ML20127E327
| ML20127E327 | |
| Person / Time | |
|---|---|
| Issue date: | 10/13/1992 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| SECY-92-346, NUDOCS 9210160254 | |
| Download: ML20127E327 (32) | |
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POLICY ISSUE October 13, 1992 SECY-92-34c (Notation Vote)
T_qr: The Commissioners From: James M. Taylor Executive Director for Operations S_ubiect: ADDITIONAL MODIFICATIONS TO A CHANGE TO THE GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS, 10 CFR PART 2, APPENDIX C Eurpos_q: To obtain the Commission's approval of additional modifications to a change to the General Statement of Policy and Procedure for NRC Enforcement Actions (Enforcement Policy) which was previously approved by the Commission.
Backqngjand: SECY-92-184, which was submitted to the Commission on May 19, 1992 proposed a change to the Enforcement Policy to add another enforcement discretion provision relating to reactor licensee Technical Specification or other license condition compliance. In a memorandum dated June 17, 1992 the Commission approved the change with some revisions.
Upon receipt of Commission approval the Staff began to prepare the request to obtain the necessary Office of Management and Budget (OMB) clearance for the informati.on collection requirements contained in the change. The clearance is required prior to issuance of the change in the Federal Feaister. As noted in SECY-92-184, until the
Contact:
J. Lieberman, OE 504-2741 NOTE: TO BE MADE PUBLICLY AVAILABLE J. Partlow, NRR WHEN THE FINAL SRM IS MADE 504-1283 AVAILABLE f
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The Commissioners -2 -
change is published and becomes effective the Staff continues to use its existing guidance for exercising enforcement discretion in this area.
Discussion: During the time period that the OMB clearance request was being prepared a number of circuustances caused the Staff to reevaluate the approved change and conclude that a number of additional modifications were appropriate. Since the approved change has not yet been published, the Staff believes the approved change should be modified to address a number of minor administrative changes as well as the following concerns:
- 1. Following the recent event at Ft.
Calhoun in which a reactor safety valve did not reseat the Staff exercised discretion with respect to the TS requirement that would have necessitated a steam generator tube inspection following a loss of coolant accident (LOCA). However, under the change to the Enforcement Policy as presently written and approved such an exercise of discretion would not have been possible.
The present language allows discretion only for previously inoperable equipment or systems and not for tests, inspections or system realignments on _
operable equipment or systems. In the Staff's view, it is prudent to be able to exercise enforcement discretion for operable equipment under the appropriate circumstances.
- 2. During the recent Regulatory Information Conference the subject of enforcement discretion for refueling / shutdown requirements was discussed. Given that the present regulatory requirements in these areas are being evaluated because of the ongoing concerns in the area of shutdown risk, the Staff believes it would be appropriate to have the flexibility to exercise enforcement discretion in refueling / shutdown conditions. Again, the change as presently written would not allow discretion for requirements pertaining l
1 9
The Commissioners to such plant conditions as it addresses discretion only for an operating-plant or a plant proceeding with-a startup.
Without envisioning a' specific example, the Staff concludes that as more attention is given to understanding the :
situations that contribute to shutdown risk, particular chort duration and non-recurring circumstances will arise over time in which the exercise of enforcement discretion will be appropriate.
-3. In the SRM approving the-change to the Enforcement Policy, the Commission added the phrase "if at all possible"'in describing the circumstances in which the licensee's written request for discretion-needed to be provided prior to the Staff acting on the request. In preparing the implementing guidance for the change, the Staff concluded-that the additional language still~1 eft it unclear as to whether it was the licensee's or the Staff's decision as to whether prior written justification of the request was possible and appropriate. The change in the Staff's view should make it clear that it is the-Staff decision as to which written requests for enforcement discretion can follow the decision to exercise that.
discretion.
s The specific language that the Staff proposes in order to implement the above modifications is contained in the revised change (Enclosure
- 1) and is-highlighted in the comparative text (Enclosure 2).
Coordination: The Office of the General Counsel has no 1
legal objection to the paper.
t i Recommendation: That the Commission:
l L 1. Approve the enclosed revised Federal L Recister Notice for publication, t
i 2. Note:
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l
4 The Commissioners -4 -
- a. An OMB clearance has not yet been requested for either version of the change to the Enforcement Policy, but such a request will be required prior to the publication of either version.
- b. Issuance of the Staff's implementing guidance for the Enforcement Policy change will be delayed until the Commission has considered the modifications discussed in this paper.
es M. T- lor E ecutive Director for Operations
Enclosures:
As Stated Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Wednesday, October 28, 1992.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Wednesday, October 21, 1992, with an information copy to the Otfice of the Secretary. If the paper -
2 is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners ,
OGC OCAA OIG OPP REGIONAL OFFICES EDO ACRS ASLBP SECY
Enclosure 1 (7590-01) i liUCLEAR REGULATORY COMMISSIoll 10 OFR Part 2 R'N 3150-AE36 POLICY AllD PROCEDURE FOR liRC ENFORCEMEllT ACTIOllS; POLICY STATEMEliT AGE!1CY : liuclear Regulatory Commission.
ACTION: Policy Statomont: Modification.
SUMMARY
- The 11RC is modifying its Enforcement Policy to more fully describe the circumstancss in which it may exerciso enforcement discretion. This policy is codified at Appendix C to 10 CFR Part 2 (57 FR 5791 et_ sea.., February 18, 1992).
DATES: This mtdification is offective on (Date of Publication in the Federal Register].
Comments rocoived within 30 days of the date of publication of this modification will be considered. Comments roccived more than 30 days after this date will be cansidered if it is practical to do so, but the Commission ir able to assure 1
. . . _ . . - . - - . . . - - . - - . ~ . . . . . . - - - . - . _ - - - - . . . - - . - . . - . - . . . - . - . - -
considoration only for comments received during the 30 day period l following issuance.
ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory ;
Commission, Washington, DC 20555, ATTH: Docketing and Service {
Branch. ,
Deliver comments to: 11555 Rockville Pike, Rockvillo,. Maryland 20852, between 7:45 a.m. and 4:15 p.m. federal workdays.
Copios of comments received may be examined att the NRC Public Document Room, 2120 L Street, N.W. (LoWor Lovel) , Washington, DC.
FOR FURTHER INFORMATION CONTACT: James Lieberran, Office of
- Enforcement, U.S. Nuclear Regulatory Commission,-Washington, DC 1 20555, tolophone (301) 504-2741.
SUPPLEMENTARY INFORMATION:
l In July 1985, the NRC staff issued internal guidance to address situations where a reactor licensee's compliance with a Technical l
l Specification (TS) or other license condition may cause an l
L unnecessary-plant transient or unnecessarily prevent plant- l l
startup;and where, in such instances, the temporary exercise cf
-discretion by the NRC not to enforce compliance may be 2
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- appropriato. That guidance has boon revised periodically with !
the latest revision having been made in February 1990.
The circumstances in which the NRC staff may exorcise enforcement discretion have boon 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 enforcement discretion may be exercised into one location, the Commission has determined that a discussion of the possibility or enforcement discretion for TS or other licenso condition complianco should also be placed in Section iXI of the Enforcement Policy. In addition,Section VIII of the Enforcement Policy i*a being modified to make it clear that actl'as tauen by -;
licensou employoos pursuant to such an exerciso of discretion will not result in enforcement action against the individuals involved. Finally, to reflect the information collection requiremen'ts of this change, 10 CFR 2.8 is bein; amended to reference that fact.
The Commission believes that the exercise of onforcement discretion in this area is warranted to avoid unnecessary plant transients, to. reduce both operational and chutdown riak', and to avoid unnecessary delays in plant.startup where the course of .
action involves minimal or no safety impact'and the NkC staff is clearly satisfied that the exercise of discretion is consistent l with the public health and safety.
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Exercise of enforcement discretion is appropriate only where the exercise of discretion is temporary and nonrecurring. The appropriate Regional Administrator or his designee might exerciso discretiun 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 licence. 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 r 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 NRC staff deems necessary before making a decision to exerciso discretion.
4
a In each case where the liRC staff has decided to exercise its 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 l authority to exerciso enforcement discretion as a routine
- substitute for compliance or for requesting a license amendment.
i Since this action concerns a general statement of policy, no prior notice is required and, hence, this modification to the Enforcement Policy is effective (Date of publication in the Federal Rogister).
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). The information collection requirements contained in-this revision to the policy statement have been approved by the office of Management and Budget under-control number .
- The public reporting burden for-this collection of-information11s-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, including the time
- for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and-l l 5
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reviewing the collection of information. Send comments regarding 3 I this burden estimato or any other aspect of this collectior, 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 Dock Officor, Offico of Information and Regulatory Affairs, NEOB-3019, (3150-0136) Office of Management and Budget, Washington,JDC 20503.
List of Subjects in 10 CFR Part 2 ,
I PART 2 - Administrativo practico and proceduro, Antitrust, Byproduct material, Classified information, Civil penalty, i
Enforcement, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sox discrimination, Source material, Special nuclear material, Violations, and Wasto treatment and disposal.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS r
- 1. The authority citation for Part 2 continuos to road in part as follows:
1 AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
sec 201, 88 Stat. 1242, as anended ~ (42 U.S.C. 5481) * * *.. ,
-1 6
- . - - , _ _-..._._..._._._.._.___.,___.____.__._._..._._.,..._.___.._.2____ - , _ . . . .
2, 10 CFR 2.8(b) is amended as follows:
2.8 (b) The approved information collection requirements contained in this part appear in Appendix B and 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:
Appendix C - General Statement of Policy and Procedure for llRC Enforcement Actions Table of Contents VII. Exercise of Discretion
~
C. Exercise of Diccretion for an Operating Facility
- 4. In Appendix C,Section VII, Paragraph (c) is added to read as follows:
7
_ . . _ . . . _ , ~ -. .
VII Exerciso of Discretion C. Exercise of Discretion for an Operating Facility on occasion, circumstances may arise where a licensco'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 provides whatever other information the NRC staff deems necessary in 8
t making a decision on whether or not to exercise enforcement discretion.
1 The appropriate Regional Administrator, or his designee, may exercise discretion where the noncompliance is temporary and nonrecurring such that -
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-enforcementidiscretion is intended to reduce L shutdown risk by again, avoiding testing inspection or l
system realignment which is inappropriate for the particular plant conditions, in that,_it does not 9
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provide a cafety benefit. 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 thr' 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 licenso condition requires a test inspection or system realignment that is inappropriate for the particular plant conditions, in that it does not provide a safety benefit.
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 10
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. Such enforcement action is intended to emphasize that licensees should not rely on the NRC's authority to exercise enforcement discretion as a routino substitute for compliance or for requesting a license amendment.
Finally, it is expected that the NRC utaff will exercise enforcement discretion in this area infrequently. Even though 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 take such a step merely because it has been requested.
The decision to forego enforcement is discretionary.
Where enforcement discretion is to be exercised, it is to be exercised only if the NRC staff is clearly r satisfied that such action is warranted from a health and safety perspective.
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- 5. Appendix C,Section VIII is amended by revising the last example under the paragraph involving individual enforcement actions. For the convenience of the user, the introductory 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 individual 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.
Ilowever, 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 acticns that violate Technical Specification Limiting Conditions for Operation or other' license 12
. . . - - - . - ~ . . - - - _~ - - . ., - --.-. . ._- - _ - . . -- .- . .. ..- . .. .
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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 operator meets thu requirements of 10 CFR 50.54 (x), i e., unless .
the operator acted unreasonably considering all the relevant circumstances surrounding the emergency.)
t Dated at Rockville, Maryland, this day of 1992.
FOR THE NUCLEAR REGULATORY COMMISSION Samuel J. Chilk Secretary of the commission 13
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- 1 ENCIDSURE 2 l EnclosureY1'
[7590-01) l NUCLEAR REGULATORY COMMISSION I 10 CFR Part 2 RIN 3150-AE3G POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS; POLICY STATEMENT AGENCYr Nuclear Regulatory Commission.
ACTION: Policy Statomont! Modification.
SUMMARY
- The NRC is modifying its Enforcement Policy to noro fully describe the circumstances in which it may exerciso enforcement discrrition. This policy is codified at Appendix C to 10 CFR Part 2 i 57 FR 5791 et sea., February 18, 1992).
DATES: This modif cation is offectivo on-(Date of Publication in the Federal Rogi.stor].
- Comments received within 30 days of the date of publication-of this modification will be considorod. Comments received more than 30 days.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-1 W e 9-y & T'F- TF'"4T*- W# TF W 'W " i* up W'--
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_ _ _ . _ _ . - . _ _ . _ _ . . _ _ . _ _ _ _ . _ . _ _ _ _ _ _ _ . _ . . _~
period following issuance.
ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Docketing and Service Branch.
Deliver comments tot 11555 Rockville Pike, Rockville, 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, N.W. (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 504-2741.
SUPPLEMENTARY INFORMATION:
In July 1985, the NRC staff issued internal guidance to address
, situations where a reactor licensee's compliance with a Technical Specification (TS) or bthy license condition may-cause an-unnecessary plant transient or unnecessarily prevent plant startup and where, in such instances, the temporary i
exercise of discretion by the NRC not to enforce _ compliance may be appropriate. That guidance has been revised periodically
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with the _ latest revision having. been made in February _.1990.
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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 .
enforcement discretion may be exercised into one location, the commission has determined that a discussion of the possibility of enforcement discretion for TS and pr"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 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 translents or,f toifdduce]bothEoperat'iona{ adde lshutdosh"g1Qshd to*jvoid unnecessary delays in plant startup where the course of action involves minimal or no safety impact and the NRC staff is l clearly satisfied that the exercise of discretion is consistent-i with the public health and safety.
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Exercise of enforcement discretion may-be lis appropriate only 1
where the exercise of discretion is temporary and nonrecurring.
The appropriate Regional Administrator or his designee might 3
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. l 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 i
process an emergency or exigent Technica4-speo-i+1 eat 4en TS l l
amendment under the provisions of 10 CFR 50.91(a)(5) or (6). l Enforcement discretion in these cases would be exercised by the Director, Office of Nuclear Reactor Regulation, or his designee.
A licensoo who requests the NRC to forego enforcement of a 4-leense-condit4on-or-T6 TS !orf otherill' cense cohditoii 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, i
and any other information the NRC staff deems necessary before r
making a decision to exercise discretion.
In each case where the t{gc staff has-decided to exercise its 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 4 ,
should not rely on the NRC's 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, hence, this modification to the Enforcement Policy is effective (Date of publication in the Federal Registor). _
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 seg). The information collection requirements contained in t,his' revision'to the policy statement wl-14--not-become-ef4eet4ve-unt-14-after-they-are have' been approved by the Of fice of Management and Budget (OMB)r-Not-lee-of
~
OMB-approval-w144-he--puMished-i-n-the-Federal-Register under control' number .
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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, including tho time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for 5
4 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 PART 2 - Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Civil penalty, Enforcement, Environmental protection, Nuclear materials,
!!uclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Violations, and Waste treatment and disposal.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS
- 1. The authority citation for Part 2 continues to read in part as follows:
AUT110RITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
sec 201, 88 Stat. 1242, as amended (42 U.S.C. 5481) * * *.
w j 10 CFR 2.8 (b) is amended as follows: ~
2.8 (b) The approved information collection requirements I
contained in this part appear in Appendix B and Appendix C. 4 6
- 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:
Appendix C -
General Statement of Policy and Procedure for NRC Enforcement Actions Table of Contents VII. Exercise of Discretion C. Exercise of Discretion for an Operating Facility l
l-
- l. 4. In Appendix C,Section VII, Paragraph (c) is added-to read as follows:
VII Exercise of Discretion l
C. Exercise of Discretion for an. Operating Facility 7
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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 [poif6rsah66@f testing {iHHpseti6h';sbi- .
pystemjeallyhmentfthatf1Ls]nsppFopriste}uith]th'e ,
spyoiff5?plhntll6ohditil6hspbr unnecessary delays in plant startup without a corresponding health and safety benefit. In these circumstances, theLNRC 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 ,
4f-at all pose-ib% provide a written [jdhflTidst^1bij}
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justification {fo11'6i/EdTE5{E66h7E5]y6s;s{blje4pl[WjFitt}sn jpsfiffbay46n) which documents the safety basis for the request and provides whatever other information the[NRC staff deems necessary in making a decision on -
whether or not to exercise enforcement discretion.
The appropriat9. Regional Administrator, or his designee, may exercise discretion where the noncompliance in temporary and nonrecurring such that 8
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an amendment is not practical. The Director, Office of Nuclear Iteactor 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 eperational risks and impacts [6i-to ' climin a t'd]te s tihg{1hsp6c ElyrQ]r'l~sps thm rea1ignmenfyhich]'1FinsppropiiLatFf6{th;sjartiddiaf pl a n t{b o hditi[o ns}{ Fop p1h nts[in'{a{sh6tdoQd6HdiElon}
o x e re.i s ing!ssf ofb eine n t"d ise fe ti6h. T1s~ Pi..
. - - - . nt hh._a sd I Eo r6 dude 7sh6tdoQn"Y1's(by{s(sihysfdidiH{tsstihb in spe c t16n{,6r? s95 t 65]ss11hhiisht]9hl'ch]is 1P APP.f6py(jy{fo{ths{payQpy{pph766nditl6hyyin thatQTitfdyysin6t@f6fid{syshfet J6hl6 fit. Exercising enforcement discretion for plants attempting to startup is less likely -t-hen @hsp 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 9
1 oxpcet that discretion would be exercised with respect to -inoperable equipment or systems only when it has at least concluded that, notwithstanding the conditions of the licens6 ; (1) the equipment or system does not perform a safety function in the modo in which operation is to occut, art (2) the safety function performed by the equipment or system is of only marginal safoty benefit. I f- the-inoperable-equipment or-eye t-emsloes-prov1<le-some-ma rg4nal-ea f et-y--benef4t, e n force me n t-dise r e t-4en-ma y-be-owereis ed-on1Hfj provided remaining in the current mode increases the likelihood of an unnecessary plant transient [or{(3) the TS "or othef'licensef condition.';iequires'ftest} inspectipn or syst,ers;~redlicjnment~Lt,hst"is;inapproprinye forf the partic01ariplantFconditionsifin^ that,fitTdoes not; provide ~a^safetpfbenefit. The decision to exercise enforcement discretion does i 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 visistions were involved, that led to the noncompliance for which enforcement discretion was used. Such enforcement action is 10 i l
e intended to emphasize that licensees should not rely on the ageney4 [NRC@ 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. Even though a plant must shut down er 4%((i'efudKigM{ivlyijy]ayEgyjyypjfdydJ}((}$jft startup may be delayed, absent the exercise of enforcement discretion, the NRC staff is under no obligation to take such a stop merely because it has been requested. The decision to forego enforcement is discretionary. Where enforcement discretion is to be exercised, it is to be exercised only if the@iRC staff is clearly satisfied that such action is warranted from a health and safety perspective.
- 5. Appendix C, Section VIII is amended by revising the last example under the paragraph involving individual enforcement actions. For the convenience of the user, the introductory paragraph concerning individual enforcement actions is reprinted without change.
VIII. Enforcement Actions Involving Individuals 11
s I Listed below are examples which could result in enforcement actions involving individual 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 tak.ing actions that violate Technical Specification Limiting Conditions for operation or other' license conditions 7(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 oriother license:!c3ndition'or if the 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.) 12
e Dated at Rockvillo, Maryland, this day of 1992. FOR Tile NUCLEAR REGULATORY COMMISSION Samuel J. Chilk Socratary of the commission m 13 -__-- ___ . . ..}}