ML20033F517

Informs Commission of Public Comments Received Re Enforcement Policy Rev Involving maint-related Root Cause & Recommends That Rev Be Rescinded

ML20033F517
Person / Time
Issue date:	03/15/1990
From:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
TASK-PINV, TASK-SE SECY-90-094, SECY-90-94, NUDOCS 9003210321
Download: ML20033F517 (7)

Text

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initifs POLICY ISSUE March 15, 1990 (Affirmation)

SECY-90-094

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The CommiNfbters"*

From:

James M. Taylor Executive Director for Operations subject:

PUBLIC COMMENTS RECEIVED CONCERNING THE ENFORCEliENT POLICY REVISION INVOLVING MAINTENANCE-RELATED ROOT CAUSE

Purpose:

To inform the Commission of the public comments received concerning the Enforcement Poilcy revision involving maintenance related root cause and recomend that the revision be recinded.

Background:

The Commission on December 8,1989, published in the Federal Register a modification to the Commission's Enforcement Policy which added a maintenance-related civil penalty escalating factor. The Policy provided that a civil penalty coulc be escalated by up to 50 percent where-the cause of a maintenance-related violation at a power reactor was a programmatic failure of the licensee's maintenance program.

For purposes of the Policy, a cause of the violation would be considered to be maintenance-related if the violation could have been prevented by implementing a maintenance program consistent with the scope and activities defined by the Revised Policy Statement on the Maintenance of Nuclear Power Plants. While the Policy was effective upon publication, an opportunity for comments was provided. By Staff Requirements llemorandum dated December 22, 1989, the Commission directed the Staff to evaluate the comments and to provide recommendations to the Commission before imp h menting the Policy.

Discussion:

Twenty-two comments have been submitted as of February 28, 1990. None of the comments favored the modification to the Enforcement Policy concerning maintenance. All of the letters requested that the Commission reconsider and rescind the change. The specific comments contained in the letters fall into four broad categories:

1.

Comments arginy that a change to the Enforcement Policy to highlight maintendnce is unintessary given the continuing improvement by the industry in thet j

area.

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Coments suggesting that the Enforcement Policy l

emphasis on maintenance will detract from safety by inappropriately causing licensees to divert resources from other activities.

3.

Comments suggesting that the lack of a definition of the term " programmatic failure" will result in inconsistent application of the factor.

I 4.

Comments arguing that the Comission is using the Enforcement Policy to obtain industry compliance in an area that has not been explicitly defined by the Comission by rule or regulation.

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The comments falling into the first two categories are similar to the comments made by ACRS to the Conmission in 5

its letter dated October 12, 1989. The Staff's position relative to those comments remains unchanged from the view-expressed in SECY 89-325.

In sum, the Staff does believe i

that a strong maintenance program can make a significant contribution to safety and that licensees do need to put appropriate resources into the maintenance area.

Further-more, as. stated in the Federal-Register notice for the Enforcement Policy change, it is appropriate to emphasize i

the importance of meeting existing requirements relating to maintenance because of the varying quality of licensee l

maintenance programs particularly in light of the Comission's decision to hold in abeyance the rulemaking on maintenance.

Concerning the third area of comments, the policy did not provide a definition of a "programatic failure." The concept of a " programmatic failure" has long existed in d

the En orcement Policy. As in the cases of past use of this concept, numerous considerations would be weighed under the Enforcement Policy before concluding.that a programatic failure has occurred. The discussion of the factor accompanying the promulgation of the Policy change gives licensees notice that a standard higher than an isolated l

failure is being applied. Given such notice, the Staff could apply the factor, but a licensee could then argue, based on the facts of the individual case, that a program-matic failure did not exist. The Staff concludes that the language provided regarding application of the escalation factor is sufficient. Nevertheless, based on the enforcement experience with generic issues such as fire protection and environmental qualification, where there were substantial questions co'ncerning the specificity of ' requirements, sub-stantial efforts will likely be required to apply the standard of a programatic failure in maintenance.

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l The Commissioners As to the fourth category, the primary argument here is that i

the Comission is implementing a requirement before the requirement has been properly promulgated pursuant to the y

Administrative Procedure Act. Licensees argue that the i

Comission may not enhance an enforcement action based upon the failure of a licensee to develop an adeente maintenance program pursuant to the liaintenance Policy Statement which, they correctly assert, cannot impose requirements. The Comission is not, however, using the liaintenance Policy Statement to im)ose requirements. Rather, the Comission is increasing t1e amount of a civil penalty for a violation 1

of an existing Commission requirement, within the statutory limit, based on its assessment of the root cause of the j

violation.

This is a legitimate approach. Having determined that maintenance is e contributor to safety, the Commission may properly escalate a civil penalty whcre poor maintenance i

is found to be the root cause of the violation. This is no different than escalating a civil penalty based upun prior notice. That approach reflects a Commission determination that early notice of safety issues is a contributor to safety and that a failure to act on such notice, even though such failure does not constitute a violation of any Comission requirement, warrants escalation of civil penalties. lione-theless, the Staff anticisates that licensees will routinely raise this argument, whic1 will have<to be dealt with in each a

case based on the factual context. Also, the staff antici-pates that application of this factor in specific cases will' raise difficult issues regarding the extent of any associated programmatic maintenance failure. This factor would have to be carefully applied to assure that maintenance was the root cause of the violation and to assure that there is a sound nexus between the violation at issue and a clearly defined programatic maintenance failure.

The Staff continues to believe that it is appropriate to pursue enforcement of maintehance violations. However, l

upon reconsidering the Policy Statement in light of the above, the Staff believes that the Enforcement Policy modification regarding maintenance-related root cause should be rescinded. The Staff does not believe that there is a significant enough benefit in applying the escalation factor to warrant the resources that likely will be needed to.

apply it.

Rather than relying on maintenance as an escaleting fcctor pending a rule in the maintenance area, the Staff recomends that enforcement action should be based on a vigorous application of the existing Enforcement Policy for viola-tions in the maintenance area. Many aspectt of maintenance failures can be addressed by violations of Appendix B'or'by violations based on inoperability cf equipment resulting from maintenance failures. See Enclosure 3 to SECY 89-325.

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d The Connissioners

-t-Reconnendations:

The Staff reconnends that the Enforcement Policy civil penalty escalation factor for maintenance-related root cause be deleted and the enclosed Federal Register notice be issued.

Coordination:

OGC has no legal objection to this action.

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lmb a es M. T or ecutive frector for Operations

Enclosure:

As stated Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Friday, March 30, 1990.

Commission Staff Office comments, if any, should be submitted-to the Commissioners NLT Friday, March 23, 1990, with an infor-mation copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

This paper is tentatively acheduled for affirmation et an Open Meeting during the Week of April 2, 1990.

Please refer to the

-l appropriate Weekly Commission Schedule, when published, for a specific date and time.

DISTRIBUTION:

Commissioners OGC OIG GPA REGIONAL OFFICES EDO ACRS ACNU ASLBP ASLAP SECY l

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NUCLEAR REGULATORY C01: MISSION 10 CFR Part 2 Policy and Procedures for Enforcement Actions:

Policy Statement AGENCY:

Nuclear Regulatory Commission.

ACTION:

Policy Statement: Modification.

SUMMARY

The NRC is publishing a rnodification to its Enforctrrent Policy to delete the additict.a1 civil penalty adjustment factor for violations involving maintenance deficiencies. This policy is ccdified as Appendix C to 10 CFR Part 2.

EFFECTIVE DATE: Publicaticn Date FOR FURTHER INFORMATION CONTACT:

Jarnes Lieberman, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 Telephone (301)492-0741.

SUPPLEMENTARY INFORMATION:

On December 8, 1989, the Commission issued 6 raodification to its Policy and Procedures for Enforcement Actions (Enforcerrent Policy) (54 Fed. Reg. 50610) which added an additional civil penalty aojustuent factor for violations involving maintenance deficiencies. This f atter was to be considered for enforcement actions resulting trora vio'luticr4 after Parch 8, 1990. After reviewing the public comments received on this m.

2 change, the Commission has reconsidereo its position and rescinds the modification to the Enforcenent Policy. This occision should not be construed 6s a lessening of the Connission's resolve in the maintenance area. R6ther, the Cocaission has cett;rr:ined that the existing Enforcement Policy offers

.dequate iaealis to emphasize the importance of proper maintener.cc fcr viulutions of IJC requirements resulting from maintenance-related failuret at power reactors.

LIST OF SUBJECTS IN 10 CFR PART 2 Part 2 - Aouinistrative practice ano procedure, Antitrust, Byproduct Ic.uterial, Classified information, Civil penalty, Enforcenient, Environmental protection, Nuclear power plants and reactors, Penalty, Sex discriiiiination, Source material, Special nuclear raaterial, Violations, and Waste treatment ar.d disposal.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICEliSikG PLCCEEDINGS.

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1.

The authority citation for Part 2 continues to read in part as follows:

AUTHORITY:

Sec.161, 68 Stat. 948, as amendeo (42 U.S.C. 2201);

sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841).*

l 2.

Remove Section V.B.7 " Maintenance-Related Ct.use" directly after paragraph 3 of Section V.B.6 from 10 CFR Part 2, Appendix C,.* General Statement of Policy arid Procedure fn" i:PC Enforcement Actions."

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.i Dated at Rockville Maryland this; day of Narch,-1990.

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FOR THE-NUCLEAR REGULATORY C0f1til!$10N; t

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Samuel J. Chilk Secretary of the Comission <

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