ML20044C478

Proposed Rule 10CFR2, Policy & Procedure for NRC Enforcement Actions;Policy Statement. Rule Would Modify NRC Enforcement Policy to Describe More Fully Circumstances in Which Enforcement Discretion May Be Exercised

ML20044C478
Person / Time
Issue date:	03/10/1993
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
FRN-58FR14308, RULE-PR-2 PR-930310, NUDOCS 9303230101
Download: ML20044C478 (14)

Text

.3 4

,,1%

- ' ~ ' ~~

7: ~

G3 F R l'/30P) t7590-01 g NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 T3 !"r 11

1 to RIN 3150-AE57 Policy and Procedure for NRC Enforcement Actions; Policy Statement AGENCY:

Nuclear Regulatory Commission.

ACTION:

Policy Statement:

Modification.

SUMMARY

The NRC is modifying its Enforcement Policy to describe more fully the circumstances in which it may exercise enforcement discretion.

This policy is codifled at Appendix C to 10 CFR Part 2 ( 5~7 FR 5791; February 18, 1992).

3//7/13 DATES:

This modification is effective on [ Insert date of Publication in the Federal Register).

Comments received by 4hs/93 (30 days of the date of publication) will be considered.

Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received during the 30-day period following issuance.

h S

1

[

I

/,

9303230101 930310 PDR PR 2 5BFR14308 PDR

@\\\\

ADDRESSES:

Send comments to:

Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Docketing and Service Branch.

Deliver comments to:

11555 Rockville Pike, Rockville, i

Maryland 20852, between 7:45 a.m. and 4:15 p.m. Federal workdays.

Copies of comments received may be examined at:

the NRC Public Document Room, 2120 L Street, NW. (Lower Level),

Washington, DC.

FOR FURTHER INFORMATION CONTACT:

James Lieberman, Office of Enforcement, telephone (301) 504-2741 or J. Randall Hall, Office of Nuclear Reactor Regulation, telephone (301) 504-1336, U.S.

Nuclear Regulatory Commission, Washington, DC 20555.

SUPPLEMENTARY INFORMATION:

Background

In July 1985, the NRC staff issued internal guidance to address situations where a reactor licensee's compliance with a Technical Specification (TS) or other license condition may cause an unnececsary plant transient or unnecessarily prevent plant startup and where, in such instances, the temporary exercise of discretion by the NRC not to enforce compliance may be 2

i i

r appropriate.

That guidance has been revised periodically with i

o the latest revision having been made in February 1990.

The circumstances in which the NRC staff may exercise enforcement discretion have been generally described in Section VII of the Enforcement Policy (10 CFR Part 2, Appendix C).

In order to consolidate the description of all circumstances where s

enforcement discretion may be exercised into one location, the Commission has determined that a discussion of the possibility of I

enforcement discretion for TS or other license condition compliance should also be placed in Section VII of the Enforcement Policy.

In addition,Section VIII of the Enforcement Policy is being modified to make it clear that actions taken by licensee employees pursuant to such an exercise of discretion i

will not result in enforcement action against the individuals involved.

Finally, to reflect the information collection requirements of this change, 10 CFR 2.8 is being amended-to reference that fact.

The Commission believes that the exercise of enforcement discretion in this area is warranted to avoid unnecessary plant transients, to reduce both operational and shutdown risk, and to avoid unnecessary delays in plant startup where 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 the public health and safety.

3 i

Exercise of enforcement discretion is appropriate only where the exercise of discretion is temporary and nonrecurring.

The appropriate Regional Administrator or his designee might exercise discretion where the expected noncompliance is 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.

It may also be appropriate to exercise discretion for the brief period of time it requires the NRC staff to process an emergency or exigent TS amendment under the provisions of 10 CFR 50.91(a) (5) or (6).

Enforcement discretion in these cases would be exercised by the Director, Office of Nuclear Reactor Regulation, or his designee.

A licensee who requests the NRC to forego enforcement of a TS or other license conditon must document the safety basis for the request, including an evaluation of the safety significance and potential consequences of the proposed course of action, a description of compensatory measures, a justification for the duration of the request, the basis for the licensee's conclusion that the request does not have a potential adverse impact on the public health and safety, and does not involve adverse consequences to the environment, and any other information the i

NRC staff deems necessary before making a decision to exercise discretion.

e 4

I In each case _where the NRC staff has decided to exercise its i

enforcement discretion, enforcement action will normally be taken for the root causes, to the extent violations were involved, that led to the noncompliance at issue.

Such enforcement action is intended to emphasize that licensees should not rely on the NRC's i

authority to exercise enforcement discretion as a routine substitute for compliance or for requesting a license amendment.

Since this action concerns a general statement of policy, no prior notice is required and, therefore, this modification to the Enforcement Policy is effective [Date of publication in.the Federal Register).

Paperwork Reduction Act Statement This Policy Statement contains information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et seq).

These requirements were approved by the office of Management and Budget under control number 3150-0136.

i f

L The public reporting burden for this collection of information is estimated to average 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> per response, i

including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and t

completing and reviewing the collection of information.

Send f

5 l

[

I

t comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Information and Records Management Branch (MNBB-7714),

U.S. Nuclear Regulatory Commission, Washington, DC 20555, and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-3019, (3150-0136) Office of Management and Budget, Washington, DC 20503.

List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors,. Penalty, Sex discrimination, Source material, special nuclear material, Waste treatment and disposal.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.

The authority citation for Part 2 continues to read as t

follows:

AUTHORITY:

Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.

2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.

2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C.

552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, j

104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C.

2073, 2092, 2093, 2111, 2133, 2134,-2135); sec. 114 (f), Pub. L.97-425, 96 Stat. 2213, as amended. (42 U.S.C.

l 6

l t

i 10134 (f)) ; sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C.

4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, I

103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as I

amended (42 U.S.C.

2132, 2133, 2134, 2135, 2233, 2239).

Section

(

2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C.

i 2239).

Sections 2.200-2.206 also issued under secs. 161b, i, o, i

i 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C.

2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846).

Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, I

83 Stat. 853, as amended (42 U.S.C. 4332).

Sections 2.700a, 2.719 also issued under 5 U.S.C.

554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C.

557.

Section 2.764 and i

Table 1A of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C.

10155, 10161).

Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42-U.S.C. 2133) and 5 U.S.C.

552.

Sections 2.800 and 2.808 also.

issued under 5 U.S.C.

553.

Section 2.809 also issued under 5 U.S.C.

553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).

Subpart K also issued under sec. 189, 68 Stat.

955 (42 U.S.C.

2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154).

Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C.

2239).

Appendix A also issued under sec.

6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C.

2021b et seq.).

7

2.

In 52.8, paragraph (b) is revised to read as follows:

52.8 Information collection requirements:

OMB approval.

(b)

The approved information collection requirements contained in this part appear in Appendix C.

3.

In Appendix C, a heading reading " Table of Contents" is added directly before the table of contents and a new heading for Section VII.C is added to read:

i Appendix C

- General Statement of Policy and Procedure for NRC Enforcement Actions Table of Contents l

C.

Exercise of Discretion for an Operating Facility 4.

In Appendix C,Section VII, paragraph (c) is added to i

read as follows:

VII Exercise of Discretion i

C.

Exercise of Discretion for an Operating Facility i

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 i

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 s

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 provides whatever other information the NRC staff deems necessary in making a j

decision on whether or not to exercise enforcement i

discretion, t

9 t

k

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 noncompliance will occur during the brief period of time it requires the NRC staff to process an emergency or exigent license amendment under the provisions of 10 CFR 50.91(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 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 10

is less likely-than exercising it for an operating i

plant, as simply delaying startup does not usually leave i

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 1

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 i

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.

The decision to exercise enforcement discretion does j

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 i

normally be taken for the root causes, to the extent 11

D L

l I

violations were involved,-that led to'the-noncompliance-F for which enforcement discretion was used.

The i

i enforcement action is intended to. emphasize that i

licensees should not rely on the NRC's authority tx) i exercise enforcement discretion as a routine substitute l

l for compliance or for requesting a license ~ amendment.

D

[

Finally, it is expected that the NRC staff will.

I exercise enforcement discretion in this area i

infrequently.

Although a plant must shut down, refueling activities may be suspended, or plant startup j

i may be delayed, absent the exercise ~of enforcement l

discretion, the NRC staff is under no obligation to take such a step merely because it has been_ requested.

The decision to forego enforcement is discretionary.

WhereL

{

enforcement discretion is to be exercised, it'is to be exercised only if the NRC staff is. clearly satisfied i

that such action is warranted from a-health'and. safety

.. l perspective.

j ia i

5.

Appendix C,Section VIII is amended by revising the lastf f

~

l example under the paragraph involving individual enforcement l

actions.

For the convenience of the user, the introductory s

-t l

12

n i

paragraph concerning individual enforcement actions is reprinted without change.

VIII, Enforcement Actions Involving Individuals Listed below are examples which could result in enforcement actions involving individuals, licensed or unlicensed.

If the actions described in these examples are taken by a licensed operator or taken deliberately by an unlicensed individual, enforcement action may be taken directly against the individual.

However, violations involving willful conduct not amounting to deliberate action by an unlicensed individual in these situations may result in enforcement action against the licensee that may impact the individual.

The situations include, but are not limited to, violations that involve:

Willfully taking actions that violate Technical Specification Limiting Conditions for Operation or.other license conditions (enforcement action for a willful violation will not-be taken if that violation is the result of action taken following the NRC's' decision to forego enforcement of the Technical Specification or other license condition or if the 13

p.

operator meets the requirements of 10 CFR 50.54 (x),

i.e., unless the operator acted unreasonably considering all the relevant circumstances surrounding the emergency.)

r$

Dated at Rockville, Maryland, this [A day of March 1993.

Fo'y The Nuc' lear egulatory Commission.

lL F 00Q

& ncel J.

Chlk,

3 Secretaryo{theCommission.

4 I

14 1

)

i

,