ML19332A775
| ML19332A775 | |
| Person / Time | |
|---|---|
| Issue date: | 03/24/1980 |
| From: | Ahearne J NRC COMMISSION (OCM) |
| To: | NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML19332A770 | List: |
| References | |
| REF-10CFR9.7 SECY-80-139A, NUDOCS 8009180291 | |
| Download: ML19332A775 (4) | |
Text
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NUCLEAR. REGULATORY COMMISSION 9,
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March 24,1980 cummu MEM3RAN7JM FOR:
Acting Executive l Director for Operations
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FROM:
John Ahearne SU3 JECT:
ENFORCEMEhT.P ERS
. I have the following coments/ questions regarding the enforciment papers:
j Regarding iECY-80-139 (the I&E paper):
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'Page 2; J'he first. paragraph;referehces e6forch:he6t'ac'tihns available to NRC. 7 'believe we must include criminal penalties as a potential enforcement action.
We have in the past either been~unsuc-cessful or not particularly diligent in the use of such, but certainly, once we, grant the possibiltty of willful noncompliance (as the paper does), we should include criminal penalties as potential; enforcement action.
I recognize-that a potential criminal penalty involves referral to -the Justice Department and 'then action by the courts.
Nevertheless, the referral for criminal aclion should be one of our enforcement actions.
,, page 1:
The general statement of enforcement policy must utilize the phrasing of the PPPG.
At the moment the PPPG is
'a draft, however, I assume that any paper coming up would attempt to indicate whether it is consistent with the draft PPPG and where it 2
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differs. (It must be followed by the staff once final.)
Page 4, footnot'e 4:
I believe the issue of discretion must be expanded.
I agree with the ED0's coments in his March 18th memorandum i
regarding enforcement policy, accompanying the Standards paper on loss j
of safety function - namely, discretion in policy questions in such i
areas as cost,. need for power, and national security should be reserved for the Com=ission.
Staff discretion should be limited to the technical application of public health and safety criteria.
Page 5, under Notice of Deviation:
Is there any requirement that the licensee must respond'to such a notice?
4 Page 7, top of the page:
I agree mitigating circumstances should os considered.
However, I disapree that the notice of violation will not ordinarily.be issued for violations which have been identified by the licensee and have been corrected and the correction documented or D f oo wJ S11 s
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for which corrective action has.been promptly initiated.
I would prefer to say that if the violations have been identified by the licensee and
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l have been etc., etc., that these will be taken into consideration as mitigating factors prior to deciding on whether a notice of violation should be issued.
Page 9 top of the page:
Similarly, I would revise the last sentence of the first paragraph to read:
.. identification and correction of violation by the' licensee, where present, will usually result in a reduction in the amount of the penalty."
That is, I would insert "usually" and ekiminate "50%."
Page 9, second paragraph:
As Commissioner Gilinsky suggested
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at the meeting, the staff should check with, the FAA, to find out whether civil penalties are assessed to operators they regulate. 'I have.not
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~ reached a position.on whether civil penalties should be imposed on '
operators but.I do not unde ~rstand why we should make a blanket statement that " civil penalties will not be imposed on operators...*
Page 13 Table'l:
Consistent with my coment regarding page 9 I'do not agree with the statement at the bottom of the table that civil penalties will automatically be reduced by 50%.
Page 13, Table 1: As mentioned by Comissioner Hendrie in the
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meeting, when the comission addressed the increase for civil penalties, I believe the Comission intended the large amounts to be available for use but not to automatically be the norm.
I believe I&E has provided a mechanistic approach which automatically makes the high fine the norm.
I think this undercuts the arguments we have made, both in the Comission and on the Hill, as to the rationale for having the penalties and also,
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in the long run, will _ not assist us in improving our enforcement actions.
Consequently, I believe that any fomula approach must have lower limits for the automatic application, while leaving open the potential for increases up to the higher limits that the proposed law would allow.
I presume that the authors of this enforcement policy package did read the transcripts of the Commission meetings in which the issues were discussed.
If not, I would recomend they do so.
Page 14, Table 2:
I believe the right hand column should be labeled " Percent of Basic Penalty Normally Applicable," i.e., I would insert the word "normally," to allow for some variation.
Page 27:
Why is there no mention of a part 21 violation in -
attachment D?
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-. : While heartily endorsing MPA's statement that
' the enforcement policy must incorporate the PPPG philosophy, I disagree with the method by. which MPA apparently believes it should be included.
At the bottom of page 1 of their enclosure, after commenting that the reader cannot determine whether the I&E paper satisfies,the PPPG arguments.
MPA goes on to say they should add certain types of infomation to the paper. A reader might conclude that adding that information would-theh.
lead to incorporation of the philosophy.
I disagree.
I do agree t. hat they have asked goed questions, but, except for the regionalizaticn question, they are not ones that would lead to incorporating the PPPG.
With reference to the Standards paper,- Total Loss of Safety Function Due to Human.or Procedural Error:
Page 3.
Can you explain why a design error which may take a
. long time to fix is not a cause for immediate shut down but a human or procedural. error is? This sounds the threat approach. Is it?
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Page 4. -Item No. 3, unde ~r Proposa'l 3, mentions the recent reactivation of the "I&E Licensee Regulatory Performance Evaluation as the Systematic Assessment of Licensee Performance." Can the EDD explain a little more about that action?
Enclosure B, page 1. II.
Why is not the Licensee Event Report also sent to NRR?
Enclosure B. page 2, third para:
What ability does Adminis-tration have to modify, suspend, or revoke a license?
Enclosure C, page 1, No.1:
This preposal is described as including "the same... corrective action requirements of proposals 1 and 2."
Does this include the automatic shut down feature of proposal 17 Enclosure C, page 4, third para:
... the costs co the utility are recoverable by passing them on to the ratepayers... " This is not necessarily true.
Whether or not financial penalti'es can be paseed on to the rate payers is a decision of State Utility Commissions or of FERC.
I believe we should petition such organizations to take the posi, tion such costs shtuld not be passed on to the rate payers, but I do not agree that it is automatic that they are.
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Enclosure F:
Mr. Minogue's letter to Directer, NRR regarding the staff paper.
Minogue's memorandum says "SD is lukewarm on all three proposals... "
I do not believe that the author of Mr. hinogue's memorandum has read the description of proposal 3 of the paper.
The paper (Enclosure C, page 5) describes-this alternative as:
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_ focusing the sanctions taken on those creating the need for the sanction.
providing public recognition.
providing an early warning.
minimizing the consequential impact 'on consumers and investors.
easily understood as regulatory contro1.
providing the strength and stability of enforcement actions of Proposal 1 and providing the flexibility of NRC action and retention of regulatory authority of Proposal 2.
The EDO must get the divisions together to iron out some of the problems that appear :in the various proposals, answer the questions raised by Commissioners, incorporate the. MPA request, and.then come back to us with alternatives.
I do not believe it necessary for the EDO to resolve these issues, but do believe it necessary for I&E, Standards, and NRR to come forward through the EDO with their comments.
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cc:
Commissioner Gilinsky Commissioner Kennedy -
Commissioner Hendrie Commissioner Bradford Secretary NRR ELD OSD OGC OPE e,
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