ML20011E915
| ML20011E915 | |
| Person / Time | |
|---|---|
| Issue date: | 08/02/1989 |
| From: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | Davis A, Ebneter S, Russell W NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| Shared Package | |
| ML20011E902 | List: |
| References | |
| FOIA-90-34 NUDOCS 9002230048 | |
| Download: ML20011E915 (4) | |
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i UNITED STATES
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NUCLEAR REGULATORY COMMISSION
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o MER0RANDUM FOR:
William T. Russell, Regional Administrator, RI Stewart D. Ebneter, Regional Administrator, RI!
l A. Bert Davis, Regional Administrator, RI!!
Robert D. Martin, Regional Administrator, RIV John B. Martin,hfield Director ofRegional Administrator, RV Dennis M. Crutc Special Projects, NRR FROM:
James Lieberman, Director i
Office of Enforcement
SUBJECT:
016 REC 0mENDATIONS: REPETITIVE VIOLATIONS AND ROLE F
OF REGIONAL COUNSEL IN ENFORCEMENT ACTIONS This memorandum addresses Recomendations 1 and 3 of the Office of Inspector l
General (0!G)draftreportontheNRCenforcementprocess. The two recomendations concern the implementation of the NRC Enforcement Policy for i
repetitious violations and the role of regional counsel in the enforcement i
process. Mr. Stello's response of July 20, 1989 to the O!G report is enclosed.
01G Recomendation 1 I
Institute a procedure to verify on a sampling basis, whether the regions adequately and consistently follow enforcement policy for evaluating l
enforcement histories when issuing Severity Level IV violations.
l One area of the NRC's Enforcement Policy has been highlighted in various t
reports, namely a recently issued draft Office of Inspector General (0!G) reportontheNRC'sEnforcementProcess,inaGeneralAccountingOffice(GAO) l report on NRC material Itcenses dated October 1988, and in an 0"fice Of InspectorandAuditor(01A)reportonTVA. This area concerned repetitious l
violations and the NRC assurances that the NRC Enforcement Policy was being consistently followed with regard to these types of violations. These reports recognized that the NRC Enforcement Policy allows civil pehalties to be considered for repetitious Severity Level IV violations and questioned whether there was adequate assurance that the Policy was being consistently followed.
I recognize that several formal and informal means are used to review violations;)someoftheseinclude: the institutional memory of the inspector (s identifying violations and the regional managers who review the
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inspection reports; the SALP process which sumarizes violations by area; and review of Notices of Violation by regional and OE enforcement personnel. Some of these means provitte an auditable trail and others do not, a
At a minimum, I request that each regional office and the Division of Special Projects NRR, develop written instructions to implement the guidance herein, e
if not in existence already, to assure that Severity Level IV and V violations for reactor and material licensees are properly reviewed to determine whether theyrepresentasignificantmanagementbreakdown(SeverityLevelIIIproblem) or_,are repetitious and.. if so, appropriate enforcement actions are considered.
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Multiple Addresses Repetitious violations are of concern because we expect corrective actions to be effective. The NRC must expect licensees to learn from their past failures and not depend on our audit inspection program.
Therefore, special attention is appropriate for these violations and escalated action should be considered.
At the same time, it is recognized that there are many different circumstances that need to be considered. To assist in this development of specific regional instructions, the following guidance is provided:
1.
The definition of 'similar* violations is those violations which reasonably could have been prevented by a licensee's corrective action for a 4
previous violation occurring within the past two years of the inspection at issue or the period within the last two inspections whichever is longer.
J Normally in considering a civil penalty for a repetitive Severity Level IV violation we focus on violations occurring after the last inspection or within 2 ynrs whichever period is greater.
2.
The Enforcement Policy in several areas specifically calls for consideration of a licensee's enforcement history, including:
Section V.B states that civil penalties may be imposed for Severity Level IV violations which are similar to previous violations.
Implicit in this provision is that other administrative actions,ly such as management meetings, enforcement conferences, and strong 1
worded letters, may be also used if a civil penalty is not considered warranted.
l Sections V.G 1 and V.G.3 allow for enforcement discretion to not issue a Notice of Violation or not issue a civil penalty for those violations which meet certain criteria. One criterion is that the vlolation could not have been reasonably expected to have been prevented by the licensee's corrective action for a previous violation or regulatory concern.
Section V.B.3 describes that a civil penalty say be increased for the failure to i lament previous corrective actions for prior siellar problems violations).
Section V.B.4 describes that a civil penalty may be increased for the failure to take effective preventive steps based on findings of the NRC, licensee, or industry. This includes other facilities of the licensee where its is reasonable to expect the licensee to have taken action to prevent similar problems. As an example, one might expect if a Severity Level III violation occurred at one facility, the licensee should have considered where action is needed at other of its facilities.
Section V.B provides for a graded enforcement approach for similar Severity Level I, II, or III violations.
3.
Inspectors are to review previous inspection reports 766 System, or "open items
- listings to evaluate the licensee's prior enforcement history, including non-cited violations, when Severity Level IV violations are being considered. Consideration might be given to obtaining periodic 766 reports (quarterly) to accomplish this review.
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l Multiple Addresses 4.
Inspectors and regional managers. reviewing inspection reporte should focus on the licensee's enforcement history, including non-cited violations, to identify repetitive violations.
5.
As preparation for an inspection, inspectors should review the licensee's enforcement history, particularly significant findings from the facility being inspected and those of the other facilities under the licensee's control.
6.
Internal audits by regional personnel should be used to monitor the application of the Enforcement Policy for repetitive violations. There should be an auditable record to desonstrate that repetitive or smitiple violations were considered, actions taken, and the basis for not escalating the issue further.
7.
The following graduated enforcement scheme should normally be applied for repetitive violations:
(1) For a violation repeated the first time, the repetition should be discussed in the cover letter transmitting the Notice of Violation, or consider holding an enforcement conference and whether a civil penalty may be warranted.
(2) Forthesecondrepeatoftheviolation(thirdoccurrence)or multiple repetitious violations an enforcement conference should be held and seriousconsiderationofacivilpenaltyiswarranted.
l (3) Forthethirdrepeatoftheviolation(fourthoccurrence),holdan enforcement conference and a civil penalty or Order should be issued.
(4)
Repetitive violations which were the subject of previous escalated enforcement action, particularly egregious repeated violations, or other unusual circumstances, may warrant special enforcement considerations beyond a civil penalty.
(5)
If under the circumstances of a case, other action is more appropriate, the basis for deviating from this guidance should be documented, with a copy to OE.
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The Office of Enforcement intends to sample regional cases and in the next year munitor regional performance in the application of the Enforcement Policy in this area. The regional offices should provide training for appropriate regional personnel in this area.
Please submit to OE within 90 days of this memorandum the regional instructions and plans for training of regional personnel within six months of issuance of the regional instructions.
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OIG Recossendation 3 Reassess the role of the regional counsels in the enforcement review process.
In the intent to issue timely escalated enforcement actions, OE has initiated a review process which reduces the amount of drafts reviewed by OGC.
For
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Multiple Addressees :
escalated enforcement actions without a civil penalty, OGC consents are sought i
only if OE considers it warranted.
For civil penalty cases initial OGC consnents are considered by OE and the review of further drafts by OGC requested only if DE determines it warranted.
With this reduction in the amount of OGC review given, it is necessary that regional counsels review each escalated enforcement action reconsnendation, in draft or final forc, '
est when the regional counsel is unavailable. This regional counsel revio e o"ht be sufficiently detailed to assure that the violations and enforcemen:
..lon are adequately supported legally.
It is recognized that there is only one counsel in each region and that the counsel may at times be out of the office. On the other hand, most enforcement action take some time to prepare which should allow the counsel to at least review and consent on a draf t.
Each Regional Administrator is requested to incorporate and modify, as necessary, the job descriptions and the performance elements and standards for the regional counsels to specify their role in the enforcement process.
I understand that Jack Goldberg, OGC, is developing model language for this
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purpose. This should be accomplished for the next rating period.
If there are questions or consnents related to these matters, please contact me or Howard Wong, of my staff.
In addition, we plan to discuss this memorandum during the weekly enforcement coordinators' call on Thursday, August 10, 1989.
Thereafter, we intend to finalize this guidance.
James Lieberman, Director Office of Enforcement
Enclosure:
As stated cc:
H. Thompson, DEDS J. Partlow, NRR J. Goldberg, OGC R. Cunningham, NMSS Regional Enforcement Coordinators Distribution JLieberman HWong Day File ED HWong ieberman 8/ gE9 8/p89
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