ML19309A693

Transcript of 800319 Meeting in Washington,Dc Re NRC Enforcement Program.Pp 1-59

ML19309A693
Person / Time
Issue date:	03/19/1980
From:	NRC COMMISSION (OCM)
To:
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ML19309A694	List: ML19309A693 ML19309A695 ML19309A697 ML19309A698
References
REF-10CFR9.7 SECY-80-139, NUDOCS 8004010016
Download: ML19309A693 (59)

Text

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U NIT E D STATES N UCLE AR REG UL ATORY COMMISSION in the matter of:

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DISCUSSION OF SECY-80-139 R 1e; NRC ENFORCEMENT PROGRAM s

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Place:

Washington, D. C.

Date:

March 19, 1980 Pages:

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INTERNATIONAL VERBATIM REPORTERS. INC.

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499 SOUTH CAPITOL STREET, S. W. SUITE 107 WASHINGTON. D. C. 20002 202 484-3550 l

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In the Matter of:

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DISCUSSION OF SECY-80-139 i

6 NRC ENFORCEMENT PROGRAM 7

______________________-----X 3

9 Commis'aioners ' Conference Room 1717 H Street, N.W.

10 Washington, D.C.

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Wednesday, March 19, 1980 12 l

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3 The Commission met, pursuant to notice, for pre-sentation of the above-entitled matter at 2

00 p.m.,

i John F. Ahearne, Chairman of the Commission, presiding.

15 16 I

I BEFORE:

17 i

JOHN F. AHEARNE, Chairman of the Commission VICTOR GILINSKY, Commissioner I9 PETER A. BRADFORD, Commissioner 20 JOSEPH HENDRIE, Commissioner I

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CHAIRMAN AHEARNE:

This is the first of two meetings i

3 this afternoon.

The first meeting we will be addressing j

I 4

NRC enforcement program or enforcement policy.

This is the 3

i first of what I expect will be several Committee / Commission i

6 meetings on this issue.

I don't think we will reach a con-l 7

I clusion this afternoon on it; if for no other reason that we 3

do have another meeting which we will have to go on, but more specifically, it is an issue with a number of subtleties.

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10 involved in it.

And, I think there is going to have some l

I 11 more work put on it.

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c We did some time ago request the director of I&E l

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to pull together a review of the enforcement program and he l

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has done so and we have asked him to bring it to us for 15 discussion when it was ready and I am glad to see that he

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has done that.

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We also havc 3 recently arrived paper from the t

I 18 Standards Office which while not addressing directly enforce,

19 I

ment policies por so, does address the total loss of safety 20 l

function issue that came up in the lessons learned -- one l

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l of the lessons learned task forces and they had been asked

{ to look at a possible rule to put that in place and they u

I have several options and that also talks about some applica-24 tions of enforcement policy.

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Finally, I would like to say that I was overjoyed i

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i to see Mr. Hallers comments in his paper, because what he i

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said is -- he quoted the Policy Planning and Program guidance 1

and said that here is what the Commission has said in that i

8 i

l and how come I&E does not track that?

Now, I recognize one i

i 5

of the reasons they do not track it is that the paper was I

! under development before we pulled together the PPPG --

I COMMISSIONER GILINSKY:

Did we put that out?

I 9

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CHAIRMAN AHEARNE:

We put it out for a final re-10 buttal to the office directors.

I 11 i

But, as is want by many places, Congressional i

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1 Committees, they were talking about a draft.

Nevertheless, 13 this is establishing a principle that the offices would be j

14 l required to addrcss how their proposals mesh with the PPPG; 13 i

I thought that was outstanding.

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14 i

COMMISSIONER GILINSKY:

It is certainly outstand-17 l ing in being the first to see G.'ch way the wind is blowing.

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CHAIRMAN AHEARNE:

I crust it is a gale-force j

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wind in one direction towards using it.

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20 Having made those comments, Jim, I am glad to see 21 you made it in from the windy city.

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MR. KEPPLER:

Thank you; it is nice to be here.

22 i

CHAIRMAN AHEARNE:

Let's see now; with this ill-

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j ustrious array sitting across, I guess we should start with i

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l Bill; do you have some opening comments that you would like l

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to make?

3 MR. DIRCKS:

No, I think -- well, yes.

f CHAIRMAN AHEARNE:

That will set the day.

1 l

MR. DIRCKS:

Let me. start off on a very unequivocal 0

footing.

7 j

The only comment I want to make is to repeat the 3

thoughts that you had concerning the policy; I think we 9

j are getting into it.

We have had some meetings this week i

10 on the subject.

Late arrivals on the scene in the form of t

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11 i

the Standards paper that you alluded to does have a bearing i

on the subject that you are to discusc today.

The issues i

13 raised by Norm Haller have been addressed in a memo to me i

14 that I got yesterday from Vic that also, I think, would re-i 15 I

i quire some analysis to see how they bear in the discussion I4 l

l today.

17 I think it is important to get started on the 18 i

j subject.

I would like to have the opportunity to keep work-j 19 i

j ing on how these various threads nesh together to form an i

20 I

enforcement policy for the Commission.

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CHAIRMAN AHEARNE:

Vic?

22 l

1 MR. STELLO:

Well, we are, too, very anxious and 23 i

i willing to do what is necessary to try to bring together the 24 enforcement policy ur;ed by the Commission.

We have worked.

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very hard to bring together a system for enforcement that t

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as well as reasonably well understood by those we have to regulate.

Enforcement is a difficult concept; it is not an l

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l easy one and there needs to be judgment.

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But, I think where that judgment need not be there i

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can, in fact, codify an enforcement program; we have done 3

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so.

I think the paper does lay that out.

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i I need to start with the understanding the what 10 I

we have used as the basis for developing the enforcement 11 i

V-policy was derived princ4mily from the recognition that a 12 i

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proposal is still in Congress, hopefully soon to be coming l

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out of the system which will grant us a new enforcement l

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l authority for civil penalties of $100,000.

13 But, as I have expressed previously to the Commis-I 16 j sion, I think that it is important with the new civil penaltyj 17 l

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authority to have everyone understand how that is to be 18 i

applied in advance; now, I do not mean by everyone just un 19 I

within the Commission.

I mean the public as well as the 20 l

r2culated industries.

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And, it is with that thought in mind that we are 12 j

l trying to develop this policy and recognize the need to have !

I 23 i

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input from the public.

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COMMISSIONER GIUCFSKY:

$100,000 would replace the two ne ve = ao ecces.1,.c.

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the present $5,000?

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MR. STELLO:

With the $25,000 -- yes, 5,000 plus 3

the $25,000 cap.

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CC4MISSIONER GILINSKY:

There is going to be

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$100,000 with no cap.

6 MR. STELLO:

With no cap.

And, the policy is de-rived with that understanding.

CHAIRMAN AHEARNE:

Of course, that does require 9

the authorizing legislation to finally be passed.

10 MR. STELLO:

Well, yes; until it is passed --

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CHAIRMAN AHEARNE:

It has been in Conference Com-

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!2 mittee for some time now.

i 13 1

MR. STELLO:

I do now know; a long time.

14 But, there are some new elements aside from the 15 I

authority for the civil penalty which have been raised in a j

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j number of Commission meetings in the past that questions 17 l

such as, under what conditions would you issue an order to l

1 18 i

suspend or revoke?

Those issues are addressed as a matter i

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i of policy and I believe very mucn for the first time in the 20 I

i paper.

Those are, I think, important elements that I hope 21 I

as we discuss it we will be able to get a sense of the 2

Commission on how to use that kind of policy which would 23 I

i apply to any civil penalty authority that you had, since i

24 those are tools that are available to the agency now to l

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cause enforcement.

are also l 2

So, those are very important concepts that I

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I built in here.

The botbxn line of what we have requested 4

from the Commission is agreement to move forward to get 3

public comment; we certainly do not believe and would not 1

recommend that the Comraission have this incorporated as 6

I its policy until it has had the Staff, as well as the Commis-8 sion, has had the benefit of those comments.

I I do not wish to give the impression that there is 10 i

j a sense of urgency that we need to do this quickly, but I

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think the concept of getting out and getting the public l

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{ comments and getting feedback from the Commission, especiallyl 13 i

in these areas that :pgly to some of the problems that i

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14 fwefaceinday-to-dayactivitiesthatareimportant.

l t'e I have already taken longer than I wanted to and I

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I have asked Norm Moseley to start the briefing and he will 17 i

go through the first part of it and Mr. Keppler will finish I

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up and I do not know whether Howard would add substantial i

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l input in working with this; you might want to add --

i 20 l

MR. SHAPAR:

No.

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l CHAIRMAN AHEARNE:

Norm.

C2 MR. MOSELEY:

Our plan today is that I will pre-23 l

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sent a short, little bit of background information including !

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some of the weaknesses we perceive in our current program.

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oirs Mrs pacz so.

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Jim Keppler will then discuss the important aspects of pro-i 2

i posed policy.

Following this, I have several slides which t

3 show how some of our past enforcement actions would have t

I been different using the proposed policy.

For this, we have i

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l reviewed some actual cases to show the effect of the pro-6 l

posed changes; 1 would recommend that you hold questions 7

related to the effect of the proposed policy until we get 8

j to that part of the presentation.

May I have the first slide 9

please.

10 In terms of the bases for enforcement; first, we i

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! have the situation where there are regulatory requirements i

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In these cases, we may use the entire arsenal of enforcement i

13 options which we have.

The principal sources of regulatory 14 3

requirements are indicated under the first bullet on this i

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slide.

I 14 Secondly, where there are not regulatory require-II i

j ments, the enforcements options listed under the second i

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bullet are available.

The specific options which are not 19 l

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j available in this case --

' 20 COMMISSIONER GILINSKY:

What falls under license 21

requirements?

l 22 j

MR. MOSELEY:

Those are specific things that are i

23 l!referenced in the license itself, both in reactors and in l

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all the materials licensees and people who do not have tech i

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l PAGE NC, 10 9 7fS c S fS I

i specs.

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MR. SHAPAR:

License conditions and tech specs.

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MR. MOSELEY:

Well, tech specs is listed as a 4

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COMMISSIONER GILINSKY:

Well, in the list of tech t

6 specs, what is there apart from the tech specs in the license?

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l MR. MOSELEY:

Well, there are license conditions 3

j that are not included in the tech spec.

There are the 9

i environmental tech spec; there is another section in the i

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l tech spec.

But, this one applies more to construction permits 11 I

{wheretherearenotechspecsandtomaterialslicenses 12 I

where there are no tech specs.

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COMMISSIONER HENDRIE:

Maybe a better way for it l

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l l to read would be, Federal regulations technical specifications!

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other license requirements.

Tech specs are sure a license 14 I

I requirement.

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MR. MOSELEY:

They are a very specific license l

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l requirement; yes, sir.

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COMMISSIONER GILINSKY:

Don't they form the bulk 20 I

6 of the license requirements?

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MR. MOSELEY:

Well, for operating power reactors, 12 j

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they do, yes.

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l MR. DIRCKS:

On the reactor side; they are not 24 used that much on the materials side.

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I MR. STELLO:

And, only for OL's, not CP's.

There l

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larenottochspecs for CP's.

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MR.,MOSELEY:

Because, in the case, the second J.

1 bullet, we do not have notice of a violation towards civil l

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! penalties and we may not issue those for those cases.

Slida.

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2, please.

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Now, in this policy statement, we recognize two types of enforcement actions which we have categorized formal I

9 and informal.

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11 The chief distinction is that those that are class-l I

ified as formal are contained in our regulations 10 CPR Part l

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2.

Those that are listed as informal are those which we 13 14

^l have developed throusi. practice over the years.

Slide 3, l

l please.

I 15 The current criteria were published in December 31, 1974 --

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COMMISSIONER GILINSKY:

Could I take you back to

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the previous one?

You had an order that surprises me.

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Presumably, in terms of increasing seriousness of 20

!ourconcern,youcanstartwiththemiddleandworkuptothe 21 i

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i top category.

22 In other words --

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CHAIRMAN AHEARNE:

In what sense, Vic?

24 COMMISSIONER GILINSKY:

Enforcement conference up ter va

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to immediate action letter, and if you thought more serious

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than that, you go up to notice of violation, civil penalty, j

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l and order.

4 MR. MOSELEY:

There was not an intent in this to j

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list them in a priority order.

6 COMMISSIONER GILINSKY:

Okay.

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i MR. STELLO:

The important distinction is those 8

that are formal versus informal and which ones they are.

9 MR. MOSELEY:

Slide 3, please.

As I was saying, these criteria that we operate 11 i

{onnowarecontainedinthisDecember31, 1974 memorandum 12 or letter which was signed by Donald Lou (?) who was the 13 i

former director of I&E and it was sent to each of our l

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licensees.

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i CHAIRMAN AHEARNE:

I think as you make the point, 16 Jim, your paper was never established as a Commission 17 i

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position; is that correct?

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l MR. MOSELEY:

No, that's correct; it was not j

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j established as a Commission position.

It was, of course, 20 l

ldiscussedwiththeCommission,buttheCommissiondidnot 21 i

l act on it or approve it in any way.

1 22 t

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MR. SHAPAR:

Of course, it has been used, though, 23 t

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since its promulgation, and has resulted in enforcement pro-24 ceedings which have been reviewed by the Commission.

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l CHAIRMAN AHEARNE:

I recognize tha't; I was just --

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2 but, it was never formally approved Commission position.

3 MR.,MOSELEY:

The Commission did not adopt it as fitsposition; that's correct.

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MR. DIRCKS:

I think there is one point we would i

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like to make, too:

the briefing today is onthe civil 7

l penalty side.

There is the other side of the coin dealing I

with criminal activities and I think we are not explicitly 9

discussing that today, but I think we wanted to make sure i

10 that the Commission understands that we regard that as a i

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very effective and useful way to improve.

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12 i

CHAIRMAN AHEARNE:

Well, yes, I made a number of i

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marks in here; I have some problems on that one.

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l MR. MOSELEY:

This document, of course as we have 13 j

said, is available in the public document room and it has l

e 14 I

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been widely distributed.

17 The criteria that are contained in this document, 18 the severity criteria, there are only three; whereas in the 19 i

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} proposed policy which Jim Keppler will discuss shortly in 20 l

!afewminutestherearesix.

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l The present criteria have some eleven, very general, 22 j

criteria for civil penalties.

In addition, there is a brief 23 l

l description of the criteria which would be used to issue 24 i

orders.

The key ingredient of this policy is that the

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criteria quite general and the entire statement is quite 2

brief, as you can see. "The next slide, please.

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4 This leads us to identification of some weaknesses I that we perceive in our current program.

First, the i

present policy does not clearly describe the relationship 4-i 6

! with the various enforcement actions.

It does not address l

those situations where more than one type of action will be I

1 3

taken on a single occasion.

9 Next, we do not presently have specific criteria 10

on when and how we would take enforcement action against t

4 11 i

i licensed operators; this is a mhtter which Commissioner 19 1

Kennedy had brought to our attention in a memorandum.

13 In early September of 1979, we did issue an infor- '

i 1.1 l

l mation notice about enforcement actions against licensed i

13 i

operators.

This information notice, however, was to put 16 these operators on notice that we would take tha action; it l'7

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, was not -- it did not contain criteria or explain how we i

la j would go about using these or when we would take these actions,.

19 j

Finally, we have identified a number of problems i

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! in the uniformity area under the last bullet on the slide; l

21 l and as Jim Keppler will now discuss, we believe that the pro jl 22 l

j i posed policy provides improvement in all of the areas-listed j

23 I

as weaknesses on this slide, 24 i

CllAIRMAN A!!EARNE:

Could I, before Jim gets into 15 i

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Pacz.sc.

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it, let r.e just make sure I understand one thing that relates N

2 to the way Vic started this out:'- is'this linked inexorably 3

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to the increased penalties?

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MR. MOSELEY:

No, sir.

Vic, you may want to ex-l e

tend on that.

MR. STELLO:

Yes.

If we did not get the increased 7

I l penalties, we clearly would not be going with the policy as 3

it is written; it would have to be revised.

9 The issues that I outlined earlier, the way in 10 which orders would be used would be the same independent of j

11 the limits on the civil penalty.

But, some of the ways in l

12 i

which you take ihto account items not in compliance and

-1 13 l event oriented conditions would be different if the cap is 14 I

S25,000 or $5,000 as it is now.

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CHAIRMAN AHEARNE:

Certainly; I understand that in l 16 detail.

Only the way that you started was a concern that l

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l it might -- I realize some rewriting would be necessary, i

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but in focusing here, as Norm has finished, there is no I

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clear criteria for the relationship between the functions; 20 i

there is no clear criteria against operators, their uniform-21 I

ity problems, et cetera; all of those are pr6blems that i

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l would exist independent --

23 ll l

MR. STELLO:

That's correct.

24 l

l CHAIRMAN AHEARNE:

-- of whether or not the -- and i

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l I am not that optimistic about the authorizing Committee w

2 acting.

We may have to ho back in again for legislation.

3 MR. STELLO:

Yes, if that happens then we recognize 4

clearly this paper would be revised to take that into account i

l and I think that is one of the issues that we ought to 3

6 discuss at the conclusion of the meeting as"to whether or 7

not it would be wise to start an effort to develop a policy I

3 j

for the present cap.

I guess that is a matter of judgment I

9 as to when you think we might get an authorization.

i 10 l

CHAIRMAN AHEARNE:

Well, and also when we might i

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finally reach resolution on this.

I2 MR. STELLO:

Yes.

I l

COMMISSIONER GILINSKY:

On this point of weaknesses I

yg l in the current program, it seems to me we have never decided !

15 t

just what the purpose of enforcement action was; we have I

14 been all over the lot on that one.

l 17 l

CHAIRMAN AHEARNE:

Which I thought PPPG spoke to.

18 f

COMMISSIONER GILINSKY:

Well, that is in draft.

19 l

CHAIRMAN AHEARNE:

I view it as the Commission i

20 l having given what it thought --

21 COMMISSIONER GILINSKY:

That seems to me to have 22 I

been clearly one of the severe difficulties connected with

'23 I

l the program.

We always -- everytime we care to enlarge pro-2A I

posed penalty, we would be wringing our hands, why are we i

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doing this and what is the purpose of the action and so on.

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CHAIRMAN AHEARNE:

We have done that, Vic.

l COMMISSIONER GILINSKY:

Well, they said now in draft.

i l

e MR. STELLO:

My view is that the whole purpose of I

I 4

i l taking any enforcement action is to cause either the organi- {

l zation you are taking enforcement action against or the 7

S industry as a whole to conform to the requirements of the 9

Commission, to pay attention to the detail that is appro-j l priate and needed for safety.

11 COMMISSIONER GILINSKY:

Right.

But, then there

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was always a certain amount of uncomfortableness over the pun-i 13 itive aspect of the enforcement action and to what extent 14 l is it a matter of getting someone's attention to make sure 15 they pay attention and cooperate, you might say, to what

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extent is it re'asonable to simply hand out tickets because l

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you have been exceeding the speed limit?

18 l'

j MR. STELLO:

I think it is hard to make any argu-l

{mentthatanyenforcementactiondoesnothavewithitsome 19

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punitive element.

When you issue a civil penalty of any l

21 l

l amount it is a form of punishment.

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I think the new policy is going to take away much 23 1

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! of the judgment that is there and set the standards for

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' everyone to see if you have this kind of a problem in your u

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facility, this is the enforcement action we are going to take.!

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CHAIRMAN AHEARNE:

I remind all of us that as I i

l try to keep saying, we have addressed what should be the 4

I philosophy and I think that is why the point that Norman i

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Haller raised was very important, because what he basically l

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! was saying is the Commission has tentatively said, here is

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a policy -- the philosophy that ought to govern enforcement 3

j policy; now, how does your proposal mesh into it?

9 l

And, perhaps, some of Commissioner Gilinsky's l

10 l

j uneasiness would have been or could be addressed when this l

11 i

is mentioned because I am sure -- since I remember he was j

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one of the major participants in developing the particular 13 l

14 language we have now in the philosophy.

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COMMISSIONER GILINSKY:

One of five, anyway.

l 13 l

MR. STELLO:

We have addressed that point directly i

14 I

and there is alotter, we can assume, that will report that 17

! to the Commission.

18 CHAIRMAN AHEARNE:

Well, it depends on the word i

19

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satisfactory, I think.

20 l

MR. DIRCKS:

It depends on whether I forward your 21 j

l memo, Vic, or my memo.

l 22 l

l CHAIRMAN AHEARNE:

Could I ask, before you start, 23 I

! Jim.

Bob, when are we scheduled to start the second meeting? i t

24 MR. McOSKER:

3 o'clo:k, I believe.

I will check.

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CHAIRMAN AHEARNE:

Thank you.

Go ahead, Jim.

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l i

l MR. KEPPLER:

In developing this proposed revision !

\\

~

l to our enforcement program, we focused on eliminating to the extent possible the weaknesses shown on the slide here i

i and while at the same time, creating a clear reflection t

i 6

to the industry and the public of the NRC's intent to be firm!

l regulators of the nuclear industry.

3 In this regard, we established six specific goals, 9

i could I have the next slide, please.

i l

I 10 l

l First, we wanted to establish criteria for util-i 11 izing the expected increase to civil penalty authority.

(

12 1

Secondly, we wanted to make the enforcement pro-l 13 l

gram tough, yet fair.

14 1

CHAIRMAN AHEARNE:

That is not what you say; it te 1

I says they are tougher.

I 16 j

MR. KEPPLER:

I do not think they are inconsistent, 17 though.

I think they can be tough and fair in our view.

l CHAIRMAN AHEARNE:

Well, but there is a difference I 19 j

j between tough and fair versus tougher.

Those are really 20 l

two different statements.

21 i

i i

MR. STELLO:

It clearly is tougher.

i Z2

{

f MR. KEPPLER:

It is a tougher policy; intentionally!

23 I

I I

I so.

24 l

l COMMISSIONER HENDRIE:

But, it is not fair?

15 l

l lN@eb kNM N 4

a irs e irs 20 l

pacz sc.

I MR. KE?PLER:

I could put tougher enforcement, 2

but fair.

How is that?

3 i

MR. SHAPAR:

How about tougher and fairer?

4 CHAIRMAN AHEARNE:

Move on.

i f

MR. KEPPLER:

Okay.

Third, we wanted to achieve f

t 6

i greater uniformity in the treatment of licensees by taking I

1 I

equivalent actions against similiar licensees having similiar 3

problems.

9 Fourth, we wanted to better define our enforce-10 ment capabilities with respect to NRC licensed activities II other than operating reactors.

In particular, more de-(

l '*t finitive guidance has been given concerning enforcement in 13 the areas of construction and safeguards and for taking 1s actions against licensed operators.

t ~c

{

1 It also formalizes the criteria for taking en-l 16 forcement actions in the area of transportation which woro i

17 l

issued last December.

18 Fif th, we wanted to focus escalated enforcement 19 i

6 actions on the specific event or problems which led to the l

20 t

decision to take escalated enforcement rather than focus on i

i 21 I

}

22 the total number of items of noncompliance identified.

Lastly, we wanted to state clearly our enforce-23 i

ment policy and define more fully our criteria for taking i

24 l

various enforcement actions.

h i

-- v

m. e i,.c.

2

1 jrs irs 21 y

e PAGE NC.

I I

I We expect the overall effect of the proposed pro-i N

2 i

gram will be greater compliance with the regulatory re-3 quirements and an increase in the public health and safety.

! Can I have the next slide, please.

i

\\

I C

COMMISSIONER BRADFORD:

With regard to the point i

~

6 about greater uniformity, I agree that that is desirable 7

.I was puzzled, though, in that context about the different i

3 treatments for non-university research reactors as against 9

j academic research reactors.

i' 10 j

Why are the penalty levels set differently for 11 i

those two categories?

(

i2 i

MR. KEPPLER:

It is a judgmental decision, but what i

13 j we tried to do was factor into account the ability to pay Is and what it would take to apply a similar debszent to each 15 i

of the licensees.

We felt a university clipped for a smaller; O

I6 i

fine would feel the same impact as say a research reactor l'7 i

owned by a private concern that could afford to pay more 18 money.

19 COMMISSIONER GILINSKY:

Are you distinguishing i

20 l

between classes of owners rather than sizes of reactors?

21 I

MR. KEPPLER:

Both.

We are trying to distinguish 22 both.

22 i

i i

COMMISSIONER GILINSKY:

Did you specifically single!

2#

I l

out universities or not for profit --

{

15 l

Iwressaariosea6 Vcesaries Repcuitsps Inc l

es name c m. fr= *

• v wrvu ter

i 22 o 1rs o7rs pacs so.

i 4

I MR. KEPPLER:

We did.

I w

2 COMMISSIONER GILINSKY:

Is that the distinction?

l 2

l MR. KEPPLER:

Yes.

And, by the way, this dis-t tinction --

3 COMMISSIONER GILINSKY:

It sounds rather odd to me.

i 6

i MR. KEPPLER:

This distinction is in our current I

policy.

l 3

I COMMISSIONER GILINSKY:

That does not mean it is l

i right.

10 Please go on.

11 i

1, The highlights of the proposed re-MR. KEPPLER:

3 in l

vised program are as follows:

publication of the proposed j

i 13 l

enforcement criteria in the Federal Register.

The purpose i

l i

I.t l

l of publishing the proposed revision to our enforcement pro-IS j

gram in the Federal Register is to obtain commments from I

16 industry, intervonors, and the general public.

17 l

Once the program is adopted and published as a la I

regulation, it will provide notice of the Commission's en-l l

19 i

forcement policy to licensees, Staff, the boards, and members l i

20

! of the general public.

21 l

I intend to discuss the remaining four areas on 12 I

the slide in greater detail.

Could I have the next slide, 2

i please.

2A In an attempt to provide perspective to the rela-15 i

%mm n a, c. _ m _sie

i a irs eirs pact so.

21 l

i t

i I

i tive safety importance of licensee violations we have de-i

)

w I

2 fined six severity categories.

3 Severity one is the most significant violation and l

severity six is the least significant from the health and 4

I safety, environment for safeguards standpoint.

l I

6 Severity categories one, two, and three are all i

I f

matters of major significance and have been established to 7

i 3

differentiate between the levels of significance.

Severity one involves an event of serious and j

10 j

immediate safety concern.

An example would be an over-11

exposure incident or an inadvertant release of radicactivity i

(

! that requires immediate notification to the NRC; such as 13 l

an exposure of 25 rem or greater.

14 l

l CHAIRMAN AHEARNE:

It is all pretty clear in the 13 paper.

14 MR. KEPPLER:

Okay.

We will jump to the next 17 i

slide, then.

i la j

This viewgraph shows the different NRC licensed 19 i

l activitios addressed by the proposed revisions of the en-i 20 forcemen': policy.

Specific definitions and examples for I

21 f the six severity categories are given for each of the i

22 l

l activities except operator licensees and the guidance for 23 i

4

. determining severity categories for that group is basically 2A the same as per reactor operations.

?'

1 l6TICMAL YDDGAT1M NN !4

I p cz so, 2 4 f

e i*no irn i

I I

l These definitions and examples are intended to w

2 help assure that similiar enforcement actions are taken i

[

against simil.iar licensees.

It would be our intent to add 4

4 l

to this guidance as experiences gained with the program.

r i

e Can I have the next slide, please.

I I

6 i

i, COMMISSIONER GILINSKY:

Let me ask you about these 7

l t

severity categories.

8 Are they tied to effects or possible effects?

9 CHAIRMAN AHEARNE:

They are described in the paper,i 10 Vic.

i 11 1

COMMISSIONER GILINSKY:

I understand that.

('

12 MR. KEPPLEE:

They are both.

Really, the differencq t

13 j

where I said between severities one, two, and three as all 14 l

l being significant, severity twc for events other than 15 l

i over-exposures or releases is mo.e potential events rather i

t 16 than actual events; where severity one is the actual 17 l

j occurrence of a problem.

18 l

Does that help?

19 l

j COMMISSIONER GILINSKY:

Yes.

i 20 I

COMMISSIONER HENDRIE:

But, it is possible, depend-l ing on durations, that define for severity two could be as 21 j

2 j

it went on for a period of time could be just as great or 23 j

i i

greater than

[

i 24 l

MR. KEPPLER:

Yes.

It could be greater and I will k

l I

twresanom6 Veemanu Marowress, lac.

l

4 jrs jrs I e

25 l

pacz so.

l l

touch on that briefly in a moment.

I I

w__

i 2

I COMMISSIONER BRADFORD:

In fact, that is probably l

2

{

true.

~

i MR. MOSELEY:

The fine for two's and one's are the !

i e

l same; they are both $100,000 for power reactors.

0 COMMISSIONER BRADFORD:

And, could'yot get from f

I j

a three -- if a three went on long enough you could. '

i l

i MR. KEPPLER:

Yes.

j Okay. This slide shows the criteria -- the pro-O posed criteria for taking enforcement actions.

i 11 I

First of all, the approach for taking escalated

('

1 enforcement has been defined rather specifically to reduce i

13 l

the number of subjective considerations involved and hope-i i

i la fully, improve uniformity.

We believe the standardized i

15 i

l approach to enforcement should make the severity cateogry 16 i

assignment th,e only real point of debate which in turn 17 j

should improve timeliness of actions end simplify consider-l 18 ations in contested cases, I

19 j

i l

i While the intention is to have a regimented I

20 l

approach, flexibility has bean incorporated to permic the l

21 i

i of fice directors to deviate from th a program whe _o following 22 l

l the policy may not be in the best iaterest of the agency.

23 j

i CHAIRMAN AHEARNE:

Could you explain that state-24 i

i ment that you have got in here.

There is a footnote, as I t

4 l

lwronunosu6 Vuosame Raposium f**c.

I I

me soun eia e. frwur s w. su,rt ist l

I I

irs c irs l

e a

PAGE NC.

76 I

i i

i I

l recall, that talks about discretion.

w 2

MR. STELLO:

Page 8?

l

.i 3

MR. KEPPLER:

Page 4, I think.

6 l

MR. STELLO:

There are going to be issues that j

i t

one can anticipate when they come up where discretion, I

6 technical discretion of how to apply the enforcement policy

~

i 7

L is going to be needed.

8 If someone made an error and closed two valves they 9

j should not have closed for 10 seconds and immediately open-i 10 ed them, then I think one would be willing to exercise some j

j 11 i discretion as to how to apply that condition versus another l

i I

! case where they were both closed and left closed for months.

I I

13 l

So, some latitude in terms of the technical l

1.1 I

l discretion of what t'o do; there are some broader issues that 15 are raised in terms of what other considerations might be i

14

that are addressed in the memorandum from Mr. Dircks to t

17 i

i the terms of need for power and other questions which, in 18 j my view, are matters of discretion that the Commission has g

19 I

and the policy of the office has been whenever these issues 20 l arise and we are taking enforcement action, that we do inform 21

, the Commission.

We come down to the Commission and let them j

22 l

,know what we are doing and if thera is ever an instance l

t 23 I

where a particular action would need to take into account i

24 I something such as a need for power or whatever, in my view, 25 l

i t

lwfuusanc>sw Vesearm Rapostrum lac l

l l

a irs cirs 27

, gag,ye, i

i l

I l

that is a matter that the Commission would decide rather l

i I

than me personally.

f 3

I But, that element of discretion, I think, also l

i i

needs to be there because that kind of a concept is what l

i i

i i

e i

! we had in mind.

~

)l MR. SHAPAR:

I might add that pro's'ecutorial dis-l 7

cretion is an element of any enforcement program I have 3

ever heard of.

9 For example, even the the U.S. Attorney's office 10 l

l where the clear-cut violations of law, in some cases they 11 will prosecute and in other cases they will not.

Beyond 12 that, is a question of a myriad of factors being involved --

i 13 I

l i

factual factors being involved in case of a given violation. j 14 i

'I And, it is impossible, I think, to be able to i

15 identify ahead of time how cach of those factors will be 16 i

applie d and what weight will be given to each factor in a 17 i

i given situation.

18 CHAIRMAN AHEARNE:

I recognize that.

I was a 19 little -- I guess not clear on was the difference between 20 i

l the extremely formal mechanistic approach being laid out, i

as 21 you say, so that everyone will know exactly what the d/

3 i

system is.

4 23 l

l

< e, And, then the footnote, however, discretion can

s s

1. \\

l be applied which sounds like a judgmental approach which 25 l

i 1.ms - vme.ri= nearms. t c I

se son,fM CAMTOL. STIBEET. & W. SWITE IST I

h jrs e jrs f

f 28 PAGE.sc.

I i

I sounded fine, except it was not clear where that discretion I

~

2 i

ought to be applied.

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j MR.. DIRCKS:

I think that is one of the issues, too,

~

raised in the paper the Standards sent down and NRR had i

i some thoughts on that subject.

I think that is one of the

~

i I

6 I things we want to take a look at as we go back.

7 I

l MR. KEPPLER:

The second point, as I mentioned 3

previously, escalated enforcement actions have been designed 9

i j

to be proportionaly to the severity of the event or the act I

~

10 which motivates taking escalated enforcement action in the 11 first place and is not related to the total number of 12 items that noncompliance identified.

I 13 The next five items on that slide are k<2y elements

! of the proposed critoria and probably can best bo illustrated I IS by examining Tables III and IV of the proposed paper.

I 10 l

\\

have brought Table III, part of Table III is shown in the 17 l

{

next viewgraph; it will help a little bit.

18 l

The points I would stress here are that suspension

{

19

}

l orders will normally be given for all severity one violations.

20 l

Those are where actual events occur that are of serious I

21 l

safety ilaportance.

22 l

i Civil penalties will normally be issued for all 23 i

severity one, two, and three violations.

Civil penalties 24 i

for severity four and five violations will normally not i

h istrysianossai. Veemanas Asposefors.14 soun. cumm. sneser. s. n. wrrs in I

, irs ejrs I,

29 i

I pacc.wo.

i i

i r

l be issued unless they are recurring in natgre and have been I

2 discussed with management in an earlier enforcement confer-3 ence; in other words, the licensee has been given an oppor-i I

tunity to correct identified problems, i

l Civil penalty action will not be proposed against t

6 licensed operators.

Letters of reprimand --

I 7

CHAIRMAN AHEARNE:

Why?

MR. KEPPLER:

Pardon?

9 l

j CHAIRMAN AHEARNE:

Why?

I did not see -- that is 10 l

the policy outline here, but I did not really see any 11 i

i reason that you reached that conclusion.

12 l

MR. KEPPLER:

I think the reason that -- the reasonsi

'l is that we considered in this matter were that the only place l

l 14 i

i j

we find individuals is either under a Part 2. type of vio-15 lation or if they are licensed as the owner of the operation.

O t

14 Trying to judge how much to fino a person when 17 i

they may have to give a proper detecqent when they may have j

I 18 varying bank accounts is a very subjective thing.

19 l

We also had a meeting with some IBEW people who i

20 l came in and expressed concern about this that they may well 21 I, have to negotiate contracts with the various utilities to 12 l

l l in effect provide an insurance policy to operators should 23 I

6 they get fines, i

u COMMISSIONER GILINSKY:

What does the FAA do?,Does ;

15 i

1 twnposanossaa, Veemanna Mapomm lasc I

i

i.

30 e irs cirs

,,cz,ye, j

i l

i I

l the FAA fine pilots?

l 2

MR. KEPPLER:

I do not know the answer to that 2

l question, but I know they suspend people for serious infrac-I d

tions of violations.

l i

8 3

CHAIRMAN AHEARNE:

That would be a good thing to i

I 6

find out.

l l

7 COMMISSIONER GILINSKY:

Are you comparing with 8

comparable -- with what agencies that have comparable re-9 lsponsiblitiesdointheirenforcementprograms; for example, 10 pgg7 1

MR. KEPPLER:

Well, we looked at some areas, but i

l 1 "*

!' we did not look at operators; is that correct?

t I

13 l

MR. LIEBERMAN:

We looked at other regulatory i

i la i

I programs in civil penalties, but we did not look at any I

I l ~'

I j

individuals.

i 14 CHAIRMAN AHEARNE:

It might be useful to you.

17 i

l MR. DIRCKS:

Now, in this group would there be --

n 18 I know that we have some materials licenses in the hands of i,

l 19 individuals, physicians and things.

That would not apply --

1 20 i

MR. KEPPLER:

No, we would be willing -- we would l

consider that action appropriate.

21 22 i

l MR. DIRCKS:

Okay, that is single holders of a 1

23 i

license.

24 l

8 MR. KEPPLER:

That's right.

3 l

1 i-- v e i c mm maarn. e uma merr a n surra ter

irs ejrs y

31 l

pacg,ye, I

I MR. SHAPAR:

I think the distinction here is when 2

I you have an individual who is a licensee then you get him as l

3

. a licensee.

t I think the main question here is where you can

\\

target the fine against -- or the penalty against two people; l lthelicenseeassuchand 3

as individual licensed operator.

i 0

The real question is, do you sock one or both?

7 CHAIRMAN AHEARNE:

I do not know what -- I have not 8

! reached a conclusion, myself, on which it ought to be.

i It 9

was just -- it was the blanket statement that wouldn't be.

10 I guess I would like to understand a little bit i

further and j

11 i

I think Commissioner Gilinsky's point is a good one.

12 COMMISSIONER GILINSKY:

Let me ask you about your l

i 13 ldistinctionbetweenreactorsrunbynon-profitorganizations.;i i

14 l In other words, does say OSHA or some other agency of that IS sort make this kind of a distinction; do you know?

l 16 1

i MR. KEPPLER:

I do not know.

17 l

COMMISSIONER GILINSKY:

18 Would you look into that?

l MR. STELLO:

Okay.

19 MR. KEPPLER:

Do you know offhand?

I' 20 MR. LIEBERMAN:

21 l

No, but on the question of the li educational institutions, the legislative history for the 22 i

i l current Section 234 does point out that it would not be 23 i

I 24

! intent to impose a full amount of civil penalty agair at in-i l

! dividual radiographers or educational institutions.

U l

i teno.n Vrnaams R-==

irs e jrs f

f 32 o

paar sc, I

l t

i l

That concept has been picked up and we have been I

2 following that over the years.

COM&1ISSIONER BRADFORD:

But, that was when they I

i i

! were in the same category, for all practical purposes, as

~

i i

e power reactors.

I f

l t

j MR. LIEBERMAN:

No, we have always treated --

I 7

CHAIRMAN AHEARNE:

Could you use the microphone; I

S l

l there are a lot of people in the back.

9 I

l MR. SHAPAR:

This is Jim Lieberman.

10 l

MR. LIEBERMAN:

We have always treated university

(

11 l

! reactors or hospitals, educational institutions differently 1

i I2 than power reactors.

i 13 I

i l

COMMISSIONER BRADFORD:

That's right.

But, it was la l

! not against it, it was a more informal system.

You did not IS l

have a -- well, it was against a system in which the maximum id fines were much lower so that it was possible to think about --

17 j

I am not sure which way this cuts --

{

18 CHAIRMAN AHEARNE:

It cuts the other way.

l 19 j

COMMISSIONER BRADFORD:

It probably does.

20 MR. KEPPLER:

Well, we _a_~d out civil penalties I

21 l

against operators.

We do include letters of reprimand and i

l 12 l

t l

I show cause orders for the more significant violations of l

22 i

i i

their licensed conditionc.

[

24 COMMISSIONER BRADFORD:

Can we come back to that

)

i-m v

m. n-- i,.e.

jrs ejrs 33 y

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1 l

l i

I l

for a second; not the one you just made, but tue one j

l point l

w 2

4 before.

i i

3 Did you creat commercial research reactors dif-ferently than from academic research reactors' l

l I

MR. KEPPLER:

Yes, I believe so.

l 0

COMMISSIONER BRADFORD:

Okay.

Don't pursue it 7

any further.

i I

MR. KEPPLER:

Okay.

There is one of the slides 9

i j

that has that on it.

10 COMMISSION."R BRADFORD:

When you come right down l

11 i

i

! to it, there is so little room within a $25,000 civil penaltyI I

i ',

l to treat anybody very differently.

It is hard to see just 13 i

how the policy was in place.

I I4 l

CHAIRMAN AHEARNE:

It depends on how tight the 15 i

budget is.

t' 14 MR. KEPPLER:

We will come back.

I 17 i

l I think also the highlight of this package here is 1

18 I

the proposed plan sequence for using civil penalties and 19 orders when you have more than one severity one, two, or 20 t

21 three violation in a year.

Could you go back to Slide 9, j

l l

l please.

12 j

l There are two other areas here that are noteworthy. '

23 l

i 1

Number one is mitigation.

We intentionally limited the use l

24 I,

j of modifying our mitigating factors in determining civil pen-O k

M

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34

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)

I I

alties to better achieve uniformity.

But, we do consider l

2

'. two factors appropriate and they are included in the package.

3 These are the duration of the noncompliance and whether or 4

i not the noncompliance was identified and corrected by the 3

licensee.

t 6

l The size of the licensee as has been pointed out l

7 CHAIRMAN AHEARNE:

I guess the problem I had with I

that is that at l' east part of it read as though that was an 9

j automatic mitigation; what was it, 50 percent?

10 MR. KEPPLER:

50 percent.

i II CHAIRMAN AHEARNE:

I guess I have a problem with i

k i,*

that.

I can see it as a mitigating factor, but to say i

13 automatically it is 50 percent --

i l

14 l

MR. KEPPLER:

Well, our thought here was to pro-i Ic l

vide a strong incentive, if you will, for licensees to I

14 i

I define and identify and correct their problems.

I 17 COMMISSIONER GILINSKY:

It seems to me a reason-18 able approach.

,I 19 i'

COMMISSIONER HENDRIE:

l 20 If I was an operator and 1

l you did not do that, what the hell?

Don't report it; if 21

! they find out, I mn not going to get fined anymore.

C l

i l

COMMISSIONER BRADFORD:

Well, is it considered a 23 l mitigating factor today?

l 24 MR. KEPPLER:

Pardon?

i N

f i - = vi-m.am r x

i eirs e irs i

35 pacc,9c.

I l

i l

I I

COMMISSIONER GILINSKY:

It is not considered a

~

l i

2 mitigating factor today.

2 MR. STELLO:

It is a factor in your judgment.

But, 4

l I think the intent here is to build in a really good incentive ltogetlicenseestotaketheactionthemselves.

5 6

I feel a real need to identify whatever that is, I

if you think it is too large, whatever it is; but the concepte 8

I think, is very, very important.

I 9

CHAIRMAN AHEARNE:

I think the concept of it being

!a 10 mitigating factor is important.

I was a little disturbed II

{aboutanautomatic50 percent.

to

')

j MR. KEPPLER:

We initially considered 20 and we 13 really tried to make it attractive; that was the thought 14 I

i behind it.

t ~e l

In spite of them to do something to find the problems.

16 CHAIRMAN AHEARNE:

There are many ways in inspir-17 l

i ation.

18 O

MR. KEPPLER:

Yes.

l 19 MR. STELLO:

We could turn it around the other way 20

)andsayitwouldbetwiceasmuchifyoudon'tfindany.

21 CHAIRMAN AHEARNE:

Is that kind of approach imbed-

)

• J I ded throughout here?

22

{

MR. STELLO:

No.

l 24 i

MR. KEPPLER:

With respect to the duration, we feel 25 l

i.

l Im.nossa 108sA6 VN,tse R.70R.EPS I4

', irs eirs M

l

,,c,

,y e,

! a greater civil penalty should be imposed if the violation 2

continues for more than a day and we have made each day f

a part thereof, a separate violation for purposes of deter-mining the total assessment.

l CHAIRMAN AHEARNE:

That is already the case; isn't l

6 it?

i l

MR. KEPPLER:

It has been used, but with a cap of 3

l

$25,000 per month to date.

9 CHAIRMAN AHEARNE:

Yes, but I thought that was ---

i MR. MOSELEY:

I really is a carry-over of the 11 i

present legislation, yes.

12 CHAIRMAN AHEARNE:

But, at least the basic idea 13 l

of it is the same.

i 14 i

.i MR. STELLO:

Yes.

I IS MR. KEPPLER:

Okay.

I think the last point I would:

i 14 l make here is that we in developing this policy, proposed 17 policy, is that there has been no upper limit proposed la l

for the issuance of civil penalties.

I9 This means that a case,

l where a safety system was defeated for a long period of I

20 l time, it has the potential to result in a fine in excess of l

21 several million dollars.

l U

l i

CHAIRMAN AHEARNE:

I think, yes, we recognize --

l 23 j

i l

that was a hotly debated item in the Commission before we

-(

.i went forward with our proposal.

i i

t 21 i

i.n o

vo.=m. moonaa :=

a irs c irs pacc so. 37

~

l I

l I

j COMMISSIONER BRADFORD:

Is there -- I noticed on l

3 1

the exhibit of how some present violations would have cora I

j out; that Palisades added up to 21 and some million dolJars.

4 Would that, in fact, have been what you would l

i l

=

~

have sought?

I guess you have mitigation to consider there.

j I

6 l

l MR. KEPPLER:

Well, it would have been $40,000 7

I

~l without taking-the 50 percent factor.

S COMMISSIONER BRADFORD:

Okay, you were Laking the 9

I mitigation into account.

i i

10 I

j MR. KEPPLER:

11 That was 400 and some odd days in-J.

volved there.

l l

12 l

MR. SHAPAR:

I might mention that case is subject I

13 l

to hearing, so I think maybe the reasoning, perhaps, ought 14 i

l not be explored further.

I 13 i

i COMMISSIONER BRADFORD:

O i

NowwhodoIaskaquestion}

16 CilAIRMAN AllEARNE:

It is always good to have a law-17 i

I yer around to quiet things down.

I 18 MR. SHAPAR:

I just wanted to mention two points l

19 l

I

! at this time that I think ties in with the discussion that 20 I

I has taken place up to now:

when we reviewed this policy I

i i

21 i

l l

statement, we looked at past Commission decisions on enforce-22 l

I ment policy to find out if any past is still body of Commis-l 23 8

I I

l si.on policy on enforcement.

We found very little.

In fact, i

24 l

l the first paragraph of the paper refers to meticulous '.

l6&NA&nYND8ANO M

- enu m e w n m wwr

. unrer ar

a $rs o j" 38 pacs so.

I I

I i

I attention to detail and high standards of compliance.

CHAIRMAN AHEARNE:

And then I noticed how far back f

c 3

l you had to go. to get that.

4 MR. SHAPAR:

That's right.

So, I would do this i

e

~

really as an opportunity for the Commission to really focus

.i i

s i

l in an area where there has not been considerable body of l

7 l enforcement proceedings from which a prior law could be 8

distilled.

9 CHAIRMAN AHEARNE:

Yes.

10 i

MR. SHAPAR:

And, the s.econd point I wanted to make1 11 is that --

l 12 i

l I

CHAIRMAN AHEARNE:

Read the PPPG.

13 l

j t

l MR. SHAPAR:

All right, I will do it again.

14 i

l The other point I wanted to make is there has 15 l

l been a recent case which is not included in here, as far as l

14 j what its concept and precept is, and that is Atlantic Re-(

{

search.

17 l

18 I would think that there ought to be something in i

here that reflects Atlantic Research --

19 l

Cl! AIRMAN AllEARNE:

I am sure there will be.

t 20 MR. SHAPAR:

An excellent decision, I might add.

21 l

t CHAIRMAN AHEARNE:

Thank you.

I have heard other-i 22 l

{

wise.

23

{

MR. KEPPLER:

Ed, do you want to say something?

24 2.5 i-ro.. vu ri-amarm. is M M C.17TT1**

M*'

f er marff ' Af e

I s

a 1rso 1rs 9

l PAGE Nc.

i l

l t

t MR. CASE:

Yes.

I just want to clarify NRR's

^

Position, should there be any doubt.

We have concurred on j

2 r

t 2

j this paper; we have also concurred on the Standards paper l

that has an alternative approach.

4 i

5 l

We mean both; it is not the left hand not knowing i

4 i

what the right hand is doing.

We will take both approaches i

I 7

to solve these kinds of problems.

^

I 3

l CHAIRMAN AHEARNE:

Fine.

J 9

COMMISSIONER BRADFORD:

Well, you do not see any 10 inconsistency between them?

Il MR. CASE:

I think there are pros and cons in eithey i

12 l one and the Commission ought to consider the pros and cons l

13

and make a quick decision to do either one and go about its l

1 14 business.

II MR. DIRCKS:

I think the important thing is that we havb l

I' to clarify what the issue is; that's the purpose.

I I'

1 CHAIRMAN AHEARNE:

Well, I think we have got to l

i i

I8 I

mull through both of those papers.

There are a number of 19 I'

I interesting issues that we have got to -- and as Howard

)

I I points out, this is the time for us to lay out in more de-21 l

i tail.

I e

i i

~

{

Go ahead.

f 23 i

l MR. STELLO:

And, particularily your overriding l

24 l

philosophy as well.

JP i

twiermanoma6 Vo.sanu Raposevnet lac

e PAcz.Nc.

40 l

a-irs e irs l

)

1 MR. KEPPLER:

Okay.

Put on Slide 11, would you i

2 please.

3 These are some points aimed at helping assure 1

4 i uniformity and fairness in the application of the policy.

l i

First of all, the structured approach of the pro-3 i

gram is directed to enforcement actions of major regulatory 6

I l concern; namely, severity categories one, two, and three.

I i

l Secondly, the amount of the civil penalty is 8

f primarily proportional to the severity -- could I have 9

I 10 Slide 12 to show that.

This shows the break-down in dollar p

11 values for the various severity categories.

I 12 l

Then lastly, there has been a gradation of civil r

i I."

I penalties tablored to both the size and type of the licensee I

I I

la operations.

Could I have the next slide.

I i

i~c j

This shows that break-down that we attempted to use.

i 14 COMMISSIONER DRADFORD:

Sce, I do not have any i

17 li difficulty with saying that it is going to take something i

18 different to get a large licensee's attention than a small 19 l

one; and, indeed, that there are also differences in all

!l 20 i

! probability in the level of threat to the public health and 21 I

i fsafetyfromathousandmegawattpowerreactorasagainsta lll r

research reactor.

23 l

But, if I am right in assuming that a non-university, i

2A

!; research reactor and an academic research reactor for most

,e i

Inmn m Veemariw Reparram im

I a

,.rs e,. rs pacz sc.

41 1

i i

i I

practical purposes will have about the same threat level, i

2 there would be some difficulty with a policy that said that I

.4 we would treat them differently and --

{

MR. KEPPLER:

Well, let me make a point with you:

1 t

if you want to take an over-exposure incident, let's say you I

6 have a 25 rem over-exposure so it is a severity one.

If you 7

I l had that at a power reactor, the fine would be $100,000; if i'

3 you had it at a university, it would be $5,000 -- for the 9

i i

same event.

10 t

j Our thought on this was that the deterrent of j

11 SS,000 had about the right impact on the university versus 1'

$100,000 to the power reactor.

.i 13 j

COMMISSIONER BRADFORD:

Yes, I am conceding with j

14 j the point that power reactors in all probability belong in tc i

l a class by themselves.

It is the distinctions at the lower 16 end of the' scale that I am having more trouble with.

17 i

{

COMMISSIONER GILINSKY:

Let's see; I am having 18 l

trouble with the upper end.

19 j

Why, if you are talking about an over-exposure, 20 I

l would you have a different fine for someone at a power re-l

{ actor as opposed to a research reactor that might be run 21 i

l 22 i

t by a company equally as large?

23 i

MR. STELLO:

It would be different.

}

24

-c CHAIRMAN AHEARNE:

Like Westinghouse, for example.

me d

li

I.

a irs e its 42 74cr,so, i

1 I

l MR. MOSELEY:

It would be -- the non-university research reactor would be 20 percent of what it would be at 3

i the research reactor.

l 4

l COMMISSIONER GILINSKY:

Why would it?

i i

1 e

l MR. MOSELEY:

It is a power reactor.

4 l

COMMISSIONER GILINSKY:

Fine.

7 j

MR. MOSELEY:

Well, on the same theory that Jim S

was explaining on taking the belief that it needs this much 9

to get their attention.

10 l

1 li COMMISSIONER GILINSKY:

Well, some of these are 11 l

run by Westinghouse or General Electric --

12 5

I MR. MOSELEY:

Well,, test reactors are 50 percent.

I3 l

j COMMISSIONER GILINSKY:

Oh, those you regard as la i

test reactors.

'I' l.S l

MR. MOSELEY:

Yes.

16 I

i j

CHAIRMAN AHEARNE:

Are they?

[

17 l

l i

MR. MOSELEY:

Yes.

O l

MR. KEPPLER:

General Electric test reactor --

y 19 4

l l

CHAIRMAN AHEARNE:

The Westinghouse reactor is a 20 l

test reactor?

21

{

MR. KEPPLER:

No, that has been shutdown now.

22 i

I MR. SHAPAR:

That is Walshville; that has been shut' l

23 i

i down for years.

24 i

COMMISSIONER BRADFORD:

What is a quick difference i

15 i

i L

n i

,rn vi n-a- x I

i m sm,, e-rwm e n mirrr as

i i

a irs e irs 43 3

pacs sc.

I I

1 I

j between the definitions of a research reactor and a test re-w 2

actor?

l 2

MR. KEPPLER:

Usually the power of it.

1 CHAIRMAN AHEARNE:

I am talking about, there is l

e under the application safeguards rule; one of the reactors i

6 I

is still under debate is a Westinghouse reacsor.

It is a i

I small reactor.

S j

MR. MOSELEY:

I think that is a critical facility.

9 MR. STELLO:

I don't think it is.

10 I

l CHAIRMAN AHEARNE:

Where would it fit under this

-i 11 i

list?

I i

/

12 MR. STELLO:

It would be a research reactor.

l i

13 l

CHAIRMAN AHEARNE:

That's what I thought; that's la l

cxactly my thought.

There is very little difference between 1

I j that one and the one in some universities.

16 I

MR. MOSELEY:

Well, in this case, though, you 17 j would be at the 20 percent level for the Westinghouse re-18 l

3 l

search reactor versus the five.

19 I

CHAIRMAN AHEARNE:

I was just trying to get --

20 i

l MR. STELLO:

The consequences in terms of safety l

21 l

of reactors are similiar; the difference between the two j

22

,i is an ability to pay.

23 i

l l

I do not think you want a policy for which a civil l

24 i

penalty authority can stop an activity; if the activity needs 25 lwremanomaa. Vossanu Rcro= Tors 14 I

me soutw cam m n wirre not i

irs jrs f

e 44 wAce so.

l l

I to be stopped, we ought to use the right tool for that, i

~

2 i

which is revocation.

CHAIRMAN AHEARNE:

I have no problem with that.

I I

was just trying to clarify -- I thought there was a category

~

i of reactors --

i 6

MR. STELLO:

I think it is the safety consequences f l

7

{ in the judgment as well as an ability to pay and I think the I

3 question of ability to pay is founded within the legislative 9

history.

I 10 i

MR. SHAPAR:

I would not call it so much an ability (

i 11 i

l to pay as likely success of the deterrent effect.

I 19 I

CHAIRMAN AHEARNE:

Yes, which relates to the ability 13 l

to pay.

14 l

MR. STELLO:

$100,000 civil penalty at some 1

13 I

universities would almost be a certainty that that univer-16 j

sity would not have a research reactor program.

17 l

CHAIRMAN AHEARNE:

It would certainly have a

'8 l

new director.

19 MR. STELLO:

I think you might have a reactor for 20 l

sale.

{

21 MR. KEPPLER:

That's it.

i 22 3

COMMISSIONER BRADFORD:

Well, how do you want to 23 i

I t

handle the last 90 seconds, John?

t 24 l

CHAIRMAN AREARNE:

Well, what I wanted to do is to i 15 l

inro rio va.ori an = ro m i c I

I l

a irs d rs 45 pacz.sc.

i I

i 1

give about -- Frank, I want to shut this off at 10 after 3:00 l

s because I feel that some of you would probably like to ask j

2 i

i some questions.

I know Len wants to make a couple of 4

comments.

i 5

j But, I do not intend to bring this to a decision i

6 today, because there really are several papers in front of i

l j

us; there are.several points -- I think some of us have got i

7 3

some further thoughts we have to do on this.

It is too i

n 9

l important an issue to --

I l

MR. STELLO:

We will finish up in 5 minutes.

10 II l

CHAIRMAN AHEARNE:

Okay.

1

('

19 l

MR. MOSELEY:

May I have Slide 14, please.

j i

I3 We have three slides which demonstrates a review I

- l that we have done on the differences between past enforcement:

U action using our current policy and thac action which would O

l t

I6 have been taken using the proposed policy.

I think as you t

I 17 l

look at thers, you will see that the new policy is stronger I

t 18 l

and tougher.

I l

19 The first slide shows cases where the action taken l I

20 was a notice of violation; whereas the new policy would have 21 i

given civil penalties.

I 12 l'

l CHAIRMAN AHEARNE:

On the last item there, Norm, i

22 i

j is the individual radiographer the licensee, not the company :

i i

24 for whom they work?

25 I

l MR. MOSELEY:

Yes.

This is a radiography firm.

lwrmnancan Vmeanu Roontors. Im

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4 u

r 46 l

.oici__cim nas:. e c.

I I

CHAIRMAN AHEARNE:

It is not the radiographer?

2 MR. MOSELEY:

It is not the individual; it is the 3

i firm.

It may be owned by an individual; I do not know in l

this particular case, but it is the firm that we were talk-3 i

ing about.

l 6

You can see here that we have power reactors; we 1

have inoperation and a power reactor under construction and 3

lwehaveamaterialslicenseeinthiscategory.

Note, if you would, the first item -- on reviewing the slide, I I

to I

find that we had a poor description there.

What it should 11 say is that the automatic load sequencing of the engineering

+

safety features would not work under all the circumstances i

rather than the diesel were not operable.

14 It also demonstrates a case where there were a 1

number of days involved and a case where we have applied the g4 50 percent reduction factor.

The penalty of $3,750,000 17 may, indeed, be a case where some discretion is called for 18 l

l to modulate this number.

I 19 The second case is likewise --

20 COMMISSIONER HENDRIE:

What was the cause of the i

21 l

automatic -- this is automatic switch-over between two l

22

disels?

23 MR. MOSELEY:

The sequencing of the start of equip-l 24 ment --

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girs $rs 7 AGE NC.,47 I

i i

I COMMISSIONER HENDRIE:

What was the cause of the ii 2

sequencer being down?

i 2

MR. MOSELEY:

It was because of some modifications that had been made to the equipment and it was not properly-l 3

i tested before it was put back in service.

i 0

i COMMISSIONER BRADFORD:

How would the discretion i

l work on -- the package would come to you, Vic, and you would 3

l find yourself looking at a proposed penalty of three and 9

three quarter million dollars; what would you lay that to against in deciding what to do about it?

i 11 MR. STELLO:

Well, the first thing I would lay it 1 **

against is how does it fit the policy?

That number was i

e t

derived following the policy --

i 14 l

COMMISSIONER BRADFORD:

Well, yes, I am assuming --

u i

MR. STELLO:

-- as written here.

I do not know i

to i

what was behind it; whether there were any other mitigating 17 factors behind it or not.

I really do not know.

18 Assuming none other, when I start to get into j

19 numbers like that, I would come to the Commission and let i

20 the Commission know that we are. going to be issuing civil 21 penalties in that amount and explain why, just as we do now.

~.

CHAIRMAN AHEARNE:

Were these real cases you are 22 i

looking at?

4 MR. MOSELEY:

These are real cases, yes.

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l I

l CHAIRMAN AHEARNE:

So, this morning, that first I

case was a $50,000 penalty and this afternoon, it is a 2

three and three quarter million dollars.

MR. MOSELEY:

There was some modifications made as I

e

' we checked and found that we had made errors in our piece of 6

paper that we had prepared earlier, yes, sir.

The second case is another indication of multiple I

3

' days with the 50 percent reduction factor.

And, I think 9

those are the highlights of that chart.

Next slide, please, 10

15.

11 COMMISSIONER BRADFORD:

When was the accident?

t I

MR. MOSELEY:

That was a few years ago, it was in 13 I

1973.

l t.t

+

Here we see cases where we did take escalated 13 enforcement action, but there would be with the new policy, l

14 there would be a different one.

There are, as you note, g 7-i several cases where severity one categories are encountered la under the new policy and you see here the effect of combining

! the civil penalty with another -- with the order action.

20 The fourth item down is one we talked about before; 21 I will not reopen that one.

The last slide, please.

And, here is the situation 20 i

where we use the Table III where we have more than one --

24 i

l severity one, two, or three event within a one year period.

i 2

i, I6MC.uab VOfteMk.

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,,ag ye, Therefore, the severity three -- or rather Table III comes l

I 2

into effect.

COMMISSIONER BRADFORD:

Norm, if you laid out what the -- and maybe again there are ex parte problems --

e l

I was going to ask about the TMI enforcement package would 6

have looked like under the new --

i MR. MOSELEY:

We made a very quick and not too de-l 3

tailed review of this -- $127,000,000.

It could have gone as high as that; that is not to say that is what the final I

to number will be.

i, O

jj e

The only thing I would point out here is on the i

1 last item, we had a -- I am sorry, that was on the previous i

13 slide, just forget it.

1.L These four cases go back over quite a long period i

}e i,

j and only two of these events occurred within the last year.

id I

That is not to say that we would have -- we would expect 17 only two a year.

I think the number would be somewhat higher 18 l

than that, but it would not be'a high number.

It would be 3

19 on the order of five to ten, I would guess.

20 COMMISSIONER HENDRIE:

Where does the multiple 21 event occur in the first one?

II l

MR. MOSELEY:

Well, it is with the second with the 20 i

excessive radiation from the transporation package; that is l

the second event in the year's period.

So, you see, ccm-i i

f Isrfgenafwsssas Vcusanu REPCstinus, ff=C me um,fw cumn armert. s. e survt of

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m oeca

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f 50 l

sacz sc.

I I

bining here a safeguards event with a transportation event to 2

get into your Table III consideration.

They do not have to 3

be similar events; that do not have to be in the same pro-4

gram, f

3 CHAIRMAN AHEARNE:

It just has to be the same 6

licensee.

I MR. MOSELEY:

That's right.

And, the same one, two, i

I or three severity in the one year period.

9 l

COMMISSIONER $RADFORD:

That would be true for a l

licensee with several different reactors?

11 i

MR. MOSELEY:

Well, up until now our consideration has been directed toward the individual license and docket I

13 number.

So, it would be toward the facility docket.

14 i

COMMISSIONER BRADFORD:

Even if it were several I

units at the same site, it would be --

id I

MR. STELLO:

Yes, for example, if a utility has 17 i

five reactors, you do not apply these rules to the utility, sa you apply it to each individual facility -- site.

19 COMMISSIONER HENDRIE:

Site or unit?

'O I

MR. STELLO:

Unit.

21 CHAIRMAN AHEARNE:

Well, there is another -- well, independent of which was it is proposed here, that is a Z:

question that has to be talked through and resolved.

I

4 gather, Jim, you felt --

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g ir.g__c i rs 51 l

nog ye, I

I l

COMMISSIONER GILINSKY:

Why would you de it by 2

unit or the other way around?

What would argue for doing it 3

one way or the other?

MR. STELLO:

If you have, I do not know how many I

reactors -- if you take a large utility with seven or eight 6

reactors; now you start to ask yourself, what is the exper-7 ience and the arrival rate at a facility?

Well, you have 3

l got eight times the rate at one facility for a licensee with 9

eight as you would have for a utility with only one.

to So, you would think there would be a cense of un-11 fairness since you would expect and anticipate that you are 1,

going to run into items of noncompliance with the facility.

I 13 i

Now, if you apply it to a utility with eight of i

I4 them, he is automatically going into it with an expected rate 13 I

that, on the average, would be eight times greater.

So, that :

i i

14 l

individual --

17 COMMISSIONER GILINSKY:

Yes, but the site with la common management --

19 e

MR. STELLO:

I would like to be a question that 20 l

we would want to get back to.

Some aspects, like health 21 physics which are related, interrelated at the facility, i

21 versus individual actions of the operators from the control 2

I room.

There is enough differences that I think we want to 24 look at that pretty carefully.

i i

r-% vs = moonrom r=

e e-rr rr. s.. surre.

.%a:===

i o_ir.s cir.s __

52 noz c.

l I

think anytime you are taking this stuff for policM i

2 i

when you look at increased number of facilities, you are 2

[ going to expect an arrival rate of problems and I think com-bining them, in my view, makes it as a potential for being e

unfair.

6 COMMISSIONER GILINSKY:

So, you want to leave open the question of how to deal with unit 1 and 2 of a particular 1

3 reactor?

9 MR. STELLO:

Yes, like Indian Point 1 and 2.

They h

10 are owned by different licensees and they are physically on 11 the same site, adjacent to each other -- excuse me, 2 and 3.

12 They are those kinds of problems we have to deal 13 with and I want to go a lot more cautiously --

14 i

COMMISSIONER BRADFORD:

A couple of points that are;!

13 not in the paper that I just want to raiae and see how you 14 i

would like to cope with them:

I 17 One is the question of criminal penalties and their 18 l

role in the enforcement scheme, if this is really to be a 19 statement of Commission enforcement policy.

i 20 CHAIRMAN AHEARNE:

I think what I would prefer, 21 Peter, if you raise your questions because they indicate 22 some of the concerns you have and then --

l 22 l

l COMMISSIONER BRADFORD:

They obviously are not going 24 to get resolved in a few seconds, i

-, - ~ %,

i.

me souT.e cwTta, amerf, t e. survu ter l

. % s. c. mm :

o irs e irs 53 l

nog se, l

1 I

CEAIRMAN AHEARNE:

Well, I think the whole issue I

is too important to try to --

3 i

COMMISSIONER BRADFORD:

Yes, I agree.

A The other is that this -- I think that this frame-3 work is a very good advance over the past practice.

But, 6

there is also the question that has been concerning me and I

I guess other Commissioners for a while, about the structure i

3 l

on which it rests; that is, the Bulletins, the way they are 9

j responded to, whether we are relating the right steps that i

10 are now called informal to particular actions and sequences II of events.

1I For example, as I understand it, the problems 13 that we are still having with environmental qualifications i

14 really would tend not to come within this framework at all e

i l

because they rest on documents,ccmmit=ents, Bulletins, what l

14 i

have you, because they are not considered formal just do not '

17 give rise to penalties.

l is I think the whole question of the role of these 19 i

informal documents as a way of getting things done needs to i

o I

be further addressed as well.

21 l

CHAIRMAN AHEARNE:

Len, you had a number of points 22 i

that you wanted --

MR. BICKWIT:

Yes, I did.

Mort of these can be

4 i

communicated informally; I just wanted to raise one or two.

15 i

i lssT4pssaM@eb VCPGAMM NN l4

,n. = g;-=w I

s

r 4

4 i:.3 ci:li._

54 nor.yc.

l I

One, I was concerned that the top severity levels 2

did not include violations of environmental requirements; and 2

it would seem to me that you would have serious environmental 4

requirement violations and they ought to be hit pretty hard.

3 Secondly, I acknowledge that you want to build 6

discretion into this and I think you ought to say that just i

I as clearly as you can say it, because it would be a shame i

3 l

to be strapped to this kind of a regime.

But, when you do it, I think you ought to make clear what rne factors are that 10 l

yg.c. are going to let your discretio.i be based on.

11 And, one that I think such feature prominantly which I do not see featured prcminantly here is the state of l

mind of the violator.

You bring it in with respect to --

1 il I

CHAIRMAN AHEARNE:

Pardon me?

l 12 l

MR. BICKWIT:

The state of mind of the viol? tor.

i Did the violator know of the violation?

17 CHAIRMAN AHEARNE:

Well, there is a statement in I

18 here about willfullness.

I mean, there are several points 19 l

where it addresses the action taken for willfullness.

• 0 MR. BICKWIT:

I do not see the violations varying 21 from one to the other because of willfullness.

~

y CHAIRMAN AFEARNE:

Oh, there is in some cases.

23 l

MR. BICKWIT:

Is that included in the paper?

24 l

9 MR. STELLO:

If it is willfullness, you immediately; 2

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look --

2 MR. BICKWIT:

You are looking at revocation.

3 CHAIRMAN AHEARNE:

It is much more severe.

A MR. BICKWIT:

Well, with respect to civil penalties 3

I I do not see differentiations and I think there should be.

I 5

CHAIRMAN AHEARNE:

Revocation is probably the 7

I

most severe --

l 3

I MR. BICKWIT:

It is not a civil penalty.

It strikes l

I me that you very much want to differentiate between the kind io 1

of penalty you will impose, depending on whether the activity 11 was willfull or negligent.

I te l

And, if you have a broadened authority with respect 13 I

to the numbers, that is exactly where the big figures ought la to come in versus the small figures.

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~~

And, then, I guess I was to some degree concerned i

l id about differentiations between the same conduct when it 17 appeared that the only difference was the consequences of 13 that conduct; that one person violatinga requirement incky encugh i

not to have been in operation during the time or not lucky 20 enough not to have that particular violation result in 21 severe effects would come off a lot better than someone who 22 l

was not to lucky.

23 I

Now, that is a distinction that --

l 24 CHAIRMAN AHEARNE:

Except to some extent you have

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to address during -- when the system is in operation --

2 MR. BICKWIT:

Yes.

3 CHAIRMAN AHEARNE:

Well, you were saying that you 4

Want them to be at a heightened sensitivity and attention.

3 MR. SHAPAR:

Also the fact that you can mitigate.

6 MR. BICKWIT:

That is true; and it is, I mean, it l

is a matter that is -- that does enter into other areas of 3

l the law and there is a difference between the penalties for 9

murder and attempted murder.

l 10 But, it struck me that as I viewed this, there II was too much of that and I just would want to ask that that la*

be looked at.

i 13 3

And, the remainder of my comments I can communicate I'

informally.

t CHAIRMAN AHEARNE:

Victor, did you have any points?'

i 14 Joe, did you have anything else you wanted to say?

17 Recognizing that we will be getting back to this, i

la COMMISSIONER EENDRIE:

Yes, I think we i

19 operated on a system in which we had assorted internal 20 rules that shuffled back and forth to try to decide what the 21 size and shape of some of these penalties were; but, it did 22 not seem to be very well understood, at least outside the C

i certain I&E circles.

And, several penalties appeared to 24 I

be both low, but with the present statutory limit and a sub-tamn.avoine. 'temaafus Rapennpa la.c.

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stantial amount of director discretion in the assessment, it i

2 appears to me that we swing now to a system in which things 3

are getting rar.her too automatic.

I think the question of whether the gross amount e

of a civil penalty ought to increase linearly with the time l

for some of these long, long spans is a good question.

7

?

i What is one of the least obnoxious conditions that i

S violates a LCO -- let's see.

I have got a notion that if I I

9 i

look through tech specs, I can find some LCO's with action 10 l

i statements and so on and find circumstances where this policy will tie you into what would get to be really excessivd 12 amounts in view of the nature of the transgression.

13 I

If it runs on for a time because people do not 14 i

notice it, why, you have got to be a good deal larger, I i

te think, the problem you are going to have with this policy j

id is you are going to have a great difficulty in arguing that 17 you ought to be allowed to use the discretion which you 18 i

l claim you have.

I can recall in discussions at this table l

19 l

and subsequently in the Congress when we talked about going j

20 l

to $100,000 civil penalty limit; a good deal of talk that be-21 cause there were -- because some of the licensees, the power ;

22 l

company licensees, were large organizations and there were I

i 23 i

occasions when you really wanted to rise up and levy a large {

24 penalty that you needed that kind of limit, but there was i

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I considerable talk that we would seldom go there.

It turns 1

out here that we will, in fact, be there as the standard

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place and that seems to me that you are going to have a lot 1

of trouble having announced this policy and so on.

e You are going to have a lot of trouble ever doing 4

anything other then fiah6 a power plant $100,000 a day for 7

every trip across the tech spec line or these other lines that 3

are established.

9 And, I think that was the way we had it in mind 10 when we asked for the legislation; and it was certainly not 11 i

' with that sort of thrust in mind that I argued on behalf of I2 l

the legislation to the Congress, 13 l

l CHAIRMAN AHEARNE:

I agree.

14 Well, what I would like to do is to encourage my 13 1

t colleagues to read also the document that came up from I

14 Mr. Minogue and get back any -- I have so many comments that 17 I will just Xerox the pages and send them back.

And, I 18 think we are going to have at least another discussion 19 I

meeting of it.

20 Vic, I thank you very much for bringing this for-21 ward on a good, expedited _ schedule.

Jim, thank you for your s'

efforts on a very tough issue and we will spend some more time discussing it.

}

COMMISSIONER BRAD 50RD:

Are you suggesting that we

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ought to each send memos of comments to the Staff on this I

problem and try to get a --

l 3

CHAIRMAN AHEARNE:

Yes, if you have particular i

{ detailed questions and points, because we are going to have e

to discuss this some more.

5 I

COMMISSIONER BRADFORD:

I agree.

I CHAIRMAN AHEARNE:

And, there are a number of i

I

{ questions -- ordinarily, we might try to thrash them out t

here, but that might be useful.

I 10 COMMISSIONER BRADFORD:

Well, what about a question 11 though like, should a paper stating the Commission's enforce-

^

19 l ment policy deal with the role of the criminal penalties 13 as well?

That is, I can ask a question like that, but --

l la l

l I guess we can just impose a certain amount of self discipline' 13 on those things that involve major changes in the paper.

16 CHAIRMAN AHEARNE:

Right.

17 Okay, what I would like to do is to close-out this 18 j meeting; let us take a 5 minute break while we shuffle the l

two meetings.

l 20 (Whereupon, the meeting commenced at 3:40 p.m.)

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