ML20138M865

Errata to Change Notice Number 3 to Rev 1 to NRC Enforcement Manual. Replacing Listed Pages W/Encl Corrected Pages

ML20138M865
Person / Time
Issue date:	02/28/1997
From:	NRC
To:
References
NUREG-BR-0195, NUREG-BR-0195-R1-ERR, NUREG-BR-195, NUREG-BR-195-R1-ERR, NUDOCS 9702260349
Download: ML20138M865 (12)

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/N "o, UNITED STATES

%,*****, NUCLEAR REGULATORY COMMISSION Washington, D.C. 20555 - 0001 February 1997 ERRATA I

Report Number: NUREG/BR-0195, Rev.1 Report

Title:

.NRC Enforcement Manual, Rev.1 Change Notice No. 3 Prepared by: Office of Erfu cement Date Published: November 1996

,Q Instructions: Please replace the pages listed on this errata with the enclosed V corrected pages Location Pages Thble of Contents xvii /xviii Introduction xxiii/ xxiv Chapter 7 43/44 Appendix B - Index B-v/B-vi

, Appendix B - Form 41 B-213/B-214 4

Note: For accuracy, Introduction page xxiv reflects the change to the Enforcement Policy concerning termination of the trial program for open predecisional enforcement conferences.

The bulk of the changes that need to be made to address this Enforcement Policy change will be made in Change Notice 4 to the Manual, which is being prepared.

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4 Table of Ca=*=de 4

i 8.6.6 Actions Involving Radiation Safety t Officers (RS0s) . . . . . . . . . . . . . . . . . . 35

\- 8.6.7 Information Copies to Outside Organizations . . . . . 36 i

8.6.8 Possession of Material Without a License . . . . . . . 36 i 8.6.9 Severity Level For Failure to i Report A Misadministration . . . . . . . . . . . . . 36

8.7 Miscellaneous Matters - Supplement VII . . . . . . . . . . . 38

. 8.8 Emergency Preparedness - Supplement VIII . . . . . . . . . . 38 i

8.8.1 10 CFR 50.54 Deficiency Grace Period . . . . . . . . . 38 8.8.2 Actions Involving Emergency Exercises . . . . . . . . 39 I

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NUREG/BR-4195 xvii Rev.11/M

Talde of Contents APPENDICES .

Appendix A: Temporary Enforcement Guidance Appendix B: Standard Formats for Enforcement Packages Appendix C: Administrative Information & Forms Appendix D: Standard Citations for Enforcement Actions I Appendix E: MOV Between the NRC and D0J *I l

Appendix F: MOU Between the NRC and DOL  !

Appendix G: MOU Between the NRC and D0T Appendix H: Statements of Consideration for the Final Rule on Cnmpleteness and Accuracy of Information Appendix I: Statements of Consideration for the Final Rule on Deliberate Misconduct by Unlicensed Persons Appendix J: NRC Systems of Records: NRC-3, " Enforcement Actions Against Individuals," and NRC-6, " Discrimination Cases" POLICY STATEMENTS O

Hot Particle Enforcement Enforcement Policy Regarding Occupational Doses  !

Policy: From Hot Particles Enforcement Policy: General Statement of Policy and Procedure for NRC Enforcement Actions, NUREG-1600, (60 FR 34381; June 30, 1995)

O U

Introduction

'O O Introduction The Commission has developed an enforcement program and Enforcement Policy to support the NRC's overall safety mission in protecting the public and the environment. Consistent with that purpose, enforcement action should be used as a deterrent to emphasize the importance of compliance with regulatory

' requirements, and to encourage prompt identification and prompt, comprehensive ccrrection of violations.

• Violations are identified through inspections and investigations. All violations are subject to civil enforcement action and may also be subject to criminal prosecution. After an apparent violation is identified, it is assessed in accordance with the Commission's Enforcement Policy. The Policy is published as NUREG-1600, " General Statement of Policy and Procedure for NRC Enforcement Actions," to provide widespread dissemination. Because it is a policy statement and not a regulation, the Commission may deviate from this statement of policy and procedure as appropriate under the circumstances of a particular case.

" There are three primary enforcement sanctions available: Notices of Violation, civil penalties, and orders. A Notice of Violation (N0V) summarizes the results of an inspection, identifies a requirement and how it was violated, and formalizes a violation pursuant to 10 CFR 2.201. A civil penalty is a monetary fine issued under authority of section 234 of the Atomic Energy Act. That section provides for penalties of up to $100,000 per violation per day; but that O amount has been adjusted by the Debt Collection Improvement Act of 1996 to be Q/ $110,000. NOVs and civil penalties are issued based on violations. Orders may

' be issued for violations, or in the absence of a violation, because of a public health or safety issue.

The Commission's order issuing authority is broad and extends to any area of licensed activity that affects the public health and safety. Orders modify, suspend, or revoke licenses or require specific actions by licensees or individuals. As a result of a rulemaking in 1991, the Commission's regulations now provide for issuing orders to individuals who are not themselves licensed.

The first step in the enforcement process is assessing the severity of the

• violation. Severity Levels range from Severity Level I, for the most significant violations, to Severity Level IV for those of more than minor concern. Minor violations are not subject to formal enforcement action. Severity levels may be

• increased for cases involving a group of violations with the same root cause, repetitive violations, or willful violations.

A predecisional enforcement conference is normally conducted with a licensee before making an enforcement decision if escalated enforcement action (i.e.,

Severity Level I, II, or III violations, civil penalties or orders) appears to be warranted, and if the NRC concludes that it is necessary or the licensee requests it. If the NRC concludes that a conference is not necessary, it will normally provide a licensee with an opportunity to respond to the apparent violations before making an enforcement decision. The purpose of the conference is to obtain information that will assist the NRC in determining the appropriate b NUREG/BR-0195 xxiii Rev.11/%

Introduction enforcement action, such as: (1) a common understanding of facts, root cayses and missed opportunities associated with the apparent violations, (2) a common understanding of corrective action taken or planned, and (3) a common understanding of the significance of issues and the need for lasting comprehensive corrective action. The decision to hold a conference does not mean that the agency has determined that a violation has occurred or that enforcement action will be taken. In accordance with the Enforcement Policy, confrences are normally open to the public. However, the Commission will close coeferences under certain circumstances. .

Civil penalties are considered for Severity Level III violations and are u Wy assessed for Severity Level I and II violations and knowing and conscious

• violations of the reporting requirements of Section 206 of the Energy Reorganization Act.

The NRC imposes different levels of civil penalties based on a combination of the type of licensed activity, the type of licensee, the severity level of the violation, and (1) whether the licensee has had any previous escalated enforcement action (regardless of the activity area) 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 are prompt and comprehensive; and (4) whether, in view of all the circumstances, the matter in 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 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 twice the base civil penalty. (See the Base Civil Penalty Tables on page xxvii and the Civil Penalty Flowchart on page xxix.)

If a civil penalty is to be proposed, a written Notice of Violation and Proposed Imposition of Civil Penalty is issued and the licensee has 30 days to respond in writing, by either paying the penalty or contesting it. The NRC considers the response, and if the penalty is contested, may either mitigate the penalty or impose it by order.

If the civil penalty is to be imposed by order, the order is published in the Federal Register. Thereafter, the licensee may pay the civil penalty or request a hearing. ,

In addition to civil penalties, orders may be used to modify, suspend, or revoke licenses. Orders that modify a license may require additional corrective

• actions, such as removing specified individuals from licensed activities or requiring additional controls or outside audits. The NRC issues a press release with a proposed civil penalty or order.

Rev. 2/97 xxiv NUREGiBR-0195

Mw=-= Guidance Chapter 7 1

Supplement VII of the Enforcement Policy also includes an example of a

' Severity Level III violation involving threats of discrimination or restrictive agreements, both of which are violations under NRC regulations such as 10 CFR 50.7(f). This type of violation is categorized at a Severity Level III because the potential impact on future protected activity may be of significant regulatory concern.

Some discrimination cases may occur which, in themselves, do not warrant a Severity Level III categorization. Example D(6) of Supplement VII is an

!' example of a Severity Level IV violation to address these situations. An example of such a case might be a single act of discrimination involving a first-line supervisor, in which the licensee promptly investigates the matter on its own initiative, takes prompt, decisive corrective action to i limit the potential chilling effect, and thereby provides a clear message j to other supervisors and employees that such conduct will not be j tolerated. Another example might involve a threat of adverse action 4

' against an employee for going around the supervisor to raise a concern; if the licensee took prompt, aggressive corrective action before any adverse

action was taken toward the employee, such a case might.be considered as

having minimal potential for a widespread chilling effect. These cases i

would be categorized at a Severity Level IV because they are of more than j minor concern and, if left uncorrected, could lead to a significant l regulatory concern. Severity Level IV violations would normally be l considered for exercising enforcement discretion if warranted under i SectionVIIB(7). However, citations would normally be made if one of the i four exceptions in that section were applicable.

' If the staff believes that a predecisional enforcement conference is i

necessary, the region should prepare a letter to the" licensee using

? Form 1-II in Appendix B.

When the enforcement action is prepared, the transmittal letter to the

, licensee should note that the licensee is not required to respond to the 4

10 CFR 2.201 questions until after the D0L ALJ decision and the i 10 CFR 2.205 questions (if a civil penalty has been proposed) until 30 days after the Secretary of Labor has issued a ruling. The response

paragraphs in the citation should also note this provision.

If a Commission paper is required for the enforcement action and the action is based on a decision and finding of discrimination by the D0L, the Commission paper must contain a brief but reasonably precise description of the acts of discrimination, a brief summary of the D0L's (ALJ or Secretary of Labor) reasoning, copies of the D0L decisions, and, in cases where the staff differs with the D0L decision, the staff's reasons for differing.

7.7.6 Discretion For Violations Involving Discrimination It is recognized that there are some cases of discrimination where enforcement action may not be warranted. Section VII.B.5 of the Enforcement Policy provides an explanation of the types of cases in which NUREG/BR 4195 43 Rev.11/96

Chapter 7 Miscellaneous Guidance i

the NRC may refrain from taking enforcement action and those in which the NRC normally would not exercise such discretion. See Section 6.3.5 for specific guidance on the issue of exercising discretion for violations involving discrimination.

7.7.7 Continuing Violations Involving Discrimination Most violations of prohibitions on discrimination (e.g., 10 CFR 50.7),

such as a discriminatory termination or a failure to grant a promotion as ,

the result of engaging in protected activities, are not considered

" continuing."

An exception may apply to cases involving a hostile work environment.

Usually acts of discrimination or a pattern of activities or events would need to be identified as having produced a hostile work environment. If, following the initiating event, the hostile environment persisted, a continuing violation may exist such that daily civil penalties may be appropriate for each day that the hostile work environment continued.

This is an area in which the law is evolving. OE will consult with OGC on cases involving a hostile work environrec,t or the potential for

" continuing" discrimination.

7.7.8 Enforcement Actions In Cases Involving Contractors This section provides guidance concerning taking enforcement action .in cases in which a contractor of the licensee discriminates against an individual.

7.7.8.1 Enforcement Actions Against Licensees For Actions of Contractors The Comission's long-standing policy has been and continues to be to hold its licensees responsible for compliance with NRC requirements, even if licensees use contractors for products or services related to licensed activities. Thus, licensees are responsible for having their contractors maintain an environment in which contractor employees are free to raise concerns without fear of retaliation. -

Nevertheless, certain NRC requirements apply directly to contractors of licensees (see, for example, the rules on deliberate misconduct, i such as 10 CFR 30.10 and 50.5 and the rules on reporting of defects and noncompliances in 10 CFR Part 21). In particular, the Comission's prohibition on discriminating against employees for raising safety concerns applies to the contractors of its licensees, as well as to licensees (see, for example,10 CFR 30.7 and 50.7).

Accordingly, if a licensee contractor discriminates against one of its employees in violation of applicable Comission rules, the Comission intends to consider enforcement action against bo_th o the Rev.11/% 44 NUREG/BR-0195

Standard Fonnats - Index Appendix B FORM 25-I: Demand for Information (Reacter Licensee) . . . . . . . . . . 129 FORM 25-II: Demand for Information (Materials Licensee) . . . . . . . . . 133 FORM 26: Enforcement Notification for Proposed Civil Penalty . . . . . 137 FORM 27: Enforcement Notification for Order Imposing Civil Penalty . . 139 1

j . FORM 28: " Chilling Effect" Letter . . . . . . . . . . . . . . . . . . 141 FORM 29: Request for Information Letter to DOL . . . . . . . . . . . . 145 FORM 30: Cover Letter Transmitting NOV to Licensed Operator who has a Positive Drug or Alcohol Test . . . . . . . . . . . 147 FORM 31: Notice of Violation to Licensed Operator for Positive Drug or Alcohol Test . . . . . . . . . . . . . . . . . . . . . . . 149 FORM 32: Letter With NOV and Expiration of License to Licensed Operator who has a Positive Drug or Alcohol Test . . . . . . . . . . 151

FORM 33-I

Order Modifying License (Reactor Licensee)

(prohibiting involvement by individual employee in certain NRC-licensed activities) . . . . . . . . . . . . . . . . . . 153 FORM 33-II

Order Modifying License (Materials Licensee) l (prohibiting involvement by individual employee in certain 1 NRC-licensed activities) . . . . . . . . . . . . . . . . .. 159 i

FORM 34-I: Order Prohibiting Involvement in NRC-Licensed Activities 3 (Effective Imediately) j (Individual employed by Reactor Licensee) . . . . . . . . . . 165 FORM 34-II: Order Prohibiting Involvement in NRC-Licensed Activities (Effective Imediately)

(Individual employed by Materials Licensee) . . . . . . . . . 171 1

FORM 35-I: Order Prohibiting Involvement in NRC-Licensed Activities

. (Non-Imediately Effective)

(Individual employed by Reactor Licensee) . . . . . . . . . . 177 e FORM 35-II: Order Prohibiting Involvement in NRC-Licensed Activities (Non-Imediately Effective)

(Individual employed by Materials Licensee) . . . . . . . . . 183 O U NUREG/BR-4195 B-v Rev. 6/96

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Appendix B Standard Fonnats - Index FORM 36-I: Demand for Information ,

(Individual employed by Reactor Licensee) . . . . . . . . . . 189 FORM 36-II: Demand for Information (Individual employed by Materials Licensee) . . . . . . . . . 193 FORM 37: Notification to DED0 and Commission on Issuance of Enforcement Actions Older Than 18 Months .......... 197 FORM 38: Letter of Reprimand to an Unlicensed Individual . . . . . . . 199 .

FORM 39: Letter of Reprimand to a Licensed Individual ........ 201 FORM 40: Settlement Agreement .................... 203 FORM 41: Confirmatory Order Settling Civil Penalty Imposed by Order . 209 FORM 42: Predecisional Enforcement Conference Confirmation Letter i to Individual . . . . . . . . . . . . . . . . . . . . . . . . 215 l l

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Appendix B FORM 41, Page 5

3. If Mr./Ms. , (name of licensee) , or a successor ent.ity violates paragraph 2. of this section of the Confirmatory Order, then the remaining unpaid civil penalty amount shall be due and payable by Mr./Ms. immediately and without further notice.

FOR THE NUCLEAR REGULATORY COMMISSION Deputy Executive Director for Dated at Rockville, Maryland this day of (Month) 19(XX) b V

e a

8 NUREG/BR-4195 B-213

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