ML20128N095

Discusses Refs to 10CFR2 App C & Informs That Request Being Prepared for Necessary Changes to Be Made

ML20128N095
Person / Time
Issue date:	06/27/1995
From:	Lewis S NRC
To:	NRC
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ML20128N048	List: ML20128N043 ML20128N059 ML20128N095 ML20128N184 ML20128N220 ML20128N266 ML20128N312 ML20128N323 ML20128N336 ML20128N357 ML20128N391 ML20128N427 ML20128N505 ML20128N569 ML20128N580 ML20128N677 ML20128N689 ML20128N698 ML20128N705 ML20128N713 ML20128N729 ML20128N742 ML20128N765 ML20128N781 ML20128N874 ML20128N898 ML20128N955 ML20128P015 ML20128P087 ML20128P096 ML20128P128 ML20128Q192 ML20128Q203 ML20128Q264
References
FRN-61FR43406, FRN-61FR43409, RULE-PR-2, RULE-PR-51 AF43-2-004, AF43-2-4, NUDOCS 9610160289
Download: ML20128N095 (7)

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From: Stephen H. Lewis (SHL) 7' 8 To: sat h> , w Date: Tuesday, June 27, 1995 4:52 pm

Subject:

REFERENCES TO PART 2 APPENDIX C

~

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Jim Lieberman had called to our attention the fact that 10 CFR Part 2, Appendix C is currently referenced in Section 51.10(d) of our regulations for the purpose of identifying various enforcement mechanisms (e.g., CALs, Bulletins, Generic Letters, Notices of Deviation, Notices of Nonconformance) not previously enumerated in that subsection as not being subject to NEPA. He also asked us to oN~

research 10 CFR to identify any other reies em.es iv Appendix C. This effort is p7' in connection "ith the removal of the Enforcement Policy from CFR.

to that effect is scheduled to be published in the Federal Register this Thenoticef' Friday.

Our research identified one other such reference, which is in 10 CFR s 2.8(b) J related to information collection requirements under the Paperwork Reduction Act.

The Statement of Considerations for the revision to Appendix C indicates that Section 2.8 was being amended because of the information collection requirements associated with the revision to the Enforcement Policy. Jim has now indicated to us that he will be preparing a request for the necessary changes to be wade to 10 CFR and he requested that I bring the matter to your attention. I will provide you separately with the relevant Statements of Consideration.

CC: jx1,jrg1,1Jc,sgbl 9610160289 961009 PDR PR 2 61FR43406 PDR cr ,

PART 51 STATEMENTS OF CONSIDERATION managed:(4) how the transfer of Nuclear News. Vol. 30. No. 3 March spent fuel storage or offsite spent fuel management responsibility from the 1987, pp. 47-52. at p. 47.) Dry storage has storage will be made available if such utilities to DOE will take place; and (5) been licensed at two reactor sites and a storage is needed.'

how the cost of DOE storage might third application is under review. Dry Dated at Rockville. M ryland. this 25th day differ,if at all, from utility storage, cask storage is licensed at Virginia of September.1989 Utilities possessing spent fuelin storage Electric Power Company's Surry Power For the Nuclear Regulatory Commission under NRC licenses cannot abrogate Station site (see License. SNM 2501 John C. Hoyle' their safety responsibilities ha vever. under Docket No. 72-2), and dry-Until DOE can safely accept spent fuel, concrete module and stainless. steel A ""'""' D' 7 ##**'8 8' "

utilities or some other licensed entity canister storage is licensed at Carolina 54 FR 43576 will remain responsible for it. If DOE Power and Light Company's (CP&L's) H. Published 10/26/89 and the utilities can amicably resolve B. Robinson. Unit 2. site (see License Effective 10/26/89 their respective responsibilities for spent SNM 2502. under Docket No. 72-3). An fuel storage in the interest of efficient application is under review for a similar 10 CFR Port 51 and effective administration of the modular system at Duke Power

"* "A" overall waste management system. Company's Oconee Nuclear Station site including the Nuclear Waste Fund. NRC (See Letter to Director. Division of Fuel Ciertfying Amendment Re'4 ting to would gain added confidence in the Cycle and Material Safety. NRC. from Enforcement Activttles institutional arrangements for spent fuel Hal B. Tucker. Duke Power Company, management (see also Finding 3 on this dated March 31,1988. under Docket No. Acesecy: Nuclear Regulatory issue). 72-4). A new application has been Commission.

Estimates of the amount of spent fuel received in 1989 for CP&L's Brunswick Actiosc Final rule.

generated have continued to decline. At site, and another is expected in 1989 for the time of the Commission's Decision. the Baltimore Gas and Electric sussesAsm The Nuclear Regulatory the Commission cited in Finding 5 the Company's Calvert Cliffs site. Commission (NRC)is amending its cumulative figure of 58.000 metric tons Applications are also expected for environmental regulations to make clear uranium of spent fuel generated in the that the provision excluding NRC CP&L's Robinson 2 site (at another year 2000 (See 49 FR 34658. p. 34697 onsite location to allow for greater enforcement activities from the August 31,1984.) More recently. DOR Morage capacity). Wisconsin Electric requirements of the National estimated 40.384 metric tons (See "$Y. .b Dower Company's Point Beach site, and Environmental Policy Act of1969, as Fuel Storage Requirements." DOE /RLr- Consumer Power's Palisades site. The amended. not only encompasses formal 88.-34. October 1988, p. A.17). Although Tennessee Valley Authority has enforcement actions but also estimates may show an increase at indicated that it will apply for its encompasses informal administrative some date wellinto the twenty first Sequoyah plant site, mechanisms relating to enforcement century if licenses of some reactors are Thus, the successful demonstration by such as bulletins. information notices.

renewed or extended, this possibility DOE of dry cask technology for various generic letters, notices ot aeviation, does not affect the Commission's cask types at INEL utilities' actions to notices of nonconformance and confidence in the availability of safe forestall spent fuel storage capacity confirmatory action letters.This minor storage capacity until a repository is shortfalls, and the ec.;tinuing sufficiency amendment will help to clarify the operational. The industry has made a of the licensing record for the manner in which this provision will be general commitment to provide storage Commission to authorize increases in at. applied.

capacity, which could include away- reactor storage capacity all strengthen aPracTiva oats: October 26,1989.

from. reactor (AFR) storage capacity.To the Commission's confidence in the date. however, utilities have sought to availability of safe and environmentally Pon PunTwsst seseosessArton cw7Act:

meet storage capacity needs at their sound spent fuel storage capacity. Stuart A.Treby. Assistert Geceral respective reactor sites. Thus, a new Renewalof reactor OLs willinvolve Counsel for Rulemaking and Fuel Cycle.

industry application for AFR storage consideration of how additional spent U.S. Nucleaa Regulatory Commission, remains only a potential option, which fuel generated during the extended term Washington. DC 20555; Telephone (301) currently seems unnecessary and of the license will be stored onsite or 492-1636.

unlikely. offsite.There will be sufficient time for supptassexTAnY INPostatATioM:On Utilities have continued to add construction and licensing of any March 12.1984 (40 FR 9352), the storage capacity by reracking spent fuel additional storage capacity needed. Commission promulgated final pools, and NRC expects continued in summary, the Commission finds no regulations impismenting section 102(2) reracking where it is physically possible basis to change the Fifth Finding in its of the Natiot al Environmental Policy and represents the least costly Waste Confidence Decision. Changes by Act of 1989, as amended. (NEPA) in a alternative. Advances in dry. storage the NWPAA which lessen the manner which is consistent with the technologies and utility plans both have likelihood of an MRS facility, and the NRC's domestic licensing and related a positive effect on NRC's confidence. potential for some slippage in repository regulatory authority. These regulations.

At the time the Commission resched its availability to the first quarter of the 10 CFR part 51. subpart A. reflect the original findings, dry storage of LWR twenty.first century (see our discussior. - Commission's policy of developing spent fuel was, as yet, unhcensed under of Finding 2) are more than offset by the regulations voluntarily subject to certain to CFR Part 72, and DOE's dry. storage continued success of utilities in conditions to take account of the demonstrations in support of dry. cask providing safe at. reactor. site storage regulations of the Council on storage were in progress at the Idaho capacity in reactor pools and their Environmental Quality (CEQ)

National Engineering Laboratory (INEL). progress in providing independent onsite implementing the procedural provisions Today. DOE's demonstration efforts storage. Therefore, the Commission of NEPA. Section 51.14(b) of the NRC have been successful (See Codlewski. N. continues to find "* *

• reasonable regulations adopts certain definitions Z.. " Spent Fuel Storage-An Update.' assurance that safe independent onsite used in the CEQ regulations. These definitions include the definition of April 30,1992 51-SC 32 1

PART 51 STATEMENTS OF CONSIDERATION "Ma}or Federal action" in 40 CFR mechanisms which include the issuance subsequent environmental evaluations 1508.18.8 As this definition makes clear, of .wders pursuant to 10 CFR part 2. in connection with license amendments.

for NEPA purposes the term " Major subpart B. are intended to be included The environmental effects of NRC Federal action" does not include within th scope of to CFR 51.10(d). See activities associated with the

"* *

• bringing judicial or 10 CFR part 2. Appendix C. General supervision of such licensee actions, administrative civil or criminal Statement of Policy and Procedure for including NRC approval and supervision enforcement actions * * * " This NRC Enforcement Actions, section V.H. of thelicensee's subsequent resumption portion of the CEQ definition of " Major These informal administrative actions of licensed activities are the same and Federal action" is highlighted in i 51.10 include. among others, various<. written do not require additional environmental of the Commission's regulations which notices such as bulletins,informatio, review.

addresses the purpose and scope of notices, generic lettea motices of Although the Commission did not NRC's regulations implementing section deviation or non-coriform.mce and intend I 51.10(d) ofits NEPA regulations 102(2) of NEPA and states in paragraph confirmatory action letters. As use of to be read as if it applied exclusively to (d): the word " include"in the second the types of enforcement activities (d) Commission actions initiating or sentence of I 51.10(d) makes clear. specifically enumerated therein, it relating to administrative or judicial civil or i 51.10(d) does not purport to provide a recopu'see that clarification would be criminal enforcement actions or proceedings comprehensive list of Commiss'on helpful. Accordingly, the Commission is are not subject to section 102(2) of NEPA. activities relating to enforcement. The prenulgating this final rule.

Thue actfons tochada issuance of notices. types of enforcement actions mentioned It should be clearly understood that it pubat to e bp ip 2 0j " were intended to be only illustrative.

As described in die Commission s has always been contemplated, under

} 51.10(d), that when licensee actions to chapter, and matters covered by part is and General Statement of Policy on teoof this chapter. remediate the matters underlying the Enforcemnt,"Confinatory Acdon enforcement action have been Although the Commission's "'f8 8f' l'"'f8 C nfiNina 8 completed to the satisfaction of the regulations make clear that enforcement l '"*" '. r a vendor e agrumnt to Commission, the conditions of operation matters are not subject to the NEPA 8k* C" 81n 8CU 38 f* I V8 previously reviewed in an process, there has been some significant conmns about health and ,, environmental context will be restored.

uncertainty as to whether certain types I safegt .ds, or the environment. Accordingly, when the NRC authorizes ofinformal administrative actions used A confirmaty action leuer is an licensed activities to resume, no by the NRC staff as an adjunct to the in mmal enf reemnt t 1 issued by the additional environmental review Commission's formal enforcement NRC staff pursuant to 10 CFR part 2- pureuant to NEPA or the Commission's Appendix C. V, H. 3. The letter reguladone is needed. If it should be memorializes comrdments made by the necessary for the licensee to obtain a

$ so cra isos.1: eista: unior reders! action licensee to the NRC stai: Bat the license amendment to restore includes actions with offects that 'ney be major and licensee will take Certain spectik. Compliance with the Commission's

1. actions with regard to a facility. safety requirements in order to satisfy

",%*$iu"N"aNe[I)*oNe'$* *[*.c ll[ ld the concerns underlying the enforcement meanins independent of stenificantly (I tsos.27). The NEPA status of such informal Acuons include the circumstance where the tools, including resumption of plant action, any environmental effects responsible officials fell to act and that failure to operation, was not explicitly addressed associated with issuance of the license in 151.10 since the Commission amendment would either be addressed trtbNu*n"[er *he A hS [ra'uYe PAct or t

believed, as it argued in Commonweo/th in an Environmental Assessment or other appbcable law as apncy action.

of Mossochusetts v. UnitedStates encompassed by a categorical exclusion "ta) Actions include new and continutna acuvtu a. tactudins protects and programs enttroly Nuclear Regulotory Commission. No. under 10 CFR 51.22(c). In this way, 88-2211, that such informal enforcement appropriate consideration of any Epp .# d IyTdereUaYoncte of[ r ' d environmentalimpact would be assured.

apacy rulu. resulations. plans. policies or tools did not involve agency action.

Because this amendment is merely procedures; and legislative proposals (il 15ca.a. However. In that case the First Circuit isoatr). Actions do not include fundtna sestsianca Court of Appeals concluded that clarifying and interpretative in nature.

resumption of operation of the Pilgrim relates solely to matters of agency diNbu *dd [$ [ andl "l$* facility, after an extended shutdown for practice and does not involve a Au stance Act of 1s72. 31 U.S.C.1221 et uq., with no rederal apacy control over the subuquent un Corrective actions reflected in a significant questio;. of policy, good of such fundo Actions do not include brtnstns Confirmatory Action Lettar, mvolved cause exists for omitting notice of judicial or admaastnuve etvil or criminal NRC action to reinstate the license. The proposed rulemaking and public

" procedures thereon as unnecessary and Court went on to uphold the NRC r"e$a!Yt na tend to f all within one of th, actions against related challenges.The followins caiesorta: for making the amendment effective, ter upon publication in the Federal Regis

"(1) Adoption of official pohey. auch as rules. case did not raise and the Court did not msulations, and interpretations adopted pursuant to address any NEPA related issues.

without the customary thirty day notice.

the Adminhtrauve Procedure Act, s U.S.C. asi et s.q.: trunes and international conventions or Iicensee actions undertaken EnvironmentalImpact: Categorical agruments formal documents utabushins an voluntarily, ae documented in a Exclusion apacy poucts. which wt!! result in or confirmatory action letter, are generally The NRC has determined that this substantially alter asency prosrama. directed to restoring compliance with final rule is the t e of action described l

d nts pr p pr ed f j NRC regulations, thereby enabling the in categorical ex union 10 CFR annetu which suide or pre.cribe alternative uses licensee to resume licensed activities. 51.22(c)(2). Therefore, neither an of federei ronources. upon which future asency Consequently, the only environmental environmentalimpact statement nor an actions will be band. effects of the licensee's voluntary environmental assessment has been (3) Adoption of programs, such as a group of actions to reestablish that licensed concerted actions to implement a specific policy or prepared for this final regulation.

t imp ement s e fic acco ac h e license a e those Paperwork Reduction Act Statement 1 at asen y res u statutory program or executive directive. evaluated at the time the facility or This final rule contains no new or

"(4) Approval of specific protects. such as activity was licensed and assessed in amended information collection the NRC Environmental 1mpact requirements and therefore is not de n d [ogrep ca e ec a n lu tions approved by permit or other regulatory dectaion as Statement prepared in connection with subject to the requirements of the well as federal and federally assisted actmties " the initialissuance of the license and in Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seg ).

51-SC-33 April 30,1992

PART 51 STATEMENTS OF CONSIDERATION Regulatory Analysis , $5 FR 3a472 ce safely disposed of. The Comm esion Published 9/t 8/90 found that there was reasonable Questions have arisen as to whether Effective 1o/18/90 10 CFR 51.10(d), which excludes assurance that one or more mim geologic repositories for com ni aid Commission actions relating to to CFR Part 51 snforcement from the NEPA process, h:gh level radioactive waste and sp.r.t sncompasses informal administrative RIN 3150-AD26 fuel will be available by 2007 200L cctions such as those described in llowever, some reactor operating Conalderation of Environmental licenses might expire without being section V.H. of the CommissiorJ Impacts of Temporary Storage of ' renewed or some reactors might be General Statement of Policy an' Spent Fuel After Ceasation of Reactor permanently shut down pnor to this Procedure for NRC Enforcement Operation mod. Since independent spent fuel Actions,10 CFR part 2, Appendix C,i.e., s:orage installations had not yet been bulletins, information notices, generic AceNcy: Nuclest Regulatory estensively develop rd. there was a litters, notices of deviation or Commission.

probabihty that some onsite spent fuel nonconformance and confirmatory Action: Final rule. storage after license expiration rnight be cetion letters. Section 51.10(d) of the or appropriate. In addition.

Commission's regulations is not limited sVMMAny: The Nuclear Regulatory necessa%ility existed that spent fuel Commission is revising its generic h poss to a portion of the Commission's .

might be stored in existing or new snforcement activities but is all- determinations on the timma of storage facilities for some period beyond inclusive, ne NRC *taff has a need to avatlability of a geologic repository for ccmmercial high level radioactive waste 2007 2009. The Commission also found essure a uniform understanding of the that the licensed storage of spent fuel for scope of actions encompassed by this and spent fuel and the environmental at inn 30 years beyond the reactor regulation. This rule change revising the impacts of storage of spent fuel at operating license expiration either at or t2xt of I 51.10(d) to make clear that it reactor sites after the expiration of away from the reactor site was feasible, i epplies to the entire spectrum of the reactor operating !icenses. These safe, and would not result in a Commission's enforcement activities is revisions reflect findmgs of the significant impact on the environment.

the appropriate means to achieve this Commission reached in a five year Consequently, the Commission end* update and supplement t its 1984 adopted a rule, codified in 10 CFR 51.23,

" Waste Confidence" rulemaking providmg that the environmental B:ckfit Analysis proceeding, which are published impacts of at-reactor storage after the The NRC has determined that the elsewhere in this issue of the Federal tennination of reactor operating licenses backfit rule,10 CFR 50.109, does not Register. The Comrmssicn now finds need not be considered m Commission epply to this final rule because this that speni fuel generated in any reactor proceedings related to issuance or can be stored safely and without amendment of a reactor operating emendment to 10 CFR 51.10(d) does not significant environmental impacts in contain any provisions which impose license. The same safety and bickfits as defined in 10 CFR react r faility storage pools or environmental considerations applied to independent spent fuel storage fuel storage installations licensed under 50.109(a)(1) and 'herefore a backfit installations located at reactor or away-enalysis is not required. part 72 as for storage in reactor basins.

from reactor sites for at least 30 years Accordingly, the rule also provided that Ust of Subjer.s in 10 CFR Part 51 beyond the licensed life for operation the environmentalimpacts of spent fuel (which may include the term of a storage at independent spent fuct Administrative practice and revised er renewed license). Further, the storage installations for the period procedua, Environmental impact stat ament Nuclear materials, Nuclear Commission believes there is reasonable following expiration of the installation power plants aud reactors, Rep rt ng assurance that at least ont mined storage license or amendment need not enc recordkerping requirements. geologic repository will be available be considered in proceedings related to within the first quarter of the twenty. Issuance or amendment of a storage For the reasons set forth in the first century, and sufficient repository installation license.

preamble and unde

• the authority of the capacity will be available within 50 Atomfc Energy Act of1954, as amended, years beyond the licensed life for Amendment to Part 51 the Ener y Reorganization Act of1974, operation of any reactor to dispose of At the time ofissuance of its Waste as amended. the National the commercial high. level waste and Conf!dence decision and the adoption of Environmental Policy Act of toes, as spent fuel originating in such reactor to CFR 51.23, the Commission also emended, and 5 U.S.C. 552 and 533, the and generated up to that time, announced that while it believed that it NRC is adopting the following spirsCTIVE DATE' October 18,1990, could, with reasonable assurance, reach emendment to 10 CFR part 51: Pon runTNcR INFOnMATION COstfACT' .

favorable conclusions of confidence,it John P. Roberts, Office of Nuclear also recognized that significant 64 FR 80735 Material Safety and Safeguards, U.S. unexpected events might affect its Put>ilahed 12/11/00. Nuclear Regulatory Commission, decision.

Washington, DC 20555, telephone: (301) Consequently, the Commission stated Earfy Sas Perm /ts; StandaM Des @n 492-0606. thet it would " review its conclusions on CertMcaelona; and ComeinedUoensee waste confidence should significant and fbrNucAserPower Aeacers;Conecten 8 N "8TA"'"'0""*

• pertinent unexpected events occur, or at See Part 52 Statemente of Cona,deestion Backgm d leest every 5 years until a repository for in 1984, the Commission concluded a high level radiosctive waste and spent fuel is available." The Commission has 54 FR 83312 generic rulemaking proceeding, the now completed a five year review of its Published 12/28/90. " Waste Confidence" proceeding, to earlier findings. A description of this Eneettve 12/28/se reassess its degree of confidence that review and the supplement and update radioactive westes produced by nuclear to the earlier findings is announced Stafement o/ Organtzsten and General facilities will be safely disposed of, to infbanaelon; Minor Amendnwnts determine when any sur,,h disposal elsewhere in this issue. As a result of this review, the Commission is would be available, and whether such See Part 1 Statements of Conalderation wastes can be safely stored until they hodifyll3.,f8 fI "Ili" fl"d 'E' "

April 30,1992 51 SC-34

_ __ ._ - . . . _ _ . . _ , _ _ ____.. .._m . - _ _. _ _ __ _ - _ _ _ _ _ - -

94.tuitap PART 2 o RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS . . .

i

"NRC records and documents"  !~ ~

means any boot paper, map. photo- 2 the .place "Public Document Room" means at 2120 Street NW Wash- Subport A-Procedure forissvonce.

graph. brachtsre. punch card, magneuc Am tape, paper tape, sound recording, h inston, D.C at w ch public records ent as k orRene d pamphlet, allde anot&on picture. or of the Commianton will ordinarily be

• N '""

l other documentary material regard Q nade aFallable for inspectiott I

j 2.100 Scope of sebpart.

less of form or characteristl<s. t=ade ,

" Secretary" means the $ecre' I This mahpart presortbes the proce-

~

i by, in the possession of, or under , he f a h for t=====aa of a W amend control of the NRC pursuant to Feier- tary to the Cornminaion. ansat et a keense at the request of the al law or in connection with the trans- Except as redefined in this sec- ummmmmme and transfer and renewal of a action of public business as evidence of - tion, words and phrases which are de- p NRC organtsation, funettons, policies, f fined in the Act and in this chapter -

decisions, procedures, opersuona, pro- g have the asme meaning when used in -

g g,ggg pggg,, ,g .,,m s grams or other acuvides. "NRC ree-ords and jocuments" do not include (this M (a)(1) An appasemasaa for a lleense or ob}ects or articles such as structures. . a u & to a Hoense shau N y furniture, Ltngible exhibits or models, Intermemen osanceen regieremente: M with h N of Nudear D-

, u. or vehicles Erid eculpment, approveL I ester Regunas.saa or Director of Nucle-2 "Pereot." rneans (1) any individ- E at Biates'tal Safety and Safeguards, w (al'11te Nuclear Regulatory ual, corporauon, par.nership, firm, as- u. prescribed by the appas, ham pryvisions

, Commission has sua.uitted the  ; of this chapter. A prospective appH-

sociation, trust estate public or pri-vate inst!tution, group, government l' information collection requirements cast saay confer leformally with V c contained in this part to the Office of staff prior to the filing of an appile agency other than the Commission or Management and Budget (OMB) for taan.

the Departraent, except

• hat the De- E approval as required by the Paperwork -

partment shall be considered t. person R Reduction Act of 1980 (44 U.S.C. 3501 et , (sl Eadi --7 ^' - for a liasese for a with respect to those facillues of the seq.) OMB has approved the information feciDty er for receipt of weste Department specified in secuon 202 of collection requirements contained in this the Energy Reorganization Act of 19'l4 redioactive material hose other persons part under control number 3150-0136. for the pwpoes of coenmercial disposal l (88 Stat.1244)

• any State or any po- -

! litical subdivision of. or any political by the weete disposal un-naam will be entity within a State, any foM 30 aseN e docket number.However, to I ernment or nauon or any political sub eBow a determination as to whether an division of any such government or 8){b) The approved information application for a constructica pennit er i

Q operating lioenes for a production or nauon, or other enuty; and (2) any collection requirements contained in legal successor, representauve. agent. utiHaation fadDty is complete and 3

or agency of the foregoing. u- this part appear in appendix C scomptable for docketing, u wiu be t 3 u iniW Wied as a tendsed

[ @ arm H inoceivd ad e.

' copy of the tendered application will be O

l

$ avellable Coenmission'sfor public Pebuc Document inspection Room. la the N 2120 L Street NW W- " 71 D.C.

I,GenereHy. that detenminellan will be made withis a of thirty (30) days.

However,la osastrecelos permit a Ucations. ther %=-laalaa mey to deterales acceptability i on the basis of the technical adequacy of the appbcation as won as its

'The Deparunent iactuues spectfled in corapletenees. In such cases, the uon p m tal rest Commission, pursuant to I Lloe(s), will Breeder reactors when operated as part of direct that the notice of bearing be the power senerauon factuties of an electrie issued as soon as practicable after the vuuts systaun. or when operstad in any application has been tendered, and the ether manner for the purpose of desman'. determination of acceptabGity wiu i stisung the suitabGity for an==mdal ap generally be usade within a period of

! Oth nuclear reactara, sixty (GO) days. For docketing and other suorpt thase in extan==aa en January te, requisweents for applications pureuant it'l5, when operstad as part of the power to fart $1 of this dbapter, see pategraph*

genersuan faculuem of an electrte ut01ty (g) of thle esctica.

aystems, or when operated in any ot.her i

snannar for the purpose of w* sting T the sultannity for ---Wal nepancassam of ( (3)If the Director of Nuclear Reactor i such a r-~. Regulation or Director of Nuclear "3 P*catues used primarny tw the recetat 3

and stormee of hashaevet r=ma=,ea ve wassen Material Safety and Safeguards. as reeutung froes uansed ah u appropriate. determines that a tendere H Retr.eeable surface stormee FacGities application for a construction permit or and other facGitaes authertmed for the en-

• operating license for a production or J

press purp ee of subsequent lans. tem stor- [ utilizetien facility, and/or any j as, of hash.nevel r=ma=6 ave waste senerst-ed by the Ah which are not $ environmente1 report required pursuant used far, or are part of. research and devel. to Subpart A of Part 51 of this chapter.

i opment scuvtues, or part thereof as provided in paragraphs (s)(5) or (a-1) of this section are complete and acceptable for March 31,1993 2-4

PART 2 o STATEMENTS OF CONSIDERATION

( Need for Specific Time Limits for set aside immediate eIIectiveness on an procedural mechanism for dealing with Reachmg Decisions expedited basis- orders that are made immediately As noted earlier, i 2.202(c)(2) of the EnvironmentalImpact: Categorical effective. The rule, by itself. does not proposed rule authorized a person to Exclusion !mp se any obligations on er tities ,

whom the Commission has issued an mcluding any regulated entities that I immediately effective order, in addition The NRC has determined that this may fall within the definition of "small to demanding a hearing, to move to set final rule is the type of action described entities" as set forth in section 601(3) of I aside the immediate effectiveness of the in categorical exclusion 1 CFR.. the Regulatory Flexibility Act. or within. l order. The proposed rule required the 51.22(c)(1).Therefore neither an the definition of "small business" as {

staff to respond within five days, after environmentalimpact statement nor an found in section 3 of the Small Business j which the presiding Licensing Board or environmental assessment has been Act,15 U.S.C. 632 or within the Small i Administrative Judge was required to prepared for this final rule. Business Size Standards found in 13 1 decide the motion expeditiously. E" " 8'"

One commenter suggested the need Paperwork Reduction Act Statement n t be created until an order ".s w uld is issued, for specific time simus sur reat.mng a This final rule contains no information at which time the person subject to the i decision on a motion to set aside collection requirements and therefore is order would have a right to a hearing in immediate effectiveness as well as the not subject to the requirements of the accordance with the regulations.

decision on the merits. As part ofits Paperwork Reduction Act of 1980 (44 Backfit Analysis deliberation on the proposed rule the U.S.C. 3501 et seq.).  !

' Regulatory Analysis trle, OC fi t e ba 0 de not ay de d ne in he e olution On August 15.1991 (56 FR 40664), the apply to this final rule and, therefore.

of a motion to set aside immediate effectiveness. it concluded that such an Commission amended its rules of that a backfit analysis is not required for practice to make them more consistent this final rule, because this rule does not inflexible rule would not be workable.

The Commission decided instead that with the Commission's existing statutory inv lve any new provisions which the rule should be without a fixed authority and to provide the w uld impose backfits as defined in to deadline but that the rule should be Commission with the appropriate CFR 50.109(a)(1).

accompanied by a strong direction that procedural framework to take action. in List of Subjects in to CFR Part 2 any motion to set aside immediate appropriate cases. in order to protect the public health and safety. The Administrative practice and effectiveness would be resolved procedure. Antitrust. Dyproduct expeditiously, generally within fifteen amendments also were to make clear days. the distinction between orders-e.g. material. Classified information.

Environmental protection. Nuclear Upon reconsideration. the directions to take or desist from takm! g materials. Nuclear pcwer plants and Commission adheres to its earlier view. certain actions-and demands for reactors. Penalty, Sex discrimination, The Commission believes that the rule information. Only orders were to be Source material. Special nuclear without a fixed deadline for decision is made immediately effective and subject to hearing consistent with existing material. Waste treatment and disposal. l necessary to provide presiding officers I and the Commission with the necessary regulations. Neither the preexisting For the reasons set out in the '

time to adjust to the number and regulations nor the amendments. Preamble and under the authority of the complexity of the issues that may arise however, contain provisions requiring At mic Energy Act of 1954, as amended.

in the proceeding and that the that any hearing on an immediately the Energy Reorganization Act of19'4. I as amended, and 5 U.S.C. 552 and 553.

Commission's expression of the need for effective order be conducted i expedition should operate to prevent expeditiously. This rulemaking the NRC ,ts adopting the following unwarranted delays. Principally, for this supplements the August 15 amendments amendments to 10 CFR part 2.

reason, the Commission is leaving the by adding provisions directing the proposed rule unchanged in this respect expeditious conduct of any hearing on in this final rule. In leaving the rule an immediately effective order, but %8 FR 14308 flexible as to the time of decision, the allowing delays in the conduct of such Put>lished 3/17/93 Commission reemphasizes the critical hearings in certain circumstances where Effective 3/17/93 importance for the expedited good cause for delay .s shown, and Comment period expires 4/16/93 consideration and decision on establishing a separate. informal immediately effective orders including procedure for dealing rapidly with 10 CFR Part 2 any motions to set aside immediate challenges to the immediate RIN 3150-AE57 effectiveness. Under 10 CFR 2.718 effectiveness of such order.

presiding officers have broad powers for This rule constitutes the preferred Policy and Procedure for NRC regulating the conduct of proceedings course of action and the cost involved in Enforcement Actions; Policy and they are strongly reminded to use its promulgation and upplication is Statement those powers to the fullest, with due necessary and appropriate. The ActNcy: Nuclear Regulatory regard to the rights of the parties, to foregoing discussion constitutes the Ccmmission.

accomplish the necessary expedition. In regulatory analysis for this rule. AcnoN: Policy Statement: Modification sum the rule intends that the presiding officers will make every elfort utilizmg Regulatory Flexibility Certification

SUMMARY

The NRC is modLlym.g its whatever powers are available. to hear As required by the Regulatory Enforcement Policy to describe more dnd decide Challenges to immediately Flexibihty Act of 1980 (5 U.S.C. 605(b)). fully the circumstances in which it may effective orders. mcludmg set aside the Commission certifies that this rule exercise enforcement discretion, motions as expeditiously as possible. will not have a significant economic OATEs: This rriodification is effective on Y The Cummission w.ll also review and impact on a substantial number of small March 17,1993. Comments received by decide presidmg officer decisions that entities. The rule establishes the April 16,1993 will be considered.

2-SC-113 March 31,1993

.",, PART 2 e STATEMENTS OF CONSIDERATION Comments received after this date will plant startup where the course of action including the time for reviewing

, be considered if it is practical to do so, involves minimal or no safety impact instructions, searching existing data Sut the Commission is able to assum and W NRC staff is clearly satisfied that sources, gathering and maintaining the consideration only for comments the exercise of discredon is consistent data needed, and completing and received during the 30. day period with the public health and safety. reviewing the collection of information, j following issuance. Exercise of enforcement discretion is Send comments regarding this burden i ADOREssss: Send comments to: appropriate only where the exercise of estimate or any other aspect of this i Secretary, U.S. Nuclear Regulatory discretion is temporary and collection of information, including Commission. Washington, DC 20555. nonrecurring. The appropriate Regional suggestions for reducing this burden, to

ATI N

Docketing and Service Branch. Administrator or his designee might ' the Information and Records i Deliver comments to.11555 Rockville exercise discretion where the expected Management Branch (MNBB-7714),

Pike. Rockville, Maryland 20852, noncompliance is of such short duradon U.S. Nuclear Regulato;y Commission, j between 7

45 a.m. and 4:15 p m. Federal that a license amendment could not be Washington. DC 20555, and to the Desk 1 workdays. issued before the need no longer exists. Officer. Office of Information and

, Copies of comments received may be making it impractical to amend the Regulatory Affairs.NEOS-3019,(3150-examined at: the NRC Pul,!ic Document license. It may also be appropriate to 0136) Offics of Management and i Room. 2120 L Street. NW. (Lower . exercise discretion for the brS! per%d Budget, Washington. DC 20503.

l IAvel), Washington, DC. of time it requires the NRC staff to List of Subjects in 10 CFR Past 2 FOR FURTHER WFORasATION CONTACT: Process an emergency or exigent TS i amendment under the orovisions of to Administrative practice and James Lieberman. Office of Enforcement, telephone (301) 504-2741 CFR 50.91(a) (5) or (6). Enforcement procedure, Antitrust, Byproduct l material, Classified information, or J. Randall Hall, Office of Nuclear discretion in these cases would be j R: actor Regulation, telephone (301) exercised by the Director Office of Environmental protecdon. Nuclear 504-1336 U.S. Nuclear Regulatory Nuclear Reactor Reguladon, or his rnatorials, Nuclear power plants and i reactors Penalty, Sex discrimination, 1 Commission. Washington, DC 20555. designee.

t A licensee who requats the NRC to Source material. Special nuclear SUPPLEssENTARY MFORGAATION: forego enforcement of a TS or other material. Waste treatment and disposal.

Background license condidon must document the Accordingly, the NRC is adopting the i

safety basis for the request, including an following amendments to 10 CFR part 2.

l In July 1985, the NRC staff issued evaluation nf the safety significance and internal uidance E to address situations p tentialc nsequences i the proposed I

where a reactor licensee's compliance course of action, a description of 4

with a Technical Specification (TS) or compensatory measures, a justification >58 FR 17321

< othtr bcensa condition may cause an for the duration of the request, the basis Published 4/2/93 j unnecessq plant transient or for the licensee's conclusion that the ENective 4/2/93 unnM:essanly prevent plant startup and Cenent peM expku 5/3/93

, request does not have a potential where, in such instances, the temporary adverse impact on the public health and l exercise of discretion by the NRC not to safety, and does not involve adverse 10 CFR Part 2

) enforce compliance may be appropriate. uences to the environment, and con That guidance has been revised er nf nnoun the NRC stas RW 3%AEH

!' any 4

PeriodicallYwith the latest revision deems necessary before making a having been made in Febru 1990. decision to exercise discretion. Policy and Procedure for NRC

• N In each case where the NRC staff has Enforcement Actions; Policy sts f may x ise e forc ont M to eMae b enforceme hw

, discretion have been gerally discretion, enforcement action will f described in section VII of the normally be taken for the root causes, to AGENCY: Nuclear Regulatory Enforcement Policy (to CFR part 2, the extent violadons were involved, that Commission.

appendix C). In order to consolidate the led to the noncompliance at lasue. Such ACTION: Policy statement: Modification description of all circumstances where and request for comments.

l enforcement discrvlon sney be enforcement acdon is intended to j exercised into one location, the emphasize that licensees should not rely sunsasARY:The NRC is modifying e the NRC e authority to exercise Su plement VI ofits Enforcement

! Commission has determined that a i

discussion of the possibility of enforcement discretion as a roudne p g g ,

substitute for compliance or for of severity levels for violations

, enforcement discretion for TS or other requesting 6 license amendment, license condition compliance should associated with the quality management s

Since this ,iction concerns a geners l also be placed in section VII of the m uired by 10 CFR 35.32 The Enforcement Policy. In addition. Secuori statement of pnlicy, no p or nodce is y g

• E f t th f'o ment Policy th e f ment pro e to m c ta u d

taken by lic2nsee employees pursuant to .

regulatory significance of a particular such an exercise of discretion will not Paperwork Reduction Act Statement violation.

nis Policy Ststement contains DATES: This revired policy statement is d i uals n olv . F al y,to flect information collection requirements that effective on April 2,1993. Submit the information collection requirementi

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are subject to the Paperwork Reduction comments on or before May 3,1993.,ll of this change,10 CFR 2.8 is being Act of 1980 (44 U.S.C. 3501 et seq). Comments received after this date wi i amended to reference that fact. nese requirements were approved by be considered if i,t is practical to do so, The Commission believes that the ,

but the Commission is able to assure exercise of enforcement dlscretion in the Office of Manaqament and Budget under control number 3150-0136. consideration only fer comments 4

this area is warranted to avoid The public reporting burden for this received on or before this date.

> unnecessary plant transients, to reduce Comments may be considered in future both operational and shutdown risk, collection of information is estimated to i

average 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> per response, revisions of the statement of policy.

and to avoid unnecessary delays in

April 30,1993 2-SC 114

/4T4 3 - 2.

3-Aoril 5.1995 SECY-95-084 k E9n The Commissioners From: James M. Taylor /s/

Executive Director for Operations Subiect: ASSESSMENT OF THE NRC ENFORCEMENT PROGRAM, PROPOSED REVISION TO THE GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS, AND REMOVAL OF POLICY FROM 10 CFR PART 2, APPENDIX C Purogsg:

To provide the Commission with the staff's action plan to address the recommendations of the assessment of the NRC Enforcement Program and obtain Commission approval to revise the NRC Enforcement Policy consistent with those recommendations and to remove the Enforcement Policy from the Code of Federal Regulations.

Backaround By SRM dated July 26,1994, the Commission approved the charter for the establishment of a review team to assess the NRC's enforcement program. As noted in the EDO's memorandum to the Commission, dated July 18,1994, the Review Team was to consider a variety of issues, including

1) The issue of whether prompt, effective corrective action by the licensee should be sufficient to warrant full mitigation of a civil penalty, regardless of the other civil penalty adjustment f actors (April 1,1994 SRM on SECY 94-042);

2) The issue of whether to raise the maximum civil penalty to $500,000 per violation per day as recommended in NUREG-1499, Review Team Report for Reassessment of the NRC's Program for Protecting Allegers Against Retaliation (June 2,1994 SRM on SECY-94-089); and

3) The issue of whether to establish a policy for the use of open enforcement conferences (January 29,1992 SRM on SECY 91-380).

In addition, the Review Team was asked to consider the enforcement issue raised by the Towers Perrin report concerning use of Severity Level IV and V violations. This was described in SECY 95-063, March 15,1995.

Discussion:

I The Review Team on the assessment of the NRC's enforcement program has completed its review. The report, " Assessment of the NRC Enforcement Program," dated April 5, 1995 (Enclosure 1), addresses the issues raised in the charter and in my memorandum of July 18,1994, as well as the issue noted above from the Towers Perrin report. Several

{ recommendations were made, some of which require Commission approval and some of

<bN M o'b' S' o a. L 7p Pr~

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d which the staff can implement on its own. The staff supports the recommendations and the bases for them as described in the report.

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1. RELEASE OF THE REPORT Pending the Commission's decisions on the recommendations, I recommend that this report be publicly released. As noted in the recommendations section below, the staff proposes to release this report 10 working days from the date of this paper and issue it as NUREG-1525. It is our intent to discuss the report at the upcoming NRC Regulatory Information Conference. 1

11. RECOMMENDATIONS OF THE REPORT The report has been reviewed by senior staff management. The staff recommends that all the recommendations be adopted. The recommendations if implemented should improve the Commission's enforcement program and streamline the enforcement process.

A. RECOMMENDATIONS FOR COMMISSION APPROVAL Recommendations ll. A-1, B-1 and 2, C-1, 2, 4, 5, 6, 7, and 8, D-1, 2, and 3, E-1,

F-1 and 2, and G-1, 2 and 3.

As summarized in Section til B.1 of the report,17 of the 19 recommendations concern revisions to the Enforcement Policy. A Federal Reaister notice with a revised Enforcement Policy to implement these recommendations is provided in Enclosure 2. The Notice summarizes the proposed changes. Enclosure 3 is a comparative text comparing the ,

revised policy with the current policy.

It is proposed that this revision be effective upon publication as has been the practice with respect to previous revisions to the Enforcement Policy. A 60 day comment period is provided. However, unless substantive comments are received that differ from those  ;

considered by the Review Team in response to comments received from members of the public on its Federal Reaister Notice identifying in detail the issues to be considered by the :

Review Team, the staff would not expect to recommend changes to the revised Policy.

i a The Statement of Considerations for the revised Policy provides that the NRC intends to review the Policy based on experience in implementing it in about two years. As part of that review, an opportunity for public comments will be provided in about 18 months.

The staff notes that it intends to apply the revised Policy to violations occurring prior to the effective date of the publication if the amount of the civil penalty would be reduced.

This is consistent with past practice when the Policy has been revised and with Section 1.5 of the Enforcement Manual.

Several aspects of the changes are highlighted below

1)Predecisional enforcement conferences The name of enforcement conferences have been changed to "predecisional enforcement conferences" to emphasize that they are information gathering meetings occurring prior to 1

making the enforcement decision. For the reasons given in the report and in light of the agency opening up substantive meetings to the public, predecisional enforcement I

conferences are proposed to be open consistent with the criteria for closing certain conferences used in the trial program on open conferences.

The staff does not propose to use press releases to routinely announce open conferences.

This is discussed in Section ll.C.2.e of the report.

2) Civil oenalty amounts After considering the recommendations of the Review Team, the staff is not supporting a statutory change to increase civil penalties as recommended by the Review Team on reassessment of the NRC's program for protecting allegers against retaliation (Recommendation ll.D-3, NUREG-1499). The majority of the Review Team supported generally keeping the base civil penalty amounts in Table 1B of the Enforcement Policy unchanged. The staff agrees that the current base penalties are generally adequate to address routine cases. Discretion is available to exercise considerable flexibility under the Atomic Energy Act to have an appropriate penalty in most other cases. The base penalty should be raised to address the category of "Other material licensees" in Table 1B of the Enforcement Policy and lowered to address safeguard violations for certain fuel cycle facilities. ,

3) Civil oenalty assessment orocess i

The process changes should not only improve efficiency, but also produce sanctions with more focused regulatory messages. On balance the staff expects that the changes should result in an increase in the protection of the public health and safety by better emphasizing the preuntion, detection, and correction of violations before events occur with impact on

. the publ:c.

4) Consultation with the Commission i

The Review Team recommended that the list in the current policy of matters requiring consultation or notice with the Commission be changed. The staff is very sensitive to the need to keep the Commission informed of appropriate cases. However, consultation and notification need not be automatic as provided under the current policy. The staff supports those changes in the interest of streamlining the process, as there are substantial resource costs in preparing Commission papers and notices. These matters will still require the approval of senior NRC management, which should be adequate to provide the

necessary oversight of the enforcement program and who are sensitive to issues that should be brought to the Commission's attention.

5 Removal of Enforcement Policy from CFR j The staff and Review Team believe it is appropriate to maintain the Enforcement Policy as a policy statement and not a rule. Publication of a policy statement in the Code of Federal Regulations has been four'd by at least one court to confer on that policy statement the I status of a regulation. Brock v. Cathedral Bluffs Shale Oil Co.,796 F.2d 533,539 (D.C. cir 1986). Therefore, the staff supports removing the Policy from the Code of Federal I

Regulations. Enclosure 4 is a proposed Federal Reaister notice to remove the Policy from the Code. The staff will continue to provide widespread distribution of the Policy including providing it to all new licensees.

B. RECOMMENDATIONS FOR STAFF ACTION Recommendations 11. A-2, B-3,4, 5, and 6 C-3, and G- 4 and 5.

As summarized in Section 111 B.2, the report makes eight recommendations for staff action that can be implemented under the staff's existing authority. Subject to the Commission's decisions on the above recommendations, the staff intends to implement these recommendations. The staff will promptly begin implementing these recommendations and should be completed within six months. Temporary guidance will be provided to be able to begin implementing the revised Policy,if approved. Necessary revisions to the Enforcement Manual should be published within six months.

Coordination: The Office of the General Counsel has no legal objection to the recommendations of the Review Team. It is noted that the Office of Public Affairs strongly disagrees with Recommendation ll.C-6 OPA's views and the staff's response is provided in Enclosure 5.

Recommendations:

1) Absent Commission objection, I plan to issue NUREG 1525 and disseminate it 10 working days from the date of this paper.

2) The Commission should approve the enclosed Federal Reaister notices removing the current Enforcement Policy from the Code of Federal Regulations and publishing the revised Enforcement Policy and associated recommendations 11. A-1, B-1 and 2, C-1, 2, 4, 5, and 8, D-1, 2, and 3, E-1, F-1 and 2, and G-1 and 3.

3) The Commission adopt recommendations 11. C-6 and C-7 and G-2 which are not reflected in the revised enforcement policy.

4). Note:

a. That the policy statement will be published in the Federal Reaister effective immediately allowing 60 days for public comments,

b. Copies of the revised Enforcement Policy will be sent to all licensees,

c. The change does not contain information collection requirements that are subject to the Paperwork Reduction Act.

James Taylor Executive Director for Operations

Enclosures:

. . . . ~ . .

1. Review Team Report

! 2. Federal Reaister notice with Revised Enforcement Policy

3. Comparative text between current i and revised Enforcement Policy i

4. Federal Reaister notice removing Enforcement Policy from the CFR

5. Views of OPA and staff's response l

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[7590-01]

NUCLEAR REGULATORY COMMISSION Revision of the NRC Enforcement Policy AGENCY: Nuclear Regulatory Commission.

ACTION: Policy Statement.  :

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SUMMARY

As a result of an assessment of the Nuclear Regulatory Commission's (NRC) il enforcement program, the NRC has revised its General Statement of Policy and Procedure .

for Enforcement Actions (Enforcement Policy or Policy). By a separate action published today in the Federal Reaister, the Commission is removing the Enforcement Policy from the Code of Federal Regulations where it was published as Appendix C to 10 CFR Part 2.

1 DATES: This action is offective on [Date of Publication in the Federal Register}, while comrnents are being received. Submit comments on or before (45 days after publication in the Federal Register). Additionally, the Commission intends to provide an opportunity for public comments after this revised Enforcement Policy has been in effect for about 18 months.

ADDRESSES: Send wr:tten comments to: The Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555. ATTN: Docketing and Service Branch.

Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm, 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, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,(301) 415-2741.

SUPPLEMENTARY INFORMATION:

i I

On May 13,1994, the NRC's Executive Director for Operations established a '

review team to assess the NRC enforcement program, in its report ( NUREG-1525,

" Assessment of the NRC Enforcement Program," April 5,1995), the review team I concluded that the existing NRC enforcement program, as implemented, is appropriately directed toward supporting the agency's overall safety mission. This conclusion is reflected in several aspects of the program:

The Policy recognizes that violations have differing degrees of safety significance. j As reflected in the severity levels, safety significance includes actual safety consequence, potential safety consequence, and regulatory significance. The use of graduated sanctions, from Notices of Violation to orders, further reflects the varying seriousness of noncompliances. j l

The enforcement conference is an important step in achieving a mutual understanding of facts and issues before making significant enforcement decisions. ,

While these conferences take time and effort for both the NRC and licensees, they generally contribute to better decision-making.

1 i

Enforcement ac tions deliver regulatory rnessages properly focused on safety.

J j These messages emphasize the need for licensees to identify and correct violations, i

to address the root causes, and to be responsive to initial opportunities to identify 1

and prevent violations.

a

$ 1 J

l The use of discretion and judgment throughout the deliberative process recognizes

] that enforcement of NRC requirements does not lend itself to mechanistic treatment.

i I

i However, the Review Team found that the existing enforcement program at times i

l provided mixed regulatory messages to licensees, and room for improvement existed in the Enforcement Policy. The review suggested that the program's focus should be clarified to:

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1

Emphasize the importance of identifying problems before events occur, and of l taking prompt, comprehensive corrective action when problems are identified; i

Direct agency attention at licensees with multiple enforcement actions in a e

relatively short period; and 4

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j Focus on current performance of licensees.

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in addition, the review team found that the process for assessing civil penalties 4

! could be simplified to improve the predictability of decision-making and obtain better 2

consistency between regions, s .

As a result of its review, the review team made several recommendations to revise the NRC Enforcement Policy to produce an enforcement program with clearer regulatory i

3

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i focus and more predictability. The Commission is issuing this policy statement after considering those recommendations and the bases for them in NUREG-1525.

The more significant changes to the current Enforcement Policy are described below:

4

,' l. Introduction and Purpose i

i This section has been modified to emphasize that the purpose and objectives of the i

' enforcement program are focused on creating deterrence by: (1) emphasizing the i

j importance of compliance with requirements, and (2) encouraging prompt identification l and prompt, comprehensive correction of violations.

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111. Responsibilities This section has been modified to clarify what enforcement matters should be brought to the attention of the Commission. This will allow the staff more flexibility in i

. deciding when consultation with or notification of the Commission is warranted.

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IV. Severity of Violations j Severity Level V violations have been eliminated. The examples at that level have j u been withdrawn from the supplements. Formal enforcement actions will now only be taken for violations categorized at Severity Level I to IV to better focus the inspection and

! enforcement process on safety. To the extent that minor violations are described in an inspection report, they will be labeled as Non-Cited Violations (NCVs). Where a licensee

does not take corrective action or repeatedly or willfully commits a minor violation such i

+

that a formal response would be needed, the violation should be categorized at least at a Severity Level IV.

The staff will be reviewing the severity level examples in the supplements over the next six months. The purpose of this review is to ensure the examples are appropriately focused on safety significance, including consideration of actual safety consequence, potential safety consequence, and regulatory significance.

V. Predecisional Enforcement Conferences I

Enforcement conferences are being renamed "predecisional enforcement I conferences." These conferences should be held for the purpose of obtaining information te essist NRC in making enforcement decisions when the agency reasonably expects that escalated enforcement actions will result. They should also normally be held if requested by a licensee, in addition they should normally be held before issuing an order or a civil 1

penalty to an unlicensed individual.

The Commission has concluded, af ter a trial program of more than two years ( See 57 FR 30762, July 10,1992, and 59 FR 36796, July 19,1994), that predecisional enforcement conferences should normally be public meetings held in regional offices. The intent of open conferences is not to maximize public attendance, but rather to provide the public with an opportunity to observe the regulatory process.

VI. Enforcement Actions The reference to related administrative mechanisms have been replaced with related administrative actions.

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l B. Civil Penalties

1. Base C'vil Penalty Tables 1 A and 1B have been revised. In Table 1B the percentage for Severity Level IV violations has been deleted since such violations will not be subject to civil penalties. If a violation that would otherwise be categorized at a Severity Level IV violation, merits a civil penalty because of its significance, the violation would normally be categorized at a Severity Level 111.

Table 1 A has been simplified to combine categories of licensees with the same base penalty amounts. The base penalty amounts have generally remained unchanged.

The revised policy notes that the base penalties may be adjusted on a case-by-case basis to reflect the ability to pay and the gravity of the violation. Part 35 licensees (doctors, nuclear pharmacies, and other medical related licensees) are combined into an overall medical category, based on the similarity of hazards. Since transportation violations for all licensees are primarily concerned with the potential for personnel exposure to radiation, the violations in this area will be treated the same as those in the health physics area.

The $100,000 base civil penalty amount for safeguards violations, which applies to only two categories of licensees, fuel fabricators and independent fuel and monitored retrievable storage installations, has been deleted. The penalty amount for safeguards should be the srme as for other violations at these facilities. NRC has not had significant safeguards violations at these facilities, if the penalty that would normally be assessed for operational violations is not adequate to address the circumstances of the violation, then discretion would be used to determine the appropriate penalty amount.

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!. The base civil penalty for "other" materials licensees, currently set at $1000, has  !

j been increased to $5000. The primary concerns for these licensed activities are individual radiation exposure and loss of control of material to the environment, both of which 1

i warrant a more financially meaningful penalty. A $500 civil penalty for a Severity Level 111 violation (at 50% of the Severity Level I base amount) does not reflect the seriousness of

,! this type of violation for this category of licensee. It is noted that with the revised assessment approach, these licensees will not normally receive a civil penalty if prompt j and comprehensive corrective action is taken for isolated non-willful Severity Level lli

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violations, t

l l 2. Civil Penalty Adjustment Factors l i 1 1 l t 1 i The process for assessing civil penalties has been substantially changed. The l revised process is intended to:

Continue to emphasize compliance in a manner that deters future violations:

3 Encourage prompt identification and prompt, comprehensive correction of violations

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} and their root causes:

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s Apply the recognition of good past performance to give credit to a licensee committing a non-willful SL lli violation who has had no previous significant violations during the past 2 years or 2 inspections (whichever is longer)

Place greater attention on sitJations of greater ConCenn (i.e., where a licensee has had more than one signi5 cant violation in a 2-year or two-inspection period, where

( - - - - .

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l l corrective action is less than prompt and comprehensive, or where egregious j circumstances, such as where it is clear that repetitiveness or wJ";lness, are involved);

I Streamline the NRC decisional facess in a manner that will preserve judgment and discretion, but will provide a clear normative standard and produce relatively predictable results for routine cases; and Provide clear guidance on applying fewer adjustment factors in various types of cases, in order to increase consistency and predictability.

Once a violation has been categorized at a Severity Level ill or above, the assessment process considers four basic decisional points: (1) whether the licensec has i had a previous escalated enforcement action during the past 2 years or past 2 inspections, whichever is longer; (2) whether the licensee should be given credit for actions related to identification; (3) whether the licensee's corrective actions may reasonably be considered prompt and comprehensive; and (4) whether, in view of all the circumstances, the case in question warrants the exercise of discretion. As described in the Enforcement Policy, each of these decisional points may have several associated considerations for any given case. However, the outcome of a case, absent the exercise of discretion, is limited to three results: no civil per.alty, s base civil penalty, or a b, " ivil penalty escalated by 100 %

Vll. Exercise of Discretion The ability to exercise discretion is preserved with the revised policy. Discretion is provided to deviate from the normal approach to either increase or decrease sanctions

l where necessary to ensure that the sanction reflects the significance of the circumstances and conveys the appropriate regulatory message. This section has been modified to i i

provide examples where it is appropriate to consider civil penalties or escalate civil ,

1 penalties notwithstanding the normal assessment process in Section VI of the Enforcement Policy. As to mitigation of sanctions for violations involving special circumstances, mitigation can be considered if the licensee has demonstrated overall sustained .

l performance which has been particularly good. The levels of approval for exercising discretion are described in this section. Finally, Table 2, " Examples of Progressions of Escalated Enforcement Actions for Similar Violations in the Same Activity Area Under the l Same License," has been withdrawn from the Enforcement Policy. The guidance in the l

Table is not needed because the policy is clear that each case should be judged on its own merits, especially those rep 3titive violation cases to which the Table applied. l l

Vill. Enforcement Actions involving Individuals 1

The Enforcement Policy has been clarified to provide that some action is normally to be taken against a licensee for violations caused by significant acts of wrongdoing by its employees, contractors, or contractors employees. The Policy has also been modified to state that the nine factors in Section Vill should be used to assist in the decision on whether enforcement action should be taken against an unlicensed individual as well as the licensee. The Policy currently uses these factors to determine whether to take enforcement action against an unlicensed person rather than the licensee. These changes are consistent with the intent of the Commission in promulgating the rule on deliberate misconduct (56 FR 40664,40666, August 15,1991). Less significant cases may be treated as an NCV under Section Vil B.(1). A letter of reprimand is not a sanction and is now refered to as an administrative action consistent with Section VI D. of the Policy.

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The Commission expects that the changes to the Enforcement Policy should result l in an increase in the protection of the public health and safety by better emphasizing the l

prevention, detection, and correction of violations before events occur with impact on the !

public, in about two years the Commission intends to review the Enforcement Policy. In l that regard, it is expected that in about 18 months an opportunity will be provided to rect.ive public comments on the impiementation of this Policy.

GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS Table of Contents Preface

1. INTRODUCTION AND PURPOSE II. STATUTORY AUTHORITY A. Statutory Authority B. Procedural Framework 111. RESPONSIBILITIES IV. SEVERITY OF VIOLATIONS A. Aggregation of Violations B. Repetitive Violations C. Willful Violations D. Violations of Reporting Requirements

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V. ENFORCEMENT CONFERENCES VI. ENFORCEMENT ACTIONS A. Notice of Violation B. Civil Penalty

1. Base Civil Penalty

2. Civil Penalty Adjustment Factors (a) Identification (b) Corrective Action (c) Licensee Performance (d) Prior Opportunity to identify (e) Multiple Occurrences (f) Duration C. Orders D. Related Administrative Actions Vll. EXERCISE OF DISCRETION A. Escalation of Enforcement Sanctions (1) Civil Penalties (2) Orders (3) Daily Civil Penalties B. Mitigation of Enforcement Sanctions (1) Licensee Identified Severity Level V & IV Violations I (2) Violations identified During Extended Shutdowns or ' ork Stoppages (3) Violations involving Old Design issues (4) Violations identified Due to Previous Escalated Enforcement

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} Action i

(5) Violations involving Discrimination i

4 (6) Violations involving Special Circumstances C. Exercise of Discretion for an Operating Facility Vill. ENFORCEMENT ACTIONS INVOLVING INDIVIDUALS l

l l IX. INACCURATE AND INCOMPLETE INFORMATION I l

a X. ENFORCEMENT ACTION AGAINST NONLICENSEES i

XI. REFERRALS TO THE DEPARTMENT OF JUSTICE 1

Xil. PUBLIC DISCLOSURE OF ENFORCEMENT ACTIONS l

l XIll. REOPENING CLOSED ENFORCEMENT ACTIONS 1

SUPPLEMENTS l

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PREFACE i

The following statement of general policy and procedure explains the enforcement policy and procedures of the U.S. Nuclear Regulatory Commission (NRC or Commission)

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am the NRC staff (staff) in initiating enforcement actions, and of the presiding officers and i

l the Commission in reviewing these actions. This statement is applicable to enforcement in l

j matters involving the radiological health and safety of the public, including employees' i

health and safety, the common defense and security, and the environment. This

i statement of general policy and procedure is a policy statement and not a regulation. The Commission may deviate from this statement of policy and procedure as appropriate under j the circumstances of a particular case.

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l. INTRODUCTION AND PURPOSE i

The purpose of the NRC enforcement program is to support the NRC's overall

safety mission in protecting the public and the environment. Consistent with that purpose,

, enforcement action should be used to create deterrence by:

i j Emphasizing the importance of compliance with requirements, and 9

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En pro ide an pro co l cor i of l

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l viol Consistent with the purpose of this program, prompt and vigorous enforcement action will be taken when dealing with licensees, vendors, contractors, and their 1

employees, who do not achieve the necessary meticulous attention to detail and the high l

l standard of compliance which the NRC expects. Each enforcement action is dependent on the circumstances of the case and requires the exercise of discretion after consideration of these policies and procedures, in no case, however, willlicensees who cannot achieve and maintain adequate levels of protection be permitted to conduct licensed activities.

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11. STATUTORY AUTHORITY AND PROCEDURAL FRAMEWORK l

A. Statutory Authority 1

I The NRC's enforcement jurisdiction is drawn from the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act (ERA) of 1974, as amended.

Section 161 of the Atomic Energy Act authorizes NRC to conduct inspections and investigations and to issue orders as may be necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property.

Section 186 authorizes NRC to revoke licenses under certain circumstances (e.g., for material false statements,in response to conditions that would have warranted refusal of a license on an original application, for a licensee's failure to build or operate a facility in accordance with the terms of the r' . or license, and for violation of an NRC regulation).

Section 234 authorizes NRC to impose civil penalties not to exceed $100,000 per violation per day for the violation of certain specified licensing provisions of the Act, rules, orders, and license terms implementing these provisions, and for violations for which Spspsean be revoked. In addition to the enumerated provisions in section 234, sections 84 and 147

i authorize the imposition of civil penalties for violations of regulations implementing those

l provisions. Section 232 authorizes NRC to seek injunctive or other equitable relief for i violation of regulatory requirements.

1 l Section 206 of the Energy Reorganization Act authorizes NRC to impose civil l penalties for knowing and conscious failures to provide certain safety information to the NRC.

l Chapter 18 of the Atomic Energy Act provides for varying levels of criminal penalties (i.e., monetary fines and imprisonment) for willful violations of the Act and

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l l regulations or orders issued under sections 65,161(b),161(i), or 161(o) of the Act. '

i l Section 223 provides that criminal penalties may be imposed on certain individuals employed by firms constructing or supplying basic components of any utilization facility if the individual knowingly and willfully violates NRC requirements such that a basic j component could be significantly impaired. Section 235 provides that criminal penalties i

i may be imposed on persons who interfere with inspectors. Section 236 provides that criminal penalties may be imposed on persons who attempt to or cause sabotage at a i nuclear facility or to nuclear fuel. Alleged or suspected criminal violations of the Atomic l i

Energy Act are referred to the Department of Justice for appropriate action.

i b B. Procedural Framework 3

i j Subpart B of 10 CFR part 2 of NRC's regulations sets forth the procedures the NRC uses in exercising its enforcement authority.10 CFR 2.201 sets forth the procedures for issuing notices of violation.

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. The procedure to be used in assessing civil penalties is set forth in 10 CFR 2.205, i

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This regulation provides that the civil penalty process is initiated by issuing a Notice of Violation and Proposed imposition of a Civil Penalty. The licensee or other person is provided an opportunity to contest in writing the proposed imposition of a civil penalty.

. After evaluation of the response, the civil penalty may be mitigated, remitted, or imposed.

An opportunity is provided for a hearing if a civil penalty is imposed, if a civil penalty is

not paid following a hearing or if a hearing is not requested, the matter may be referred to 1

the U.S. Department of Justice to institute a civil action in District Court.

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] The procedure for issuing an order to institute a proceeding to modify, suspend, or revoke a license or to take other action against a licensee at other person subject to the jurisdiction of the Commission = set forth in 10 CFR 2.202. The licensee or any other person adversely affected by the order may request a hearing. The NRC is authorized to

make orders immediately effective if required to protect the public health, safety, or f interest, or if the violation is willful. Section 2.204 sets out the procedures for issuing a Demand for Information (Demand) to a licensee or other person subject to the Commission's jurisdiction for the purpose of determining whether an order or other 1

enforcement action should be issued. The Demand does not provide hearing rights, as only information is being sought. A licensee must answer a Demand. An unlicensed person may answer a Demand by either providing the requested information or explaining why the Demand should not have been issued. I 111. RESPONSIBILITIES The Executive Director for Operations (EDO) and the principal enforcement officers of the NRC, the Deputy Executive Director for Nuclear Material Safety, Safeguards and Operations Support (DEDS) and the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations, and Research (DEDR), have been delegated the authority I

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to approve or issue all escalated enforcement ac+ ions. The DEDS is responsible to the EDO for the NRC enforcement programs. The Office of Enforcement (OE) exercises oversight of and implements tha NRC enforcement programs. The Director, OE, acts for the Deputy Executive Directors in enforcement matteis in their absence or as delegated.

Subject to the oversight and direction of OE, and with the approval of the l

appropriate Deputy Executive Director, where necessary, the regional offices normally issue Notices of Violation and proposed civil penalties. However, subject to the same oversight as the regional offices, the Office of Nuclear Reactor Regulation (NRR) issues 1

Notices of Violation and proposed civil penalties to vendors and suppliers and the Office of Nuclear Material Safety and Safeguards (NMSS) issues Notices of Violation and proposed I civil penalties to certificate holders and to fuel cycle facilities for violations involving I l

material control and accounting. Enforcement orders are normally issued by a Deputy Executive Director or the Director, OE. However, orders may also be issued by the EDO, especially those involving the more significant matters. The Directors of NRR and NMSS have also been delegated authority to issue orders, but it is expected that normal use of 1

this authority by NRR and NMSS will be confined to actions not associated with compliance issues. The Director, Office of the Controller, has been delegated the authority to issue orders where licensees violate Commission regulations by nonpayment of license and inspection fees.

l In recognition that the regulation of nuclear activities in many cases does not lend itself to a mechanistic treatment, judgment and discretion must be exercised in l

l determining the severity levels of the violations and the appropriate enforcement sanctions, including the decision to issue a Notice of Violation, or to propose or impose a civil penalty and the amount of this penalty, after considering the general principles of this l statement of policy and the technical significance of the violations and the surrounding l

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circumstances.

Unless Commission consultation or notification is required by this policy, the staff may depart, where warrantad in the public's interest, from this policy as provided in Section Vil," Exercise of Enforcement Discretion." The Commission will be provided written notification of all enforcement actions involving civil penalties or orders, in addition, the Commission will be consulted prior to taking action in the following situations (unless the urgency of the situation dictates immediate action):

(1) An action affecting a licensee's operation that requires balancing the public health and safety or common defense and security implications of not operating with the potential radiological or other hazards associated with continued operation:

1 (2) Proposals to impose civil penalties for a single violation or problem in amounts greater than 3 times the Severity Level I values shown in Table 1 A; (3) Any proposed enforcement action that involves a Severity Level I violation; (4) Any action the EDO believes warrants Commission involvement; (5) Any proposed enforcement case involving an Office of Investigation (01) report where the staff (other than the 01 staff) does not arrive at the same conclusions as those in the Ol report concerning issues of intent if the Director of 01 concludes that Commission consultation is warranted; and (6) Any proposed enforcement action on which the Commission asks tc be consulted.

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4 IV. SEVERITY OF VIOLATIONS l

l Regulatory requirements have varying degrees of safety, safeguards, or

environmental significance. Therefore, the relative importance of each violation, including j both the technical significance and the regulatory significance is evaluated as the first step in the enforcement process.

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Consequently, for purposes of formal enforcement action, violations are normally categorized in terms of four levels of severity to show their relative importance within each i of the following eight activity areas:

l. Reactor Operations; l 1,

} 11. Facility Construction; 111. Safeguards; 4

IV. Health Physics; 4

V Transportation;

VI. Fuel Cycle and Materials Operations; i

Vll. Miscellaneous Matters; and i Vill. Emergency Preparedness.

Licensed activities will be placed in the activity area most suitable in light of the particular violation involved including activities not directly covered by one of the above listed areas, e.g., export license activities. Within each activity area, Severity Level I has been assigned to violations that are the most significant and Severity Level IV violations are the least significant. Severity Level I and l! violations are of very significant regulatory concern, in general, violations that are included in these severity categories involve actual

. . _ _ . _ - . . _ = . - - . - . - - . - - _ _ - - - _ . - . - . . _ . . ... - . -,

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l or high potential impact on the public. Severity Level 111 violations are cause for significant regulatory concern. Severity Level IV violations are less serious but are of more than minor concern; i.e., if left uncorrected, they could lead to a more serious concern.

The Commission recognizes that there are other violations of minor safety or environmental concern which are below the level of significance of Severity Level IV violations. These minor violations are not the subject of formal enforcement action and are not usually described in inspection reports. To the extent such violations are  ;

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l described, they are noted as Non-cited violations.

Comparisons of significance between activity areas are inappropriate. For example, l the immediacy of any hazard to the public associated with Severity Level I violations in Reactor Operations is not directly comparable to that associated with Severity Level I violations in Facility Construction.

Supplements i through Vill provide examples and serve as guidance in determining the appropriate severity level for violations in each of the eight activity areas. However, the examples are neither exhaustive nor controlling, in addition, these examples do not create new requirements. Each is designed to illustrate the significance that the NRC places on a particular type of violation of NRC requirements. Each of the examples in the supplements is predicated on a violation of a regulatory requirement.

The NRC reviews each case being considered for enforcement action on its own merits to ensure that the severity of a violation is characterized at the level best suited tc the significance of the particular violation. In some cases, special circumstanccs may warrant an adjustment to the severity level categorization.

A. Aggregation of Violations A group of violations may be evaluated in the aggregate and assigned a single, increaded severity level, thereby resulting in a Severity Level 111 problem, if the violations have the same underlying cause or programmatic deficiencies, or the violatiers contributed to or were unavoidable consequences of the underlying problem. Normally, Severity Level 11 and til violations are not aggregated into a higher severity level.

The purpose of aggregating violations is to focus the licensee's attention on the fundamental underlying causes for which enforcement action appears warranted and to reflect the fact that several violations with a common cause may be more significant collectively than individually and may therefore, warrant a more substantial enforcement action.

B. Repetitive Violations The severity level of a Severity Level IV violation may be increased to Severity Level 111, if the violation can be considered a repetitive violation. The purpose of escalating the severity level of a repetitive violation is to acknowledge the added significance of the situation based on the licensee's failure to implement effective corrective action for the previous violation. The decision to escalate the severity level of a repetitive violation will depend on the circumstances, such as, but not limited to, the number of times the violation has occurred, the similarity of the violations and their root causes, the adequacy of previous corrective actions, the period of time between the violations, and the significance of the violations.

C. Willful Violations

Willful violations are by definition of particular concern to the Commission because its regulatory program is based on licensees a d their contractors, employees, and agents acting with integrity and communicating with candor. Willful violations cannot be tolerated by either the Commission or a licensee. Licensees are expected to take significant remedial action in responding to willful violations commensurate with the circumstances such that it demonstrates the seriousness of the violation thereby creating a deterrent effect within the licensee's organization. Although removal of the person is not necessarily required, substantial disciplinary action is expected.

Therefore, the severity level of a violation may be increased if the circumstances surrounding the matter involve careless disregard of requirements, deception, or other indications of willfulness. The term " willfulness" as used in this policy embraces a spectrum of violations ranging from deliberate intent to violate or falsify to and including careless disregard for requirements. Willfulness does not include acts which do not rise to the level of careless disregard, e.g., inadvertent clerical errors in a document submitted to the NRC. In determining the specific severity level of a violation involving willfulness, consideration will be given to such factors as the position and responsibilities of the person involved in the violation (e.g., licensee official or non-supervisory employee), the significance of any underlying violation, the intent of the violator (i.e., careless disregard or deliberateness), and the economic or other advantage,if any, gained as a result of the violation. The relative weight given to each of these factors in arriving at the appropriate severity level will be dependent on the circumstances of the violation. However, if a licensee refuses to correct a minor violation within a reasonable time such that it willfully continues, the violation should be categorized at !sast at a Severity Level IV.

D. Violations of Reporting Requirements

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The NRC expects licensees to provido complete, accurate, and timely information and reports. Accordingly, unless otherwise categorized in the Supplements, the severity level of a violation involving the failure to make a required report to the NRC will be based upon the significance of and the circumstances surrounding the matter that should have been reported. However, the severity level of an untimely report, in contrast to no report, may be reduced depending on the circumstances surrounding the matter. A licensee will not norma!Iy be cited for a failure to report a condition or event unless the licensee was actually aware of the condition or event that it failed to report. A licensee will, on the l

other hand, normally be cited for a failure to report a condition or event if the licensee 1

knew of the information to be reported, but did not recognize that it was required to make a report.

V. PREDECISIONAL ENFORCEMENT CONFERENCES Whenever the NRC has learned of the existence of a potential violation for which escalated enforcement action appears to be warranted, or recurring nonconformance on the prt of a vendor, the NRC may provide an opportunity for a predecisional enforcement conference with the licensee, vendor, or other person before taking enforcement action.

The purpose of the conference is to obtain information that will assist NRC in determining

, the appropriate enforcement action, such as: (1) a common understanding of facts, root 1

causes and missed opportunities associated with the apparent violations, (2) a common l understanding of corrective action taken or planned, and (3) a common understanding of l

the significance of issues and the need for lasting comprehensive corrective action.

l If NRC concludes that it has sufficient information to make an informed enforcement decision, a corference will not normally be held unless the licensee requests l

it. However, an opportunity for a conference will normally be provided before issuing an order based on a violation of the rule on Deliberate Misconduct or a civil penalty to an unlicensed person. If a conference is not held, the licensee will normally be requested to provide a written response to an inspection report, if issued, as to the licensee's views on the apparent violations and their root causes and a description of planned or implemented a corrective action.

During the predecisional enforcement conference, the licensee, vendor, or other persons will be given an opportunity to provide information consistent with the purpose of the conference, including an explanation to the NRC of the immediate corrective actions (if any) that were taken following identification of the potential violation or nonconformance

, and the long term comprehensive actions that were taken or will be taken to prevent recurrence. Licensees, vendors, or other persons will be told when a meeting is an enforcement conference.

A predecisional enforcement conference is a meeting between the NRC and the licensee. Conferences are normally open to public observation and held in the regional offices. However, conferences will not be open to the public if the enforcement action being contemplated:

(1) Would be taken against an individual, or if the action, though not taken against 1

an individual, turns on whether an individual has committed wrongdoing; j (2) Involves significant personnel failures where the NRC has requested that the individual (s) involved be present at the conference; (3) is based on the findings of an NRC Office of Investigations (01) report; or

(4) Involves safeguards information, Privacy Act information, or information which could be considered proprietary.

Predecisional enforcement conferences involving medical misadministrations or overexposures will not be open if the conference cannot be conducted without disclosing the exposed individual's name. In addition, enforcement conferences will not be open to the public if the conference will be conducted by telephone or the conference will be conducted at a relatively smalllicensee's facility. Approval of the Executive Director for Operations is required for closing conferences in situations other than those described above.

The public attending the conference may observe but not participate in the conference, it is noted that the purpose of conducting conferences in the open is not to maximizo public attendance, but rather to provide the public with opportunities to be informed of NRC activities while balancing the need for the NRC staff to exercise its regulatory and safety responsibilities without undue administrative burden. Therefore, members of the public will be allowed access to the NRC regional offices to attend open enforcement conferences in accordance with the " Standard Operating Procedures For Providing Security Support For NRC Hearings And Meetings" published November 1,1991 (56 FR 56251). These procedures provide that visitors may be subject to personnel screening, that signs, banners, posters, etc., not larger than 18" be permitted, and that disruptive persons may be removed.

Members of the public attending open conferences will be reminded that (1) the l

apparent violations discussed at open enforcement conferences are subject to further i review and may be subject to change prior to any resulting enforcement action and (2) the )

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) statements of views or expressions of opinion made by NRC employees at open i

enforcement conferences, or the lack thereof, are not intended to represent final determinations or beliefs.

When needed to protect the public health and safety or common defense and security, escalated enforcement action, such as the issuance of an immediately effective i

order, will be taken before the enforcement conference. in these cases, an enforcement conference may be held after the escalated enforcement action is taken, l

VI. ENFORCEMENT ACTIONS i

This section describes the enforcement sanctions available to the NRC and specifies the conditions under which eac!' may be used. The basic enforcement sanctions are Notices of Violation, civil penalties, and orders of various types. As discussed further in Section VI.D, related administrative actions such as Notices of Nonconformance, Notices of Deviation, Confirmatory Action Letters, letters of reprimand, and Demands for information are used to supplement the enforcement program, in selecting the enforcement sanctions or administrative action, the NRC will consider enforcement actions taken by other Federal or State regulatory bodies having concurrent jurisdiction, such as in transportation matters. Usually, whenever a violation of NRC requirements of more than a minor concern is identified, enforcement action is taken. The nature and extent of the enforcement action is intended to reflect the seriousness of the violation involved. For the vast majority of violations, a Notice of Violation or a Notice of Nonconformance is the nurmal action.

A. Notice of Violation

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{ A Notice of Violation is a written notice setting forth one or more violations of a legally binding requirement. The Notice of Violation normally requires the recipient to l provide a written statement describing (1) the reasons for the violation or,if contested, the

{ basis for disputing the violation; (2) corrective steps that have been taken and the results j achieved; (3) corrective steps that will be taken to prevent recurrence; and (4) the date j when full compliance will be achieved. The NRC may waive all or portions of a written I

response to the extent relevant information has already been provided the NRC in writing or documented in an NRC inspection report. The NRC may require responses to Notices of Violation to be under oath. Normally, responses under oath will be required only in connection with Severity Level 1, ll, or ill violations or orders.

The NRC uses the Notice of Violation as the usual method for formalizing the existence of a violation. Issuance of a Notice of Violation is normally the only enforcement action taken, except in cases where the criteria for issuance of civil penalties and orders, as set forth in Sections VI.B and VI.C, respectively, are met. However, special circumstances regarding the violation findings may warrant discretion being exercised such that the NRC refrains from issuing a Notice of Violation. (See Section Vll.B, " Mitigation of Enforcement Sanctions.") In addition, licensees are not ordinarily cited for violations 4esulting from matters not within their control, such as equipment failures that were not avoidable by reasonable licensee quality assurance measures or management controls.

Generally, however, licensees are held responsible for the acts of their employees.

Accordingly, this policy should not be construed to excuse personnel errors.

B. Civil Penalty A civil penalty is a monetary penalty that may be imposed for violation of (1) certain specified licensing provisions of the Atomic Energy Act or supplementary NRC rules or orders; (2) any requirement for which a license may be revoked; or (3) reporting

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requirements under section 206 of the Energy Reorganization Act. Civil penalties are designed to deter future violations both by the involved licensee as well as by other 1

licensees conducting similar activities and to emphasize the need for licensees to identify i

violations and take prompt comprehensive corrective action. l

.i Civil penalties are considered for Severity Level ill violations. In addition, civil )

penalties will normally be assessed for Severity Level I and il violations and knowing and

conscious violations of the reporting requirements of section 206 of the Energy l Reorganization Act.

Civil penalties are used to encourage prompt identification and prompt and 1

, comprehensive correction of violations, to emphasize compliance in a manner that deters l future violations, and to serve to focus licensees' attention on violations of significant regulatory concern.

Although management involvement, direct or indirect, in a violation may lead to an increase in the civil penalty, the lack of management involvement may not be used to mitigate a civil penalty. Allowing mitigation in the latter case could encourage the lack of i

] management involvement in licensed activities and a decrease in protection of the public health and safety.

1. Base CivilPenalty The NRC imposes different levels of penalties for different severity level violations

. and different classes of licensees, vendors, and other persons. Tables 1 A and 1B show the base civil penalties for various reactor, fuel cycle, materials, and vendor programs.

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(Civil penalties issued to individuals are determined on a case-by-case basis.) The structure of these tables generally takes into account the gravity of the violation as a primary consideration and the ability to pay as a secondary consideration. Generally, operations involving greater nuclear materialinventories and greater potential cor. sequences to the public and licensee employees receive higher civil penalties.

i Regarding the secondary factor of ability of various classes of licensees to pay the civil penalties, it is not the NRC's intention that the economic impact of a civil penalty be so severe that it puts a licensee out of business (orders, rather than civil penalties, are used 1

when the intent is to suspend or terminate licensed activities) or adversely affects a licensee's ability to safely conduct licensed activities. The deterrent effect of civil penalties is best served when the amounts of the penalties take into account a licensee's ability to pay. In determining the amount of civil penalties for licensees for whom the tables do not reflect the ability to pay or the gravity of the violation, the NRC will consider as necessary an increase or decrease on a case-by-case basis. Normally, if a licensee can demonstrate financial hardship, the NRC will consider payments over time, including interest, rather than reducing the amount of the civil penalty. However, where a licensee claims financial hardship, the licensee will normally be required to address why it has sufficient resources to safely conduct licensed activities and pay license and inspection fees.

2. Civil Penalty Adjustment Factors in an effort to (1) emphasize the importance of adherence to requirements and (2) reinforce prompt self-identification of problems and root causes and prompt and comprehensive correction of violations, the NRC reviews each proposed civil penalty on its own merits and, after considering all relevant circumstances, may adjust the base civil penalties shown in Table 1 A and 1B for Severity Level I,11, and lll violations as described

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below.

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The civil penalty process considers four decisional points: (1) whether the licensee i has had a previous escalated enforcement action during the past 2 years or past 2 j inspections, whic'.ever is longer; (2) whether the licensee should be given credit for j actions related to identification: (3) whether the licensee's corrective actions are prompt and comprehensive; and (4) whether, in view of all the circumstances, the matter in i

question requires the exercise of discretion. Although each of these decisional points may have several associated considerations for any given case, the outcome of the assessment i

process for each violation or problem, absent the exercise of discretion, is limited to one of the following three results

no civil penalty, a base civil penalty, or a base civil penalty escalated by 100%. The flow chart presented below is a graphic representation of the civil penalty assessment process.

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l YES A

CA

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V NO YES ID CREDIT *

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YES P

(a) Initial Escalated Action 4

When the NRC determines that a non-willful Severity Level Ill violation or problem has occurred, and the licensee has not had a previous escalated action during the past 2

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years or 2 inspections, whichever is longer, the NRC will consider whether the licensee's corrective action for the present violation or problem is reasonably prompt and comprehensive (see discussion under (c), below). Using 2 years as the basis for 1

assessment is expected to cover most situations, but considering a slightly longer or i shorter period might be warranted based on the circumstances of a particular case. The starting point of this period should be considered the date when the licensee was put on i

notice of the need to take corrective action. For a licensee-identified violation or an event, this would be when the licensee is aware that a problem or violation exists requiring corrective action. For an NRC-identified violation, the starting point would be when the l

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1 NRC puts the licensee on notice, which could be during the inspection, at the inspection

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exit meeting, or as part of post-inspection communication.

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i j If the corrective action is judged to be prompt and comprehensive, a Notice of 2

Violation normally should be issued with no associated civil penalty. If the corrective action is judged to be less than prompt and comprehensive, the Notice of Violation normally should be issued with a base civil penalty.  !

(b) Credit for Actions Related to identification (1) If a Severity Level I or 11 violation or a willful Severity Level lli violation has occurred-or if, during the past 2 years or 2 inspections, whichever is longer, the licensee i

has been issued at least one other escalated action--the civil penalty assessment should i I

normally consider the factor of identification in addition to corrective action (see discussion ,

I under (c), below). As to identification, NRC should consider whether the licensee should be given credit for actions related to identification. )

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l In each case, the decision should be focused on identification of the problem requiring corrective action, in other words, although giving credit for /dentification and Corrective Action should be separate decisions, the concept of /dentification presumes that the identifier recognizes the exist = ce of a problem, and understands that corrective l

action is needed. The decision on / den.hication requires considering all the circumstances l of identification including: i l

(i) Whether the problem requiring corrective action was NRC-identified, licensee-identified, or revealed through an event:

(ii) Whether prior opportunities existed to identify the problem requiring corrective action, and if so, the age and number of those opportunities:

(iii) Whether the problem was revealed as the result of a licensee self-monitoring effort, such as conducting an audit, a test, a surveillance, a design review, or troubleshooting:

(iv) For a problem revealed through an event, the ease of discovery, and the degree of licensee initiative in identifying the root cause of the problem and any associated violations:

l (v) For NRC-identified issues, whether the licensee would likely have identified the issue in the same time-period if the NRC had not been involved; j (vi) For NRC-identified issues, whether the licensee should have identified the issue (and taken action) earlier; and l

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(vii) For cases in which the NRC identifies the overall problem requiring corrective l action (e.g., a programmatic issue), the degree of licensee initiative or lack of initiative in identifying the problem or problems requiring corrective action.

l (2) Although some cases may consider all of the above factors, the importance of each factor will vary based on the type of case as discussed in the following general ,

guidance:

(i) When a problem requiring corrective action is licensee-identified (i.e.,

identified before the problem has resulted in an event), the NRC should normally give the licensee credit for actions related to identification, regardless of whether prior opportunities existed to identify the problem. l (ii) When a problem requiring corrective action is identified through an event, the decision on whether to give the licensee credit for actions related to identification normally should consider the ease of discovery, whether the event occurred as the result of a licensee self-monitoring effort (i.e., whether the licensee was "looking for the problem"), the degree of licensee initiative in identifying the problem or problems requiring corrective action, and whether prior opportunities existed to identify the problem.

Any of these considerations may be overriding if particularly noteworthy or particularly egregious. For example,if the event occurred as the result of conducting a surveillance or similar self-monitoring effort (i.e., the licensee was looking for the problem),

the licensee should normally be given credit for identification. As a second instance, even if the problem was easily discovered (e.g., revealed by a large spill of liquid), the NRC may choose to give credit because noteworthy licensee effort was exerted in ferreting out the root cause and associated violations, or simply because no prior opportunities (e.g.,

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procedural cautions, post-maintenance testing, quality control failures, readily observable l l

parameter trends, or repeated or locked-in annunciator warnings) existed to identify the i 1

problem.

l (iii) When a problem requiring corrective action is NRC-identified, the decision on whether to give the licensee credit for actions related to Identification should normally be based on an additional question: should the licensee have reasonabiy identified the problem (and taken action) earlier?

! In most cases, this reasoning may be cased simply on the ease of the NRC l

inspector's discovery (e.g., conducting a walkdown, observing in the control room, performing a confirmatory NRC radiation survey, hearing a cavitating pump, or finding a valve obviously out of position). In some cases, the licensee's missed opportunities to identify the problem might include a similar previous violation, NRC or industry notices, internal audits, or readily observable trends.

If the NRC identifies the violation but concludes that, under the circumstances, the licensee's actions related to /denti// cation were not unreasonable, the matter would be treated as licensee-identified for purposes of assessing the civil penalty. In such cases, the question of /denti// cation credit shifts to whether the licensee should be penalized for NRC's identification of the problem.

(iv) For " mixed" identification situations (i.e., where multiple violations exist, some NRC-identified, t. cme licensee-identified), the NRC's evaluation should normally determine whether the licensee could reasonably have been expected to identify the violation in the NRC's absence. This determination should consider, among other things, l the timing of the NRC's discovery, the scope of the licensee's efforts, the level of licensee

4 1

~

resources given to the investigation, and whether the NRC's path of analysis had been 1

I diamissed or was being pusued in parallel by the licensee.

in some cases, the licensee may have addressed the isolated symptoms of each

]

i violation (and may have identified the violations), but failed to recognize the common root l 1

cause and taken the necessary comprehensive action. Where this is true, the decision on j whether to give licensee credit for actions related to /dentification should focus on 1

identification of the problem requiring corrective action (e.g., the programmatic j breakdown). As such, depending on the chronology of the various violations, the earliest  !

of the individual violations might be considered missed opportunities for the licersee to j have identified the larger problem.

j (v) Missed opportunities include prior notifications or missed opportunities to identify or prevent violations such as (1) through normal surveillances, audits, or quality j assurance (OA) activities; (2) through prior notice i.e., specific NRC or industry 4

notification; or (3) through other reasonable indication of a potential problem or violation, such as observations of employees and contractors, and failure to take effective corrective steps. It may include findings of the NRC, the licensee, or industry made at other facilities i

operated by the licensee where it is reasonable to expect the licensee to take action to identify or prevent similar problems at the facility subject to the enforcement action at issue, in casessing this factor, consideration will be given to, among other things, the

opportunities available to discover the violation, the ease of discovery, the similarity between the violation and the notification, the period of time between when the violation i

occurred and when the notification was issued, the action taken (or planned) by the licensee in response to the notification, and the level of management review that the notification received (or should have received),

i

1

The evaluation of missed opportunities should normally depend on whether the information available to the licensee should reasonably have caused action that would i

have prevented the violation. Missed opportunities is normally not applied where the i licensee appropriately reviewed the opportunity for application to its activities and

, reasonable action was either taken or planned to be taken within a reasonable time.

In some situations the missed opportunity is a violation in itself. In these cases, f unless the missed opportunity is a Severity Level lil violation in itself, the missed opportunity violation may be grouped with the other violations into a single Severity Level lli " problem." However, if the missed opportunity is the only violation, then it should not

normally be counted twice (i.e., both as the violation and as a missed opportunity- " double j counting") unless the number of opportunities missed was particularly significant.

i h

The timing of the missed opportunity should also be considered. While a rigid i

! time-frame is unnecessary, a 2-year period should generally be considered for consistency

! in implementation, as the period reflecting relatively current performance.

(3) When the NRC determines that ti=0 licensee should receive credit for actions related to identification, the civil penalty assessment should normally result in either no civil penalty or a base civil penalty, based on whether Corrective Action is judged to be reasonably prompt and comprehensive. When the licensee is not given credit for actions related to identi// cation, the civil penalty assessment should normally result in a Notice of Violation with either a base civil penalty or a base civil penalty escalated by 100%,

depending on the quality of Corrective Action, because the licensee's performance is clearly not acceptable.

(c) Corrective action. The purpose of this factor is to encourage licensees to (1)

take the immediate actions necessary upon discovery of a violation that will restore safety and compliance with the license, regulation (s), or other requirement (s); and (2) develop and implement (in a timely manner) the lasting actions that will not only prevent recurrence of the violation at issue, but will be appropriately comprehensive, given the significance and complexity of the violation, to prevent occurrence of violations with similar root causes.

Regardless of other circumstances (e.g., past enforcement history, identification),

the licensee's corrective actions should always be evaluated as part of the civil penalty assessment process. As a reflection of the importance given to this factor, an NRC judgment that the licensee's corrective action has not been prompt and comprehensive will always result in issuing at least a base civil penalty.

In assessing this factor, consideration will be given to the timeliness of the I corrective action (including the promptness in developing the schedule for long term corrective action), the adequacy of the licensee's root cause analysis for the violation, and, given the significance and complexity of the issue, the comprehensiveness of the corrective action (i.e., whether the action is focused narrowly to the specific violation or l broadly to the general area of concern). Even in cases when the NRC, at the time of the enforcement conference, identifies additional peripheral or minor corrective action still to be taken, the licensee may be given credit in this area, as long as the licensee's actions addressed ihe underlying root cause and are considered sufficient to prevent recurrence of the violation and similar violations.

Normally, the judgment of the adequacy of corrective actions will hinge on whether the NRC had to take action to focus the licensee's evaluative and corrective process in order to obtain comprehensive corrective action. This will normally be judged at the time of the enforcement conference (e.g., by outlining substantive additional areas where

1 I

corrective action is needed). Earlier informal discussions between the licensee and NRC

, inspectors or management may result in improved corrective action, but should not

. normally be a basis to deny credit for Corractive Action. For cases in which the licensee does not get credit for actione, related to /dentification because the NRC identified the problem, the assessment of the licensee's corrective action should begin from the time when the NRC put the licensee on notice of the problem. Notwithstanding eventual good J

comprehensive corrective action, if immediate corrective action was not taken to restore j safety and compliance once the violation was identified, corrective action would not be considered prompt and comprehensive.

1 Corrective action for violations involving discrimination should normally only be considered comprehensive if the licensee takes prompt, comprehensive corrective action l

that (1) addresses the broader environment for raising safety concerns in the workplace, i

and (2) provides a remedy for the particular discrimination at issue.

(d) As provided in Section Vil, " Exercise of Discretion," discretion may be j exercised by either escalating or mitigating the amount of the civil penalty determined after applying the civil penalty adjustment factors to ensure that the proposed civil penalty 1

reflects the NRC's concern regarding the violation at issue and that it conveys the l

appropriate message to the licensee. However, in no instance will a civil penalty for any

one violation exceed $100,000 per day.

1 1

4 h

4 a

4

l TABLE 1 A -- BASE CIVIL PENALTIES l

l

a. Po w e r re a ct ors. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . $100,000 l

b. Fuel fabricators, industrial processors, and independent spent fuel and monitored retrievable storage installations..................$25,000

c. Test reactors, mills and uranium conversion facilities, contractors, vendors, i l

l waste disposal licensees, and industrial ra d i og ra phe rs. . . . . . . . . . .. . . . . . . . . .. . . . . . . . . . . . . . . . . . $ 10,0 00

d. Research reactors, academic, medical, or other material licensee......................... $ 5,000 1

l

TABLE 18.--BASE CIVIL PENALTIES

Base Civil Penalty Amount Severity Level

. (Percent of amount listed in Table 1 A) 4 I..........................................100%

11.........................................80%

ll1........................................50%

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i i

i C. ORDERS An order is a written NRC directive to modify, suspend, or revoke a license; to cease and desist from a given practice or activity; or to take such other action as may be proper (see 10 CFR 2.202). Orders may also be issued in lieu of, or in addition to, civil penalties, as appropriate for Severity Level I,11, or 111 violations. Orders may be issued as follows:

(1) License Modification orders are issued when some change in licensee equipment, procedures, personnel, or management controls is necessary.

(2) Suspension Orders may be used:

(a) To remove a threat to the public health and safety, common defense and security, or the environment; (b) To stop facility construction when, (i) Further work could preclude or significantly hinder the identification or correction of an improperly constructed safety-related system or component; or (ii) The licensee's quality assurance program implementation is not adequate to provide confidence that construction activities are being properly carried out; (c) When the licensee has not responded adequately to other enforcement

N action; (d) When the licensee interferes with the conduct of an inspection or investigation; or (e) For any reason not mentioned above for which license revocation is legally authorized.

Suspensions may apply to all or part of the licensed activity. Ordinarily, a i licensed activity is not suspended (nor is a suspension prolonged) for failure to comply with requirements where such failure is not willful and adequate corrective action has been taken.

(3) Revocation Orders may be used:

(a) When a licensee is unable or unwilling to comply with NRC requirements; (b) When a licensee refuses to correct a violation; (c) When licensee does not respond to a Notice of Violation where a response was required; 1

(d) When a licensee refuses to pay an applicable fee under the Commission's regulations; or (e) For any other reason for which revocation is authorized under section 186 of 4 the Atomic Energy Act (e.g., any condition which would warrant refusal of a license on an

,i 2

original application).

(4) Cease and Desist Orders may be used to stop an unauthorized activity that has continued after notification by NRC that the activity is unauthorized.

(5) Orders to unlicensed persons, including vendors and contractors, and I

employees of any of them, are used when the NRC has identified deliberate misconduct i

I that may cause a licensee to be in violation of an NRC requirement or where incomplete or t

inaccurate information is deliberately submitted or where the NRC loses its reasonable assurance that the licensee will meet NRC requirements with that person involved in

. licensed activities.

i Unless a separate response is warranted pursuant to 10 CFR 2.201, a Notice of j-

i Violation need not be issued where an order is based on violations described in the order.  !

! ]

j The violations described in an order need not be categorized by severity level.  !

' i Orders are made effective immediately, without prior opportunity for hearing,  !

i  ;

whenever it is determined that the public health, interest, or safety so requires, or when l 1  ;

i i l

the order is responding to a violation involving willfulness. Otherwise, a prior opportunity j for a hearing on the order is afforded. For cases in which the NRC believes a basis could l

reasonably exist for not taking the action as proposed, the licensee will ordinarily be afforded an opportunity to show why the order should not be issued in the proposed j manner by way of a Demand for Information. (See 10 CFR 2.204)

D. Related Administrative Actions in addition to the formal enforcement mechanisms of Notices of Violation, civil

penalties, and orders, the NRC also uses administrative mechanisms, such as Notices of Deviation, Notices of Nonconformance, Confirmatory Action Letters, letters of reprimand, and Demands for Information to supplement its enforcement program. The NRC expects licensees and vendors to adhere to any obligations and commitments resulting from these j processes and will not hesitate to issue appropriate orders to ensure that these obligations and commitments are met.

! (1, Notices of Deviation are written notices describing a licensee's failure to satisfy a commitment where the commitment involved has not been made a legally binding 1

j requirement. A Notice of Deviation requests a licensee to provide a written explanation or statement describing corrective steps taken (or planned), the results achieved, and the date when corrective action will be completed.

l (2) Notices of Nonconformance are written notices describing vendor's failures i

to meet commitments which have not been made legally binding requirements by NRC. An example is a commitment made in a procurement contract with a licensee as required by 10 CFR part 50, appendix B. Notices of Nonconformances request non-licensees to provide written explanations or statements describing corrective steps (taken or planned), the results achieved, the dates when corrective actions will be completed, and measures taken to preclude recurrence.

(3) Confirmatory Action Letters (CALs) are letters confirming a licensee's or vendor's agreement to take certain actions to remove significant concerns about health and safety, safeguards, nr the environment.

(4) Letters of reprimand are letters addressed to individuals subject to Commission jurisdiction identifying a significant deficiency in their performance of licensed

activities.

(5) Demands for Information are demands for information from licensees or other persons for the purpose of enabiing NRC to determine whether an order or other enforcement action should be issued.

Vll. EXERCISE OF DISCRETION I

Notwithstanding the normal guidance contained in this policy, as provided in Section lil, " Responsibilities," the NRC may choose to exercise discretion and either escalate or mitigate enforcement sanctions within the Commission's statutory authority to ensure that the resulting enforcement action appropriately reflects the level of NRC concern regarding the violation at issue and conveys the appropriate message to the i licensee.

l A. Escalation of Enforcement Sanctions I

r l The NRC considers violations categorized at Severity Level I, ll, or ll1 to be of l

significant regulatory concern. If the application of the normal guidance in this policy does I not result in an appropriate sanction, with the approval of the appropriate Deputy Executive Director and consultation with the EDO, as warranted, the NRC may apply its full enforcement authority where the action is warranted. NRC action may include (1) escalating civil penalties, (2) issuing appropriate orders, and (3) assessing civil penalties for continuing violations on a per day basis, up to the statutory limit of $100,000 per violation, per day.

l (1) Civi/ pena /t/es. Notwithstanding the outcome of the normal civil penalty

.. ._ . ._. _ _ - - . __ _ _ _ . _ . _ _ . - _ _---- - - - - - ~ . __

i assessment process using the civil penalty adjustment factors addressed in Section VI.B, the NRC may exercise discretion by either proposing a civil penalty where application of the factors would otherwise result in zero penalty or by further escalating the amount of the adjusted civil penalty to ensure that the proposed civil penalty reflects the significance of the circumstances and conveys the appropriate regulatory message to the licensee.

1 Examples where this discretion should be considered include but are not limited to the following:

i (a) Problems categorized at Severity Level I or 11; (b) Overexposures, releases of radiological material in excess of NRC requirements, or cases involving the loss of a source; (c) Situations involving particularly poor licensee performance, or involving willfulness; (d) Situations when the licensee's previous enforcement history has been particularly poor, or when the current violation is directly repetitive of an earlier violation; (e) Situations when the excessive duration of a problem has resulted in a substantial increase in risk; or (f) Situations where the licenseo made a conscious decision to be in noncompliance in order to obtain an economic benefit.

(2) Orders. The NRC may, where necessary or desirable, issues orders in

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l conjunction with or in lieu of civil penalties to achieve or formalize corrective actions and 1

i to deter further recurrence of serious violations.

(3) Dai/y civi/ penalties. In order to recognize the added technical safety I

. significance or regulatory significance for those cases where a very strong message is warranted for a significant violation that continues for more than one day, the NRC may l

l exercise discretion and assess a separate violation and attendant civil penalty up to the a

statutory limit of $100,000 for each day the violation continues.=The NRC may exercise f

this discretion if a licensee was aware or clearly should have been aware of a violation, or 1

) if the licensee had an opportunity to identify and correct the violation but failed to do so.

1 i

B. Mitigation of Enforcement Sanctions

?

1 l The NRC may exercise discretion and refrain from issuing a civil penalty and/or a i

j Notice of Violation,if the outcome of the normal process described in Section VI does not result in a sanction consistent with an appropriate regulatory message. In addition, even if l the NRC exercises this discretion, when the licensee failed to make a required report to the i

! NRC, a separate enforcement action will normally be issued for the licensee's failure to i

make a required report. Examples when discretion should be considered for departing from

the normal approach in Section VI include but are not limited to the following

l

} (1) Licensee Identified Severity LevelIV Violations. The NRC, with the approval of the Regional Administrator or his designee, may refrain from issuing a Notice of Violation for a Severity Level IV violation that is documented in an inspection report (or i

official field notes for some material cases) and described therein as a Non-Cited Violation i

provided that the inspection report includes a brief description of the corrective action and i

i that the violation meets all of the following criteria:

s i

l l

_ _ - . - _ _ _ _ _ _ _ _ -. - _. . - - -l

(a) It was identified by the licensee, including as a result of a self-disclosing event; I

(b) It was not a violation that could reasor' ably be expected to have been prevented by the licensee's corrective action for a r evious violation or a previous licensee finding that occurred within the past two years of ths inspection at issue, or the period within the last two inspections, whichever is longer; (c) It was or will be corrected within a reasonable time, by specific corrective action committed to by the licensee by the end of the inspection, including immediate corrective action and comprehensive corrective action to prevent recurrence; (d) It was not a willful violation or if it was a willful violation; (i) The information concerning the violation, if not required to be reported, was promptly provided to appropriate NRC personnel, such as a resident inspector or regional section or branch chief; (ii) The violation involved the acts of a low level individual (and not a licensee official as defined in section IV C);

1 l

l (iii) The violation appears to be the isolated action of the employee without management involvement and the violation was not caused by lack of management l oversight as evidenced by either a history of isolated willful violations or a lack of adequate audits or supervision of employees; and

l (iv) Significant remedial action commensurate with the circumstances was taken by the licensee such that it demonstrated the seriousness of the violation to other employees and contractors, thereby creating a deterrent effect within the licensee's organization. Although removal of the employee from licensed activities is not necessarily l

l required, substantial disciplinary action is expected.

l l

l F l (2) Violations identified During Extended Shutdowns or Work Stoppages. The NRC may refrain from issuing a Notice of Violation or a proposed civil penalty for a violation that is identified after (i) the NRC has taken significant enforcement action based upon a major safety event contributing to an extended shutdown of an operating reactor or a material licensee (or a work stoppage at a construction site), or (ii) the licensee enters an extended shutdown or work stoppage related to generally poor performance over a long period of time, provided that the violation is documented in an inspection report (or official field notes for some material cases) and that it meets all of the following criteria:

(a) It was either licensee identified as a result of a comprehensive program for problem identification and correction that was developed in response to the shutdown or 1

identified as a result of an employee allegation to the licensee; (if the NRC identifies the violation and all of the other criteria are met, the NRC should determine whether enforcemcot action is necessary to achieve remedial action, or if discretion may still be appropriate.)

(b) It is based upon activities of the licensee prior to the events leading to the shutdown; I

(c) It would not be categorized at a severity level higher than Severity Level ll;

l l

(d) It was not willful; and (e) The licensee's decision to restart the plant requires NRC concurrence. 1 l

(3) Violations Involving Old Design Issues. The NRC may refrain from proposing a civil penalty for a Severity Level 11 or ill violation involving a past problem, such as in l

engineering, design, or installation, provided that the violation is documented in an inspection report (or official field notes for some material cases) that includes a description of the corrective action and that it meets all of the following criteria:

(a) It was a licensee identified as a result of a voluntary initiative; (b) It was or will be corrected, including immediate corrective action and long term comprehensive corrective action to prevent tecurrence, within a reasonable time following identification (this action should involve expanding the initiative, as necessary, to identify other failures caused by similar root causes); and (c) It was not likely to be identified (after the violation occurred) by routine licensee efforts such as normal surveillance or quality assurance (QA) activities.

In addition, the NRC may refrain from issuing a Notice of Violation for cases that meet the above criteria provided the violation was caused by conduct that is not reasonably linked to present performance (normally, violations that are at least three years old or violations occurring during plant construction) and there had not been prior notice so that the licensee should have reasonably identified the violation earlier. This exercise of discretion is to place a premium on licensees initiating efforts to identify and correct subtle

l violations that are not likely to be identified by routine efforts before degraded safety systems are called upon to work.

(4) Violations identified Due to Previous Escalated Enforcement Action. The NRC may refrain from issuing a Notice of Violation or a proposed civil penalty for a violation that is identified after the NRC has taken escalated enforcement action for a Severity Level 11 or til violation, provided that the violation is documented in an inspection report (or official field notes for some material cases) that includes a description of the corrective action and that it meets all of the following criteria:

(a) It was licensee identified as part of the corrective action for the previous escalated enforcement acoun; (b) It has the same or similar root cause as the violation for which escalated enforcement action was issued; (c) It does not substantially change the safety significance or the character of the regulatory concern arising out of the initial violation; and (d) It was or will be corrected, including immediate corrective action and long term comprehensive corrective action to prevent recurrence, within a reasonable time following identification.

(5) Violations involving Certain Discrimination Issues. Enforcement discretion may be exercised for discrimination cases where a licensee who, without the need for government intervention, identifies an issue of discrimination and takes prompt, comprehensive, and effective corrective action to address both the particular situation and

- - . - .- .. - ~ . . . - - - . - .- . - _ - - . _ . - - -_ -- -. --- . - - - .

l the overall work environment for raising safety concerns. Similarly, enforcement may not be warranted where a complaint is filed with the Department of Labor (DOL) under Section 211 of the Energy Reorganization Act of 1994, as amended, but the licensee settles the matter before the DOL makes an initial finding of discrimination and addresses the overall l work environment. Alternatively, if a finding of discrimination is made, the licensee may choose to settle the case before the evidentiary hearing begins. In such cases, the NRC may exercise its discretion not to take enforcement action when the licensee has addressed the overall work environment for ri!ag safety concerns and has publicized that a complaint of discrimination for engaging in protected activity was made to the DOL, that the matter was settled to the satisfaction of the employee (the terms of the specific settlement agreement need not be posted), and that,if the DOL Area Office found discrimination, the licensee has taken action to positively reemphasize that discrimination will not be tolerated. Similarly, the NRC may refrain from taking enforcement action if a licensee settles a matter promptly after a person comes to the NRC without going to the l

DOL. Such discretion would normally not be exercised in cases in which the licensee does not appropriately address the overall work environment (ga, by using training, postings, revised policies or procedures, any necessary disciplinary action, etc to communicate its policy against discrimination) or in cases that involve: allegations of discrimination as a result of providing inforrnation directly to the NRC, allegations of discrimination caused by a manager above first-line supervisor (consistent with current Enforcement Policy classification of Severity Level I or 11 violations), allegations of discrimination where a history of findings of discrimination (by the DOL or the NRC) or settlernents suggests a programmatic rather than an isolated discrimination problem, or allegations of discrimination which appear particularly blatant or egregious.

(6) Violations involving Special Circumstances. Notwithstanding the outcome of the normal civil penalty assessment process (i.e., base civil penalty adjusted based on

l application of the civil penalty adjustment factors addressed in Section VI.8), as provided j in Section lil, " Responsibilities," the NRC may reduce or refrain from issuing a civil penalty l or a Notice of Violation for a Severity Level ll or lll violation based on the merits of the case after considering the guidance in this statement of policy and such factors as the age l of the violation, the safety significance of the violation, the overall sustained performance of the licensee has been particularly good, and other relevant circumstances, including any l

that may have changed since the violation. This discretion is expected to be exercised only where application of the normal guidance in the policy is unwarranted.

The approval of the Director, Office of Enforcement, with consultation with the appropriate Deputy Executive Director as warranted, is required for exercising discretion of the type described in Paragraph (1)(b) where a willful violation is involved, and of the types described in Paragraphs (2) through (5). The approval of the appropriate Deputy Executive Director is required for exercising the discretion of the type described in Paragraph (6).

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

I soon as possible by written justification, which documents the safety basis for the request a

and provides whatever other information the NRC staff deems necessary in making 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 noncompliance will occur during the brief period of time

it requires the NRC staff to process an emergency or exigent license amendment under the

' ]

l provisions of 10 CFR 50.91(a)(5) or (6). The person exercising enforcement discretion will '

document the decision.

i ,

i l 1

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 I shutdown condition, exercising enforcement discretion is intended to reduce shutdown risk j 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 I

j 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 1

, that, notwithstanding the conditions of the license: (1) The equipment or system does not I 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 1

4 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 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 i 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 take such a step merely because it has been requested. The decision to forego enforcement is discretionary. When 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.

Vill. ENFORCEMENT ACTIONS INVOLVING INDIVIDUALS Enforcement actions involving individuals, including licensed operators, are significant personnel actions, which will be closely controlled and judiciously applied. An enforcement action involving an individual will normally be taken only when the NRC is

4 satisfied that the individual fully understood, or should have understood, his or her

, responsibility; knew, or should have known, the required actions; and knowingly, or with 1

careless disregard (i.e., with more than mere negligence) failed to take required actions j which have actual or potential safety significance. Most transgressions of individuals at j the level of Severity Level ill or IV violations will be handled by citing only the facility l l licensee.

4 More serious violations, including those involving the integrity of an individual (e.g.,

l lying to the NRC) concerning matters within the scope of the individual's responsibilities, 1

l will be considered for enforcement action against the individual as well as against the facility licensee. Action against the individual, however, will not be taken if the improper

, action by the individual was caused by management failures. The following examples of i situations illustrate this concept:

! Inadvertent individual mistakes resulting from inadequate training or guidance provided by the facility licensee.

Inadvertently missing an insignificant procedural requirement when the l action is routine, fairly uncomplicated, and there is no unusual circumstance indicating that i

the procedures should be referred to and followed step-by-step.

l Compliance with an express direction of management, such as the Shift 4

Supervisor or Plant Manager, resulted in a violation unless the individual did not express his

] or her concern or objection to the direction.

1 4

Individual error directly resulting from following the technical advice of an i

expert unless the advise was clearly unreasonable and the licensed individual should have i

L

l

_ ~ _-_- . . . _ _ - - .. - - .-. . - = . -_ .._ . .= ._ -.-

1 recognized it as such.

1 Violations resulting from inadequate procedures unless the individual used a 3 I

faulty procedure knowing it was faulty and had not attempted to get the procedure corrected.

Listed below are examples of situations which could result in enforcement actions involving individuals, licensed or unlicensed, if the actions described in these examp'> a taken by a licensed operator or taken deliberately by an unlicensed individual, - orcement 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 a licensee that may impact an individual. The situations include, but are not limited to, violations that involve:

Willfully causing a licensee to be in violation of NRC requirements. l Willfully taking action that would have caused a licensee to be in violation of NRC requirements but the action did not do so because it was detected and corrective action was taken.

Recognizing a violation of procedural requirements and willfully not taking corrective action.

1 Willfully defeating alarms which have safety significance.

i

)

i Unauthorized abandoning of reactor controls.

s Dereliction of duty.

i Falsifying records required by NRC regulations or by the facility license, l I

Willfully providing, or causing a licensee to provide, an NRC inspector or investigator with inaccurate or incomplete information on a matter material to the NRC.

Willfully withholding safety significant information rather than making such information known to appropriate supervisory or technical personnel in the licensee's organization.

Submitting false information and as a result gaining unescorted access to a nuclear power plant.

Willfully providing false data to a licensee by a contractor or other person who provides test or other services, when the data affects the licensee's compliance with 10 CFR part 50, appendix B, or other regulatory requirement.

Willfully providing false certification that components meet the requirements of their intended use, such as ASME Code.

Willfully supplying, by vendors of equipment for transportation of radioactive material, casks that do not comply with their certificates of compliance.

Willfully performing unauthorized bypassing of required reactor or other facility safety systems.

-. ._= - .. .. . = . - . - - - - . - . - _- . . - _.

l I

l 1

] Willfully taking actions that violate Technical Specification Limiting i 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 i if the operator meets the requirements of 10 CFR 50.54 (x),i.e., unless the operator acted l

unreasonably considering all the relevant circumstances surrounding the emergency.)

i Normally, some enforcement action is taken against a licensee for violations caused by significant acts of wrongdoing by its employees, contractors, or contractors' employees. In deciding whether to issue an enforcement action to an unlicensed person as well as to the licensee, the NRC recognizes that judgments will have to be made on a case by case basis. In making these decisions, the NRC will consider factors such as the following:

1. The level of the individual within the organization.

2. The individual's training and experience as well as knowledge of the potential consequences of the wrongdoing.

3. The safety consequences of the misconduct.

4. The benefit to the wrongdoer, e.g., personal or corporate gain.

5. The degree of supervision of the individual, i.e., how closely is the individual monitored or audited, and the likelihood of detection (such as a radiographer working

4 I

independently in the field as contrasted with a team activity at a power plant) .

6. The employer's response, e.g., disciplinary action taken.

7. The attitude of the wrongdoer, e.g., admission of wrongdoing, acceptance of responsibility.

8. The degree of management responsibility or culpability.

9. Who identified the misconduct.

Any proposed enforcement action involving individuals must be issued with the concurrence of the appropriate Deputy Executive Director. The particular sanction to be used should be determined on a case-by-case basis. Notices of Violation and Orders are examples of enforcement actions that may be appropriate against individuals. The administrative action of a letter of reprimand may also be considered.

Orders to NRC-licensed reactor operators may involve suspension for a specified period, modification, or revocotion of their individual licenses. Orders to unlicensed individuals might include provisions that would:

Prohibit involvement in NRC licensed activities for a specified period of time (normally the period of suspension would not exceed five years) or until certain conditions are satisfied, e.g., completing specified training or meeting certain qualifications.

1 1

Require notification to the NRC before resuming work in licensed activities.

1 L

l Require the person to tell a prospective employer or customer engaged in licensed activities that the person has been subject to an NRC order.

In the case of a licensed operator's failure to meet applicable fitness-for-duty requirements (10 CFR 55.53(j)), the NRC may issue a Notice of Violation or a civil penalty to the Part 55 licensee, or an order to suspend, modify, or revoke the Part 55 license.

These actions may be taken the first time a licensed operator fails a drug or alcohol test,

! that is, receives a confirmed positive test that exceeds the cutoff levels of 10 CFR part 26 l

or the facility licensee's cutoff levels, if lower. However, normally only a Notice of Violation will be issued for the first confirmed positive test in the absence of aggravating i circumstances such as errors in the performance of licensed duties or evidence of l

prolonged use. in addition, the NRC intends to issue an order to suspend the Part 55 license for up to three years the second time a licensed operator exceeds those cutoff levels, in the event there are less than three years remaining in the term of the individual's license, the NRC may consider not renewing the individual's license or not issuing a new license after the three year period is completed. The NRC intends to issue an order to revoke the Part 55 license the third time a licensed operator exceeds those cutoff levels.

A licensed operator or applicant who refuses to participate in the drug and alcohol testing programs established by the facility licensee or who is involved in the sale, use, or possession of an illegal drug is also subject to license suspension, revocation, or denial.

in addition, the NRC may take enforcement action against a licensee that may impact an individual, where the conduct of the individual places in question the NRC's reasonable assurance that licensed activities will be properly conducted. The NRC may l take enforcement action for reasons that would warrant refusal to issue a license on an l

original application. Accordingly, appropriate enforcement actions may be taken regarding matters that raise issues of integrity, competence, fitness for duty, or other matters that

1 may not necessarily be a violation of specific Commission requirements.

In the case of an unlicensed person, whether a firm or an individual, an order modifying the facility license may be issued to require (1) the removal of the person from j alllicensed activities for a specified period of time or indefinitely, (2) prior notice to the I NRC before utilizing the person in licensed activities, or (3) the licensee to provide notice

! of the issuance of such an order to other persons involved in licensed activities making s

reference inquiries, in addition, orders to empicyers might require retraining, additional

(

oversight, or independent verification of activities performed by the person,if the person is 4

l to be involved in licensed activities.

l l IX. INACCURATE AND INCOMPLETE INFORMATION l I i I j l

A violation of the regulations involving submittal of incomplete and/or inaccurate

! information, whether or not considered a material false statement, can result in the full i

range of enforcement sanctions. The labeling of a communication failure as a material l

false statement will be made on a case-by-case basis and will be reserved for egregious violations. Violations involving inaccurate or incomplete information or the failure to provide significant information identified by a licensee normally will be categorized based on the guidance herein, in Section IV " Severity of Violations," and in Supplement Vil.

i The Commission recognizes that oral information may in some situations be j inherently less reliable than written submittals because of the absence of an opportunity

for reflection and management review. However, the Commission must be able to rely on I

oral communications from licensee officials concerning significant information. Therefore, in determining whether to take enforcement action for an oral statement, consideration may be given to factors such as (1) the degree of knowledge that the communicator

I should have had, regarding the matter, in view of his or her position, training, and l experience; (2) the opportunity and time available prior to the communication to assure the accuracy or completeness of the information; (3) the degree of intent or negligence, if any, involved; (4) the formality of the communicatioc '5) the reasonableness of NRC reliance l on the information; (6) the importance of the information which was wrong or not provided; and (7) the reasonableness of the explanation for not providing complete and accurate information.

Absert at least careless disregard, an incomplete or inaccurate unsworn oral statenient normally will not be subject to enforcement action unless it involves significant information provided by a licensee official. However, enforcement action may be taken for an unintentionally incomplete or inaccurate oral statement provided to the NRC by a licensee official or others on behalf of a licensee,if a record was made of the oral information and provided to the licensee thereby permitting an opportunity to correct the oral information, such as if a transcript of the communication or meeting summary containing the error was made available to the licensee and was not subsequently corrected in a timely manner.

When a licensee has corrected inaccurate or incomplete information, the decision to issue a Notice of Violation for the initial inaccurate or incomplete information normally will be dependent on the circumstances, including the easc of detection of the error, the timeliness of the correction, whether the NRC or the licensee identified the problem with the communication, and whether the NRC relied on the information prior to the correction.

Generally, if the matter was promptly identified and corrected by the licensee prior to reliance by the NRC, or before the NRC raised a question about the information, no enforcement action will be taken for the initial inaccurate or incomplete information. On the other hand, if the misinformation is identified after the NRC relies on it, or after some

l l question is raised regarding the accuracy of the information, then some enforcemrat l

l action normally will be taken even if it is in fact corrected. However, if the initial submittal i l 1

l was accurate when inade but later turns out to be erroneous because of newly discovered i l

l information or advance in technology, a citation normally would not be appropriate if,  !

when the new information became available or the advancement in technology was made,  !

the initial submittal was corrected.

l The failure to correct inaccurate or incomplete information which the licensee does not identify as significant normally will not constitute a separate violation. However, the circumstances surrounding the failure to correct may be considered relevant to the determination of enforcement action for the initialinaccurate or incomplete statement. For example, an unintentionally inaccurate or incomplete submission may be treated as a more severe matter if the licensee later determines that the initial submittal was in error and ,

1 does not correct it or if there were clear opportunities to identify the error, if information not corrected was recognized by a licensee as significant, a separate citation may be made for the failure to provide significant information. In any event, in serious cases where the licensee's actions in not correcting or providing information raise questions about its commitment to safety or its fundamental trustworthiness, the Commission may exercise its authority to issue orders modifying, suspending, or revoking the license. The Commission recognizes that enforcement determinations must be made on a case-by-case basis, taking into consideration the issues described in this section.

X. ENFORCEMENT ACTION AGAINST NON-LICENSEES The Commission's enforcement policy is also applicable to non-licensees, including l

employees of licensees, to contractors and subcontractors, and to employees of contractors and subcontractors, who knowingly provide components, equipment, or other l

goods or services that relate to a licensee's activities subject to NRC regulation. The prohibitions and sanctions for any of these persons who engage in deliberate misconduct or submission of incomplete or inaccurate information are provided in the rule on deliberate misconduct, e.g.,10 CFR 30.10 and 50.5.

Vendors of products or services provided for use in nuclear activities are subject to certain requirements designed to ensure that the products or services supplied that could affect safety are of high quality. Through procurement contracts with reactor licensees, vendors may be required to have quality assurance programs that meet applicable requirements including 10 CFR part 50, appendix P. and 10 CFR part 71, subpart H.

Vendors supplying products or services to reactor, materials, and 10 CFR part 71 licensees are subject to the requirements of 10 CFR part 21 regarding reporting of defects in basic components.

When inspections determine that violations of NRC requirements have occurred, or that vendors have failed to fulfill contractual comniitments (e.g.,10 CFR part 50, appendix B) that could adversely affect the quality of a safety significant product or service, enforcement action will be taken. Notices of Violation and civil penalties will be used, as appropriate, for licensee failures to ensure that their vendors have programs that meet applicable requirements. Notices of Violation will be issued for vendors that violate 10 CFR part 21. Civil penalties will be imposed against individual directors or responsible officers of a vendor organization who knowingly and consciously fail to provide the notice required by 10 CFR 21.21(b)(1). Notices of Nonconformance will be used for vendors which fail to meet commitments related to NRC activities.

XI. REFERRALS TO THE DEPARTMENT OF JUSTICE

1 1

Alleged or suspected criminal violations of the Atomic Energy Act (and of other relevant Federal laws) are referred to the Department of Justice (DOJ) for investigation.

Referral to the DOJ does not preclude the NRC from taking other enforcement action under this policy. However, enforcement actions will be coordinated with the DOJ in accordance with the Memorandum of Understanding between the NRC and the DOJ,53 FR 50317 (December 14,1988).

Xil. PUBLIC DISCLOSURE OF ENFORCEMENT ACTIONS l

Enforcement actions and licensees' responses, in accordance with 10 CFR 2.790, l are publicly available for inspection, in addition, press releases are generally issued for I orders and civil penalties and are issued at the same time the order or proposed imposition l of the civil penalty is issued. In addition, press releases are usually issued when a proposed civil penalty is withdrawn or substantially mitigated by some amount. Press releases are not normally issued for Notices of Violation that are not accompanied by orders or proposed civil penalties.

l l

Xill. REOPENING CLOSED ENFORCEMENT ACTIONS If significant new information is received or obtained by NRC which indicates that an enforcement sanction was incorrectly applied, consideration may be given, dependent on the circumstances, to reopening a closed enforcement action to increase or decrease the severity of a sanction or to correct the record. Reopening decisions will be made on a case-by-case basis, are expected to occur rarely, and require the specific approval of the appropriate Deputy Executive Director.

SUPPLEMENT l--REACTOR OPERATIONS

i

{ This supplement provides examples of violations in each of the four severity levels j as guidance in determining the appropriate severity level for violations in the area of reactor operations.

]

,f A. Severity Level / - Violations involving for example:

i t

l 1. A Safety Limit, as defined in 10 CFR 50.36 and the Technical Specifications i

being exceeded; i  !

2. A system designed to prevent or mitigate a serious safety event not being I i l f able to perform its intended safety function when actually called upon to work:

3. An accidental criticality; or i

4. A licensed operator at the controls of a nuclear reactor, or a senior operator i

i directing licensed activities, involved in procedural errors which result in, or exacerbate the l

consequences of, an alert or higher level emergency and who, as a result of subsequent testing, receives a confirmed positive test result for drugs or alcohol.

i I

B. Severity Level // - Violations involving for example:

1

1. A system designed to prevent or mitigate serious safety events not being able to perform its intended safety function;

2. A licensed operator involved in the use, sale, or possession of illegal drugs or the consumption of alcoholic beverages, within the protected area; or l

l

1

3. A licensed operator at the control of a nuclear reactor, or a senior operator directing licensed activities, involved in procedural errors and who, as a result of subsequent testing, receives a confic ad positive test result for drugs or alcohol.

C. Severity Leve/ /// - Violations involving for example:

1. A significant failure to comply with the Action Statement for a Technical Specification Limiting Condition for Operation where the appropriate action was not taken within the required time, such as:

(a) In a pressurized water reactor, in the applicable modes, having one high-pressure safety injection pump inoperable for a period in excess of that allowed by the action statement; or (b) In a boiling water reactor, one primary containrr.ent isolation valve inoperable for a period in excess of that allowed by the action statement.

2. A system designed to prevent or mitigate a serious safety event:

(a) Not being able to perform its intended function under certain conditions (e.g., safety system not operable unless offsite power is available; materials or components not environmentally qualified); or (b) Being degraded to the extent that a detailed evaluation would be required to determine its operability (e.g., component parameters outside Epproved limits such as pump flow rates, heat exchanger transfer characteristics, safety valve lift setpoints, or

valve stroke times);

I i

j 3. Inattentiveness to duty on the part of licensed personnel;

4. Changes in reactor parameters that cause unanticipated reductions in margins of safety:

5. A significant failure to meet the requirements of 10 CFR 50.59, including a failure such that a required license amendment was not sought:

6. A licensee failure to conduct adequate oversight of vendors resulting in the use of products or services that are of defective or indeterminate quality and that have i

safety significance; l

7. A breakdown in the control of hcensed activities involving a number of violations that are related (or, if isolated, that are recurring violations) that collectively represent a potentially significant lack of attention or carelessness toward licensed responsibilities; or

8. A licensed operator's confirmed positive test for drugs or alcohol that does i not result in a Severity Level I or 11 violation.

1

9. Equipment failures caused by inadequate or improper maintenance that l substantially complicates recovery from a plant transient.

D. Severity Level /V- Violations involving for example:

1 I

l

1. A less significant failure to comply with the Action Statement for a l Technical Specification Limiting Condition for Operation where the appropriate action was not taken within the required time, such as:

) a

i (a) In a pressurized water reactor, a 5% deficiency in the required volume of the l condensate storage tank; or (b) In a boiling water reactor, one subsystem of the two independent MSIV leakage control subsystems inoperable; 3

2. A failure f u meet the requirements of 10 CFR 50.59 that does not result in a

. Severity Level I, ll, or til violation;

3. A failure to meet regulatory requirements that have more than minor safety or environmental significance; or

4. A failure to make a required Licensee Event Report,

, SUPPLEMENT ll--PART 50 FACILITY CONSTRUCTION This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of part 50 facility construction.

4 A. Severity Level / - Violations involving structures or systems that are l

completed in such a manner that they would not have satisfied their intended safety related purpose.

B. Severity Level // - Violations involving for example:

1. A breakdown in the Quality Assurance (QA) program as exemplified by deficiencies in construction OA related to more than one work activity (e.g., structural, piping, electrical, foundations). These deficiencies normally involve the licensee's failure to conduct adequate audits or to take prompt corrective action on the basis of such audits and normally involve multiple examples of deficient construction or construction of 1

unknown quality due to inadequate program implementation; or I l

2. A structure or system that is completed in such a manner that it could have an adverse effect on the safety of operations. i C. Severity Leve/ /// - Violations involving for example:

1. A deficiency in a licensee QA program for construction related to a single work activity (e.g., structural, piping, electrical or foundations). This significant deficiency normally involves the licensee's failure to conduct adequate audits or to take prompt corrective action on the basis of such audits, and normally involves multiple examples of

. 1 deficient construction or construction of unknown quality due to inadequate program l implementation;

2. A failure to confirm the design safety requirements of a structure or system as a result of inadequate preoperational test program implementation; or

3. A failure to make a required 10 CFR 50.55(e) report.

- - . _ _ - - . _ _ . . - - . - - - _ . . . - _ . _ _ - - _ = . . - -- -. . . ..

b

. D. Severity Level /V- Violations involving failure to meet regulatory l requirements including one or more Quality Assurance Criterion not amounting to Severity l t

Level I, ll, or til violations that have more than minor safety or environmental significance. l l

, SUPPLEMENT lil -SAFEGUARDS l This supplement provides examples of violations in each of the four severity levels

! as guidance in determining the appropriate severity level for violations in the area of safeguards.

A. Severity Level / - Violations involving for example:

) 1. An act of radiological sabotage in which the security system did not function

) as required and, as a result of the failure, there was a significant event, such as:

4 5

i (a) A Safety Limit, as defined in 10 CFR 50.36 and the Technical Specifications, was exceeded; (b) A system designed to prevent or mitigate a serious safety event was not able to perform its intended safety function when actually called upon to work; or i (c) An accidental criticality occurred;

2. The theft, loss, or diversion of a formula quantity of special nuclear material i (SNM); or i

l l

l t

3. Actual unauthorized production of a formula quantity of SNM B. Severity Level // - Violations involving for example:

1. The entry of an unauthorized individual who represents a threat into a vital area from outside the protected area

2. The theft, loss or diversion of SNM of moderate strategic significance in which the security system did not function as required; or ,

3. Actual unauthorized production of SNM.

C. Severity Level /// - Violations involving for example:

1. A failure or inability to control access through established systems or procedures, such that an unauthorized individual (i.e., not authorized unescorted access to 1

protected area) could easily gain undetected access into a vital area from outside the j protected area; i

l

2. A failure to conduct any search at the access control point or conducting an

)

inadequate search that resulted in the introduction to the protected area of firearms, explosives, or incendiary devices and reasonable facsimiles thereof that could significantly assist radiological sabotage or theft of strategic SNM; l

3. A failure, degradation, or other deficiency of the protected area intrusion i

l detection or alarm assessment systems such that an unauthorized individual who l

l represents a threat could predictably circumvent the system or defeat a specific zone with a

.- _ .y 1

I l

1 1

! a high degree of confidence without insider knowledge, or other significant degradation of overall system capability; a

4. A significant failure of the safeguards systems designed or used to prevent or detect the theft, loss, or diversion of strategic SNM;

5. A failure to protect or control classified or safeguards information considered

to be significant while the inforrnation is outside the protected area and accessible to those not authorized access to the protected area; i

i

6. A significant failure to respond to an event either in sufficient time to provide I l

protection to vital equipment or strategic SNM, or with an adequate response force; l

. l

. 1

7. A failure to perform an appropriate evaluation or background investigation so that information relevant to the access determination was not obtained or considered and as a result a person, who would likely not have been granted access by the licensee,if the l required investigation or evaluation had been performed, was granted access; or i

8. A breakdown in the security program involving a number of violations that are related (or,if isolated, that are recurring violations) that collectively reflect a potentially

! significant lack of attention or carelessness toward licensed responsibilities.

D. Severity Level /V- Violations involving for example:

1. A failure or inability to control access such that an unauthorized individual (i.e., authorized to protected area but not to vital area) could easily gain undetected access

into a vital area from inside the protected area or into a controlled access area;

,._.,e,. -

.y- - , x . . - - -,- - - , _ ,- .- -,

. _ . .. - - . . _ . _ _ _ . ._. . . _. _ - _.. .- _ , ~ ,

2. A failure to respond to a suspected event in either a timely manner or with an adequate response force:

4

3. A failure to implement 10 CFR parts 25 and 95 with respect to the information addressed under section 142 of the Act, and the NRC approved security plan relevant to those parts:

l 4. A failure to make, maintain, or provide log entries in accordance with 10 CFR 73.71 (c) and (d), where the omitted information (i) is not otherwise available in easily retrievable records, and (ii) significantly contributes to the ability of either the NRC or the licensee to identify a programmatic breakdown:

5. A failure to conduct a proper search at the access control point:

6. A failure to properly secure or protect classified or safeguards inforrnation inside the protected area which could assist an individual in an act of radiological sabotage

or theft of strategic SNM where the information was not removed from the protected area

i

7. A failure to control access such that an opportunity exists that could allow unauthorized and undetected access into the protected area but which was neither easily l or likely to be exploitable;  !

I i

8. A failure to conduct an adequate search at the exit from a material access area:

9. A theft or loss of SNM of low strategic significance that was not detected

-__ . . . _ _ _ _ _ . . __. .=_ ~ . ___ _. _ _ . _ _ ___ _ _ _ _ _ . _ _ _ .

i J

i J

within the time period specified in the security plan, other relevant document, or regulation; or l 10. Other violations that have more than minor safeguards significance.

1, I SUPPLEMENT IV--HEALTH PHYSICS (10 CFR PART 20) j This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of health

physics,10 CFR part 20.

1 l A. Severity Level / - Violations involving for example:

i

1. A radiation exposure during any year of a worker in excess of 25 rems total i 1

effective dose equivalent,75 rems to the lens of the eye, or 250 rads to the skin of the  :

I whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue:

1 i

1

2. A radiation exposure over the gestation period of the embryo / fetus of a declared pregnant woman in excess of 2.5 rems total effective dose equivalent;  !

i

3. A radiation exposure during any year of a minor in excess of 2.5 rems total effective dose equivalent,7.5 rems to the lens of the eye, or 25 rems to the skin of the l whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue;

4. An annual exposure of a member of the public in excess of 1.0 rem total effective dose equivalent;

5. A release of radioactive material to an unrestricted area at concentrations in excess of 50 times the limits for members of the public as described in 10 CFR 20.1302(b)(2)(i): or 1

6. Disposal of licensed material in quantities or concentrations in excess of 10 l times the limits of 10 CFR 20.2003.

B. Severity Level // - Violations involving for example:

1. A radiation exposure during any year of a worker in excess of 10 rems total offective dose equivalent,30 rems to the lens of the eye, or 100 rems to the skin of the whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue:

2. A radiation exposure over the gestation period of the embryo / fetus of a declared pregnant woman in excess of 1.0 rem total effective dose equivalent:

3. A radiation exposure during any year of a minor in excess of 1 rem total effective dose equivalent: 3.0 rems to the lens of the eye, or 10 rems to the skin of the whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue:

4. An annual exposure of a member of the public in excess of 0.5 rem total effective dose equivalent:

5. A release of radioactive material to an unrestricted area at concentrations in excess of 10 times the limits for members of the public as described in 10 CFR 20.1302(b)(2)(i) (except when operation up to 0.5 rem a year has been approved by the Commission under Section 20.1301(c));

i i

? l l

2 i

j 6. Disposal of licensed material in quantities or concentrations in excess of five  !

i times the limits of 10 CFR 20,2003; or i

. 7. A failure to make an immediate notification as required by 10 CFR 20.2202 i

.! 1 l (a)(1) or (a)(2).

, 1 4

l

! C. Severity Level /// - Violations involving for example:

! 1. A radiation exposure during any year of a worker in excess of 5 rems total i

effective dose equivalent,15 rems to the lens of the eye, or 50 rems to the skin of the

{ whole body or to the feet, ankles, hands or forearms, or to any other organ or tissue; l 2. A radiation exposure over the gestation period of the embryo / fetus of a declared pregnant woman in excess of 0.5 rem total effective dose equivalent (except I when doses are in accordance with the provisions of Section 20.1208(d));

i i

l 3. A radiation exposure during any year of a minor in excess of 0.5 rem total effective dose equivalent: 1.5 rems to the lens of the eye, or 5 rems to the skin of the i whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue; l

4. A worker exposure above regulatory limits when such exposure reflects a j programmatic (rather than an isolated) weakness in the radiation control program;

}

) 5. An annual exposure of a member of the public in excess of 0.1 rem total j effective dose equivalent (except when operation up to 0.5 rem a year has been approved j by the Commission under Section 20.1301(c));

3 2

1 1

1

6. A release of radioactive material to an unrestricted area at concentrations in excer,s of two times the effluent concentration limits referenced in 10 CFR 20.1302(b)(2)(i) (except when operation up tn 0.5 rem a year has been approved by the Commission under Section 20.1301(c));

7. A failure to make a 24-hour notification required by 10 CFR 20.2202(b) or an immediate notification required by 10 CFR 20.2201(a)(1)(i);

8. A substantial potential for exposures or releases in excess of the applicable limits in 10 CFR part 20 Sections 20.1001-20.2401 whether or not an exposure or release occurs; l

9. Disposal of licensed material not covered in Severity Levels I or ll;

10. A release for unrestricted use of contaminated or radioactive material or equipment that poses a realistic potential for exposure of the public to levels or doses exceeding the annual dose limits for members of the public, or that reflects a programmatic (rather than an isolated) weakness in the radiation control program;

11. Conduct of licensee activities by a technically unqualified person;

12. A significant failure to control licensed material; or

13. A breakdown in the radiation safety program involving a number of violations that are related (or, if isolated, that are recurring) that collectively represent a potentially significant lack of attention or carelessness toward licensed responsibilities.

l D. Severity Level /V- Violations involving for example:

i

1. Exposures in excess of the limits of 10 CFR 20.1201,20.1207, or 20.1208 not constituting Severity Level I,11, or 111 violations; 1

l 2. A release of radioactive material to an unrestricted area at concentrations in l

l excess of the limits for members of the public as referenced in 10 CFR 20.1302(b)(2)(i)

I I

(except when operation up to 0.5 rem a year has been approved by the Commission under Section 20.1301(c));

1

3. A radiation dose rate in an unrestricted or controlled area in excess of 0.002 rem in any 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> (2 millirem / hour) or 50 millirems in a year;

4. Failure to maintain and implement radiction programs to keep radiation exposures as low as is reasonably achievable:

5. Doses to a member of the public in excess of any EPA generally applicable environmental radiation standards, such as 40 CFR part 190:

6. A failure to make the 30-day notification required by 10 CFR 20.2201(a)(1)(ii) or 20.2203(a);

7. A failure to make a timely written report as required by 10 CFR 20.2201(b),

20.2204, or 20.2206; or

8. Any other matter that has more than a minor safety, health, or

environmental significance.

SUPPLEMENT V - TRANSPORTATION This supplement provides examples of violations in each of the four severity levels l

as guidance in determining the appropriate severity level for violations in the area of NRC l

l transporta' ion requirements.

l A. Severity Level / - Violations involving for example:

i t

1. Failure to meet transportation requirements that resulted in loss of control of radioactive material with a breach in package integrity such that the material caused a radiation exposure to a member of the public and there was clear potential for the public to receive more than .1 rem to the whole body;

2. Surface contamination in excess of 50 times tha NRC limit; or

3. External radiation levels in excess of 10 times the NRC limit.

B. Severity Level // - Violations involving for example:

1. Failure to meet transportation requirements that resulted in loss of control of radioactive material with a breach in package integrity such that there was a clear potential for the member of the public to receive more than .1 rem to the whole body;

2. Surface contamination in excess of 10, but not more than 50 times the NRC

limit;

3. External radiation levels in excess of five, but not more than 10 times the NRC limit; or

4. A failure to make required initial notifications associated with Severity Level I or 11 violations.

I C. Sever /ty Level /// - Violations involving for example:

1. Surface contamination in excess of five but not more than 10 times the NRC limit:

2. External radiation in excess of one but not more than five times the NRC limit;

3. Any noncompliance with labeling, placarding, shipping paper, packaging, loading, or other requirements that could reasonably result in the following:

(a) A significant failure to identify the type, quantity, or form of material; (b) A failure of the carrier or recipient to exercise adequate controls; or (c) A substantial potential for either personnel exposure or contamination above regulatory limits or improper transfer of material:

4. A failure to make required initial notification associated with Severity Level

111 violations; or

5. A breakdown in the licensee's program for the transportation of licensed material involving a number of violations that are related (or, if isolated, that are recurring

! violations) that collectively reflect a potentially significant lack of attention or carelessness l

! toward licensed responsibilities.

1 D. Severity Level /V- Violations involving for example:

1. A breach of package integrity without external radiation levels exceeding the NRC limit or without contamination levels exceeding five times the NRC limits;

2. Surface contamination in excess of but not more than five times the NRC limit;

3. A failure to register as an authorized user of an NRC-Certified Transport package;

4. A noncompliance with shipping papers, marking, labeling, placarding packaging or loading not amounting to a Severity Level I,11, or ill violation:

5. A failure to demonstrate that packages for special form radioactive material meets applicable regulatory requirements;

6. A failure to demonstrate that packages meet DOT Specifications for 7A Type A packages; or

7. Other violations that have more than minor safety or environmental I

significance.

SUPPLEMENT VI--FUEL CYCLE AND MATERIALS OPERATIONS This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of fuel cycle and materials operations.

A. Severity Level / - Violations involving for example:

I

1. Radiation levels, contamination levels, or releases that exceed 10 times the limits specified in the license:

2. A system designed to prevent or mitigate a serious safety event not being operable when actually required to perform its design function:

3. A nuclear criticality accident; or ,

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4. A failure to follow the procedures of the quality management program, required by Section 35.32, that results in a death or serious injury (e.g., substantial organ impairment) to a patient. l B. Severity Level // - Violations involving for example: i I

i

1. Radiation levels, contamination levels, or releases that exceed five times the limits specified in the license; I

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2. A system designed to prevent or mitigate a serious safety event being inoperable; or

3. A substantial programmatic failure in the implementation of the quality management program required by 10 CFR 35.32 that results in a misadministration.

l C. Severity Level /// - Violations involving for example:

1. A failure to control access to licensed materials for radiation purposes as specified by NRC requirements:

1

2. Possession or use of unauthorized equipment or materials in the conduct of I licensee activities which degrades safety; j

3. Use of radioactive material on humans where st.ch use is not authorized

4. Conduct of licensed activities by a technically unqualified person;

5. Radiation levels, contamination levels, or releases that exceed the limits specified in the license;

6. Substantial failure to implement the quality management program as required by Section 35.32 that does not result in a misadministration; failure to report a misadministration; or programmatic weakness in the implementation of the quality management program that results in a misadministration.

- - - .-.- - - - .._ -. - -- -... . .. - - - -. -..~_.. . . - - -

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i 4

! 7. A breakdown in the control of licensed activities involving a number of l i

j violations that are related (or, if isolated, that are recurring violations) that collectively

) 1 represent a potentially significant lack of attention or carelessness toward licensed i i

1 responsibilities; t

8. A failure, during radiographic operations, to have present or to use radiographic equipment, radiation survey instruments, and/or personnel monitoring de 'ces t as required by 10 CFR part 34; i

i j 9. A failure to submit an NRC Form 241 in accordance with the requirements in j

Section 150.20 of 10 CFR part 150; 4

10. A failure to receive required NRC approval prior to the implementation of a  !

d  !

change in licensed activities that has radiological or programmatic significance, such as, a change in ownership; lack of an RSO or replacement of an RSO with an unqualified individual; a change in the location where licensed activities are being conducted, or where .

licensed materialis being stored where the new facilities do not meet safety guidelines; or a change in the quantity or type of radioactive material being processed or used that has radiological significance; or

11. A significant failure to meet decommissioning requirements including a failure to notify the NRC as required by regulation or license condition, substantial failure to meet decommissioning standards, failure to conduct and/or complete decommissioning activities in accordance with regulation or license condition, or failure to meet required schedules without adequate justification.

D. Severity Level /V- Violations involving for example:

1. A failure to maintain patients hospitalized who have cobalt-60, cesium-137, or iridium-192 implants or to conduct required leakage or contamination tests, or to use properly calibrated equipment:

I

2. Other violations that have more than minor safety or environmental significance; or

3. Failure to follow the quality management program, including procedures, whether or not a misadministration occurs, provided the failures are isolated, do not I

demonstrate a programmatic weakness in the implementation of the OM program, and '

have limited consequences if a misadrninistration is involved: failure to conduct the required program review: or failure to take corrective actions as required by Section 35.32; i

or i l

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4. A failure to keep the records required by Sections 35.32 or 35.33.

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I SUPPLEMENT Vil -MISCELLANEOUS MATTERS I This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations involving miscellaneous matters.

A. Severity Level /- Violations involving for example:

1. Inaccurate or incomplete information that is provided to the NRC (a) deliberately with the knowledge of a licensee official that the information is incomplete or d l

-. . . _ . . __. . . . _ . . . - - . - . - - - - . - . . - - - = = _ ~ _ _ _ , _ _ -

t inaccurate, or (b) if the information, had it been complete and accurate at the time provided, like'y would have resulted in regulatory action such as an immediate order required by the public health and safety.

2. Incomplete or inaccurate information that the NRC requires be kept by a licensee that is (a) incomplete or inaccurate because of falsification by or with the knowledge of a licensee official, or (b) if the information, had it been complete and accurate when reviewed by the NRC,likely would have resulted in regulatory action such as an immediate order required by public health and safety considerations:

3. Information that the licensee has identified as having significant implications for public health and safety or the common defense and security (significant information identified by a licensee") and is deliberately withheld from the Commission:

4. Action by seni5r corporate management in violation of 10 CFR 50.7 or

, similar regulations against an employee;

5. A knowing and intentional failure to provide the notice required by 10 CFR part 21; or J

6. A failure to substantially implement the required fitness-for-duty program, a

B. Severity Level // - Violations involving for example:

1. Inaccurate or incomplete information that is provided to the NRC (a) by a licensee official because of careless disregard for the completeness or accuracy of the information, or (b) if the information, had it been complete and accurate at the time

E l

i

! provided, likely would have resulted in regulatory action such as a show cause order or a i

l different regulatory position;

}

i  !

2. Incomplete or inaccurate information that the NRC requires be kept by a 1

a i licensee which is (a) incomplete or inaccurate because of careless disregard for the i

.i accuracy of the information on the part of a licensee official, or (b) if the inforrnation, had i

it been complete and accurate when reviewed by the NRC,likely would have resulted in

regulatory action such as a show cause order or a different regulatory position; i

l 3. "Significant information identified by a licensee" and not provided to the j Commission because of careless disregard on the part of a licensee official; i

i l 4. An action by plant management above first-line supervision in violation of 10 i

CFR 50.7 or similar regulations against an employee; l

t i

j 5. A failure to provide the notice required by 10 CFR part 21; i

j 6. A failure to remove an individual from unescorted access who has been involved in the sale, use, or possession of illegal drugs within the protected area or take l action for on duty misuse of alcohol, prescription drugs, or over-the-counter drugs; l

, 7. A failure to take reasonable action when observed behavior within the l

1 protected area or credible information concerning activities within the protected area indicates possible unfitness for duty based on drug or alcohol use; or i

8. A deliberate failure of the licensee's Employee Assistance Program (EAP) to l notify licensee's management when EAP's staff is aware that an individual's condition may i

I m.,  :- m ---.-. -- - y _ ,,+

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l adversely affect safety related activities.  ;

a C. Severity I. eve / /// - Violations involving for example:

4 1 l

i

1. Incomplete or inaccurate information that is provided to the NRC (a) because of inadequate actions on the part of licensee officials but not amounting to a Severity ,

1 Level I or Il violation, or (b) if the information, had it been complete and accurate at the time provided,likely would have resulted in a reconsideration of a regulatory position or

. l substantial further inquiry such as an additional inspection or a formal request for '

information:

I

2. Incomplete or inaccurate information that the NRC requires be kept by a l

licensee that is (a) incomplete or inaccurate because of inadequate actions on the part of licensee officials but not amounting to a Severity Level I or 11 violation, or (b) if the l information, had it been complete and accurate when reviewed by the NRC, likely would 1

have resulted in a reconsideration of a regulatory position or substantial further inquiry I such as an additional inspection or a formal request for information;

3. A failure to provide "significant information identified by a licensee" to the i

Commission and not amounting to a Severity Level I or ll violation;

4. An action by first-line supervision in violation of 10 CFR 50.7 or similar regulations against an employee; 1

5. An inadequate review or failure to review such that, if an appropriate review had been made as required, a 10 CFR part 21 report would have been made:

= . .. .- - . _ .

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l

6. A failure to complete a suitable inquiry on the basis of 10 CFR part 26, keep I records concerning the denial of access, or respond to inquiries concerning denials of access so that, as a result of the failure, a person previously denied access for fitness-for-duty reasons was improperly granted access;

7. A failure to take the required action for a person confirmed to have been

tested positive for illegal drug use or take action for onsite alcohol use

not amounting to a Severity Level 11 violation:

8. A failure to assure, as required, that contractors or vendors have an effective fitness-for-duty program: or

9. A breakdown in the fitness-for-duty program involving a number of violations of the basic elements of the fitness-for-duty program that collectively reflect a significant lack of attention or carelessness towards meeting the objectives of 10 CFR 26.10.

D. Severity Level /V - Violations involving for example:

1. Incomplete or inaccurate information of more than minor significance that is provided to the NRC but not amounting to a Severity Level I,11, or ill violation:

2. Information that the NRC requires be kept by a licensee and that is incomplete or inaccurate and of more than minor significance but not amounting to a Severity Level 1, !!, or ll1 violation;

, 3. An inadequate review or failure to review under 10 CFR part 21 or other procadural violations associated with 10 CFR part 21 with more the minor safety

- - - _ . _. . _ -~- .- - - -. - - . . . . . .

1 4 1 4 significance;

4. Violations of the requirements of Part 26 of more than minor significance; or

5. A failure to report acts of licensed operators or supervisors pursuant to 10 4

CFR 26.73.

l SUPPLEMENT Vill--EMERGENCY PREPAREDNESS 1

l l

. This supplement provides examples of violations in each of the four severity levels I l

. as guidance in determining the appropriate severity level for violations in the area of l 1

l emergency preparedness. It should be noted that citations are not normally made for 3 violations involving emergency preparedness occurring during emergency exercises.

l However, where exercises reveal (i) training, procedural, or repetitive failures for which l corrective actions have not been taken, (ii) an overall concern regarding th9 licensee's ability to implement its plan in a man.1er that adequately protects public health and safety,

o- (iii) poor self critiques of the licensee's exercises, enforcement action may be appropriate.

A. Severity Level / - Violations involving for example:

i T

l In a general emergency, licensee failure to promptly (1) correctly classify the event, i

1 (2) make required notifications to responsible Federal, State, and local agencies, or (3) i respond to the event (e.g., assess actual or potential offsite consequences, activate emergency respon