ML20136H918
| ML20136H918 | |
| Person / Time | |
|---|---|
| Issue date: | 03/17/1997 |
| From: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | Beach A, Miller H, Reyes L NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| References | |
| EGM-97-07, EGM-97-7, NUDOCS 9703190367 | |
| Download: ML20136H918 (8) | |
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.' t. UNITED STATES g j NUCLEAR RE'1ULATORY COMMISSION 7) f WASHINGTON, D.C. 2006H001 March 17, 1997 EGM 97-007 MEMORANDUM T0: Hubert J. Miller, Regional Administrator Region I Luis A. Reyes, Regional Administrator Region II A. Bill Beach, Regional Administrator Region III Ellis W. Merschoff, Regional Administrator Region IV Roy Zimmerman, Associate Director for 1
Projects,NRR Brian W. Sheron, Acting Associate Director ior Inspection and Technical Assessment, NRR Elizabeth Q. Ten Eyck, Director, Division of Fuel Cycle Safety and Safeguards, NMSS Donald A. Cool, Director, Division of Industrial and Medical Nuclear Safety, NMSS John T. Greeves, Director, Division of Waste Management, NMSS Charles J. Haughney, Acting Director, Spent Fuel Project Office, NMSS FROM:
James Lieberman, Director 'g (('C Office of Enforcement C
SUBJECT:
ENFORCEMENT GUIDANCE MEMORANDUM - GUIDANCE FOR DISPOSITIONING VIOLATIONS OF THE CLARIFICATION OF DECOMMISSIONING FUNDING ASSURANCE RULE 1
This Enforcement Guidance Memorandum (EGM) is being issued in coordination with NMSS to provide enforcement guidance for violations that are identified !
during records reviews conducted to determine compliance with the rulemaking 1 on " Clarification of Decommissioning Funding Requirements" for materials licenses, (Clarification Rule, 60 FR 38235, July 26,1995).
The Clarification Rule requires that adequate financial assurance for !
decommissioning be in place during licensed operations, and be updated when !
the licensee decides to cease operations and begin decommissioning. The rule i is meant to address those licensees who have been in timely renewal since the j promulgation of the earlier Decommissioning Rule (53 FR 24018, June 27,1988),
or who have ceased operations without having adequate decommissioning funding arrangements in place. Licensees were required to provide adequate financial assurance for decommissioning by November 24, 1995, the effective date of the clarification rule.
Enforcement action should be taken if the licensee is currently not in compliance with the requirements of the Clarification Rule. The staff will t
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9 provide the licensee with a letter indicating that an apparent violation has been identified as a ' result of a records review. See Standard Form 2-I, Cover letter Transmitting an Apparent Vloistion as a Result of a Records Revia: and
.- Requesting Response (Enclosure 1). In addition to sending the letter, the Region should contact the licensee's management by telephone to assure that the licensee has an opportunity to ask questions in order to fully understand the apparent violation. As stated in the standard letter format, the licensee can request a predecisional enforcement conference within 7 days or can provide a written response within 30 days.
Since an inspection report is not issued for a violation. identified during a records review, the letter needs to identify clearly and document the specific a) parent violation. The language used in the letter to identify and document t1e apparent violation may be adapted from the attached Standard Citations (Enclosure 2). Although the text of these Standard Citations focuses on violations of Part 30, the text can be adapted for violations of the identical regulation in Part 40, 70, or 72.
The' Enforcement Policy provides that violations involving significant failure to meet decommissioning requirements should be categorized at Severity Level III. See Supplement VI, Example C.ll, " General Statement of Policy and Procedure for NRC Enforcement Actions" (NVREG-1600). However, if the licensee responds within 30 days, provides an acceptable plan for meeting the decommissioning financial assurance requirements, and fully implements the plan according to an agreed-upon scheduje, the violation then may be treated by issuing an NOV at Severity Level IV. In this case, where the NOV is not issued until the corrective action is completed, a response to the NOV normally would not be required.
If the licensee is not responsive, does not provide an acceptable plan for meeting the decommissioning financial requirements, or is not implementing the plan according to an agreed-upon schedule, escalated enforcement action in the form of an NOV, civil penalty and/or Order is appropriate. These enforcement decisions will be made on a case-by-case basis. This guidance may be expanded or modified as further experience is gained.
In processing these cases, an EA number is to be obtained prior to issuing the letter (Form 2-1) using the standard EA request form (page C-7 of the Manual).
Following the licensee's response, the determination of the severity level and sanction, if appropriate, is to be discussed on the week 1v OE oanel for the resoective reaion. Appropriate regional and Division of Waste Management staff will participate in weekly 0E panels involving escalated enforcement action in response to clarification rule violations. ,
In the event an application for renewal of a license is outstanding under these circumstances, the staff may deny the license renewal application and
' Corrective action normally is not considered in determining severity level. Enforcement Manual, Section 3.5.6. In this case, categorization at severity Levet IV is warranted where the violation does not represent a sinnificant f at ture to meet deconsnissioning requirements and therefore does not meet the criteria in Example VI.C.11. The significance of a vlotation is increased if the licensee has notice of the vlotation but is either unwitting or unable to achieve conpliance.
I require decontamination and decommissioning. In addition to the normal Commission notification for Orders and Civil Penalties, the staff in .
accordance with NMSS policy, should notify the Commission of denials of license renewal applications in the weekly highlights.
4 As the staff considers escalated enforcement action, it should also consider, on a case-by-case basis, matters such as the licensee's financial status, the types and levels of contamination at the site, and the steps needed to ensure protection of the public health and safety if the licensee should declare bankruptcy, abandon the site, or both. The staff will analyze options for I ensuring that the needed remediation steps are accomplished. I l
Enclosures:
j
- 1. Standard Form 2-I '
- 2. Standard Citations 30-23 through 30-26 l l
cc: E. Jordan, DED0 I
J. Goldberg, 0GC 1
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' FORM 2-I: Cover Letter Transmitting an Apparent Violation of Decommissioning Funding Assurance Requirements as a Result of a Records Review and Requesting Response EA (Name of Licensee)
(Address)
SUBJECT:
APPARENT VIOLATION - 10 CFR (soecify. e.a. 30.35(c)(4))
Dear :
This refers to a review of records associated with your NRC License No.
(insert number) .
The purpose of this review was to determine your compliance with (soecify. e.a. 10 CFR 30.35. " Financial assurance and recordkeepina for decommissionina") . At the conclusion of the review, the findings were discussed with (name(s) of licensee reoresentative(s)) of your facility in a (teleohone conversation) / (meetino) on (date) .
Based on the results of this review, (number) apparent' violation (s) was
, (were) identified as follows and is (are) being considered for escalated enforcement action in accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600:
[The narrative that follows should briefly discuss the nature of the apparent violation (s) with references to the applicable section(s) of the regulations or regulatory requirements. The text for this section should be adapted from the applicable Standard Citation, e.g.,
I "10 CFR 30.35(c)(4) requires that any licensee subject to the provisions
- of 10 CFR 30.35(a) or (b) that submitted an application for renewal of the license before July 27, 1990 must provide financial assurance for 4
decommissioning in accordance with 10 CFR 30.35(a) and (b) by November 24, 1995. Your' license authorizes the possession and use of a
(cuantity) of (nuclide) ; therefore you are subject to 10 CFR (specify "30.35(a)" or "30.35(b)" . Additionally, you applied for renewal of your license on (date) . However, our records review indicates that you have failed to submit a decommissioning funding plan."]
The circumstances surrounding this (these) apparent violation (s), the significance of the issues, and the need for prompt corrective action were discussed with your staff during the (telechone conversation) / (meetino) on (date) . As a result, it may not be necessary to conduct a predecisional enforcement conference in order to enable the NRC to make an enforcement decision. However, a Notice of Violation is not presently being issued for results of the records review. Sefore the NRC makes its enforcement decision, we are providing you an opportunity to either: (1) respond to the apparent violation (s) described above within 30 days of the date of this letter or (2) request a predecisional enforcement conference within 7 days of the date of this letter.
. . _ _ . . . _ _ _ _ _ _ ~ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ . _
4 Your response should be clearly marked as a " Response to An Apparent j
. Violation" and should include for each apparent violation: (1) the reason for the apparent violation, or, if contested, the basis for disputing the apparent violation, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be_taken to avoid further violations, and (4) the date when full compliance will be achieved. Your i
response should be submitted under oath or affirmation and may reference or include previous docketed correspondence, if the correspondence adequately
- addresses the required response. If an adequate response is not received j within the time specified or an extension of time has.not been granted by the
. NRC, the NRC will proceed with its enforcement decision or schedule a
- predecisional enforcement conference.
j In addition, please be advised that the number and characterization of apparent violations described above may change as a result of further NRC
- review. You will be advised by separate correspondence of the results of our j.
deliberations on this matter.
I Please not that the promptness and comprehensiveness of your corrective actions will be considered in determining the severity level of ADX violations and associated sanctions. Violations of the decommissioning funding i
requirements may be categorized at Severity Level III in accordance with the Enforcement Policy and may be subject to escalated enforcement action, 4
including civil penalties. However, if you provide an acceptable plan for meeting the financial assurance requirements and fully implement the plan in accordance with an agreed upon schedule, the NRC will give consideration to categorizing the violation at Severity Level IV without assessing a civil penalty. You should be aware that the severity level of a violation may be increased if a licensee has notice of the violation but is either unwilling or
- unable to achieve compliance. In such cases, daily civil penalties may be j_ assessed until the violation is corrected.
3 l Should you have any questions, please contact (name of Reoion contact) at
- (teleohone number) .
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In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice," a copy of L this letter and your response (if you are providing one at this point) will be placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards i information so that it can be placed in the PDR without redaction.
}
- Sincerely, i
j-
. Regional Administritor j or Designated Division Director i Docket No.
- License No.
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l STANDARD CITATIONS FOR VIOLATIONS OF THE CLARIFICATION OF DECOMMISSIONING FUNDING ASSURANCE RULE NOTE: For a violation of 30.35(c)(4), first determine whether the licensee is subject to 10 CFR 30.35(a) or (b). Use either 30-32 or 30-33, as appropriate, followed by 30-34. 1 l
30-32 10 CFR 30.35(a) requires each applicant for a specific license authorizing possession and use of unsealed byproduct material pf half-life greater than 120 days and in quantities exceeding 10 times the applicable quantities set forth in 10 CFR Part 30 1 Appendix B to submit a decommissioning funding plan as described in 10 CFR 30.35(e). The decommissioning funding plan must also be <
sugmitted when a combination of isotopes is involved if R divided by 10 is greater than 1 (unity rule), where R is defined as the sum of the ratios of the quantity of each isotope to the applicable value in 10 CFR Part 30 Appendix B.
30-33 10 CFR 30.35(b) requires, in part, that each applicant for a specific license authorizing possession and use of byproduct material of half-life greater than 120 days and in quantities specified in 10 CFR 30.35(d) must either--(l) Submit a decommissioning funding plan as described in 10 CFR 30.35(e); or (2)
Submit a certification that financial assurance for decommissioning has been provided in the amount prescribed by 10 CFR 30.35(d) using one of the methods described in 10 CFR 30.35(f).
30-34 10 CFR 30.35(c)(4) requires any licensee who has submitted an application for license renewal before July 27, 1990, to provide financial assurance for decommissioning in accordance with 10 CFR 30.35(a) and (b). This assurance was required to be submitted by November 24, 1995.
Contrary to the above, the licensee applied for renewal of Byproduct Material License (number) on (date) , and the license authorizes possession and use of (ouantity) of (nuclide) and is therefore subject to 10 CFR (soecify "30.35(a)" or "30.35(b)" ; however, as of (date) , the licensee did not submit a decommissioning funding plan or otherwise satisfy the requirements for providing financial assurance for decommissioning.
This is a Severity Level violation (Supplement VI).
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,e 30-39 10 CFR 30.36(e)(1) requires that any license who has not provided financial assurance to cover the detailed cost estimate submitted with the decommissioning plan shall do so by November 24, 1995.
Contrary to the above, the licensee submitted its detailed cost estimate for decommissioning on (date) ; however, as of (date) , the licensee has not provided financial assurance to cover the detailed cost estimate.
This is a Severity Level violation (Supplement VI).
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'. ,'o require decontamination and decommissioning. In addition to the normal Commission notification for Orders and Civil Penalties, the staff in accordance with NMSS policy, should notify the Commission of denials of license renewal applications in the weekly highlights.
As the staff considers escalated enforcement action, it should also consider, on a case-by-case basis, matters such as the licensee's financial status, the types and levels of contamination at the site, and the steps needed to ensure protection of the public health and safety if the licensee should declare bankruptcy, abandon the site, or both. The staff will analyze options for ensuring that the needed remediation steps are accomplished.
Enclosures:
- 1. Standard Form 2-1
- 2. Standard Citations 30-23 through 30-26 cc: E. Jordan, DED0 J. Goldberg, OGC Distribution:
JLieberman, OE OE Staff Enforcement Coordinators RI, RII, RIII, RIV EGM File Day File l
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