ML19332A777
| ML19332A777 | |
| Person / Time | |
|---|---|
| Issue date: | 04/09/1980 |
| From: | Bradford P NRC COMMISSION (OCM) |
| To: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML19332A770 | List: |
| References | |
| REF-10CFR9.7 SECY-80-139A, NUDOCS 8009180298 | |
| Download: ML19332A777 (18) | |
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OFFICE oF THE CoMMISSloNER MEMO TO:
William J. Dircks Acting Executive Director for Operations GC?2:5
.FROM:
Peter A. Bradford
SUBJECT:
ENFORCEMENT POLICY I'have the following questions / comments on the proposed enforcement policy:
1.
So long as exceptions are possible in extraordinary cases, I would be inclined to leave the penalty reduction at 504 when-a licensee corrects and reports a problem.
Since I anticipate most severity I, II, and III violations will be discovered and corrected by the licensee, I see no need to reduce the 5100,000 listed penalty.
Since mos, fines will be reduced by 50%, S50,000 fines for severity'I, II, and III violations, not 5100,000 fines, will in fact be the norm.
Additionally, there would be further reductions f or non-power reactors.
2.
The proposed policy should include criminal sanctions as an enforcement mechanism.
There should be a description of how potential criminal matters will be handled within the agency.
I presume that OIA, I&E and Justice will meet to discuss this issue in light of Justice's. March 7, 1980 letter.
3.
In a March 10, 1980 memo, I asked for an analysis on'how the NRC Bulletin. process might be improved.
The enforcement policy should include a Commission decision on that subject if possible.
In addition, it is not clear to me why the NRC has two systems for communicating with licensees, generic letters f rom NRR and Bulletins f rom _ ILE.
Could we not have a single communications procedure by which NRC formally contacts operating reactors?
This would also ensure that local inspectors would follow up NRR's communications to the licensees.
4.
The enforcement policy of NRC to a materia 1' false statement is not discussed.
I suggest criteria be formulated and made part of the enforcement policy.
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j 5.
I understand the general I&E policy to be that an Immediate Action Letter will not be issued unless the issuer is prepared to issue an Order if necessary.
I suggest that a sentence be added to the IAL section stating this policy.
6.
Because of the restrictions mentioned at the bottom'of page 7 and footnote 6, one can only get a civil penalty for severity four and five violations if:
(a). violations are viewed as programmatic; (b) an enforcement conference is held; and (c) the violation is similar in nature to violations discussed in pre'vious enf o'r~ cement conferences held within one year.
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This mean's that civil penalties will only be proposed if an enforcement conference has been held and an enforcement conference will be held only-@ hen violations are viewed to be programmatic.
This gives the licensee too much leeway.
I suggest eliminating the enforcement conference condition.
.Thus, civil penalties..should be proposed for Category 4 and 5 violations when violations ure viewed to be programmatic, rather than isolated concerns.
7.
Further thought should be given to the distinctions made in Table II.
It is not at all clear to me that the NRC should be proposing different penalties based upon ability to pay.
Even if ability to pay were the right criterion, it does not seem to be properly applied since Harvard University probably has more assets than some entities owning non-university research reactors.
I would be inclined to a penalty system based more upon a comparison of risks, with perhaps ability to pay a weighted factor.
In any event, there needs.to be explicit reasoned justification for the distinctions in Table II.
8.
The policy should state that in the case of a public utility, the notice of proposed penalty will be sent to the state utility commission.
The policy should also state that NRC pres's releases will be issued for al' severity I, II, and III violations.
g.
I would like a paper analyzing the issue of assessing civil penalties against operaters.
10.
There appears to be conf usion in I&E and ELD about when a CP may be suspended by an immediately effective order.
The draft policy' statement provides little guidance on this
1.
subject.
ELD, OGC and I&E should develop more specific criteria on when a CP may, be immediately suspended.
The Commission could then consider whether or not to put this guidance in the policy statement.
11.
How would a violation of the surveillance'requireme'nts in Section 4 of the Tech Specs be classified under the proposed policy?
12.
The, Commission recently issued confirmatory orders for Bulletin 79-27.
How would a violation of such a confirma-tory order be treated under the proposed policy?
13.
Assuming the Coc=ission puts into place an enforceable standard for environmental qualification in its dscision on UCS' Petition for Reconsideration, at what severity level.would a violation of that. standard be placed?
14.
I would like a discussion of the pros and cons ~ of the NRR Short-Term Lessons Learne'd approach to a total loss of a safety system and the I&E approach as actually adopted in the draft enforcement policy I would like to see an alternat.ive draft of the enforcement policy which incorporates the Shrrt-Term Lessons Learned approach.
l 15.
A violation of 10 C.=R Section 50.59 is classed as a severity II or III violation.
I understand there is a dispute between NRC and licensees on when a 50.59 analysis must be undertaken.
The licensees' position is that a review need not be undertaken if safety-related equipment is not involved.
If such a dispute does exist, it should be formally cettled so that both staff and the. licensees understand clearly when a review needs to be undertaken.
16.
Is guidance needed on the role of ELD in the enforcement process?
- 17.,Is it possible to code the Tech Specs so that inspectors will know what severity level a violation for a particular Tech Spec normally falls under?
18.
The proposed policy states that a licensee will not ordinarily ci*ed for Category 5 and 6 violations if four conditions et.
If licensees are not cited, will this hinder one:ysis of a pattern of violations which cumulatively might be of safety significance?
19.
Are repecitive violations those of the licensee, unit or site?
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20.
How will violations of. environmental requirement's be handled under the proposed policy?
The propos'ed enforcement policy paper is a good first step towards getting NRC enforcement on the right track.
However, the enforcement policy is of limited use if licensee commitments and
'NRC standards are not in an enforceable form.
The enforceability of NRC standards has been made a goal in the PPPG.
I&E has-already made some progress in this area, although much needs to be done.
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Chairman Ahearne
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ATTACHMENT 3 NRC ENFORCEMENT POLICY RESPONSE TO COMMENTS Comments on the earlier draf t policy (SECY 80-139) from outside NRC were received from the following organizations:
Organization Date Atomic Industrial Forum Nuclear Utility Group on Enforcement (NUGOE)
April 8, April 25, June 6, June 19, June 24, and July 25,* 1980 Electric Utility Companies' Nuclear Transportation Group July 18, 1980 Northeast Utilities April 17, 1980 Florida Power and Light Company April 21, 1980 Yankee Atomic Electric Company April 22, 1980 Virginia Electric and Power Company April 25, 1980 Detroit Edison Company May 5, 1980 Combustion Engineering May 8, 1980 w
- NUG0E's July 25, 1980 submittal of a proposed alternative enforcement policy was received too late to be considered in the present staff proposal.
It will be considered during the response to public comments.
1
- In general, comments from outside NRC expressed dismay at the perception of rigidity of implementation implied in the staff's presentation to the Commission on March 19, 1980 (SECY 80-139) and opposition to " purely punitive" enforcement actions.
The Nuclear Utility Group on Enforcement (NUGOE) specifically noted its intent to provide an alternative enforcement program
- and requested a meeting with the Commission to discuss it.
The General Counsel replied to NUG0E (on June 6, 1980, copy attached) indicating that the Commission does not presently plan to entertain any oral presentations on this subject from outside the staff.
0GC did note, however, that the Commission might reconsider the matter after reviewing staff proposals.
The rewritten enforcement policy has been extensively changed to reflect sub-star;tially greater emphasis on the exercise of discretion and technical judg-ment by the Office Directors to whom enforcement authority has been delegated.
In addition, the staff has reemphasized the corrective nature of enforcement and attempted to minimize the " purely pun tive" actions criticized by outside i
commenters.
The staff believes that substantially all the concerns identified by the,se commenters have been addressed in the rewritten policy.
Nevertheless, we anticipate continued concern by industry, particularly about what the industry apparently believes will be (1) a chilling effect on voluntary exchange of information; and (2) less vigorous licensee programs for self-audit and correc-tion of licensee-identified problems.
- Subsequently received on July 25, 1980.
. It is the staff's view that there is little room for compromise concerning the requirement for reporting of accurate and complete information to NRC in a timely fashion; failure to do so must lead to firm and decisive enforcement action.
Nor can we condone violations of regulatory requirements simply because they are detected by the licensee's own vigilance.
It is appropriate to mitigate enforcement actions for such cases, as the rewritten policy provides.
The staff received written comments from Chairman Ahearne (dated March 24, 1980) and Commissioner Bradford (dated April 9, 1980).
The Secretary's memorandum on this subject, dated March 28, 1980, presented several areas for which further staff effort was required.
Staff actions on points raised by various internal commenters are summarized 3elow, annotated to correspond to the format of the comments.
SECY memorandum dated March 28, 1980 l
l 1.
Substantial changes to accommodate throughout.
In particular,Section V addresses the subjects of discretion and judgment.
2.
Rewritten policy conforms. closely to policy and practice of other agencies. summarizes programs of other agencies.
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3.
Rewritten policy conforms to the Conference Report on FY 80 Authorization Bill and is not inconsistent with policy and practices of other agencies-(see Enclosure 3).
4.
a.
The role of criminal penalties is addressed in Section IV E.
b.
A new section, IV D, on other matters such as bulletins and licensee commitments has been added.
c.
Environmental violations are expressly included, but not at Severity Levels I, II or III.
Willful violations would be considered for more severe sanctions, however.
d.
Willfulness is now addressed (in Section IV B).
e.
Accommodated.
If the lack of serious consequences is only fortuitous, the staff considers the violation to be nearly as serious as if the consequences had actually ensued.
,Each case must be jucged on its own' technical merits, however.
. Chairman Ahearne's memorandum dated March 24, 1980 1.
Page 2.
Accommodated (see Section IV-E).
2.
_ Enclosure 1, page_1.
Accommodated. PPPG is incorporated throughout the rewritten policy.-
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. 3.
'Pagt 4 -footnote 4.
Accommodated.
Footnote has been removed in favor of expanded coverage of discretion (Section V).
Issues reserved for Commission consideration have been identified.
4.
Page 6.
Accommodated.
Reference is made to subsequent orders in the i
event of unresponsive licensees.
5.
Page 7.
Accommodated by rewrite of applicable section (IV A).
l 6.
Page 9, top.
Not accommoda'ted directly.
However, the added emphasis on discretion addresses this concern.
7.
Page 9, 2nd paragraph.
Accommodated (See Enclosure 3 and Section IV A).
8.
" Automatic" 50% reduction.
Not accommodated directly.
See response to comment 6 above.
J 9.
" Automatic" top dollar.
Accommodated through greater emphasis on i
direction.and changes to Table 1 (new).
H 10.
Page 14.
Accommodated.
Table 2 has been eliminated; text accompanying new Table 1 addresses flexibility.
11.
Page 27.
Accommodated in other attachments.
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- 12..
Accommodated (see response to MPA comments, following).
Comments on 50 paper. were not considered directly since that proposal has subsequently been withdrawn.
Commissioner Bradford's memorandum dated-Aoril 9, 1980 1.
More flexibility is provided, but 50% reduction would be the general practice.
2.
Criminal sanctions are covered in Section IV E.
3.
Improved coverage is provided, but the matter of generic letters versus bulletins and the question concerning use of a single communications vehicle are inappropriate for complete coverage here.
4.
Not accommodated directly, but see Section IV B.4.
Since the Commission has held that even inadvertent false statements can be " material false statements" under Section 186, there is obviously a broad spectrum of possible circumstances that could involve such a statement.
The efore, the staff submits that there should be flexibility in the policy to i
respond to such violations from doing nothing all the way to revocation.
The current. proposed policy provides that flexibility.
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5.
Accommodated (see Section IV D)~.
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p 7-6.
Not accommodated.
The staff believes that because of the relatively low level.of concern associated with Severity Levels IV and V, an opportunity for' correction should generally be provided before imposing higher sanctions.
7.
Clarified.
Proposed policy is consistent with practice of other agencies (see Enclosure 3) and the Conference Report on the FY 80 Authorization Bill.
8.
Not accommodated in policy.
However, the practice is followed (as described in SECY 79-485) and will be incorporated in implementing procedures to follow issuance of the policy statement.
Proposed imposi-tions of civil penalties and imposition of orders are subjects of NRC press releases.
9.
See response to Chairman Ahearne's Comment No. 7.
10.
In order.to comply with the requirements of section 186(b) of the Act (which implicates section 9(b) of the Administrative' Procedures Act) there must be a factual basis for a finding that the public health, interest or safety requires that an order be made immediately effective, or the. order must-be based on a violation involving willfulness, as a predicate for making an order effective immediately.
So long as-this required finding can be made, a construction permit could be suspended
'immediately.
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11.
The answer depends on what the failure led to.
The severity level might vary from I to IV, depending on the circumstances.
For example, failure to. perform surveillance checks on containment integrity leading to an extended period without such integrity would be at Severity Level II; v
simply missing a scheduled test of the same when evidence is clear that integrity had not been compromised would be at Severity Level IV.
12.
The answer depends on the individual case.
If it were willful, criminal sanctions might apply.
On the other hand, one could conceive of a failure 3
to comply that might not result in any sanction (For example, impossi-bility of obtaining needed equipment).
13.
Here again, the level could vary with the exact nature of the violation.
14.
This point is now moot, in view of the withdrawal of the SD proposal.
The reasons for not adopting the Short Term Lessons Learned approach have.been discussed at length since the date of Commissioner Bradford's memorandum.
15.
Not accommodated.
In the staff's opinion, this question of any lack of clarity in 10 CFR 50.59 should be addressed in rule-making, not in enforcement policy.
- 16. _The staff does not believe this_ paper to be the place to address this question.
Rather, any problems should be dealt with internally.
We are not awar_e of substantial conflict on this subject.
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17.
The proposed Severity Levels bear some correspondence to technical specifications.
However, greater specificity seems more appropriate for
' implementing procedures than the policy paper.
- 18. 'Yes,.but'not in a major way.
Inspection reports will still be available and used for this purpose.
19.
Repetitive violations, vis a vis unit, site, or utility, are addressed indirectly in a new provision dealing with whether or not the licensee could reasonably have been expected to know of previous similar events.
20.
Accommodated in Appendices I - VII.
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Statutory and/or Treatment of Ability to Pay and Agency Regulatory Authority Non-profit Institutions Treatment of Individuals Federal Aviation 14 CFR 13 Under Federal Aviation Act, agency has Individuals are subject to civil
. Administration 49 USC 1471, 1473 authority to consider ability to pay penalties or, alternatively, 1809 (Hazardous in compromising penalties (has no to license suspension or revo-Materials Transporta-authority to assess penalties aside cation if they are certificate tion Act)
- from that provided by HMTA). Though holders (c'omponent manufacturers, this factor, among others, is considered mechanics, pilots, air traffic in determining the amount of the penalty, controllers). Sanction chosen for the agency does not make a principled certificate holders (penalties are distinction between treatment of profit the only recourse against non-making and non-profit violators.
FAA certificate holders) may depend does hold comon carriers to a higher on the nature and severity of the standard of care (and higher penalties violation; if qualifications of for violations) than private operators, individual are at issue, recourse but distinguishes between them based only against his license may be on type of service provided and presumed sought, though in'other cases this familiarity with FAA regulations, not would be too harsh a penalty and on a profit /non-profit basis, only fines would be imposed.
EPA 40 CFR 22.01(a);
15 USC 2615(a)
(ToxicSubstances Control Act);
42 U.S.C. 7545 (CleanAirAct);
7 USC 1361(a)
(FIFRA); etc.
Clean Air and Clean Policy is to treal all violators in the Statutory authority to assess Water Acts same way, but the agency is beginning criminal penalties against to realize that niunicipalities, state corporate officers now being used.
governments and other non-profit vio-lators do not enjoy the economic benefit of delayed compliance that is factored into other penalty calculations.
- Thus, this factor is not used in calculating a fine, which is then based on the degree of environmental harm caused, the viola-tor's recalcitrance, and the government's
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need to recover costs of prosecution.
In addition, violators may suggest alterna-tives to penalties, e.g., installation l
Statutory and/or Treatment of Agency Regulatory Authority ~
Non-profit Institutions Treatment of Individuals of more pollution control equipment or Individuals are prosecuted if research projects on environmental sufficient evidence against them topics.
can be found, but. focus is on large organizations.
TSCA Two stage process provides for deter-P mination of gravity based penalty and s
adjustments to that calculation based in part on ability to pay and to continue in business. Measure of ability to pay is 4% of gross sales; agency has not yet formulated a policy-for measurement for non-sales operations.
Federal facilities maintained by other agencies are consciously treated differently; EPA works with the agency to correct viola-tions and refers unresolved matters to OMB rather than prosecuting for penalties immediately.
RCRA (Resource RCRA does not authorize imposition of Penalties are fixed where-Conservation &
penalties; relief requested by agency is ever responsibility for viola-Recovery Act) injunctive
-to insure clean up of a tion can be placed; no distinction threat to public health. Amounts of pen-made between individuals and alties are then detennined by clean up corporate violators.
requirements, and violator's profitability is immaterial.
Federal 47 CFR 1 Statute explicitly provides that different FCC has the authority to proceed Communications 47 USC 503 classes of violators will be treated dif-against individual operators, and ferently, but distinction is based on size.
can impose civil penalties or ask-Commission The maximum penalty for broadcasters, revocation of licenses in especialls conmon carriers, and cable television opera-severe cases. These penalties may tors is- $20,000; in all other cases (indi-be imposed in addition to those -
viduals, companies that manufacture equip-imposed on the corporate licensee ment, etc.) the maximum is $5,000. Though but can again be reduced after 4
ability to pay n considered as a factor consideration' of mitigatin9 factors in assessing the amount of the penalty, like ability to pay.
the determination nonetheless leaves opera-tions like university radio stations,
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subject to the higher maximum as broad-2 casters.
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,.. Statutory 'and/or Treatment of
. Ag:ncy Regulatory Authority Non-profit institutions Treatment of Individuals t
i Occupational 29'CFR'19' Violations, rather than violators, are Individual employees not penalized Safety and 29 USC 651 classified by severity and. penalties for except in extreme' cases'of death Heal th -
different levels are statutorally set.
of another employee through.
Administration The amount of the penalty can be reduced wilfull violation by the employere up to 40% for smaller operations depend-ing on their size, but the reduction is made on an ad hoc basis, at administra-tive discretion; there is no policy to treat nonp.rofit or profitmaking institutions differently.
' Mine. Sa fety 30 CFR 100 Same criteria inform administrative Directors, officers or agents and Health assessment of penalties; nature of (includes foremen) of corporations' Administration violation, size of business, ability may be assessed penalties in addi.
to pay and' ability to continue in tion to those imposed on the business. All violators are profit-corporate operator. Penalties _ are making organizations.
calculated by the same method used for licensed operators; both individuals and companies are-subject to the same liability.
criteria formulated in the Federal No statutory authority to impose
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Interstate 49 CFR 1021 Uses Canmerce 31 USC 952 Claims Collection Act (31 USC 951) to civil penalties on individual Commission compromise penalties because of debtor's employees (except in cases where inability to pay, etc. _ Though there is employees receive kickbacks _from no policy to distinguish between carriers); only recourse for l
different classes of violators, general individual violations. is criminal,
l rule followed is to seek injunctive re-prosecution..
lief where payment for penalties will l ~
not be forthcoming.
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m Statutory and/or Treatment of Ag:ncy-Regulatory Authority Non-profit Institutions Treatment of Individuals S::curities ant' 17 CFR 202.5 Different remedies are used against Numerous sanctions against Exchange regulated and non-regulated entities, individuals are exercised at Commission
.though both can violate SEC statutes.
different times depending on Ability to pay is not considered in nature of violation committed assessing penalties, however, since the and demands of deterrence. Agency.
_ ill pursue whatever remedies will purpose of the penalty is deterrence.
w insure that the v.iolation does not reoccur; for individuals this may mean disgorging illegally.
gained profits or being prohibited from assuming a corporate i
director's position again. These penalties are imposed separately -
from those to which corporations -
are subject, and are structured to punish ; ability to pay is not considered.
U.S. Coast 33 USC 1321 No distinction is drawn between dif-Where the Coast Guard has licen-Guard ferent classes of violators, though some of sing authority over the violator, the statutes under which the Coast it usually proceeds against his Guard derives its authority to assess license. Where it has no licen-penalties (Clean Water Act, Hazardous sing authority, it proceeds Materials Transportation Act) do pennit against the owner / operator for consideration of ability to pay and monetary penalties, but rarely other factors. At best, this con-takes action against individuals.
sideration is given on an ad hoc basis, Cases of the latter sort are totally at the discretion of the hearing those arising under the Clean Wate officer.
Act, for instance.
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