ML20024J082

Notice of Enforcement Discretion Review Team Rept,

ML20024J082
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Issue date:	09/01/1994
From:	Boyle M, Landis K, Luehman J NRC
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NOTICE OF EXFORCEMEXT DISCRETION REVIEW TEAM REPORT SES Oversight:

John Hannon Team Members: Michael Boyle Kerry Landis James Luehman Legal Advisor:

Richard Hoefling September 1,1994

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Notice of Enforcement Discretion Review Team Report Table of Contents Executive Summary............................

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1 Background

I 2 Eval uation Activities......................... 2 3 Discussions, Conclusions and Recommendations 3

Appendices Appendix. A '10 CFR Part<2,: Appendix C,Section VII.Y" Exercise of '

' ~ " ' "-" " "

Enforcement Discretion for an Operating Facility"...... A-1 Appendix B - NRC Inspection Manual Part 9900: 10 CFR Guidance "10 CFR Part 2 Appendix C Enforcement Discretion"...... B-1 Appendix C - Review Team Charter..................... C-1 Appendix D - NOED Review Team Checklist................. D-1 Appendix E - Listing of Notices of Enforcement Discretion Issued from March 17, 1993 thru July 24, 1994.............. E-1 Appendix F - Recommended Revision to NRC Inspection Manual Part 9900... F-1 Appendix G - NOED Analysis Tables.................... G-1 Appendix H - NRR Comments on Draft N0ED EGN and on Region Comments.... H-1 Appendix I - Recommended Information to be Included in the NOED Tracking System Database..................

I-1 Appendix J - Summary of Recommendations................. J-1

Executive Summary In a July 8,1994, memorandum the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and Research (DEDR) proposed to the Director of the Office of Nuclear Reactor Regulation (NRR) that a team be established to review the Notice of Enforcement Discretion (N0ED) program provided for in the Enforcement Policy and implenented by guidance contained in Inspection Manual Part 9900 (HC 9900). On July 21, 1994, the DEDR approved the team's charter. The charter r6 quired the team to look at a number of areas including the implementation of the N0ED guidance, the adequacy of the guidance and policy, and recommendations for char:ges to the policy and procedure.

The team concluded that all N0EDs reflected adequate consideration for radiological health and safety of the public and used sound technical and safety bases. While the program was generally administered in accordance with the guidance, some aspects of the program were not being properly implemented,

....and..que.stions were.: raised. relating to.the policy-The team. believes,that-s adopting the recommendations in this report will enhance the N0ED process and improve our ability to reach the proper balance between the safety and efficiency goals of the NRC's Principles of Good Regulation.

I MAJOR CONCLUSIONS I.A GENERAL ISSUES 1

I.A.1 From March 17, 1993, through July 24, 1994, the staff received 100 requests for enforcement discretion. During the evaluation period, the staff issued 90 NOED letters affecting 100 licenses, 2 NOED requests f

were withdrawn, eight were found to be not necessary and none were denied. The NOED issuance rate was approximately 0.7 NOEDs per reactor per year, and approximately 11 percent of the issued N0EDs involved plant startup.

l I.A.2 The major causes for N0ED requests were equipment failure, missed surveillances, and additional time needed to complete repairs beyond that allowed in TS. Responding to these requests, the NRC regional offices issued 63 percent of the N0EDs and NRR issued 37 percent.

l I.A.3 The NRC routinely considered enforcement action, as appropriate, for the conditions that led to the need for the exercise of enforcement discretion.

Enforcement actions were taken for the vast majority of t

N0EDs that had violations as root causes.

I.A.4 The staff processed most N0EDs in accordance with policy and procedural guidance.

I.A.5 NRR and most of the regional. offices lack adequate guidance to document and track an NOED from request through closeout.

I.A.6 In general there was close agreement, but the team found some inconsistencies between the NOED policy and the implementing procedure, MC 9900.

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I.A.7 The length of time for which N0EDs are issued is acceptable, and the frequency of exercising enforcement discretion is not excessive.

I.B SCOPE ISSUES I.B.'1 Six N0EDs were issued for requirements specifically contained in regulations or for codes and standards implemented by regulations, each of which required a regulatory exemption or relief, not only a license amendment.

I.B.2 Ten N0EDs were issued for weather-related events. Two of the ten were also associated with reactor startups. The issuance of these N0EDs considered the overall public interest, which is beyond the radiological safety considerations of the N0ED policy.

I.B.3 One research reactor N0ED was issued. While the policy does not exclude the issuance of an N0ED to a research or test reactor, the criteria of the policy are nct easily app Addftionally," onE'NOED was is, lied to these types of. licensees.iued fo'r 'a TS re

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operations, program (i.e., security).

I.B.4 Prior to N0EDs, NRR issued Temporary Waivers of Compliance (TWOCs) to permanently shutdown power reactors while requested license amendment changes were being processed. Under the present policy and procedures, such discretion is not addressed.

I.C CRITERIA ISSUES I.C.1 Eleven N0EDs were issued for reactor startup conditions,10 of which clearly did not meet the criteria for exercising enforcement discretion as stated in the policy or MC 9900. However, the issuance of enforcement discretion did not present an unsafe condition.

I.C.2 In at least two of the 90 N0EDs issued, the staff appeared not to enforce compliance with TS requirements once an allowed outage time (A0T) had expired, if the staff was considering an enforcement discretion request. The enforcement discretion policy and procedures are silent on this type of action.

II MAJOR RECOMMENDATIONS The review team considered each of the following recommendations with respect to their effect on the scope of the enforcement discretion policy. The recommendations listed below are not expected to expand the scope of enforcement discretion beyond that presently being exercised by the staff.

II.A Clarify the enforcement discretion policy and MC 9900 guidance as follows:

II.A.1 Allow N0EDs for processing exemption / relief requests (e.g., 10 CFR Appendix J testing or ASME Code Section XI requirements), to be included under the enforcement discretion policy.

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II.A.2 Retain a high standard for issuing an N0ED for plants attempting to startup, but broaden the allowable circumstances to accommodate those conditions where the licensee has compensatory equipment that was not credited in the safety analysis that provides at least an equivalent safety function as the equipment for which the discretion is requested.

II.A.3 On rare occasions, such as extreme weather which causes a power demand emergency and/or grid instability, the N0ED policy should be changed to allow enforcement discretion to be issued commensurate with the overall public interest.

I II.A.4 Include research reactors in the policy and provide criteria and i

guidance as to the use of discretion for those licensees.

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II.A.5 Include permanently shutdown power reactors in the NOED policy and provide criteria and guidance as to the use of discretion for those licensees, or develop another polic

'the 'lafg'ely"ecohomit basis"for 'the"y. for. the.se sitystions.because,of. ;,.

discretion.s II.B Clarify the NC 9900 guidance as follows:

II.B.I If the decision can not be made to verbally exercise enforcement discretion prior to expiration of the A0T, then the NRC staff must ensure compliance with the TS requirements.

If compliance requires substantial licensee actions, such as beginning a plant shutdown that may not be t.ie safest thing to do under the circumstances, then the staff should expeditiously review the NOED request. However, the burden is on the licensee to provide a sufficient basis for the staff to issue enforcement discretion to allow continued operation beyond A0T expiration.

II.B.2 NRR should issue multiple plant common condition NOEDs which are short duration, one-time only requests from individual licensees (normally issued by the region). NRR should assume NOED issuance responsibility when the region has concluded that NRR has the most experience / expertise in the given area and has requested NRR to take the lead.

II.B.3 Detail what licensing, inspection, and documentation actions are necessary to track an NOED from request through closecut.

Implement a common NRR and regional N0ED tracking system accessible by the q

LAN.

II.B.4 Specify upper level management oversight functional responsibilities.

II.B.5 Provide a formal means of notifying the public in a timely manner about the issuance of all N0EDs.

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l II.C Continue dialogue with licensees to prevent inappropriate NOED requests or inadequate justification. Cover the enforcement discretion policy in workshops both inside and outside the NRC.

The report presents the team's findings, conclusions, and recomendations for improving both the procedural guidance and the policy. Appendix J includes a sumary cf all the review team's recomendations and a reference to the applicable report section for each recomendation.

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1 Background

In July 1985, the staff issued Enforcement Guidance Memorandum 85-05 (EGM 85-

05) to address situations where technical specification (TS) compliance would unnecessarily require plant shutdown or prevent plant startup and where the exercise of discretion to waive compliance with the license might be appropriate. The document issued to a licensee to provide such relief was called a Temporary Waiver of Compliance (TWOC). The TWOC guidance was revised periodically with the last revision in February of 1990.

On February 7,1992, the General Counsel submitted SECY-92-043, " Exercise of Discretion Not to Enforce Compliance with License Conditions," to the 4

Commission. The Office of the General Counsel reviewed both the existing TWOC process and the body of law affecting the Commission's discretion in the enforcement area and recommended that the TWOC process be revised. The most significant recommended change was that rather than continuing a staff-approved policy for these short duration waivers of compliance, a Commission approved policy should be added to "The General Statement of Policy and

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~ " Procedure'f~of NRC' En~forceme'nt'ActiBhs,'"'10"CFR'Paret 2',"Appsdix C (Enfopcine'nt '

Policy). The Commission approved the recommendations and directed the staff to revise the process accordingly.

On May 19, 1992, the staff submitted a change to the Enforcement Policy to the Commission in SECY-92-184 " Proposed Change to the General Statement of Policy and Procedure for NRC Enforcement Actions, 10 CFR Part 2, Appendix C."

This change would incorporate the policy for short duration exercises of discretion into the Enforcement Policy.

On October 13, 1992, the staff modified its recommended change in SECY-92-346 " Additional Modifications to a Change to the General Statement of Policy and Procedure for NRC Enforcement Actions,10 CFR Part 2, Appendix C."

The Commission approved the modified change to the Enforcement Policy with additional minor revisions and published the change in the Federal Register on March 17,1993 (58 FR 14308). (A copy of the change to the Enforcement Policy can be found in Appendix A).

On March 29, 1993, the Office of Enforcement issued interim guidance for the issuance of Notices of Enforcement Discretion (NOED), which replaced the TWOC, in EGM 93-004. On August 6, 1993, the final procedural guidance for issuing N0EDs was added to Part 9900 of the NRC Inspection Manual and that guidance is the current standard for issuance of N0EDs (Appendix B).

In May 1994, while preparing responses to Congressional and media questions on the use of N0EDs, the staff found it difficult to gather the needed information and the information that was gathered appeared to indicate some inconsistencies in the implementation of the NOED program.

In a memorandum of July 8, the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and Research (DEDR) addressed the apparent problems in the program by directing that a review team be assembled. The Director of NRR directed the Associate Director for Projects to prepare a review team charter and assemble a review team. On July 21, the DEDR approved the review team charter submitted by the Director of NRR (Appendix C). On July 25, the review team met formally for the first time and began its work.

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Evaluation Activities The review team evaluated its charter and decided to expand the period of review from March 17, 1993, through May 31, 1994, to March 17, 1993, through July 24, 1994. This increase in scope encompassed all N0ED actions up to the i

start of the team's review and only slightly increased the number of N0EDs for 3

the team to consider.

i To complete charter objectives (1), (2), (5), (6), and task 2 of objective (4), the team wrote a checklist to follow in reviewing the N0EDs (see Appendix D). The team met with members of the Office of the Inspector General (OIG) l who were conducting an audit of the staff's implementation of the NOED policy l

and procedures. The team received a copy of the OIG auditor's N0ED checklist i

and found it comparable with the team's checklist.

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OPERATING (84%)

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SHUTDOWN l

(5%)

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STARTUP i

(11%)

t FIGURE 1 PLANT OPERATING STATUS NRC issued 90 N0EDs (involving 100 licenses). Eight N0EDs were not necessary, two were withdrawn by the licensee, and none were denied.

Figure 1 presents l

the operational status of the plants involved at the time of the NOED request.

j Appendix E is a list of all NOED actions considered by the review team.

However, the team did not do a detailed review of N0EDs withdrawn or not j

j needed.

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In this report, an #0ED is an act of discretion exercised kr a particular site, although the staff issued certain letters for mult',4 acts of discretion involving multiple licensees at a site and ir wae cases multiple i

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sites within a utility. The definition used herein is consistent with the convention established by the guidance and the tracking system.

The team began its review of N0EDs by reviewing the records kept fcr the NRR projects N0ED data base. These records contain copies of all the N0EDs and many of the licensee letters requesting discretion. The team later reviewed certain license amendments issued to support the NRR N0EDs, but did not gather and review all the missing licensee letters or NRC license amendments as most N0EDs included enough information.

While the team contacted NRR and regional personnel to obtain additional information on specific N0EDs, it did not interview personnel about the implementation of the N0ED program because: (1) the team obtained documents with a significant amount of information; (2) OIG had interviewed staff in Region III and NRR; (3) the team included members with N0ED experience from NRR, the regions, and OE; and least important, (4) the limited time available.

Objectives, Conclusions, and, Recommendations,.,

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Tha following are the results of the NOED review organized by the r ^ ".ponding charter objective (for example, Section 3.1 corresponds to (w

objective 1; Section 3.2.2 to Charter objective 2, task 2).

3.1 Determine whether Inspection Manual Chapter 9900 is consistent with the enforcement discretion policy The review team compared the inspection manual guidance and the enforcement policy for consistency and found the two documents in close agreement.

However, a few areas in the guidance needed to be re-written to more closely follow the criteria in the policy. In some cases, the guidance addressed areas a covered in the policy. For instance, the guidance allowed NRR to issue tiple plant common condition N0EDs even if the individual NOED requests 3, :

should have been processed by the regions. The policy does not contain that provision.

RECOMMENDATION: Adopt the applicable portions of the revised Inspection Manual 9900 guidance in Appendix F to eliminate inconsistencies between the policy and the procedure.

3.1.1 Prepare a matrix classifying the types of causes that led to the licensees' N0ED requests The team reviewed the 90 N0EDs issued and assigned each N0ED one of the following root causes:

(1) equipment failure (2) additional time necessary to complete equipment repair (3) inadequate design (4) missed or will miss surveillance (5) inappropriate system testing, inspection, or alignment (6) technical specification wording or TS error (7) weather-related events 3

(8) inadequate time to complete processing of licensing action (9) all other causes Appendix E contains a matrix classifying the types of causes that led to the licensee requests.

Figure.2 is a graphic presentation of the causes leading to the requests for enforcement discretion.

EQUIPMENT FAILURE (44%)

IMAPPROPRIATE SYSTEM TEST (3%)

1NADEQUATE x

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TIME FOR TECH SPEC (1%)

MISSED

{

EVE 11%)

y TECH SPEC DESIGN WORDING (2%)

PROBLEM (8%)

TIME FOR REPAIRS (13%)

FIGURE 2 N0ED ROOT CAUSES The predominant root causes were equipment failure and missed surveillances, which correlate well with the fact that the regional offices issued 63 percent of the N0EDs and NRR issued 37 percent.

CONCLUSION: Although unanticipated equipment failures were the predominant root cause for requests for N0EDs, the root cause of the N0ED was not always evident in the licensee's request or the staff's written response.

RECOMMENDATION:

Each NOED approval letter should document the root cause for the NOED, and the NOED tracking system should record the root cause.

3.1.2 Determine if the N0EDs granted in the past should have been processed differently (e.g., exemption from regulation) 4

t The following categories of N0EDs required additional review to determine if they had been processed correctly:

1. Relief / Exemption

2. Reactor Startup

3. Natural Event

4. Research/ Permanently Shutdown Reactors

5. TS 3.0.3

6. General 3.1.2.1 RELIEF / EXEMPTION Six of the 90 N0EDs were exercised to process exemptions or reliefs from regulations or codes and standards specifically implemented through the regulations. One of the six involved an N0ED exercised while an exemption was I

being processed for the security program, and the other five dealt with similar actions associated with requirements from either Appendix J to 10 CFR Part 50 or,tt(e,Ameri,can Socie.ty of Mechanical Engineers (ASME), Code.,;

The team questioned whether NOEDs were appropriate for requirements of regulations or codes and standards specifically implemented through regulations. The team found that NRC managers involved in issuing NOEDs generally understood that the NOED process allowed N0EDs for regulations or

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codes and standards, which are also stated as TSs or other license conditions.

This assumption is considered reasonable because the requirements were placed in the TS or other license conditions, and the types of issues considered were of similar safety importance to other issues contained in the TS. Deviations to regulations (exemptions) are afforded by the provisions nf 10 CFR, such as 10 CFR 50.12, and relief from ASME Code requirements by the provisions of 10 CFR 50.55a(g)(6)(1), while the NOED process is based on 10 CFR 50.90 and 10 CFR 50.91 (TS amendments). Application of the N0ED process to the granting of exemptions / reliefs is not clear in the policy.

I CONCLUSION: NRC is adequately considering safety in processing enforcement discretion requests for issues involving an exemption from regulations or l

relief from codes and standards.

For example, (1) all of the six referenced N0EDs were issued for regulations which were also reflected in a TS or other license condition; and, (2) the five N0EDs involving reactor operations issues included adequate technical justification to find that the described course of action involved minimal or no safety impact. However, the scope of the NOED policy should be clarified regarding applicability to exemptions and reliefs to regulations cited in a plant's license.

RECOMMENDATION: Clarify the enforcement discretion policy and MC 9900 guidance, to allow NOEDs for circumstances involving the processing of exemption / relief requests.

If these types of cases can not be incorporated into the NOED process, develop an alternative process to handle emerging exemption / relief issues of short duration.

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i The guidance and possibly the policy should clarify that a N0ED can be exercised for security and other programs referenced in the TS or license conditions when there is a direct nexus to reactor safety.

j 3.1.2.2 REACTOR STARTUP i

Ten of the 11 N0EDs allowing licensees to start up plants that were clearly not in full conformance with the applicable operating license were not consistent with the policy. While the staff's determinations in such cases l

did not detract from safety, the higher standard required for plants in startup was not achieved.

The enforcement discretion policy establishes a higher standard for issuing an

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NOED for plants attempting to startup than for plants already operating. The Commission's policy statement defines three instances when the staff may exercise such discretion:

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.the. equipment or,syst.es. doe.s.not. perform.J..s,4fety function, jn jhe,. mode.

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in which operation is to occur;

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(2) the safety function performed by the equipment or system is of only marginal safety benefit, provided remaining in the current mode increases the likelihood of an unnecessary plant transient; or i

(3) the TS or other license condition requires a test, inspection or system I

realignment that is inappropriate for the particular plant conditions, in that it does not provide a safety benefit, or may, in fact, be detrimental to safety in the particular plant condition.

l Although the guidance was sufficient to implement the policy, the staff f

treated most startup NOED requests the same as those for power operations. The staff usually made a finding of marginal safety benefit (the first part of N0ED startup criterion 2), but did not state why remaining in the current startup mode increased the likelihood of a transient (the second part of NOED startup criterion 2).

After reviewing the N0EDs exercised for startup conditions, the team decided that alternative criteria could be suggested that would provide a reasonable measure of safety while maintaining a higher standard for plants in startup.

For example, an NOED could be justified if the licensee provided compensatory equipment that had not been credited in the accident analysis. The licensee l

would need to demonstrate that the alternative equipment provided at least an equivalent level of safety to that of the equipment discussed in the N0ED.

The team considered the advisability of allowing the use of temporary compensatory measures, such as credit for operator action to compensate for the loss of equipment with marginal safety benefit. While it was recognized j

that there may be infrequent cases in the future where this type of consideration would be appropriate, the review team does not recommend adding the use of temporary compensatory measures to NOED startup criterion 2.

With that extra degree of flexibility, we do not believe the startup criterion 6

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I would be sufficiently limiting such that N0EDs exercised to all'ow startup l

would remain an infrequent event.

CONCLUSION: The NRC exercised enforcement discretion during startup conditions that did not explicitly meet the criteria for enforcement discretion as stated in the policy or MC 9900. However, exercising this enforcement discretion did not present an unsafe condition. The criteria for i

exercising enforcement discretion for plants in startup mode could be expanded to include cases in which a licensee has compensatory equipment not credited in the accident analysis. This compensatory equipment would ensure.a l

comparable level of safety.

i RECOMMENDATION:

Retain a high standard for issuing an NOED for plants l

attempting to start up, but broaden the allowable circumstances to accommodate I

a licensee that has compensatory equipment. Revise the enforcement discretion policy and MC 9900 criteria for startup conditions as follows:

Enforcement discretion will likely be exercised less frequently ' "

.:bla'nts 'attesptihg'to" start' up'than"for ojiebatffnsi plints, tiecausefor

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n-delaying startup does not usually leave a plant in a condition in which it could experience undesirable transients. When enforcement discretion is exercised to avoid a startup delay, it is to be exercised for equipment or systems when the NRC staff has at least concluded that, notwithstanding the conditions of the license, 1.

the equipment or system does not perform a safety function in the mode in which operation is to occur or i

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the safety function performed by the equipment or system is of marginal safety benefit and t

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compensatory equipment that is not credited in the accident t

analysis and can perform the same safety function is i

operable, or b.

remaining in the current mode increases the likelihood of an unnecessary plant transient; or, 3.

The TS or other license conditions require a test, inspection, or system realignment that is inappropriate for the plant conditions, because it does not benefit safety or may decrease safety in the plant condition.

If such a change had been in effect during the evaluation period, it would still not have allowed for many of the NOEDs the staff issued for plants in startup mode during that period. However, broadening the startup criteria as above does increase the possibility that the staff would grant startup N0EDs more frequently than currently envisioned in the policy.

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3.1.2.3 NATURAL EVENT DISCUSSION: The team found 10 N0EDs exercised to reduce the possibility of operational problems in severe weather conditions where the need for i

enforcement discretion did not otherwise exist. The team thoroughly considered each weather-related NOED and concluded that the staff had stated a basis for exercising enforcement discretion in each case by finding minimal or no safety impact. The N0EDs issued for extreme weather predominantly involved suspending TS required surveillances in order to ensure maximum grid stability during periods of extreme power demand. The enforcement discretion policy does not address balancing the benefit of reactor safety with the benefit of maintaining a safe and dependable source of power.

CONCLUSION: The enforcement discretion policy does not address severe weather conditions where the need for enforcement discretion does not otherwise exist.

i RECOMMENDATION: Clarify the enforcement discretion policy and MC 9900 guidance to state that on rare occasions, natural events such as.txtreme Neathef Tehlich'ca'useFa',' oweF deinand'aimehe'ndy or gridlnstability, the stiff ~

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p may exercise enforcement discretion to promote the overall public interest.

This involves balancing actions ~ which have minimum or no safety impact with the overall safety benefit of continued reactor operation.

While the team is not recommending that Commission notification be required for the above exercise of discretion, we note that such notification is already required in the Enforcement Policy for other situations that require a similar balancing of concerns.

3.1.2.4 RESEARCH/ PERMANENTLY SHUTDOWN REACTORS l

The team found one NOED issued for a research reactor.

Putting aside the policy issue of whether research and test reactors are covered by the N0ED process, the NOED issued was inappropriate, in that it was issued to allow conduct of a special test which is covered by 10 CFR 50.59 and not the N0ED policy.

The NOED process is based on Enforcement Policy provisions that do not specifically exclude its use for research and test reactors. However, the criteria of the policy were not written to allow consideration of such licensees. Nevertheless, the continued operation of such a facility might warrant enforcement discretion for reasons of public health and safety or reactor safety. For example, the larger issue of public health and safety might justify continuing to operate the reactor during the final stages of a critical medical treatment or experiment. Consideration of reactor safety for such licensees could in certain circumstances fall under the existing criteria of a test, surveillance or system realignment inappropriate for the particular plant conditions.

The team was made aware that in the past, TWOCs were used for addressing TS and license issues at permanently shutdown power reactors, while a requested license amendment was being processed. Since the NOED policy and procedure i

have been in place, no N0EDs have been issued for such plants. The policy and j

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procedure do not cover such situations, as they discuss shutdown reactors only in terms of minimizing shutdown risk, which is not normally the issue for these plants. Nevertheless, the need for N0EDs, or some other similar process, for permanently shutdown power reactors will likely occur in the future.

CONCLUSION: The N0ED policy should be modified to address the hazards associated with research and test reactors and thus should explicitly include l

these licensees in its scope. However, the criteria for exercising such discretion should be very restrictive because it would be done under only very limited circumstances. The need for enforcement discretion for permanently shutdown power reactors will likely occur in the future.

RECOMMENDATION: Clarify the enforcement discretion policy and MC 9900 guidance to state that enforcement discretion may be warranted for continued operation of a research reactor under rare circumstances. Appendix F includes the proposed change to MC 9900 guidance.

i "The i olic'y aiid' procidurs s~hould 'bi modif'i~dd'to aill'oftkuseif N0EDif6r'

i permanently shutdown power reactor licensees awaiting license changes necessitated by that condition. Alternatively, another policy should be developed to address enforcement discretion for these largely economic issues that have no impact on reactor safety.

In either case, this discretion should only be exercised in situations when a previously submitted license amendment / exemption is desired before processing by the staff could be completed.

3.1.2.5 TS 3.0.3 r

Licensees have requested discretion upon discovering a problem shortly (possibly minutes) before an allowed outage time is due to expire. The staff 3

usually did not have time to assemble the necessary personnel or receive the 6

necessary telecopies from the licensee and handled such cases in one of two ways.

If the A0T expired, the staff may have directed the licensee to proceed with the required action, usually to start the reactor shutdown, and continue until the NOED was issued by the staff. However, the staff may have allowed the licensee to delay acting until the staff had time to fully consider the request. The latter and rare case is referred to as " holding the LC0 time clock in abeyance" or " stopping the LCO time clock" and is done with NRC agreement. The presumption is that the NRC will ultimately exercise the necessary enforcement discretion, and that maintaining the plant in a stable configuration is best to maintain reactor safety.

The policy does not address the practice of allowing licensees to not comply with TS requirements once an A0T has expired, while the staff is considering a discretion request. Statements made in the N0ED letters could imply that the staff did not make a safety finding until after the A0T expired. This is inappropriate.

e CONCLUSION:

In the documents for 2 of the 90 N0EDs, the staff appeared to not enforce compliance with TS requirements once an A0T had expired, if the staff

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was considering an enforcement discretion request. The enforce' ment discretion policy and implementation procedures are silent on this action.

RECOMMENDATION: Clarify MC 9900 guidance to state that the NRC staff must ensure compliance with the TS requirements if it does not verbally issue enforcement discretion before the A0T expires.

If compliance requires the licensee to take substantial actions, such as beginning a plant shutdown that may not be in the best interest of safety, then the staff should act quickly on the request for enforcement dis-cretion. However, the licensee must give a sufficient basis for the staff to issue enforcement discretion to allow continued operation beyond A0T expiration.

3.1.2.6 GENERAL NRR issued several N0EDs for brief, one-time issues which by the procedure should have been issued by the respective region. However, although this practice did not follow policy and procedure, the technical issues were proper,1y addressed and theyegion. concurred, ip the action.. NRR took,.,....

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responsib'i11ty for issuing these N0EDs because the region conc 1Uded that the office with the most experience / expertise in a given area should have the'1ead and sign the document. NRR also handled such N0ED requests involving multiple plant common condition N0EDs, which were allowed by the NOED procedure but not by the policy.

While the NRC and the industry discussed short duration enforcement discretion i

issues at the four regional Operability / Degraded Equipment workshops, three of these took place while the TWOC process was still in effect. Most submittals under the NOED policy were of high quality because industry understood the publicly available Inspection Manual guidance and had years of experience with l

the TWOC process. However, there has never been any focused discussions with 1

the industry on the N0ED process and'the types of problems that may arise when an NOED is being considered. Additionally, the team did not find any staff-l wide training on the N0ED policy, procedures, or problems encountered in r

implementing them.

The review team found a few minor administrative problems with the N0EDs reviewed. A number of N0EDs were issued without the sequential number required by the procedure, and others were issued without clear indication l

that the required cross-office concurrence was first obtained.

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CONCLUSION: The staff processes most N0EDs in accordance with policy and procedural guidance. The policy should allow NRR (as it is already permitted in the procedure) to handle individual plant NOED requests involving common i

conditions and thus review the affected licensees' bases in a single coordinated effort rather than having each involved region consider the bases of its licensees separately.

Having NRR handle those N0EDs deferred by the region does not raise any technical or safety concerns.

RECONMEWATIONS:

Clarify the NC 9900 guidance to state that NRR should issue multiple plant common condition N0EDs which are short duration, one-time only requests from individual licensees (normally issued by the region). NRR may 10

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issue N0EDs when the region has concluded that NRR has the most experience / expertise in the area and has requested NRR to take the lead.

The NRC must continue dialogue with licensees to prevent inappropriate N0ED requests or inadequate justification. Covering the enforcement discretion policy in a workshop for those both inside and outside the NRC would be beneficial.

3.1.3 Determine the adequacy of the staff's documentation of the safety rationale The staff's documentation of the safety rationale was adequate for most cases involving enforcement discretion allowing a reactor to remain at power.

However, in one case the support for the discretion was provided but the reason given for issuing it was mis-stated.

In contrast, the staff did not state a basis for many of the N0EDs to continue startup. While in such cases, the staff made the safety argument about the affected equipment's minimal safety impact, it failed to make the additional finding required in such. cases

'that'r'emain'ing'fri the'cErrsiit ~miode oFeohdition7ricr'eassPthb' lifelinood'of"an' '

unnecessary transient.

In several of the staff's letters, it relied too heavily on references to the licensee's letter instead of more thoroughly summarizing the basis in the N0ED itself. Many of the NRC's letters discussed the arguments from the licensee's letter without stating which was the basis for the NRC's decision.

In some i

cases, NRC apparently accepted all of the licensee arguments as valid when in fact they may not have been. For example, licensees routinely make arguments such as providing power to the customer or avoidance of even a minimal personnel radiation exposure being benefits, neither of which relate directly to the reactor safety based criteria of the N0ED policy.

The time lines in many of the N0EDs were incomplete and confusing.

For example, the staff frequently did not state the length of the applicable Allowed Outage Time (A0T), when the A0T began or was due to expire, when discretion was verbally requested, when it was verbally issued, and sometimes began the period of discretion from the beginning of the A0T rather than the its end.

CONCLUSIONS: Most NOEDs included adequate documentation of the safety i

rationale. The staff, for reactors being started up, justified and documented well the finding of " minimum or no safety impact"; however, the majority of startup N0EDs did not contain the higher level of justification required by policy and procedure.

RECOMNENDATION:

Summarize the specific basis for the NRC decision in the letter without referring to the licensee's letter except for details and specific licensee arguments that were not relied on.

Rewrite the example letter in the MC 9900 guidance to show how the licensee safety basis should be stated, evaluated, and documented and the sequence of events stated.

(See Appendix F).

I 11

3.1.4 Determine if the duration for which enforcement discretions are granted is excessive. State rationale for accepting the current practice or recommend changes a

The review team examined the length of time for which N0EDs were issued and then, where possible, determined from inspection reports, licensing actions and plant status reports, the actual length of time that the N0E0 was in effect. The team found that, in general, the duration for which N0EDs were issued was acceptable.

In fact, there were examples where the NRC exercised periods of enforcement discretion shorter than requested by the licensees.

In the case of NRR N0EDs, the length of the period for which NRR allowed discretion depended on how quickly the followup license amendment was issued.

While most amendments were issued in days or weeks, a few amendments were not issued for months.

Although the staff stated the maximum period for the enforcement discretion in the N0ED letter, exactly how much of the allotted time was used in many of the cases is unknown.

In some cases where the discretion had already, ended.:by;the.

time"the 'NRC'i'ssued"its'l'ett'er', 'th' ' letter"i'tated' the' end ' tim'e. ~ Figure 3 e

shows the time, in days, that it took NRR to issue the licensing action associated with the N0ED. The policy and guidance state an NRR NOED duration of time sufficient to process an emergency or exigent license amendment, which generally should be no more than 3 weeks. As shown in Figure 3, 56 percent of the licensing actions were issued within 3 weeks.

<= 21 DAYS (56%)

i

> $0 DAYS (13%)

> 21 & <= 60 DAYS (31%)

FIGURE 3 LICENSING ACTION TIMELINESS 12

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Figure 4 displays the distribution of licensing actions issued'by NRR. As shown, 53 percent of the licensing actions were issued for emergency or exigent license amendments. Normal amendment or relief / exemption processing can be expected to take substantially longer than 3 weeks, and the use of these types of licensing actions naturally increased the N0ED duration.

(Note: in some cases an NRR issued N0ED had no followup licensing action.

For example, the plant shutdown or corrected the root cause precipitating an end to the N0ED before the licensing action could be issued.)

EMERGENCY AMENDMENT (34%)

,/

EXIGENT AMENDMENT (19%).

/

s

.s.

't8iGS818i:i$iO!:i8i:i8i8!GS+!

iiiiiiiii!ssi!!!!!!!!!siiss:i{siissi!

8s:s::ssssss::s::sss:+:+:+

ssss0.:!:!$s:sssss:+$i8(:

+: -

ssss:.:+ ss.:s:::liiiif

'is{i!((i!!!!!((!!ssi

'ii$isi8i8i$$dsE NOTHING NORMAL

$$i!$$$$ss# ISSUED (19%)

AMENDMENT isF (19%)

RELIEF OR EXEMPTION (9%)

FIGURE 4 LICENSING ACTION (BY TYPE)

The team also evaluated the quantity of NOEDs exercised and their distribution. While the small sample size makes generalizations difficult, the team found that N0EDs were exercised over the evaluation period at a rate about the same as the historical average when the years of TWOC issuance are included. The team found no apparent correlation between plant operational performance and issuing of N0EDs (Appendix G). N0EDs were distributed evenly across the reoions when considered both by reactor and by site. The regions issued more N0EDs than NRR, as would be expected since equipment failures are the primary reason for seeking an N0ED. While 22 sites did not receive N0EDs in this period, many sites received multiple NOEDs during the evaluation period (1 dual unit site with 6, I triple unit site with 5, and 3 dual unit sites and one single unit site with 4 each).

CONCLUSIONS: Overall, the length of time for which NOEDs are in effect was acceptable.

In most cases the regions complied with the Inspection Manual 13

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guidance, which states a maximum length for such N0EDs. However, NRR took too long in issuing some licensing actions that ended the discretion period, because either the action was treated as a normal license amendment or in some cases the need for an exemption or relief took additional time. While it would be difficult to specify a maximum length of time for NRR, the policy clearly implies that all such amendments should be issued within several weeks rather than months.

However, the NOED may involve an issue tied to a broader amendment processed as a whole and taking a longer time to be issued than an amendment involving the discretion issue alone.

RECONNENDATION: To ensure that all N0EDs have been documented as closed out, NRR and the regions should verify the accuracy of information in each NOED request to vcrify that the minimum time period is requested for enforcement discretion. NRR should minimize the time for which the enforcement discretion is in effect by issuing licensing actions which involve enforcement discretion in a timely manner (normally within 3 weeks). Only in special circumstances should NRR take longer than 60 days to close out an action. The closecut information (IR number, EA number Amendment number,'and. dates) ~.should 'be. put.

~

'into the' N0ED"t'rsk'in'g' 's9dem.' ' ',' '

~ '"

3.2 Determine if the staff is pursuing enforcement actions for the root causes of violations for which enforcement discretions are sought and i

recommend improvements needed 3.2.1 Determine if the staff adequately reviews the accuracy of the licensee's rationale for N0ED requests The team could not directly evaluate this issue because the staff did not discuss such reviews in the NOED letters and was not consistent in doing the followup actions. However, the team found evidence that the staff verified certain licensee assertions before issuing an N0ED and verified others while closing out the N0ED.

The resident inspector and the project manager usually participate in discussions with the licensee before the N0ED is exercised. This is done in part to ensure that the NRC managers issuing the NCED hear an independent perspective on the licensee's assertions from the two NRC personnel most familiar with the plant prior to issuing the NOED.

Only one region had a procedure describing the type of followup actions to closecut an NOED. However, a case involving a regional NOED in another region indicated other regions also verify licensee assertions. The region determined that what the licensee had told the NRC verbally was in fact not being fully implemented. The region revised the NOED to reflect what was being implemented and sent the licensee a strongly worded letter about the t

issue.

1 CONCLUSIONS: Having the resident inspector and the project manager participate at the beginning will ensure an adequate evaluation of the major assertions licensees are making verbally and in writing. However, the staff did not always clearly document actions to follow up on the details of licensees' assertions. In at least one case, a licensee commitment was not 14

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properly implemented and was not detected for some time. However, the fact that enforcement action is being taken, as discussed in Sections 3.2.3 and 3.2.4 below, demonstrates that the staff verified licensee commitments in many Cases.

RECOMMENDATION: Clarify the MC 9900 guidance to state that the regions should, in closing out the inspection for the NDED, verify the accuracy of licensee information upon which the N0ED was based, and as recommended in Sections 3.2.3/4 below, document results in an inspection report and enter appropriate data into the NOED tracking system.

3.2.2 Determine if the staff routinely ensures that the root causes warrant the requests for the exercise of enforcement discretion, and that licensees do not abuse the process The team reviewed the final disposition of NOEDs. During the evaluation period, the staff began processing 100 NOEDs, of which 90 were exercised, 8 were not needed (e.g., a forced shutdown for another problem intervened), 2

"""l were Withdrawn (would likelf have been denied)' trid'0 forma 11y' denied: All'- '

NOEDs were submitted for appropriate causes except for the research reactor i

N0ED and the security program N0ED.

)

Each issued NOED (except for the NOED issued for the security program) had an i

adequate technical basis in reactor safety. Although most NOEDs submitted are given enforcement discretion by the staff, this should not create a false i

perception that N0EDs are easily obtained. Licensees have a fairly good understanding of what the NRC staff will accept. Thus, they will only devote the resources to those discretion requests that would likely be exercised.

Frequently, the licensee staff and the NRC will discuss a contemplated NOED i

before it is submitted, and the licensee may not submit it if the enforcement i

discretion they would propose would not likely be exercised. Unless the i

discussion lasted a long time, the staff would not record it in the tracking system as either a withdrawal or a denial and the percentage would continue to j

favor those NOEDs issued. The NRR projects staff attempts to record at least the time spent on this type of issue by informally having project managers report when they spend more than four hours on such an issue. The regions also record some of the time spent on NOEDs but lack formal guidance.

i i

The N0ED distribution data did not indicate problems with the program or its j

implementation and did not show any obvious bias based on the utility's performance in the requesting or issuing of N0EDs. However, the high number i

of N0EDs issued to a few sites is a concern when the words of the Enforcement i

Policy are considered: " Finally, it is expected that the NRC staff will exercise enforcement discretion in this area infrequently."

In three j

instances the staff demonstrated adequate technical justification, but may not i

have met the intent of the Enforcement Policy.

In two cases, the staff issued two startup N0EDs for the same plant startup, although these are supposed to be an exception among these infrequently issued acts of discretion.

In the third case, in 1991, the staff issued a TWOC for which the licensee committed to take followup action; yet in 1994, the licensee again requested and received the discretion because it had failed to properly act on the 1991 TWOC.

15

i The team did not evaluate the data by NSSS and did not consider whether the plant had custom or standard TS because (1) the past evaluations did not show I

any evident trends and (2) evaluations by a factor such as NSSS or TS type j

might reveal an inherent reason such plants are more likely to seek N0EDs, but 4

these factors would not disclose problems with the N0ED procedure or its implementation.

i The staff issued N0EDs at the average rate of 1.0 N0ED per site-year (0.7 N0ED per reactor-year), which appears to meet the NOED policy expectation for l

frequency of issuance. This rate is similar to the rate for the predecessor to N0EDs, TWOCs. To put the n_ umber of N0ED requests (100) in perspective, the team noted that the staff received 2268 requests for licensing actions during the same 16 month period, demonstrating the fact that N0EDs comprise a very j

small fraction of staff actions. The changes recommended herein to the NOED policy and procedure should not significantly change the historic rate of l

N0ED/TWOC issuance.

i CONCLUSION:.The staff is not abusing the enforcement. discretion. pol. icy by I

allowilig l'icense'e's 'brijustifleddiscreli' ri. ~ The'ssaff'Fsafeii ratio' ale for o

n issuing N0EDs is sound and as long as the staff reviews requests in accordance with the policy and procedure, licensees can not abuse the process. Although i

the staff issued three N0EDs that did not meet the intent of the policy i

l regarding infrequent requests and nonrecurring problems, the overall frequency I

of the exercise of enforcement discretion fulfilled the stated expectation in the Enforcement Policy.

RECONNENDATION: Clarify the MC 9900 guidance to ensure that the root cause is evalcated by the licensee and the staff (to include relevant similar t

historical events) and is documented in the NOED letter and in the NOED tracking system. Require NRR to open a TAC for any N0ED action using four (4) i hours or more of total staff time. Update WISP to include a unique two-letter l

code for N0EDs.

3.2.3 Determine if the staff evaluates the need for and takes enforcement actions for the root causes that result in the violations 3.2.4 Determine if the staff ensures that the licensees' procedures and f

programs are evaluated to ensure that the root causes that resulted in i

N0EDs have been eliminated l

The team reviewed the root causes for each issued NOED as discussed in the l

N0EDs and where available, the licensees' letters. The team listed those NOEDs with root causes that appeared to be violations. As shown in Figure 5, on the following page, the list included approximately 21 percent of all N0EDs issued. The team then compared that list to the list compiled to answer a question from Senator Lieberman to the staff (question 16(d)). The team requested information from the regions for those NOED root causes that appeared to warrant enforcement and were not included on the answer to l

question 16(d). The regions informed the team of five NOEDs for which enforcement had been taken but had not been listed in the response to question 16(d). This omiscion reinforces the need for a system to adequately track N0EDs to closure. The team found only three examples of minor violations

)

16

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i

--..c

---

,.r

.r-

where enforcement action had apparently not been properly taken. All three of the violations appeared to meet the criteria for non-cited violations (NCV).

NOT WARRANTED (79%)

WARRANTED &

[/

NOTISSUED

/

/ WARRANTED &

ISSUED (18%)

FIGURE 5 ENFORCENENT ACTION STATUS 1

CONCLUSION: The staff properly took enforcement action for most N0EDs where enforcement was warranted. However, the fact that enforcement action was taken for the root cause of a particular NOED was not always easily verifiable. The team found only three cases of minor violations for which the staff did not document the reason enforcement action was not taken. All three of these cases appeared to have met the NCV criteria.

RECONMENDATION: Clarify the MC 9900 guidance to ensure each NOED is considered for enforcement action and the result of the enforcement is documented in a routine monthly inspection report.

Reference the NOED number in any enforcement action and enter the enforcement information into the NOED tracking system.

17 4

3.3 Review the Office of Enforcement draft enforcement guidance memorandum (EGM) for guidance on N0EDs [regarding only tracking and closeout) and review comments on EGM provided by the regions. With the results of the review to date, draft NRR response to EGM for the signature of the Associate Director for Projects, within five working days after all Regional Comments have been submitted.

The review team submitted a draft EGM response for the signature of the Associate Director for Projects, within 5 work days of receiving comments from each region.

CONCLUSION: Sec Appendix E for comments on the draft EGM and regional comments on that document.

RECOMMENDATION:

Implement a common NRR and regional N0ED Tracking System accessible by the LAN. Appendix E contains information recomended for the N0ED tracking system database.

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' 3. 4'

'Recomme' rid impfovbiierifsln th'e"N06;irocess.

3.4.1 Evaluate any role for public participation. Consider the possibility of noticing N0EDs after issuance. Recommend procedures for public noticing such as by news media or bulletin board systems The team considered many options for informing the public before an N0ED is issued, including publishing Federal Register notices after issuance (post-noticing), issuing news releases, publishing them in Office of Enforcement's quarterly sumary of significant enforcement actions (NUREG-0940), and expanding the information available on the open enforcement conference telephone recording (and electronic bulletin board when available) to include a list of recently issued N0EDs.

CONCLUSION: The NOED process does not lend itself to public participation before the NOED is issued. However, the public would benefit from greater access to information about N0EDs that have been issued. A rapid notification such as a news release or inclusion of the NOEDs in the telephone / bulletin board information followed by a quarterly compilation in NUREG-0940 would be a good approach.

Post-noticing in the Federa? Register would not be effective because such publication is normally associated with an invitation to coment, which means little for most N0EDs which would already be closed at the time of publication.

However, noticing an N0ED that may be open for longer than about 14 days (two weeks) will enable the members of the public to comment by telephone or facsimile while the NOED is still in effect. Finally, the team found that some license amendments associated with an NOED specifically disclose in the notice that it is associated with an N0ED, while others do not.

RECOMMENDATION:

Formally and promptly notify the public of the issuance of all N0EDs.

Publish a notice in the Federal Register for each NOED that involves license amendments or will be in effect for 14 days or longer.

On an interim basis to evaluate the public benefit, consider issuing a press 18

9 release or establish an electronic bulletin board or recorded telephone message for other N0EDs that are exercised. Collect all N0EDs and periodically publish them in NUREG-0940 along with other enforcement actions.

3.4.2 Determine the amount of oversight given the enforcement discretion process.

Evaluate the need for aucits to ensure that the guidance is being adhered to.

Oversight of the N0ED program in NRR is limited to the responsibility for issuing Inspection Manual guidance and maintaining a tracking system for the documentation related to each N0ED. The Office of Enforcement assumed oversight when field guidance was needed rapidly for N0EDs (the temporary procedure issued after the Enforcement Policy approval, for instance).

In the regions the oversight varies from a tracking and followup system in one region to elements of one or both of those functions in the other regions.

CONCLUSION: The various aspects of the program have been implemented with varying consistency across the regions and within NRR because no sing'le office

'has'ove'rall^tiversight' resperis~ibilft' 'for~the N0ED'pfo'ghm.'~ * - '

"~ ~" '

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y RECOMMENDATION: Assign responsibility for NOED oversight to a senior manager not involved in the daily tasks of the N0ED program; possibly a manager in NRR/PMAS or OE. (The team recognizes that there may be resource and/or expertise difficulties with both groups proposed. However, the team concluded that independence from the process was a more significant consideration).

Assign a single office to issue all guidance on the N0ED program. Assign responsibility for successfully implementing the N0ED program to the Assistant Directors of Projects in NRR and the Division-Directors of Reactor Projects in i

the regions with direct accountability in their perfomance appraisals. Have the N0ED oversight manager prepare an annual report that evaluates the implementation of the N0ED program for distribution to EDO, NRR, OE, and regional senior managers.

i 3.5 Develop and recommend a process for a comprehensive N0ED tracking system which ensures that documentation of the licensee's and the staff's activities on all requests for N0EDs is complete and readily retrievable.

3.5.1 Verify the accuracy of the existing database.on N0EDs since the issuance of the Enforcement Policy on March 17, 1993 The team reviewed the data for the N0EDs required in the existing database and found it very accurate.

Inaccuracies were annotated on marked up data sheets so that the errors could bt: corrected.

However, few NOED records in the NRR database were complete because the database administrator was not receiving enough information on the closeout of the NOEDs, such as inspection report followup and license amendment issuance.

Five offices (NRR and the four regions) implement the NOED program.

Program implementation guidance cones from two sources, NRR through the Inspection Manual and the Office of Enforcement through EGMs. By the Inspection Manual procedure, a Technical Assistant (TA) in NRR projects is responsible for the 19

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database but the TA relies on the project managers and the regional personnel to provide the information to keep the database current. That has not always been occurring for a number of reasons.

i CONCLUSION: The Inspection Manual guidance on following up on N0EDs has not been effectively implemented. The guidance concerning how and when the data should get to the TA was inadequate. While two offices have been issuing guidance on N0EDs, neither has been overseeing the program as needed to find and correct these problems.

RECOMMENDATIONS: Update the N0ED database with the team findings and make the recommended changes to the MC 9900 guidance for the tracking system discussed in paragraphs 3.5.2 and 3.5.3.

3.5.2 Make recommendations for expanding the database, and determine if all N0ED correspondence should be tracked in a single database.

3.5.3 Use the categories of N0EDs identified from item [1) of the Objectives

'to~ track by categ~ory' arid'inc6rpora'te'into'the"r'evis'ed N0ED~ tFacki6g" ~ '

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system.

The database lacks various pieces of information and should be expanded to include data fields for topics such as (1) whether the N0ED was requested verbally, issued verbally, or both; (2) the length of the period of discretion; and (3) the applicable license amendment number.

Additionally, the root cause field should be changed from fill-in-the blank to a multiple choice. Appendix I is a complete list of the fields in the proposed expanded database.

CONCLUSION: The existing NOED database could, with a few additions and modifications, track the whole N0ED process. Although a database of N0EDs may be sufficient, a paper file for each N0ED (similar to the OE Enforcement Action (EA) files) may assist in answering questions on individual N0EDs.

In the short term, the regions and NRR will have to have their separate databases.

In the longer tem, a consolidated database that could be shared by the regions and NRR would ensure that all data fields in the database are kept up to date.

RECOMMENDATIONS (1)

Revise the database to include all of the information in Appendix I.

(2)

Input the data corrections found by the review team into the N0ED tracking system database.

(3)

Update the database for at least all N0EDs issued since March 17, 1993, to supply all missing information in the revised database.

(4)

Make a revision of the NRR database available to the regional offices for the short term.

20

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(5)

Implement a LAN-based version of the N0E0 tracking systeth in the long term.

(6)

Maintain a hard copy file on each N0ED similar to the OE enforcement action files.

3.6 Find any weaknesses in the policy and propose improvements.

Appendix J is a summary of the recommendations made herein to improve the Inspection Manual.

Modifying the N0ED process as recommended herein will reach the proper balahce between the safety and efficiency goals of the NRC's Principles of Good Regulation. Although safety is the principal concern, the utility and ratepayers will benefit economically from improvements to the enforcement discretion process so that NOEDs are issued for instances cf little or no effect on safety. The weather-related and the possible infrequent research/ test reactor N0EDs discussed herein are the only areas where a.la public safety issue should be-included'al'ong 'with' the ' cons'ider'at'ibn'of' Pea.rgerctoY "

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safety. NRC should tightly control the conditions under which it exercises that type of discretion so that public health and safety remains the clear basis for the action.

3.7 Include as inputs the findings, conclusions, and reconnendations from the ongoing DIG review of the enforcement discretion process which is expected to be completed near the end of July 1994.

The Office of the Inspector General performed an audit review of the NRC's implementation of the NOED policy and procedures. At the time of this report the OIG had not yet published its audit report.

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APPENDICES

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1 i

i 1

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APPENDIX A 10 CFR PART 2, APPENDIX C, SECTION Vll.C EXERCISE OF ENFORCEMENT DISCRETION FbR NN OPER Tibb FACILITY

10 CFR Part 2, Appendix C, Section Vil

• C. Exercise of Discretion for an Operating Facility On occasion, circumstances may arise where a licensee's compliance with a Technical Specification (TS) Limiting Condition for Operation or with other license conditions would involve an unnecessary plant transient or performance of testing, inspection, or system ' realignment that is inappropriate with the specific plant conditions, or unnecessary delays in plant startup without a corresponding health and safety benefit. In these circumstances, the NRC staff may choose not to enforce the applicable TS or other license condition. This enforcement discretion will only be exercised if the NRC staff is clearly satisfied that the action is consistent with protecting the public health and safety. A licensee seeking the exercise of enforcement discretion must provide a written justification, or in circumstances where good cause is shown, oral justification followed as soon as possible by written justification, which

. documents..the safety. basis for.the request and..providgs.whatever other.

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information the NRC staff deems necessary in makirig a decision on whether or not to exercise enforcement discretion.

j The appropriate Regional Administrator, or his designee, may exercise discretion where the noncompliance is temporary and nonrecurring when an amendment is not practical. The Director, Office of Nuclear Reactor Regulation, or.his designee, may exercise discretion if the expected 1

noncompliance will occur during the brief period of time it requires the NRC i

staff to process an emergency or exigent license amendment under the provisions of 10 CFR 50.g1(a)(5) or (6). The person exercising enforcement discretion will document the decision.

For an operating plant, this exercise of enforcement discretion is intended to minimize the potential safety consequences of unnecessary plant 1

transients with the accompanying operational risks and impacts or to eliminate testing, inspection, or system realignment which is inappropriate for the particular plant conditions. For plants in a shutdown' condition, exercising enforcement discretion is intended to reduce shutdown risk by, again, avoiding testing, inspection or system realignment which is inappropriate for the particular plant conditions, in that, it does not provide a safety benefit or may, in fact, be detrimental to safety in the particular plant condition.

Exercising enforcement discretion for plants attempting to startup is less likely than exercising it for an operating plant, as simply delaying startup does not usually leave the plant in a condition in which it could experience undesirable transients. In such cases, the Commission would expect that discretion would be exercised with respect to equipment or systems only when it has at least concluded that, notwithstanding the conditions of the license:

(1) The equipment or system does not perform a safety function in the mode in which operation is to occur; (2) the safety function performed by the equipment or system is of only marginal safety benefit, provided remaining in the current mode increases the likelihood of an unnecessary plant transient; or (3) the TS or other license condition requires a test, inspection or system realignment that is inappropriate for the particular plant conditions, in that A-1

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v-y

-r e-r

.rm.-

it does not provide a safety benefit, or may, in fact, be detrimental to safety in the particular plant condition.

The decision to exercise enforcement discretion does not change the fact that a violation will occur nor does it imply that enforcement discretion is being exercised for any violation that may have led to the violation at issue.

In each case where the NRC staff has chosen to exercise enforcement discretion, enforcement action will normally be taken for the root causes, to the extent violations were involved, that led to the noncompliance for which enforcement discretion was used. The enforcement action is intended.to emphasize that licensees should not rely on the NRC's authority to exercise enforcement discretion as a routine substitute for compliance or for requesting a license amendment.

Finally, it is expected that the NRC staff will exercise enforcement discretion in this area infrequently. Although a plant must shut down, refueling activities may be suspended, or plant startup may be delayed, absent the exercise of enforcement discretion, the NRC staff is under. no obligation.

"to tuke'such ~ a ~ step merely'be'ctuse' it' has 'beeh ~rsquested.' Thb decisfoh to' forego enforcement is discretionary. Where enforcement discretion is to be exercised, it is to be exercised only if the NRC staff is clearly satisfied that such action is warranted from a health and safety perspective.

l 4

A-2

9 APPENDIX B NRC INSPECTION MANUAL, PART 9900: 10 CFR GUIDANCE 10 CFR PART 2, APPENDIX C, ENFORCEMENT DISCRETION

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UNITED STATES y

NUCLEAR REGULATORY COMMISSION I

E f

WASHINGTON, D.C. 20666-0001 k..,... /

NRC INSPECTION MANUAL PART 9900: 10 CFR GUIDANCE 10 CFR PART 2 APPENDIX C ENFORCEMENT DISCRETION A.

PURPOSE

'To' guide staff'in' ths Regional Off' ce's ind siaff in'the Office'of N0ciEar Rhi'cIor i

Regulation (NRR) on the process for the NRC to exercise enforcement discretion with regard to limiting conditions for operation (LCO) in Technical Specifications (TS) or other license conditions.

The exercise of enforcement discretion may be warranted to (1) avoid unnecessary plant transients, (2) reduce operational and shutdown risk, and (3) avoid unnecessary delays in plant :tartup.

In each case, the exercise of enforcement discretion is appropriate only when it is temporary and nonrecurring and when the course of action involves minimal or no safety impact and the NRC staff is clearly satisfied that the exercise of discretion is consistent with protecting the public health and safety.

1.

In cases where the need for an exercise of enforcement discretion is nonrecurring and of such short duration that a license amendment could not be issued before the need no longer exists, making it impractical to amend the license, the Regions have the lead to exercise enforcement

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discretion with regard to compliance with Teghnical Specifications or other license conditions.

However, where the need for an exercise of enforcement discretion is expected to exceed the time required to process and issue an emergency license amendment under the provisions of 10 CFR 50.91 (a)(5), such an amendment should be issued, and NRR would take the lead. NRR shall make the determination of whether or not issuance of an emergency license amendment is practical before the need for an exercise of enforcement discretion is expected to come to an end.

2.

In cases that involve an amendment to the license, NRR has the lead to exercise enforcement discretion with regard to compliance with TSs or other license conditions. NRR also has the lead to exercise enforcement discretion with regard to issues of a generic nature, whether or not an amendment to the license is warranted.

In both cases, the operating license will be violated, but the NRC is exercising its discretion not to enforce compliance with the operating license. for a specified time period.

This guidance supersedes NRC's previous practice of granting temporary waivers of compliance with regard to TS LCOs or other license

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Issue Date: 08/63/93 B-1 10 CFR 2, App C

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conditions. This guidance implements the recent revisiens to Section VII.C of the Enforcement Policy (10 CFR Part 2, Appendix C), published in the Federal Reaister on March 17, 1993 (58 fB 14308).

B.

BACKGROUND A licensee may depart from its TSs-in an emergency, pursuant to the provisions of 10 CFR 50.54(x), without prior NRC approval, when it must act immediately to protect the public health and safety.

However, situations occur occasionally which are not addressed by the provisions of 10 CFR 50.54(x), and for which the NRC's exercise of enforcement discretion may be appropriate. Provided that the licensee has not abused the emergency provisions of 10 CFR 50.91 by failing to apply for an amendment in a timely manner, it is appropriate that the NRC have a procedure for expeditious notice to a licensee of NRC's intentions to exercise enforcement discretion under limited circumstances. Actions taken by licensee employees pursuant to such an exercise of discretion will

" ~ ~ ~ result in '

not enforcsment~against' the indiv'idu'a1Y. involved

~

' ' ' ~

^"

For an operating plant, the exercise of enforcement discretion is intended to (1) minimize the potential safety consequences of unnecessary plant transients and the accompanying operational risks and impacts or (2) eliminate testing, inspection, or system realignment that is inappropriate for the particular plant conditions.

.For plants in a shutdown condition, exercising enforcement discretion is intended to minimize shutdown risk by avoiding testing, inspection, or system realignment that is inappropriate for the particular plant conditions, because it does not provide an overall safety benefit, or may, in fact, be detrimental to safety in the particular plant condition.

The exercise of enforcement discretion for plants attempting to start up is expected to occur less often than for operating plants, because delaying startup does not usually leave a plant in a condition in which it could experience undesirable transients.

When enforcement discretion is exercised to avoid a startup delay, it is to be exercised with respect to equipment or systems when the NRC staff has at least concluded that, notwithstanding the conditions of the license:

-j 1.

The equipment or system does not perform a safety function in the mode in which operation is to occur; or, 2.

The safety function performed by the equipment or system is of only marginal safety benefit, if remaining in the current mode increases the likelihood of an unnecessary plant transient; or, 3.

The TS or other license conditions require a test, inspection, or system realignment that is inappropriate for the particular plant conditions, because it does not provide a safety benefit, or may, in fact,. be detrimental to safety in the particular plant condition.

The NRC staff is expected to exercise enforcement discretion infrequently.

Although requirements may dictate that a plant must be shut down, refueling 10 CFR 2, App C B-2 Issue Date:* 08763/93

activities suspended, or plant startup delayed absent the exercise of enforcement discretion, the NRC staff is under no oblication to take such a steD merelY because the licensee has reouested it. The decision to forego enforcement action is discretionary. Where enforcement discretion is to be exercised, it is to be exercised only if the NRC staff is clearly satisfied that such action is I

warranted from a health and safety standpoint.

Enforcement discretion must be exercised on a

case-by-case

basis, considering the individual plant circumstances.

If the NRC decides not to exercise enforcement discretion, the licensee must take the action required by the Tss (except as stated in 10 CFR 50.54(x)). However, the NRC staff and the licensee should be sensitive to special circumstances in which literal compliance with the TSs may not be in the best interest of the public health and safety. Normally in such circumstances, the NRC should grant a request for the exercise of enforcement discretion to allow for the conduct of an orderly shutdown, when a shutdown is required.

Similarly, the NRC should grant a request for the exercise of enforcement discretion to allow for the orderly and. sequential shutdown of multiple units, when multiple units are

~

" ' required 'to 'be shut 'down.

(Also^ refer t6 Section Fil)"

Careful regulatory scrutiny must be given to any deviation from the required actions of the TSs or other license conditions for circumstances involving i

violations (e.g., missing a required surveillance, inadequate procedures, or lack of testing) or poor planning (e.g., a necessary repair part not available) or misinterpretation of a TS, or some similarly avoidable situation.

Licensees should be informed that these instances may be indicative of a more pervasive problem or indicate a trend.

In accordance with the Enforcement Policy, enforcement action will normally be taken for the root causes, to the extent violations were involved, that led to the reason for the request for the exercise of enforcement discretion.

j C.

REGIONAL ENFORCEMENT DISCRETION A Region-issued Notice of Enforcement Discretion (NOED) is used to notify the licensee of the NRC decision to exercise discretion not to enforce compliance i

with specific TS LCOs or other license conditions in the limited circumstances 1

described in Section B above, when the noncompliance is nonrecurring and a license amendment would not.be practical. because. the plant will return to compliance with the existing license in so short a period of time that a license amendment could not be issued before compliance is restored. The NRC decision to exercise enforcement discretion is intended to promote safety by not imposing unnecessary actions on an operating plant or by permitting a reactor startup that would otherwise be precluded by TSs under those circumstances where the proposed course of action involves minimal or no safety reduction.

Matters that a regional exercise of enforcement discretion may address include:

1.

A noncompliance of short duration from the limits of a function specified in an LCO.

2.

A noncompliance with an action statement time limit.

Issue Date:

08/63/93 B-3 10 CFR 2,- App C

3.

A noncompliance with a surveillance interval or a one-time deviation from a surveillance requirement.

In each of these situations, it must also be evident that a TS change is impractical because the licensee will return to compliance with the existing license requirements in so short a period of time that a license' amendment could not be issued before compliance is restored.

The authority to exercise enforcement discretion is assigned to the Regional 6

]

Administrator, who may delegate the authority to the Regional Division Director l

for Reactor Projects. The N0ED shall be based on a written request (the Region may act on an oral request, to be promptly followti by a written request) from i

k licensee.

Before issuing an NOED, the Region should consult with the I

appropriate Assistant Director for Projects, NRR. Whenever Regional enforcement discretion is exercised, the circumstances (including a description of any compensatory measure (s) and an evaluation of the request by the staff) must be i

documented in a letter to the licensee from the Regional Administrator or his/her l

designated official.

The. letter shall speci the maximum period of time for l

Mich the'enfor'c'esent' disc'retion if in'eff' ct hot 't'o" Exceed 14 dfy's? except in' i

e unusual circumstances); however, resolution of the condition that led to the request for enforcement discretion should end the period of discretion.

The letter should follow the format and content of the NOED letter attached to this j

J guidance, and shall normally be issued within 2 working days of receipt of the licensee's written request.

The NRC intention to exercise discretion not to I

enforce compliance may also be communicated orally, but it must be followed by j

written documentation.

D.

NRR ENf0RCEMENT DISCRETION An NRR-issued NOED is used to notify the licensee of the NRC decision to exercise discretion not to enforce compliance with specific TS LCOs or other license conditions in the limited circumstances described in Section B above.

A license amendment associated with the N0ED should be processed as an emergency or exigent TS amendment under the provisions of 10 CFR 50.91(a)(5)' or (6) and should adhere to NRR Office Letter No.101. for signature authority guidance. Matters that an i

NRR exercise of enforcement discretion may address include:

1.

A noncompliance with an element specified in a limiting condition for i

operation until such time as the element can be revised by a license amendment.

2.

A noncompliance with an action statement time limit for which a license amendment will be processed to make the extension a permanent change to the TSs.

/

3.

A noncompliance with a surveillance interval or change to a surveillance requirement that will be incorporated by an amendment.

The authority to exercise enforcement discretion is delegated to the appropriate i

Assistant Director for Projects, NRR.

The NOED shall be based on a written request (or in some cases, an oral request followed by a written request) from 10 CFR 2, App C B-4 Issue Date:' 08763/93

a licensee.

Before issuing an N0ED, NRR should consult with the responsible j

Regional Division Director for Reactor Projects. In addition, NRR should consult with the appropriate NRR ADT Division Director or appropriate staff member.

Whenever NRR enforcement discretion is exercised, the circumstances (including a description of any compensatory measure (s) and an evaluation of the request by the staff) must be documented in a letter to the licensee from the appropriate Assistant Director for Projects, NRR.

The letter shall specify the maximum period of time for which the exercise of enforcement discretion is in effect (resolution of the condition that led to the request would return the licensee to a condition of compliance with the license), should follow the. format and content of the NOED letter attached to this guidance, knd should normally be issued within 2 working days of the receipt of the licensee's written request.

The NRC intention to exercise discretion not to enforce compliance may also be communicated orally, followed by written documentation.

E.

REQUEST FOR ENFORCEMENT DISCRETION The'NRC should1eVffy 'that' the :Ticerise'e'~s' reqbest 'for enforcemeiit~distret'isn includes a discussion of the following:

1.

The TS or other license conditions that will be violated.

2.

The circumstances surrounding the situation, including the need for prompt action.

3.

The safety basis for the request that enforcement discretion be exercised, including an evaluation of the safety significance and potential consequences of the proposed course of action.

4.

Any proposed compensatory measure (s).

5.

The justification for the duration of the noncompliance.

6.

The basis for the licensee's conclusion that the noncompliance will not be of potential detriment to the public health and safety and that a significant safety hazard is not involved.

7.

The basis for the licensee's conclusion that the noncompliance will not involve adverse consequences to the environment.

8.

A statement that the request has been approved by the facility organization that normally reviews safety issues (Plant Onsite Review Committee, or its equivalent).

9.

Any other information the NRC staff deems necessary before making a decision to exercise enforcement discretion.

The request from the licensee should normally be sent by facsimile to the Assistant Director for Projects, NRR, and the Regional Administrator. However, if circumstances do not permit time for the written request to be prepared and Issue Date: 08/63/93 B-5 10 CFR 2,-App C

sent to the NRC, the licensee may make the request orally, describing to the best i

of its ability the information required by the staff.

The licensee's oral request needs to be followed promptly by written documentation (usually within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />) addressing the criteria listed above.

The NRC should verify the licensee's oral or written. request, or both, are reviewed and approved by the facility organization that normally reviews safety issues before they are submitted to the NRC. In cases in which a license amendment is appropriate, the written request for the exercise of enforcement discretion should be accompanied by the licensee's request for an emergency or exigent license amendment under the l

provisions of 10 CFR 50.91(a)(5) or (6). Such a license amendment request should discuss the bases for the licensee's conclusions that the amendment does not involve a significant hazards consideration or irreversible environmental j

consequences.

If the request is made orally (to be followed with a written request), the NRC must have sufficient information to reach the same conclusions as if it had received a written submittal.

The followup written request must confirm the information that the NRC relied upon in arriving at its conclusion to exercise

"'erfforcement'discretio'n.' 'If a licerisee' erallf r~e,quists^enforcenient'di~scretion,'

but subsequently determines that no violation of the license will occur, there is nc need to follow up with written documentation.

P F.

ENFORCEMENT 1.

Termination of Enforcement Discretion If the NRC decides to terminate the exercise of enforcement discretion for any l

reason before the time specified in the notice of enforcement discretion, the NRC should verify that the licensee takes steps to achieve the appropriate plant status and implement the existing TS-required actions upon oral notification of the termination by the appropriate Assistant Director, NRR, or Regional Division l

Director. The time required to bring the facility into compliance with the TS r

or license conditions will be detemined by the appropriate Assistant Director, NRR or Regional Division Director based on a case-by-case detemination.

Upon notification of termination of the exercise of enforcement discretion, the licensee should inform the NRC of the proposed course of action to restore the plant to a condition of compliance with the license.

The termination of the exercise of enforcement discretion by the NRC should be documented in a letter to the licensee and should address the actions taken or planned by the licensee, particularly for those cases in which an action statement time limit may be exceeded based on a determination that the proposed course of action is in the best interests of safety.

2.

Consideration of Enforcement e

The decision to exercise enforcement discretion does not change the fact that a violation will take place, nor does it imply that enforcement discretion is being exercised for any violation that led to the request for an N0ED.

In each case in which the staff has chosen to exercise enforcement discretion, enforcement j

action will normally be taken for the root causes, to the extent violations were 10 CFR 2, App C B-6 Issue Date:- 08163/93 l

..~

involved, that led to the noncompliance for which the N0ED was issued.

The enforcement action in this circumstance is intended to emphasize that a licensee i

should not rely on the NRC's authority to exercise enforcement discretion as a i

routine substitute for compliance or for requesting a license amendment.

The particular enforcement action to be taken is governed by the guidance in the Enforcement Manual. Any violation issued involving the events leading to an N0E0 shall be given an EA number which can be obtained from the Office of Enforcement (OE) and assigned to the case regardless of severity level.

The NRC will not normally take enforcement action when the action statement lapsed during the period specified in the N0ED and then the exercise of enforcement discretion was terminated, or when the remaining action statement time following the termination of the exercise of enforcement discretion did not allow for the completion of required actions in the most prudent manner considering safety, provided the licensee took prompt corrective action to regain compliance, including an orderly shutdown if required.

~ G.

~ DISTRIBUTION' Copies of the letter to the licensee shall be distributed according to established Regional and NRR procedures.

Further, as a minimum, distribution shall include the following:

1.

Regional Administrator 2.

Associate Director for Projects, NRR i

3.

Associate Director for Inspection and Technical Assessment, NRR 4.

Division Director, Division of Reactor Projects (E or W), NRR 5.

Director, Office of Enforcement 6.

Public Document Room and Local Public Document Room i

7.

Technical Assistant, Division of Reactor Projects - I/II, NRR The Technical Assistant, Division of Reactor Projects - I/II, NRR, will maintain a file of all Notices of Enforcement Discretion.

H.

TRACKING OF NOTICES OF ENFORCEMENT DISCRETION Each NOED will be assigned a number to permit tracking. The issuing office will assign a number consisting of six digits. The first two digits will indicate the year, the third digit will indicate the number of the Region (or 6 for NRR), and the last three digits will be the sequential number of the NOED for the issuing office.

For example, N0ED 93-3-017 is the 17th NOED issued by Region III in I

1993. To assure proper tracking of all requests for the exercise of enforcement discretion, if a licensee withdraws its request before the staff takes action, the Project Manager should provide a brief note documenting the circumstances to the Technical Assistant, Division of Reactor Projects I/II, NRR. The Technical Assistant, Division of Reactor Projects I/II, NRR, will assign numbers for all NRR Notices of Enforcement Discretion.

I.

SUMMARY

Issue Date: 08/63/93 B-7 10 CFR 2; App C

The Regions may exercise enforcement discretion in certain circumstances when a licensee will not be in compliance with TSs or other license conditions for those cases in which a license amendment is not practical, because of the nonrecurring nature of the situation and because the plant will be returned to a condition of compliance with the existing license in so short a period of time that a license amendment could not be issued before compliance is restored.

NRR may exercise enforcement discretion in certain circinstances when a licensee will not be in compliance with the TSs or other license conditions and a license amendment is practical. NRR also has the lead to exercise enforcement discretion with regard to issues of a generic nature, whether or not an amendment to the license is warranted.

If a TS will be violated before a decision can be made to exercise enforcement discretion, or if the NRC decides not to exercise enforcement discretion, the licensee must take the action required by the TS (except as stated in 10 CFR 50.54(x)). The exercise of enforcement discretion is an option available to the NRC staff that must not be used.unless.the staff is clearly.satjsfied_ that.such.,

actibn ~is' donsiste'nt with the public'hialth and safety.

Notwithstanding the decision to exercise enforcement discretion, enforcement action will normally be taken in accordance with the Enforcement Policy for violations that led to the situation that warranted the exercise of enforcement discretion.

END 10 CFR 2, App C B-8 Issue Date:~ 08~/63/93 i

ATTACHMENT I

Docket No(s).

XX-XXX ADDRESSEE

{

1 LICENSEE:

i

SUBJECT:

NOTICE OF ENFORCEMENT DISCRETION FOR (LICENSEE)

REGARDING (PLANT) (TAC No.

)

By letter dated

, you requested the 'U.S.

Nuclear Regulatory Commission (NRC) to exercise its discretion not to enforce compliance with the required actions in (IDENTIFY TECHNICAL SPECIFICATION OR LICENSE CONDITION). You informed the NRC on (IDENTIFY -DATE/ TIME) 'that the (PLANT) would not be in' compliance with (IDENTIFY ACTION REQUIRED BY TS AND DESCRIBE THE NEED FOR THE i

REQUEST). You provided as justification for continued operation that (SUMMARIZE l

LICENSEE'S TECHNICAL BASIS FOR OPERATION IN A "f.""ER THAT WOULD NOT BE IN COMPLI ANCE WITH ITS LICENSE). In addition, you identified compensatory measures to include (SUPMARIZE IF ANY WERE PROVIDED OR DELETE SENTENCE).

t On the basis of our review of your justification, including any compensatory measures identified above, the staff has concluded that this course of action involves minimum or no safety impact, and we are clearly satisfied that this i

exercise of enforcement discretion is warranted from a public health and safety I

perspective.

Therefore, it is our intention to exercise discretion not to enforce compliance with (IDENTIFY TS OR OTHER LICENSE CONDITION) for the period

{

from (DATE/ TIME) to (DATE/ TIME). However, we will consider enforcement action, as appropriate, for the conditions that led to the need for this exercise of enforcement discretion.

(SIGNATURE)

REGIONAL ADMINISTRATOR OR DESIGNEE OR NRR ASST. DIRECTOR FOR REGION REACTORS cc:

See next page (attach plant service list)

Issue Date: 08/63/93 B-9 10 CFR 2, 4 p C

e l

APPENDIX C REVIEW TEAM CHARTER A

s

s. L, se l

.