ML20147E953
| ML20147E953 | |
| Person / Time | |
|---|---|
| Issue date: | 02/24/1988 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8803070198 | |
| Download: ML20147E953 (33) | |
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OR,G AAL .
t C' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
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Title:
Affirmation / Discussion and Vot'e l
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Location: Washington, D. C.
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Date: rebruary 24, 1988 Pages: 1- 7' l
, Ann Riley & Associates
- Court Reporters 1625 I Street, N.W., Suite 921 ~
Washington, D.C. 20006 j (202) 293-3950 l .
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9903070190 000224 I PDR 10CFR PDR PT9.7 1
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6 This Is an unofficial transcript of a meeting of the 7 United States Nuclear Regulatory Commission held on 8 2/24/88 .. In the Commission's office at 1717 H S t r ee t ,
9 ' N tJ . , Washington, D.C. The meeting was open to public 10 at'tendance and observation. This transcript has not been 11 reviewed, corrected, or edited, and it may contain 12 inaccuracles.
15 The t e,anscr i p t is intended solely for general 14 informational purposes. As provided by 10 CFR 9.103, it is 15 not part of the formal or Informal record of decision of the 16 matters discussed. Expressions of epinion in this transcript 17 do not necessarily reflect final determination or beliefs. No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any statement 20 or argument contained herein, except as the Commission may 21 authorize.
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1 UNITED STATES OF AMERICA-2 NUCLEAR REGULATORY COMMISSION 3 a a a 4 AFFIRMATION / DISCUSSION AND1 VOTE 5 * *
- 6 PUBLIC MEETING 7 * *
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9 Nuclear Regulatory Commission.
Room-1130 10 -1717 H Street, Northwest Washington,-D.C.
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February 24, 1988
'f 12 13 14 15 The Commission met in open session, pursuant to 16 notice at 3:33 p.m., the Honorable LANDO W. ZECH, JR.,
17 Chairman of the Commission, presiding.
18 19 COMMISSIONERS P R E S EllT :
20 LANDO W. ZECH, Chairman of the Committee 21 THOMAS M. ROBERTS, Commissioner 22 FREDERICK M. BERNTHAL, Commissioner 23 KEN!!ETH C. ROGERS, Commissioner .
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1 STAFF AND JPRESENTERS' SEATED AT' TABLE:
2 S._CHILK - Secretary-3 _W. PARLER - OGC; ,
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1 P' R O 'C EED I NG S-2 CHAIRMAN ZECH: Good afternoon ladies, and 3 gentlemen._ Mr. Carr will not be_with us this afternoon.
4 This is a an Affirmation Session. I understand we have 5 one item to come before us this - afternoon.
6 Before asking the Secretary to lead'us through 7 that item, do any of my fellow Commissioners have any 8 remarks to make? '
9 COMMISSIONER BERNTHAL: Well, I -- a small family 4
10 here today, I'm a little concerned about one element-of 11 the final language here, Mr. Chairman. It's only a matter
( 12 of --
13 MR. CHILK: Commissioner Bernthal, before you 14 start, could I ask the Commission to vote to hold this 15 meeting on a short notice, please.
16 COMMISSIONER BERMTHAL: Certainly.'
17 CHAIRMAN ZECH: All right. Will you do so, 18 please.
19 (Chorus of ayes.]
l 20 MR. CHILK: Thank you, Commissioner.
21 COMMISSIONER BERNTHAL: My concern is one.that l 1
. R 22 nobody may notice, but it's the sentence here, "The l l
.3 Commission has_ reconsidered this policy because some ~I 1 I i
24 individuals believe'it implies that enforcement. action, "
25 and the words that were added is, "some individuals
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1 believe." Otherwise it had been "because it implies an-2 enforcement action would not normally be reopened."
3 Although obviously I have no difficulty'with that 4 addition -- in fact, that's almost a direct quote without 5 that addition.. It's almost a direct quote of the language 6 that in fact we used.. I,t - j u s t seems to me we are likely 7 to embarrass ourselves'slightlyLif we'go ahead with~that.
8 It's all up to you.
9 CHATRMAN ZECH: No, let's see. I think that was 10 probably my thought. .
11 COMMISSIONER BERNTHAL: It was, and I understand ,
12 what you are saying and it's true, except that it seems to 13 me almost on the face of it, it does imply.
14 CHAIRMAN ZECH: Yes. Well, I think that's a good 15 suggestion. I'd just as soon withdraw --
16 COMMISSIONER ROBERTS: It's up to you.
17 CHAIRMAN ZECH: I'll withdraw if nobody has any 18 problem with it. Tom, do yor. -- it doesn't --
I think 19 that's fine with me to take that out of there. If you 20 would, Mr. Secretary.
21 COMMISSIONER BERNTHAL: I'm just afraid the sound 22 of it is --
23 CHAIRMAN ZECH: Sure. Fine. I think that's 24 not --
25 COMMISSIONER ROGERS: Well, Mr. Chairman, if we
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1 a o doing a little.wordsmithing, I don't want,toLgostoo
'2 ~far,'but I would like ~ to suggest that the word inithe.-
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'3l begining-summary, the little-handwritten sentence.that-4 begins, "Inasmuch as-this action concernsja generalL .
5 statement".,.if-you could. substitute'"since"lI'd prefer.it,
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6 but I don't feel very -- for inasmuch.-- [
7 CHAIRMAN ZECH: I'm not-following you. I'm. j
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8 sorry.
9 COMMISSIONER ROGERS:- I'm sorry. . .It's on=the. -t a +
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10 first page in the-summary. paragraph.
11 CHAIRMAN ZECH: Okay. .
12 MR. CHILK: The suggestion is that we-substitute i 13 the word "since," I think, instead of --
14 COMMISSIONER. ROGERS: For "inasmuch". "Inasmuch" i 15 is a kind of vague thrashing around --
l' 16 COMMISSIONER BERNTHAL: Slightly theological.
i 17 COMMISSIONER ROBERTS: Inasmuch.as. Delete the l 4
18 "as" also. -!
19 COMMISSIONER ROGERS: Yes. Right.
20 CHAIRMAN ZECH: All right. That sounds fine to ,
l 21 me, too. Does anybody have any problem withithat small i
22 editorial change? :
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, 23 COMMISSIONER BERNTHAL: Fine. Fine.
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. 24 CHAIRMAN ZECH: All'right. Do you ,have'.th'at, Mr.
25 -Secretary?
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l MR. CHILK: The item for affirmation,-Mr.
2 Chairman, is Secy 88-33'. A reconsideration of the
. 3 enforcement policy provision involving reopening of closed 4 cases.
5 The Commission in.this paper'is being asked to 6 approve modific~ations to the Commission's enforcement 7 policy which are contained in Appendix C, 10 CFR'Part 2.
8 The revisions-clarify the Commission's policy _on 9 reopening closed-enforcement actions.
10 All Commissioners have approved the proposed 11 revisions as modified by the Chairman, Commissioner Carr, 12 and as modified at the table'today, ,and attached our 13 memorandum of February 23rd. Would you please affirm your ;
14 Votes.
- 1 15 (Chorus of ayes.)
16 MR. CHILK: I have nothing further.
i 17 CHAIRMAN ZECH: All right. Well, I don't think 18 those editorials, Mr. Secretary, would make any difference 19 as far as Mr. Carr is concerned, but he's not here to say '
20 anything. Could you clarify that before you go forward?
21 MR. CHILK: I will clarify that.
22 CHAIRMAN ZECH: I'd appreciate that_very much.
i 23 Anything else to come before us? -
i 24 MR. CHILK: I have nothing.,
25 CHAIRMAN ZECH: All right. We stand adjourned.
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g . i 2 REPORTER'S CERTIFICATE 3
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4 This is to certify that the attached events of a 5 meeting of the U.S. Nuclear Regulatory Commission entitled: '
6 t' 7 TITLE OF MEETING: Affirmation / Discussion and Vote 8 PLACE OF MEETING: Washington, D.C.
- 9 DATE OF MEETING: February 24, 1988 10 -
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11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the commission taken ,
/' 13 stenographically by me, thereafter reduced to typewriting by 14 me or under the direction of the court reporting company, and 15 that the transcript is a true and accurate record of the 16 foregoing events. '
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I RULEMAKING ISSUE i (Affirmation) l l
January 29, 1988 SECY-88-33 For: The Comissioners From: Victor Stello, Jr.
Executive Director for Operations
Subject:
RECONSIDERATION OF ENFORCEMENT POLICY PROVISION INYOLVING REOPENING CLOSED CASES
Purpose:
To obtain Comission approval of a modification of the Enforcement Policy in regard to reopening of closed enforcement cases.
Sumary: During the October 20, 1987 testimony before the Subcomittee on Nuclear Regulation, Chairman Zech, in response to questions from Senator Breaux, comitted to reexamine the provisions in the General Statement of Policy and Procedure for Enforcement Actions (Enforcement Policy) on reopening closed cases. The staff has reconsidered the policy consistent with the Chairman's testimony and proposes that the Comission adopt and publish the modification described in this paper.
Background:
In SECY 86-74 (February 7,1986) the staff recomenced that the Comission adopt a policy for reopening of closed enforcement cases stating:
"The staff believes that if additional information indicates that a previously closed enforcement action was inappropriate, the original action should be withdrawn and the appropriate action taken unless the deterrent benefits associated with such action would be outweighed by the prejudice to the recipient."
InSECY86-234(August 7,1986)thestaff,recognizingthe reopening issue occurs so infrequently, concluded that the reupening issue should not be in the policy but sought the Comission's approval of the following guidance:
"If significant new information is received by the NRC which indicates that an enforcement sanction was incorrectly applied, that action could be reopened to correct the record. For example, if new information shows that a violation was less serious than originally
Contact:
James Lieberman, OE (x20741)
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' Th'e Comissioners believed, the record'could be changed to reflect a lesser sanction. If, on the other hand, significant.
new information indicates that the sanction was not-severe enough to provide adequate deterrent effect, the record could be reopened to increase the sanction.
However, if the licensee would be severely- or unjustly prejudiced by a change in the enforcement sanction, then the need to correct the record and deter, future misconduct would be balanced against 'this negative effect. Reopening an enforcement action is expected to occur only rarely and would require specific prior approval of the Director, IE."
The Comission on September 17, 1986 disapproved reopening to impose greater sanctions but agreed that reopening is appropriate if new information demonstrates a need to require additional remedial action-to abate the effects of the prior violation. Consissioner Bernthal- believed that reopening should be handled on a case-by-case basis. The Commission adopted the following language for publication in the Enforcement Policy:
"If significant new information is received by the NRC which indicates that an enforcement sanction was incorrectly applied, that action could be . reopened to correct the record. Reopening should occur only (1) if remedial action, e.g., in the form of an order, is necessary to abate the continued harm of a violation to the public health and safety, the comon defense andsecurity,ortheenvironmentor(2)ifnew information shows that a violation was less serious than originally believed or that it did not occur.
Enforcement action would not be reopened where.the only change to the prior action would be to increase the severity level of a violation or to impose or increase a civil penalty. Reopening an enforcement action is expected to occur only rarely and would require specific approval of the Director, IE."
The Comission, on September 10, 1987 in response to SECY 87-152 (June 22, 1987), directed in regard to the reopening issue that the third sentence be revised to state, "Enforcement actions would normally not be reopened where the only change to the prior action would be to increase the severity level of a violation...." (emphasis added). The policy was published on September 28, 1987 with that change.
Eleven coments were received in response to the September Federal Register Notice, two of which addressed the reopening
' issue. Kerr-McGee Corporation stated that it was appropriate to provide a provision in the policy for reopening a closed
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The Comissioners -A-enforcement action but thought it was appropriate to hold a conference with the licensee before reopening a closed case. The staff would expect in most cases, if a sanction would be increased, an enforcement conference would be -
appropriate under the Enforcesent Policy. Bishop, Cook, Purcell and Reynolds, on behalf of eighteen power reactor licensees, supported the provision as published, emphasizing the importance of "finality to enforcement actions."
Discussion: Senator Breaux questioned the basis for reopening a case based on new information if a sanction would be reduced but not if a sanction would be increased. The Chairman stated that the word "norn..'.ly" was intended to put.
Judgment into the decision and that if new evidence showed that a matter was more severe than we thought, we could increase the severity level and make a more severe penalty.
The Chairman cosmitted to look into the matter and let the Committee know the result of the reevaluation. The relevant transcript pages are in Enclosure 1.
Whether or not to reopen a completed enforcement action requires the exercise of sound discretion and judgment.
It is difficult in the absence of a specific case to establish what action, if any, should be taken as a result of new information. Considerations in making a determi-nation to reopen a closed case might include: whether the licensee knew or should have known of the information at the time the original action was closed, the time-that has passed since the action was closed, whether the doctrine of res judicata applies, the opportunities available to learn of the information earlier and the reason for NRC not obtaining it earlier, the significance of the new information, the extent of the change to the enforcement action warranted by the new information, the resources necessary to reopen the case, the need for an increased sanction to provide additional deterrence for the impacted licensee and other similar licensees, whether the licensee acquiesced to the original enforcement action, whether remedial action is needed to abate the effect of the original violation, whether the original violation in fact occurred, and whether the licensee would be severely or unjustly prejudiced by a reopening decision (apart from receiving a more severe sanction).
Recognizing that this is an issue which has arisen very infrequently in the past and should continue to arise very infrequently and that there are many considerations relevant to a reopening decision on the basis of new information, the staff recommends that the Commission not set out in advance the circumstances when the Connission believes it is appropriate to reopen a case. We would then have the
4 Th'e Comissioners .
flexibility to increase or decrease sanctions as appropriate '
on the basis of new information.
Therefore, section V.F. of the Enforcement Policy should be modified to make it clear that the decision to reopen a case is to be made on a case-by-case basis. A draft notice to so modify the policy is set forth in Enclosure 2.
Coordination: The Office of General Counsel has no legal objection to this paper.
Recomendation: That the Comission approve for publication in the Federal Register the modification to the Enforcement Policy set -
forth in Enclosure 2.
Note: Upon resolution of this issue, the Congressional Comittees will be informed.
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J tor Stello,[Jr Executive Director for Operations
Enclosures:
- 1. 10/20/87 Transcript j 2. Federal Register Notice Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, February 17, 1988.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Wednesday, February 10, 1988, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of February 22, 1988. Please refer to the appropriate WeekJy Commission Schedule, when published, for a specific date and time.
DISTRIBUTION:
Commissioners EDO OGC (!! Street) OGC (WF)
OI ACRS OIA ASLBP GPA ASLAP REGIONAL OFFICES SECY
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'3 UNITED STATES yf ie g NUCLEAR REGULATORY COMMISSION 3' t j W ASHING TO N. D. C. 20$55 s 4 .
'% , ,,[' # December 18, 1987 NOTE TO: Jim Lieberman, Director Office of Enforcement FROM: Mike Callahan Congressiona A fairs, GPA
SUBJECT:
TRANSCRIPT OF 10/20/87 BREAUX HEARING - REVIEW 0F ENFORCEMENT POLICY As you requested, here is the portion of the subject hearing transcript
, which covers Sen. Brer.ux's request to review a portion of the NRC's enforcement policy and the Chairman's committment to do so, i
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1 give you an exampte of just.a couple of them.
t 2 First of alL, did the Licensee i t se t f report th e 3 v iol a ti on, or was it ne ce s sa ry for us to find out whe+
4 about the viot ation? If the Licensee itset f reported the ,
t 5 violation, it does make a difference. It depends on what l
6 he said, how Long it had been taking place and whether 7 there was a good-f aith ef f ort to take action immediately.
8 If he reported himself, if he took immediate action to 9 correct i t ,' those things are conside r ed in bbe s iti ga ti ng 10 4+ a possibte pe nal ty . In addition, the pe rf ormance of &be um Some of our plant s do 11 ope r a tee ov er time is conside red. ,
12 operate in a truly out standing manne r over many, many 13 years, and if a violation is atLeged to be in the ,
14 "understandable mistake" area or something that was not 15 certainly comptetely ca ret ess and negt igent, that woutd be, j I
i 16 perhaps, sitigating ci rcumstance s. ' 'So I as say ing. that bc * .gsel 17 :: e n ee we Look at on3 a ca se, ba si s.
18 There are times when it seems that common sense and 19 the good j udgment wout d dict ate sitiga tion.
20 senator Breaux. In that same rev ised policy 21 statement, you set out a st a tem e nt that indicates that th e ;
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i 22 consission wilL reopen previously-closed i nv e s t i ga ti ons i
23 when new inf ormation is made av ait abt e regarding that l j 24 inv esti gati on to the Commi ssion, indicating that some l 25 remedial action is needed to protect the human heat th and
L 7 21 1 the saf ety. That is fin'.e 2 But it goes on to say, "or it can be reopened w hen 3 there is an indication that a sev eri ty Level of th e 4 violation should be downgr aded." But the Commission has 5 also stated that in the situation where new ev ide nce 6 indicates that an increase in the sev erity Level of the 7 violation or the imposition of an increase of an 8 al ready-asse sse d civ il pe nal ty is warranted, that 9 "enf or cement action would normalLy not be reopened."
10 What I need is some explanation of the rationale that 11 say s you hav e ' the authority and wilL, in fact, reope n ,
12 inv esti ga ti ons when i t is de'termined that a Less severe 13 pe nal ty may be requi red w hich you wilL not do so when the 14 ev ide nce indicates that a greater penalty should be ,
a s se s se d. It makes no se nse to me at atL. As I reading i t 15 16 wrong, or do you hav e a r a ti onal e fo'r that?
17 Admiral Zech. You are reading it right, Mr. Chairman.
dA4 18 It is a judgment call, I think. Most of us @e,; th:
19 expe rience we hav e had w ith enf or cement is not alL that 20 sa ti sf act ory. We try to make enf or cement pr om pt and fair, 21 but w e don' t make it as prompt as we woutd L ike to.
22 Often, enforcement ca se s come up sev eral years af ter 23 the incident. At that ti m e, it has been two years or perhaps Less or perhaps more from the i ncide nt. We eEE*4 ct 24 It at $EEE re ope ns 25 ret ease [we have signed a civil penalty.
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. 22 1 the pubt ici ty and the case again. Ev e ry one is involved and 1 2 conce rned about a plant that may have been, f or two yea rs, l 3 ope rating v ery welL; we are talking about something that 4 was two-years old.
It causes a lot of, perhaps, unne ce s sa ry concern. But 5
6 we f eel that ev en though it is not as timely as we like, it 7 is responsibt e action on our pa rt to call attention to w th=+ statement pt:y: 4a *h=t - = ;++4-8 9
these recidente. If ene i t doe s come up that perhaps it was more severe than it "W g l
l 10 might hav e been, in my judgment, perhaps the attention that issnau-61 11 has been brought to its.if the utility h:: -et,((fthere 1,s l 12 no new information that woul'd cause us to be concerned M .i.h MM M- e/w. A !
13 abe*+ acre severe : ident: Or, sore sev ere action, in my D p41d-14 judgment, th e a ct i on, ha s, be e n t a'ke ng 2 nd Lt is sufficient.
15 Sena tor Breaux. Admiral, I understand that, but.with 16 alL respeet to the Consission, I think it is almost 17 Ludicrous f or you to have a policy statement that says that 18 if new evidence is submitted that j ustifies opening an l l
19 i nv e s t i ga ti on, that that evidence indicates we ough t to l 20 reduce the penalty; we wilL reopen that i nv e st i ga ti on. We 21 probably wilL hav e no problen s w ith that.
22 But to follow it up by say ing, "H ow ev e r, if the 23 ev ide nce indicates that an increase in the penalty should 24 be considered, we are not going to open it up."
25 Admiral Zech. If I recall, the wording, I think it
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l 1 says, 'i f 'new ev ide n c e is introduced, then it is a new ball i 1
2 game. If there is new ev ide nce introduced, then, of !
l 3 course, we coutd make a more severe penalty.
4 But if there is not new ev ide nce --
5 Senator Bresux. But the policy statement, I don't ,
1 6 read it Like that. The policy statement said: If new j 7 evidence is not great enough, then we are going to reopen I l
8 th e inv esti ga ti on. I read it as saying that if new 1
evidence indicates that the penalties were too severe, that I 9
l 10 we vill Look at it. But if the evidence indicates an l
11 increase in the penalties should have been justified, thea !
12 we are not going to Look int'o it.
13 Admiral Zech. No, si r. It is my understanding that j 14 if new evidence is introduced or new ci rcum st ance s pr e s.e nt l 15 th em sel v e s, we can start a whole new proceeding.
16 Senator Breaux. Let s e r e a d w h'a t it say s, and you can ;
17 interpret this, because I don' t read it like that.
18 "R eope ni ng closed enf orcement actions." That first 19 paragraph states the general statement of what we are 1
20 doing, and I as reading f rom the Federal Regi ster of 21 Monday, Sept em be r 28, 1987, Rules and Regulations. ,
i 22 "The Commission believ es that reope ning a prev iously l 23 closed enforcement action may be appropriate under certain 24 ci rcum st a nce s. If si gni f i ca nt new information is received 25 by the NRC which indicates that an enforcement sanction was 4
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24 1 incorrectly apptied, th a t acti on could be r eope ned to 2 correct the record." No probles.
3 Reopening should occur only One, if the remedial 4 action in the f orm of an order is necessa ry to abste the 5 continued harm of the violation to the public heat th and 6 saf ety, the conson def ense and se curity or the environment; 7 or, two, if new inf ormation show s that a violation was less 8 se rious than originally believed or th a t it did not occur.
9 Enf orcement action woutd normalLy not be reopened w here the ,
i 10 only change to the prior action would be to increase the 11 sev eri ty Level of a violation or to impose or increase its.
12 civ il penal ty."
13 That sounds pretty clear to se that you are proposing 14 a regulation that say s If we think that we did too much, 15 we are going to reopen it, but if we think and evidence 16 indicates that the change would be to increase the sev er i ty ;
17 Level of the viot ation or to impose or increase a civil ,
f 18 pe na l ty, we are not going to do it.
19 That is what that tells me.
20 Commissioner Bernthat. Mr. Chairman, Let me sake a 21 comment here. The insertion of the word "norm ally" there 22 was a modification that I bet tev e I proposed. I did not 23 endorse the original form of this document, which, I think 24 you are quite right, woutd hav e categorically excluded ev er j 25 reopening a civ il pe na l ty or a case where such reopening 1 .
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- 25 1 woutd be in the interest of making the original finding 2 more sev ere. i 3 The insertion of the word "normalLy" there certainly 4 set some of my obj ections to the original wording, and at 5 Least, I think, th a t does atLou some room for judgment, 6 now, on th e pa rt of reope ni ng, even in a case where a 7 matter might be reopened to impose more severe penalties.
8 But the original version I found unacceptable. It 9 would h av e 'ca tegoricalLy exclude d reopeni ng unde r cLng 10 ci rcum sta nce s.
11 Senator Breaux. I think back. Every ti me I r ead i t,,
12 it is Ludicrous, it realLy i s, bacause we are saying, "A 13 closed enf orcement action is going to be reopened if we are 14 going to reduce the pe nal ty, but it i s not .goi ng t o be, ., .
15 reopened if there is any prospeet for inc r e a se d pe na lty . "
16 If we are going to reopen then','we ough t to open th en I 17 to increase penalties or to downgrade them. This is a 18 total Lack of batance in which we are we opening hearir.gs.
19 This, in my civilian Look at i t, from my po si ti on, is 20 that you can' t justify that. PL ea se telL at how you do.
- 21 Admiral Zech. There is no intention f or there to be a 1
, 22 Lack of balance, Mr. Chairman. The intention that I read 23 into it, and we alL agree with the word "normalLy" is to 24 put judgment into it, and we intend, if there is new 25 evidence that shows that it is more sev er e th an we though t, 1
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we could open a whole new hearing and go to a much higher 2 sev e r h++ t ev el .
Senator Breaux. But that doesn't say th at, though.
3 4 It doe sn' t say that you hav e the j udgment.
It should, Mr. Chairman. That is what 5 Admiral Zech.
6 is meant by it. Perhaps we should look at the wording 7 again. It w as my feeling that we had a very se nsi bt e 8 policy statement in that regard, very sensibt e wording.
9 But if it reads that w ay to you, and pe rhaps it is something, of course, th a t we should Look at. The 10 intention is Jf r[ew evidence is there, we can start over 11 That 17, the' intention. If it doe sn' t say that -- ,
12 again. ,
13 Senator Breaux. New ev ide nce, because this doesn't 14 say that. I think we can alL take a vote here and agree 15 that this sets a dif f erent standard f or reopening an 16 investigation if the evidence indicates that th e pe nal ti es 17 shoutd be increased or that the requirement should be 18 increased. That is what it say s.
Admiral Zech. We wit L ce rtainly take a look at the 19 i wording, Mr. Chai rman. If that is the way you read it, 20 21 that i r. important. That is noc what we intend. If there 22 is .1ew ev i de nc e , it is elear to se we can reopen it. If it 23 is not clear to you, I can telL you we wilL take a look at 24 it.
i Commissioner Bernthat. Mr. Chairman, I have got to 25 l
1
)
re- %-- -
. 27 1
1 stress, the original form of that w as more eggregious than 2 the present-form. I think the be st compromise we were abt e 3 to ge t w as the inse rtion of the word "normalLy".
4 senator Breaux. Are you saying this same thing was 5 discussed at some point within the Consissiont
& Commissioner Bernthat. There is no question it was i V
7 discussed, at Least by paper; it was discussed on vote 8 sheets. ,
9 But I woutd L ike to point out the other side of this ;
10 story, and that is that I think the outcome here is f 11 indicative of a probles that seem s to. be gr ow ing w here we , f 12 try and def ine ev ery conceiv'abt e circumstance for a i 13 procedure or a rule or a policy in this Commission instead 14 of taking rather rare ca se s on a ca se-by-case basi s and 15 making the best judgment that we can. .
W 16 There were a number of com pt ai'nt s .on th e part of various Consissioners, and my se t f included f rom !
17 18 t i m e- t o- t i m e, that in a very late and untimely manner, the 19 Commission woutd come in with a decision on a violation 20 that might have been sitting bef ore the staf f or perhaps l 21 bef ore the Commission f or a year or a year and a hat f, 22 sometimes ev en Longer.
23 This, we felt, wasn't fair. And I think that is the 24 sense that Liss behind the Language which was originally 25 proposed, which I f elt went too far, and the compromise
\
e
~ 28 1 bef ore you does at Least allow.us a loophole now, I think.
Senator Breaux. Is it improper just to say that the 2
3 consission has the authority to reopen an investiga tion if 4 new evidence indicates that the incident was less serious 5 or more serious or that the penalties should be more or 6 Less on equal footing?
Admiral Zech. No, not at atL. And as I say, 7 .
8 Mr. Chairman, it is my understanding that if new ev ide nce 9 is there, we do hav e that authority, but we wilL certainly 10 Look at that wording again.
11 Senator Breaux. Look at i t, and please let the 12 Committee know what is going to be done as a result of 13 th a t.
14 Admiral Zech. Yes, sir; we wilL do that.
15 Senator B reaux. I think that it should be approached 16 in a bat anced manner. This wording, to me, is clearty not 17 batanced, and apparently, discussions were held with regard 18 to that very poi nt.
- 19 My final question on this enf orcement policy statement 20 relates to the ty pe of viotations that f alL within the 21 various severity categories. I think we have five 22 categories, that the Commission is saying that for Category 23 I through V, Category I'wilL be the most serious violations i 24 down to Category V, and certain proposed type s of pe nal ti e s 25 with regard to viot ations at fault within those categories l
l
, Enclosure 2 '
NUCLEAR REGULATORY COMMIS$10N 10 CFR PART 2 GENERAL STATEMENT OF POLICY AND PROCEDURE FOR ENFORCEMENT ACTIONS ,
1 AGENCY: Nuclear Regulatory Comission ACTION: Modification to policy statement SUMARY: The NRC is publishing a minor modification to its Enforcement Policy to revise its policy on reopening closed enforcement actions. The policy statement describes the policy which the Commission intends to apply in taking enforcement actions. This policy is codified as Appendix C to 10 CFR Part 2.
DATES: This modification to the Enforcement Policy is effective upon publication. Coments may be submitted on or before .
ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Comission,
- Washington, D.C. 20555. ATTN
- Docketing and Service Branch. Hand deliver comments to: Room 1121, 1717 H Street, NW., Washington, DC between 7:30 a.m.
to 4:15 p.m. I l
l Copies of coments may be examined at the NRC Public Document,1717 H Street, N.W., Washington, DC. I I
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555(301-492-0741).
SUPPLEMENTARY INFORMATION:
The Commission on September 23, 1987 issued a revised Enforcement Policy (52 FR 36215 September 28,1987) in which Section V.F. addressed reopening closed enforcement actions. Section Y.F. provided that if significant new information is received which indicates that a previous enforcement sanction was incorrectly applied, the action could be reopened. However, the policy provided that (1) reopening should occur only if remedial action is necessary to abate a continued hann or if the new information shows that the violation was less serious than originally believed or that the violation did not occur, and (2) normally actions would not be reopened where the only change to the prior action would be to increase the severity level of a violation '
or to impose or increase a civil penalty, i I
While comments submitted in response to the September 28, 1987 Federal Register Notice were generally favorable to the wording of section V.F. the Commission has reconsidered this policy because it implies that an enforcement action would not normally be reopened to in:rease a sanction even if such action was warranted.
For example, reopening may be warranted to increase a sanction such as a civil penalty on the basis of new information if the reason NRC did not have the information initially was because the licensee misled the NRC by providing l
false information or withholding the information from the NRC. In such a case, l any prejudice to the licensee is the result of its own action. Reopening would i be justified to provide the appropriate sanction. Not to do so would reward i
a licensee's failure to cooperate with the NRC, which of course cannot be accepted or tolerated. j l
~
. .3 It should be noted that the issue here is reconsidering the existence of the original violation or the circumstances and severity of the original violation.
If the new information supports a different violation, then reopening is not the issue because a new and different enforcement action can be taken.
Whether or not to reopen a completed enforcement action requires the exercise of sound discretion and judgment. It is difficult in the absence of a specific case to establish what action if any should be taken as a result of new information. Considerations in making a determination to reopen a closed case might include: whether the licensee knew or should have known of the infomation at the time the original action was closed, whether the doctrine of res judicata applies, the opportunities available to learn of the information earlier and the reason for NRC not obtaining it earlier, the significance of the new infomation, the extent of the change to the enforcement action warranted by the new information, the resources necessary to reopen the case, the need for an increased sanction to provide additional deterence for the impacted licensee and other sinilar licensees, whether the licensee acquiesced to the original enforcement action, whether remedial action is needed to abate the effect of the original violation, whether the original violation in fact occurred, and whether the licensee would be severely or unjustly prejudiced by a reopening decision (apart from receiving a more severe sanction).
Recognizing that this is an issue which occurs very infrequently and that there are many considerations relevant to a reopening decision on the basis of new infomation, the Commission has deteminec it is inappropriate to set out in
i a-advance the circumstances when the Connission believes it is appropriate to reopen a case. Therefore,Section V.F. of the Enforcement Policy is being modified to make it clear that the decision to reopen a case is to be made on a case-by-case basis.
List'of Subjects in 10 CFR Part 2 Admir.1strative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants '
and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal. l
?
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as l amended, and 5 U.S.C. 553, the NRC is adopting the following modification to its statement of Enforcement Policy in Appendix C to 10 CFR Part 2. !
Part 2 - Rules of Practice for Domestic Licensing Proceedings l
l l
- 1. The authority citation for Part 2 continues to read as follows: '
l i
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615,76 Stat.409(42U.S.C.
2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
, , _ _ . , , . _ , . , , - - - e
i
.. f Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932,'933, 935, 936, 937, 938, asamended(42U.S.C.2073,2092, 2093, 2111, 2133, 2134, 2135); sec; 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332; sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, asamended(42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 St&t.
853asamended(42U.S.C.4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770 aisc issued under 5 U.S.C. 557.
Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 >
U.S.C. 2133) and 5 U.S.C. 552. Section; 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29 Pub.L.85-256,71 Stat.579,asamended(42U.S.C.2039). Subpart K a.lso issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b etseq.).
- 2.Section V.F. of Appendix C - General Statement of Policy and Procedure for NRC Enforcement Actions is revised as follows:
__ _ _._ _______ _ ______ m_______________ .__-_______
.t V. Enforcement Actions F. Reopening Closed Enforcement Actions If significant new infonnation is received or obtained by NRC which indicates that en enforcement sanction was incorrectly applied, consideration may be given, dependent on the circumstances, to re--
opening 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 Deputy Executive Director for Regional Operations.
Dated at Washington, DC, this day of 1988.
For the Nuclear Regulatory Comission Samuel J. Chilk Secretary of the Comission I
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