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the action committed to in an enforcement conference, requested in a Bulletin, stated in an Immediate Action Letter, or identified in a nctice of deviation will result in appropriate enforcement action.
7.
Environmental (non-radiological) considerations -
The policy clarifies that escalated enforcement
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action may be taken for lower severity level environ-mental violations which are repetitive or for any willful environmental violation.
Recommendation:
I recommend that the Commission approve for publica-tion in the Federal Register the attached proposed General Statement of Enforcement Policy.
I further 1
recommend that:
6 The Commission public comment be solicited on the statement, upon completion of the comment period the comments be evaluated, 4
9 appropriate revision to the proposed statement of
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policy then be made, and the statement then be republished as Commission policy and codified as Appendix C to Part 2 of Title 10, Code of Federal Regulations.1 1/ These recommendations are consistent with the recommendations of the Comptroller General of the United States in a report entitled " Higher Penalties Could Deter Violations of Nuclear Regulations," dated February 16, 1979, and Recommendation 70-03 " Agency Assessment and Mitigation of Civil Money Penalties" of the Administrative Conference of the United States.
Both of these recommendations suggested that public comment be solicited and considered in the adcaption of enforce-ment policy.
The GAO recommended that the enforcement policy be adopted through rulemaking.
The Administrative Conference recommended that enforcement policy be adopted either through rulemaking or publication of a' policy statement.
The Commission NOTE:
After Approval of the proposed General Statement of Enforcement Policy, the appropriate publication pack-age (i.e., Statement of Considerations, etc.) will be submitted for review and approval.
4 Coordination:
The Offices of Nuclear Reactor Regulation, Nuclear Material Safety and Safeguards, Standards Development, and Management and Program Analysis concur in this e
paper.
The Office of Executive Legal Director contri-buted substantially to the development of the enclosed policy statement and has no legal objection.
Victor Stello, Jr., Director Office of Inspection and Enforcement Attac ments:
1.
Caneral Statement of Enforcement Policy 2.
Comments on SECY 80-139 3.
Survey of other agencies regarding civil penalty actions against individuals
The Comission 4.
Survey of other agencies civil penalty programs N
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t DRAFT DM RIII 6/16/80 Job L
INTRODUCTION AND PURPOSE This statement describes policies that are to be followed by the Nuclear Regulatory Commission staff in taking enforcement actions and by the. presiding officers, Atomic Safety and Licensing Boards and Atomic 4
Safety Licensing Appeal Boards in reviewing such actions.
This statement is applicable to enforcement in matters involving public health and safety, I
national defense and security, and the enviornment.1/
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The enforcement policies of the Commsiion are intended to:
(1) regulate licensed nuclear activites "...so as to achieve and a
maintain adequate protection of the public health and safety;"
(2)
...obtain prompt correction of licensee weaknesses and deter xx future noncompliance through strong enforcement meanures;"
1/ Hereafter the term "public health and safety" is intended to include these three functions.
Antitrust enforcement matters will be dealt with on a case-by-case basis.
"FY82-86 Policy, Planning, and Program Guidance," par. 2a.
Op. cit., par. 21.
(3)
... assure that licensees who cannot achieve and maintain adequate levels of protection will not be permitted to operate;" and (4) promote the " meticulous attention to detail..."2 and "high standard of compliance"3 that have been the goals of the Commis-sion from its very beginning.
NRC safety regulations and license conditions reflect the Commission's judgments as to what is required to protect the public health and safety.
In dealing with licensees who are unable or unwilling to comply with these requirements, the NRC will emphasize prompt and vigorous enforcement.
Moreover, the enforcement program will assure that a licensee will not benefit by violating NRC requirements.
II.
LEGAL FRAMEWORK The Commission's enforcement jurisdiction is drawn from the Atomic Energy Act of 1954, as amended (sections 161, 186 and 234) and the Energy Reorganization Act (section 206).
Section 161 of the Atomic Energy Act authorizes NRC to conduct necessary inspections and issue such orders that are "necessary or desirable to promote the common defense and security or to protect health or to minimize danger to
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- Op. cit., par. 2a.
2/ In the Matter of X-Ray Engineering Co., AEC 553, 555 (1960).
3/ In the Matter of Hamlin Testing Laboratories, Inc., 2 AEC 423, 428 (1964).
life or property."
Section 186 authorizes NRC to revoke licenses under certain circumstances (e.g., for material false statements in response to conditions that would have warranted refusal of a license on an original application, for a licensee's failure to bun d or operate a facility in accordre:e with terms of the permit or license, and for violation of a Commission regulation).
Licensees are to be given an opportunity to demenstrate or achieve compliance before a license is revoked or suspended (except in cases of willfulness or those in which the public health, safety, or interest so require).
Section 234 authorizes NRC to impose civil penalties for the violation of certain specified licensing provi-sion$ of the Act or to implement Commission rules or orders.
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Section 206 of the Energy Reorganization Act authorizes NRC to impose a civil penalty in an amount equal to that authorized by section 234 of the Atomic' Energy Act for certain failures to report known safety defects in licensed facilities or activities. S 4
The Atomic Energy Act (Chapter 28) also allows NRC to obtain injunc-tions in response to violations of the Act (or any rule or order issued under the authority of the Act).
In addition, the Act provides for criminal penalties for certain violations.
Suspected criminial violations of the Atomic Energy Act, such as willful violation of Commission requirements, are to be referred to the Department of Justice for possible investigation and criminal prosecution.
3 i/ The preceding descriptions are summaries of the basic enforcement pro-visions of the statutes; where important, the actual words of the statutes should be consulted..
The Commission has implemented the enfarcement provisions of the Atomic Energy Act and the Energy Reorganization Act in 10 CFR Part 2, (Sections 2.201, 2.202, 2.204, and 2.205) and in 10 CFR Part 21.
Enforcement actions (such as modification, suspension or revocation of a license) based upon violations of existing requirements are to be pr ceded by notices of violation unless NRC determines that the public health, safety or interest requires that the action be made effective immediately or unless a willful violation is involved (see 10 CFR 2, Subpart B).
.e This subpart also sets for forth the procedures for:
(1) orders to show cause why licenses should not be amended, suspended, or revoked or why other action as may be proper should not be taken, and (2) orders modifyino licenses.
Immediately effective actions must be based upon a finding that the public health, safety or interest requires such actions, or a finding that the violation was willful.
Enforcement actions may be taken in the absence of any violation of NRC requirements -- for example, when a newly-discovered safety problem not previously covered by a requirement is found.
NRC will not impose civil penalties, however, unless a violation exists..
III. SEVERITY OF VIOLATIONS Regulatory requirements have varying degrees of safety, safeguards, or environmental significance.
This policy statement defines six severity categories that are intended to reflect the relative importance of any violation.
Severity I violations are the most significant; Severity VI violations are the least significant.
Severity Levels I, II, and III comprise violations that are of signi-ficant regulatory cor.cern.
In general, these violations involve actual or high* potential impact on the public and are expected to occur infrequently.
Sdverity level IV violations involve degradation of systems designed to assure proper construction or to prevent or mitigate an event. While Severity Level IV violations in themselves are not cause for significant concern, if left uncorrected they could lead to matters of significant concern.
Severity Level V covers violations tnat could lead to matters af concern if left uncorrected.
Severity Level VI defines violations that are of minor concern.
Because of the considerable differences in the types of activities regulated by the NRC, separate severity categories are defined for each of seven areas.
Violations of regulatory requirements are scaled accord-ing to their relative importance within each of the seven areas and are set forth in Attachments A through G as described below:
(1) Reactor Operations (Attachment A)
(2)
Reactor Construction (Attachment B)
(3) Reactor, Fuel Cycle, and Transportation Safeguards (Attachment C)
(4) Health Physics (Attachment D)
(5) Transportation (Attachment E)
(6) Fuel Cycle Operations (Attachment F), and (7) Nuclear Materials (Attachment G).
4 IV.
ENFORCEMENT ACTIONS This section describes the enforcement sanctions available to NRC and specifies the conditions under which each would be used.
The basic sanc-tions are notices of violation, civil penalties, orders of various types, and other enforcement related actions.
A.
A Notice of Violation is a written notice setting forth one or more violations of specific regulatory requirements. The notice
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requires the licensee to provide a written statement describing corrective actions taken (or planned), the results achieved, and the date full ccmpliance will be achieved.
NRC uses the notice of violation as the standard method for formally recording the existence of a violation.
The notice may be the only enforcement action taken or it may be used as a basis for other enforcement actions such as civil penalties and orders.
Because the Commission wants tc " encourage and support licensee ir.itiatives for self-identification and correction of problems," NRC will not generally issue notices of violation for violation ; that:
(a) have been identified by the licensee, f
(b) are in severity categories V or VI, (c) do not result in a reportable event, and (d) are corrected within a reasonable time.
t s"?
f-y, M Licensees are not ordinarily cited for violations resu'*ing. frcm t,
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equipment failures that are not the result of inadequate design, b$
g3 procedures, quality assurance, communications, or personnel error.
'B.
A Civil Penalty is a monetary penalty for violation (s) of':
(1) specified regulatory requirement (s) under named sections of the Atomic Energy Act, (2) any requirement for which a license may be revoked, and (3) a requirement to report defect (s) under section 206 of the Energy Reorganization Act (see 10 CFR 2.205).
Civil penalties are generally imposed in the following situations:
(1) severity category I, II, or III violations, "FYS2-86 Policy, Planning, and Program Guidance," par. 2a.
(2) severity category IV and V violations that are similar to violations discussed in a previous enforcement con-ference,E!
(3) knowing and conscious 5I violations of the reporting requirements of section 206 of the Energy Reorganiza-tion Act by a non-licensee, (4) willful / violations of requirements, including:
7 (a) those imposed under the National Environmental Policy Act.
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fr (b) material false statements as described in section 186 of the Atomic Energy Act.
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5/ In applyir.g this guidance, NRC considers civil penalties only for,/
violations that occur within one year.
NRC also considers the li-censee's success in dealing with previously identified concerns.
Enforcement conferences are to be conducted for all Severity I, II and III violations as well as for Severity IV and V violat',ns that are considered programmatic (rather than isolated) concerns.
6/ The " knowingly and consciously" standard is established by section 206(b) of the Energy Reorganization Act.
7/ The " willful" standard is established by Section 98 of the Adminis-trative Procedures Act.
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(c) any other violation for which a license can be revoked under section 186 of the Atomic Energy Act.
In dete:.'cing the amount of a civil penalty, NRC considers the gravity of the violation (i.e., level of severity), duration of the nu.romoliance, how the problem was identified, financial impact on the licensee, good faith of the licensee, and prior enforcementhistory.W However, the Commission believes the gravity of the item of noncompliance is of paramount concern.
On the other hand, it is not the Commission's intent to have the economic impact of a civil penalty be such that it puts a licensee out of business or adversely affects a licensee's ability to safety conduct licensed activities.
As shown in Table I, NRC imposes different levels of' penal-ties on various classes of licensees.
These distinctions are made primarily on the basis of risk.
Licensee classes toward
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the top of the table are penalized more heavily because their y
operations - generally involving greater nuclear material in-L5 4' j
ventories and greater threats to the public and licensee em-l 1
ployees -- are considered to pose greater risks.
8/ The corrective action implemented by a licensee for a given violation is not normally a consideration in determining the amount of a civil penalty assessed for the same violation.
Such corrective action is always required.
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A secondary factor considered in Table I is the ability of various licensee classes to pay the costs of NRC penalties.
The deterrent effect of NRC penalties is best served wnen their amounts correspond to a licensee's " ability tc pay."
Penalties that are disproportionately large or small are not effective in deterring future noncompliance.
Generally, the licensee classes toward the top of Table I comprise larger firms, while those toward the cottom tend to be smaller.
In determining the a-j mounts of civil penalties for licensees for whom the Table does not accurately reflect either the risks or ability to pay, NRC
,t will consider necessary modifications on a case-by-case basis.
The dollar values shown in Table I are those normally im-posed for violations at the severity levels and for the types
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of licensees indicated.
Civil penalties may be increased up to 25% of the values shown in Table I, if the licensee could reasonably have been expected to have had sufficient prior knowledge to have taken effective preventive measures.
(e.g. - the licensee was aware of the problem because of the issuances f a Bulletin or a prior notice of violation.)
A greater civil penalty is also imposed if the violation continues for more than a day.
In general, the maximum civil penalty for a continuous vi:lation of a given severity level is not to exceed the maximum civil penalty for a single viola-tion of the next higher severity level (e.g., a continuing severity level III violation for a reactor will not exceed 5100,000, the maximum for a single level II violation).
A continuing violation for a severity I or II violation is gen- ')
erally not to exceed three times the maximum at a severity I 7
level.
Civil penalties in excess of these limits would re-I t
quire specific Co= mission approval (see section V).
J d
As shown in Table I, if a licensee identifies, corrects and reports a violation in a timely fashion, the civil penalty will be reduced by 50 percent.
It is expected that this signi-ficant reduction will provide an incentive to licensees to find and correct problems through their own management control systems.
NRC considers severity level I, II or III violations of such significance that mitigating factors such as good faith (i.e. - management attitude, effort on the program) and enfo :e-ment history are not normally considered in reducing civP
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penalties.
Civil penalties will not necessarily be lev ed for L/
all violations involved in a specific problem or event.
The
. gree of good faith and enforcement history are con-sidered in the determination of Severity IV and V violations because these factors are relevant to a decision to conduct an enforcement conference.
Failure by a licensee to improve regulatory performance following such a conference may lead to the assessment of a civil penalty.
Individuals licensed by NRC under 10 CFR Part 55 are subject to civil penalties.
Normally, however, civil penalties are not imposed on such operators.
Rather, a notice of violation is issued to a facility operator where a failure to comply with an operator's license contributes directly to violations of Severity levels I, II or III (assuming such failure to comply by an operator did not result from direction by a licensed supervisor with respect to the relevant action).
Generally, whenever a t
licensed operator is issued a notice of violation, the facility
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licensee also receives a notice of violation.
8 For blatant violations of Commission requirements, licensed operators may be assessed civil penalties as shown in Table I.
For recurring operator involvement in Severity level I, II, or
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-III violations, NRC also considers suspensions or revocat' ions of the operator's license.
C.
An Order is a written NRC directive to modifj, suspend, or revoke a license; to cease and desist from a given practice or activity; or to take such other action as may be proper (see 10 CFR 2.202 and 2.204).
1.
License Modification Orders are issued when some change in the conduct of a licensed activity is necessary in the i
interest of the public health and safety.
These orders are made effective immediately, without prior opportunity for hearing, when NRC determines that the public health, safety, or interest so requires.
Otherwise, the licensee has a prior opportunity for a hearing on the modification.
In addition, in cases where a basis could reasonably exist for not modifying the license in the manner proposed, the licensee shall also be afforded an opportunity to show cause why the license should not be modified in the manner proposeu.
t 2.
Suspention Orders are typically employed:
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(1) to remove a threat to the public health and safety or to allow for an adequate investigation and assessment of such a threat; (2) to stop reactor construction when:
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(a) furthc: work could preclude the identification and correction of an improperly constructed safety related system or component, or (b) the licensee's quality assurance program implementation is not adequate and effective to provide confidence that construction activities are being properly carried out; (3) when the licensee has not responded adequately to other enforcement action; (4) to permit, where necessary, the conduct of an in-spection or investigation; or (5) for any other reason for which the Commission may revoke the license.
Suspensions may apply to all or part of a licensed activity; they are to remain in effect until the problem is corrected.
Ordinarily, licenses are not suspended (nor are suspensions prolonged) for failure to comply with requirements where such failure is non-willful and adequate corrective action has been taken.
Th. policies governing immediately effective
,uspension orders and the licensee's opportunities f5r hearings (and to show cause) are the same as those des-cribed above for license modification orders.
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3.
Revocation Orders may be employed when:
(1) a licensee is unable or unwilling to comply with NRC requirements, (2) a licensee refuses to correct a violation, (3) a licensee dces not respond to a notice of violation, or (4) for any other reason, the Commission may revoke a license under section 186(a) of the Atomic Energy Act.
Revocation orders may be made immediately effective; normally, however, NRC issues an immediately effective license suspension order with a revocation order to allow the licensee an opportunity to show cause or request a hearing on the proposed revocation.
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Cease and Desist Orders are typically used to stop an un-
)4 authorized activity that has co tinued despite NRC noti.-
fication.
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^LG56 O D.
Other Enforcement Actions In addition to notices of violation, civil penalties, and orders, NRC also uses enforcement conferences, bulletins, notices
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of deviation and immediate action letters as part of its en-forcement program.
These actions create licensee obligations and commitments which may not in themselves be binding legal Y requirements.
However, NRC expects licensees to scrupulously adhere to their obligations and commitments and will use all available enforcement sanctions to make sure that they do so.
1.
Enforcement Conferences are meetings that NRC holds with licensee management to discuss safety, safeguards or en-vironmental problems, licensee compliance with regulatory requirements, the licensee's proposed corrective measures (including schedules for implementation), and enforcement options available to the NRC.
2.
Bulletins are written notifications to groups of licensees identifying specific problems and requesting specific actions on their part.
3.
Notices of Deviation are written notices describing a li-censee's or vendor's failure to honor commitments or con-i i
form to the provisions of applicable codes, standards, guides, or accepted industry practices that are not re-gulatory requirements, per se, but which are endorsed by the Commission as applicable to a class of licensees.
The notice of deviation requests the licensee or vendor to provide a written explanation or statement describing corrective steps taken and the results achieved (or cor-
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rective steps that are planned), and the date of corrective action.
4.
Immediate Action Letters (IALs) are letters confirming a licensee's agreement to take certain actions to remove health and safety, safeguards, or environmental concerns.
E.
Referral to Deoartment of Justice.
Potentially criminal viola-tions of Federal statutes, including the Atomic Energy Act, are referred to the Department of Justice for consideration of in-vestigation and possible prosecution.
Referral to the Department of Justice does not preclude NRC's taking other enforcement action under this General Statement of Policy.
F.
Escalation of Enforcement Sanctions NRC considers violations of Severity Levels I, II, or III very j
serious and expects them to occur infrequently.
If repetitive serious violations occur, NRC will consider issuing orders in conjunction with civil penalties to achieve immediate corrective actions and/or to deter their further recurrence.
NRC carefully considers the circumstances of each case and uses considerable judgment in selecting and applying the sanction (s) that are appropriate to that case.
Higher sanctions, such as civil penal-ties and revocation or suspension orders, are imposed in accor-dance with the criteria described in sections IV B and C.
A summary of the normal progression of the actions that may be taken in the absence of mitigating factors is set forth in Table II.
In applying this table, a single violation in severity categories I, II, or III is considered repetitive if it was preceded by a similar violation in any of the severity categories I, II, or III by the same licensee (whether or not an ir.spection interveneJ between the violations).
For example, a Severity II violation occurring after a Severity III violation would be considered a second violation of Severity II, for which the prescribed sanction would be "a+b."
Recurrences of civil penalties involving Severity IV and V violations are handled on a case-by-case basis.
V.. RESPONSIBILITIES eThe Director, Office of Inspection and Enforcement, as the principal enforcement officer of the Commission, is delegated the authority to issue notices of violations, civil penalties, and orders. The Directors of the Offices of Nuclear Reactor Regulation and Nuclear Mate, rials Safety and aw, Safeguards have also been delegated the authority to E.D :3 orders and penalties.
Each of these Directors exercises judgment and discretion in determining the severity level of the violations and the appropriati enforcement sanctions consistent with this general statement of policy and the technical merits of the case.
Certain enforcement functions are reserved for the Commission:
A.
Informing the Commission The staff provides prior notification to the Commission on all
^Q5 gv' elevated enforcement actions involving civil penalties or orders.
"j B.
Consultation with the Ccmmission The staff will consult with the Commission prior to taking the following enforcement actions (unless the urgency of the sitt -
tion dictates immediate action by the staff):
1.
Actions that appear likely to affect adversely the common defense and security and those that may deny a needed public service (e.g., need for power, or loss of sole source of needed medical isotopes);*
t 2.
Civil penalties in amounts greater than the maximum values prescribed in section IV B; 3.
Actions in which the Commission asks to be involved, or 4.
Other actions that the Director believes warrant Commission involvement.
C.
Deferral to Direct Commission Action All orders revoking licenses must have Ccmmission approval.
In additions, the staff defers to the Commission any enforcement I
matter in which the Commission expresses its intent to take responsibility.
FY82-86 Policy, Planning and Program Guidance, par. 2d.
Attachments:
1.
Tables I and II 2.
Attachments A through G 6
i h
e e
TABLE I Civil Penalties for Severity Levels Versus Types of Licensees D
a a
a a
I II 777 gy y
Power Reactors
$80,000
$80,000
$40,000
$15,000
$5,000 Test Reactors, 40,000 40,000 20,000 7,500 2,500 Fuel Facilities Reseirch Reactors, 16,000 16,000 8,000 3,000 1,000 Critied Facilities, Oth,ef Materials 8,000 8,000 4,000.
1,500 500 Lic2nsees and Reiponsible Offi-cials subject to 10 CFR 21 f
Licensed Operators 4,000 4,000 2,000 750 500
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a.
Self identified violations (i.e., violations not found by NRC inspectors or by an event) corrected and reported by licensees may be reduced by up to 50% of these values.
b.
All values shown may be increased by up to 25% for violations involv-ing conditions for which the licensee could reasonably have been ex-pected to have has sufficient prior krowledge to have takcn effective preventive measures.
ORAFT DM 6/16/80 RIII Job N
t e.
TABLE II flormal Progression of Escalated Enforcement Actions For Similar Violations Severity flumber of Similar Violations Within Any Period of 1 Year of Violation 1st 2nd 3rd I
a+b a4bec d
II a
a*b a+b+c III a
a a+b a - Civil Penalty g n >r.d 'b tz.~ g 'A b-espension of Mfected operations until Director is satisfied that there i
reasonable assurance that the licensee can operate in compliance with the applicable requirements.
c
_Show-eausrfer-vevocatier -
9~- g // o d. Y f 4}"
ti d - Revocation order (i.e., immediately ef fective suspension order and order g',A s..- c....w to revoke).
O AFT DH RIII 6/16/80 Job 0
Attachment A Severity Cateoories Reactor Ooerstions A.
Severity I - A violation which results in or constitutes:
1.
a safety limit, as defined in the Technical Specifications, being exceeded;
, 2.
a system designed to prevent or mitigate a serious safety event not able to perform its intended function when actually called upon to work; i.
an accidental criticality; or 3
'4.
a release of radioactivity in excess of ten (10) times the Technical Specification limit.*
1 B.
Severity II - A violation which results in or constitutes:
1.
a system designed to. prevent or mitigate significant safety events not being able to perform its intended function; 2.
a release of radioactivity greater than five (5) times the Technical Specification limit *; or 3.
failure to make a required prompt report by telephone or other electronic means.
C.
Severity III - A violation which results in or constitutes 1.
a Technical Specification Limiting Condition for Operation being exceeded where the appropriate Action Statement was not satisfied; 2.
a system designed to prevent or mitigate a serious safety event not being able to perform its intended function under certain conditions (such as not operable unless offsite power is available);
3.
a release of radioactivity greater than the Technical Specification limit *;
4.
a violation of 10 CFR 50.59 such that an amendment was not scught; 5.
a failure to make a 10 CFR Part 21 report; or 6.
inticidation of employees leading to an extensive chilling effect en open com=unication with NRC, as evidenced by a finding by the Department of Labor of discriminatory practices under Section 210 of the Energy Reoganization Act, or other evidence of such discrimination.
- This does not apply to instantaneous release limit.
Attachment A D.
Severity IV - A violation which results in or constitutes:
1.
inadequate review or the failure to review in accordance with 10 CFR 50.59 or 10 CFR 21, and which does not result in a severity category I, II, or III violation; 2.
any technical specffication ifmit, not covered by severity categories I, II, or III, being exceeded; 3.
failure to follow requirements not covered in severity categories I, II, or III which measureably degrades the safety of cperations; 4.
a failure to make a required 14-or 30-day report; or S.
intimidation of employees leading to a limited chilling effect on open communication with NRC, as evidenced by a finding by the Department of Labor of discriminatory practices under Section 210 of the Ec.ergy Reorganization Act, or other evidence of such discrimination.
E, ' Severity V - Any other violation, including failure to follow procedures,
' which has other than minor safety or environmental significance.
F.
Severity VI - A violation which has minor safety or environmental significance.
=
Severity Catecories Reactor Construction A.
Severity I - A violation which results in or contributes to a structure of system being completed in such a manner that it would not have satisfied its intended safety related purpose.
B.
Severity II - A violation which results in or contributes to:
1.
significant lack of quality assurance program implementation as shown by multiple program implementation violations in more than one work activity (e.g., structural, piping, electrical, foundations),
i where 'he violations were not identified and corrected until after intal: ation and insps.ction by quality assurance / quality control checkpoints which are relied upon to identify such violations; or
- 2.
part of a structure or sys'.em being completed.in such a manner that it could have an adverse affect on the safety of cperations.
C.
Severity III - A violation which results in or contributes to:
1.
a lack of quality assurance program implementation related to a single work activity (e.g., structural, piping, electrical, founda-tions) as shown by multiple program implementation violations which were not identified and corrected by more than one quality assurance / quality control checkpoint; or
~
2.
pre-operational program implementation violations where the violations result in the completed failing to confirm the design safety requirements of the structure or system; T N a failure to make a required 10 CFR 50.55(c) or 10 CFR 21 report; or 4.
intimidation of employees leading to an extensive chilling effect on l
open communicatio,1 with NRC, as evidenced by a finding by the Depart-l j me at of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
/
D. J everity IV -
1.
A violation of one or more Quality Assurance Criteria not amounting to a Category I, II, or III violation; or 2.
intimidation of employees leading to a limited chilling effect on open communication with NRC, as evidenced by a finding by the Depart-ment of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
Attachcent B E.
Severity V - Any other violation, including failure to follow procedures, which has other than minor safety or environmental significance.
F.
Severity VI - A violation which has minor safety or environmental significance.
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Attachment C Severity Catecories Reactor and Fuel Facility Safecuards A.
Severity I - A violation which results in or constitutes:
1.
the actual entry of an unauthorized individual into a vital area or material access area from outside the protected area; 2.
the actual theft, loss, or diversion of SNM; or 3.
failure to promptly report a theft or diversion of SNM or an act of industrial sabotage.
F 8.
' Severity II - A violation which results in or constitutes:
1.
the breakdown of security systems designed or employed to prevent an unauthorized individual from entering a vital area or material a: cess area from outside the protected area such that access could have been gained without detection; 2.
failure to operate the central (or secondary) alarm station; 3.
a failure to respond to unauthorized or unanticipated security alarm annunciations; 4.
the breakdown of safeguards systems designed or employed to prevent the unauthorized removal of SNM from a material access area or other area of authorized use of storage; or 5.
the breakdown of transportation security systems designed or employed to prevent the theft, loss of diversion of SNM such that theft, loss, or diversion could have occurred without detection.
C.
Severity III - A violation which results in or constitutes:
1.
a failure to provide protection or control of access into the protected area; 2.
a failure to provide protection or control of access to a vital area or material access area; 3.
a failure to provide security systems to prevent unauthorized access to the transport vehicle or the SNM being transported; 4.
failure to provide an adequate response force; 5.
a failure to make a required 10 CFR Part 21 report; 6.
a failure to provide a system of control over SNM to prevent its unauthorized removal; or
Attachment C 7.
intimidation of employees leading to an extensive chilling effect on open communication with NRC, as evidenced by a finding by the Department of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
D.
Severity IV - a violation which results in or constitutes:
1.
the degradation of barriers of protected or vital areas, the transportation security system, or the system of control over SNM and which does not result in severity category I, II, or III violations; 4
2.
the failure of the security organization to follow procedures to cope with actual security incidents, not covered by severity categories I, II, or III;
~3.
the failure of corporate or site security management to provide adequate direction or supervision of the security program and which does not result in severity category I, II, or III violations; or e
4.
intimidation of employees leading to a limited chilling effect on open communication with NRC, as evidenced by a finding by the Department of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
E.
Severity V - Any other violation, including failure to follow procedures or approved security plan commitments, which has other than minor safeguards significance.
F.
Severity VI - A violation which has minor safeguards significance.
Attachment D Severity Cateoories Reactor, Fuel Facility and Materials (Health Physics - 10 CFR 20)
A.
Severity I - A violation which results in or constitutes:
1.
exposure of a worker in excess of 25 rems of radiation to the whole body, 150 rems to the skin, of the whole body, or 375 rems to the feet, ankles, hands, or forearm; 2.
exposure of a member of the public in excess of 0.5 rems of radiation; t:3.
the release of radioactive material to an unrestricted area in excess of 10 times the limits of 10 CFR 20.106; 4.
radiation level in an unrestricted area which exceeds 100 milliren/ hour for a one hour period; 5.
disposing of licensed material in quantities or concentrations in excess of 10 times the limits of 10 CFR 20; or 6.
exposure of a person in restricted areas in excess of 10 times the limits of 10 CFR 20.103.
8.
Severity II - A violation which results in or constitutes:
1.
exposure of a worker in excess of 5 rems sr racistion to the whole body, 30 rems to the skin of the whole body, or '/5 rems to the feet, ankles, hands, or forearm; 2.
exposure of a member of the public in excess of 0.1 rems of radiation; 3.
release of radioactive material to an unrestricted area in excess of 5 times the limits of 10 CFR 20.106; 4.
failure to make an immediate notification as required by 10 CFR 20.403(a)(1) and 10 CFR 20.403(a)(2);
5.
radiation level in an unrestricted area which exceeds 50 millirem /
hour for a one hour period; 6.
disposing of licensed material in quantities or concentrations in excess of 5 times the limits of 10 CFR 20; or 7.
exposure of a person in restricted areas in excess of 5 times the limits of 10 CFR 20.103.
Attachment D C.
Severity III - A violation which results in or constitutes:
1.
exposure of a worker to levels in excess of those specified in 10 CFR 20.101 or 20.104; 2.
radiation level in an unrestricted area which exceeds 5 millirem /
hour for a one hour period, 3.
failure to make a 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> notification as required by 10 CFR 20.403(b) or an immediate notification required by 10 CFR 20.402(a);
4.
substantial potential for an exposure or release in excess of 10 CFR 20 where such exposure or release does not occur (e.g., entry into high radiation area without having performed an adequate survey, operation of a radiation facility with a nonfunctioning interlock system);
5.
release of radioactive material to an unrestricted area in excess of the limits of 10 CFR 20.106; 6.
disposing of licensed material in quantities or concentrations in excess of the limits of 10 CFR 20; 7.
exposure of a person in restricted areas in excess of the limits of 10 CFR 20.103; or 8.
intimidation of employees leading to an extensive chillincj effect on open communication with NRC, as evidenced by a finding by the Depart-ment of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
d.-
D.
Severity IV - A violation which results in or constitutes:
1.
failure to follow requirements (e.g., inadequate survey, inccmplete dosimetry, improper posting), not covered in severity categories I, II, or III which substantially reduces the margin of safety; 2.
radiation levels in an unrestricted area such that an individual may receive greater than 2 millirem in a one hour period or 100 millicem in any seven consecutive days; 3.
failure to make a 30 day notification required by 10 CFR 20.405; or 4.
intimidation of employees leading to a limited chilling effect on open com unication with NRC, as evidenced by a finding by the De;; art-ment of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
E.
Severity V - A violation which results in or constitutes:
1.
failure to make a followup written report as required by 10 CFR 20.402(b), 20.408, and 20.409; or
Attachment D 2.
any other violation, including failure to follow procedures, which has other than minor safety or environmental significance.
F.
Severity VI - A violation which has minor safety or environmental significance.
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G
Attachment E Severity Catecories Transoortation A.
Severity I - A violation of NRC or DOT Transportation requirements which results in or constitutes:
exposure of a member of the public in excess of 0.5 rems; or 1.
- 2.
a breach of package integrity resulting in surface contamination or external radiation levels in excess of ten (10) times the NRC or DOT limits.
B.
' Severity II - A violation of NRC or DOT Transportation requirements which
'results in or constitutes:
~1.
breach of package integrity resulting in surface contamination or external radiation levels in excess of NRC or DOT requirements;
~
2.
surface contamination or external radiation levels in excess of three times NRC or 00T limits which did not result from a breach of package integrity; or 3.
failure to make required initial notifications associated with Severity Level I or II violations.
C.
Severity III - A violation of NRC or DOT Transportation requirements which results in or constitutes:
1.
a breach of package integrity resulting in surface contamination or external radiation levels, even though the resultant levels are not in excess of NRC or DOT limits; 2.
surface contamination or external radiation levels in excess of, but less than a factor of three above NRC or COT requirements, and which did not result from a breach of package integrity; 3.
noncompliance with labelling, placarding, shipping paper, packaging, loading, or other requirements which could reasonably result in:
a.
imoroper identification of the type, quantity, or form of
- material, b.
the failure of the carrier or recipient to exericse acecuate Controls, or c.
a substantial pctential for personnel exposure or contamination; 4.
failure to make required initial notification associated with Severity Level III violations; or
Attachment E 5.
intimidation of employees leading to an extensive chilling effect on open communication with NRC, as evidenced by a finding by the Depart-ment of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
D.
Severity IV - A violation of NRC or DOT transporation requirements which results in or constitutes:
1.
any noncompliance involving package selection or preparation requirements which does not result in a breach of package integrity nor surface contamination or external radiation levels in excess of NRC or DOT requirements; 2.
involves failure to follow procedures or inadequate procedures, not f
covered in severity categories I, II, or III which reduces the margin of safety; or 3.
intimidation of employees leading to a limiting chilling effect on open connunication with NRC, as evidenced by a finding by the Depart-ment of Labor of discriminatory practices undar Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
E.
Severity V - Any other violation, including failure to follow procedures, which has other than minor safety or environmental significance.
F.
Severity VI - A violation which has minor safety or environmental significance.
4
Attachment E Attachment F Severity Cateoories Fuel Facility Goerations A.
Severity I - A violation which results in or constitutes:
1.
a nuclear criticality accident; or 2.
a system designed to prevent or mitigate a serious safety event not being operable when actually required to perform its desipo function.
B.
Severity II - A violation which results in or constitutes:
- 1.
a system designed to prevent or mitigate a serious safety event being inoperative;
'2.
conduct of activities nct authorized by the license which have a significant safety implication; or 3.
a failure to make an immediate or prompt report required to be made by telephone or other electronic means.
C.
Severity III - A violation which results in or constitutes:
1.
a degraded system designed to prevent or mitigate a serious safety event (e.g., confinement barriers or criticality controls);
2.
operation with unqualified, unauthorized, personnel resulting in a reduced margin of safety; 3.
a failure to make a 10 CFR Part 21 report; 4.
a release for unrestricted use of contaminated material or equipment substantially in excess of licensed limits; or 5.
intimidation of employees leading to an extensive chilling effect on open communication with NRC, as evidenced by a finding by the Depart-ment of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
D.
Severity IV - A violation which 1.
involves inadequate review or the failure to review activities in accordance with 10 CFR 21 or involves management reviews required by the license which are not performed or are performed inadequately but which does not result in a severity category I, II, or III violation; 2.
causes or constitutes exceeding any operation limit not covered by severity categories I, II, or III;
Attachment E 3.
involves failure to follow requirements not covered in severity categories I, II, or III which reduces the margin of safety; 4.
results in failure to make a required 30 day report; 5.
results in a release for unrestricted use of contaminated material or equipment in excess of licensed limits or the failure to decontaminate plant areas as required; or 6.
intimidation of employees leading to a limited chilling effect on open communication with NRC, as evidenced by a finding by the Department of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence of such discrimination.
E.
3 Severity V - Any other violation, including failure to follow procedures, which has other than minor safety or environmental significance.
F.
Severity VI - A violation which has minor safety or environmental
' significance.
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Attacnment G Severity Cateceries Materials Licensee 0 eratiens A.
Severity I - A viciation which results in er constitutes:
1.
technically unqualified or unautherized personnel conducting a licensed activity which results in radiation levels, contamination levels or release which exceeds 10 ti es the limits specified in the license; 2.
utilization of unauthorized equipment which results in radiation levels, contamination levels, or releases wnich exceed 10 times the limits specified in the license; 3
.3.
possession or utilization of unauthorized =aterials requiring a license which results in radiation levels, centamination levels or releases which exceeds 10 times the limits specified in tne license; 4.
failure to perform required surveys, tests or evaluations, or institute required safety precautions which results in radiation levels, contaminated levels or releases which exceed 20 times the limits specified in the license; or 5.
a system designed to prevent er mitigate a serious safety. event not being operable when actually required to perform its design function.
B.
Severity II - A violation which results in or constitutes:
1.
technically unqualified or unauthorized personnel conducting a licensed activity which results in radiation levels, contamination levels, or releases in excess of license limits; 2.
pcssession or utilization of unauthorized equipment or :aterial in conduct of licensed activities, wnich results in contamination levels, radiatien levels or releases which exceed license requirements; 3.
failure to perform required su veys, tests, or evaluatiens which results in radiation levels, contaminatien levels er releases which exceed 10 times the limits specified in the license; 4.
failure to make required initial notificatiens asscciated with severity level I or II violations; er 5.
a system designed to prevent er citigate a serious safety event being incperative.
C.
Severity III - A violation which results in er constitutes:
Attachment G 1.
failure to perform required surveys, tests or evaluations, or institute required safety precautions which results in radiation levels or releases which exceed the limits specified in the license; 2.
failure to control access to licensed materials for radiation purposes as specified by NRC requirements; 3.
possession or utilization of unauthorized equipment or materials in conduct of licensee activities; 4.
procurement of radioactive drugs from an unauthorized supplier; 5.
conduct of licensed activities by unqualified or unauthorized personnel; f
- 6.
failure to make required initial notifications associated with severity level III violations; 8
e7.
failure to make a 10 CFR Part 21 report; 8.
a degraded system designed to present or mitigate a serious safety event; or 9.
intimidation of employees leading to an extensive chilling effect on open communication with NRC, as evidenced by a finding by the Department of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence or such discrimination.
D.
Severity IV - A violation which results in or constitutes:
1.
failure to follow requirements not covered in severity categories I, II, or III which reduces the margin of safety (e.g., failure to determine radiographic source is fully retracted after an exposure, failure to maintain patients containing cobalt-60, cesium-137, or iridium-192 implants hospitalized, failure to conduct required leakage or contamination tests, utilization of improperly calibrated equipment);
2.
involves inadequate review or the faih' t
.3 review activities in accordance with 10 CFR 21 or involves anagement reviews equired by -
the license which are not performed or are performed inadequately but which does not result in a severity I, II, or III violation; or 3.
intimidation of employees leading to a limited chilling effect on open communication with NRC, as evidenced by a finding by the Department of Labor of discriminatory practices under Section 210 of the Energy Reorganization Act, or other evidence or such discrimination.
' Attachment G E.
Severity V - Any other violation, including failure to follow prccedures, which has other than minor safety or environmental significance.
F.
Severity VI - A violation which has minor safety or environmental significance.
4 f
I G
a