ML20207F089

Provides Guidance to Staff to Implement New NCV Policy for Power Reactors.Guidance Also Provides That OE Will Concur on All Severity Level IV NOVs for 3-month Period to Assure Consistency in Application of Policy Rev

ML20207F089
Person / Time
Issue date:	02/26/1999
From:	Lieberman J NRC OFFICE OF ENFORCEMENT (OE)
To:	Dyer J, 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-99-002(T), EGM-99-2(T), NUDOCS 9903110157
Download: ML20207F089 (20)

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UNITED STATES j

NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 2000HOO1 February 26, 1999

a EGM 99-002(T) f MEMORANDUM TO

Hubert J. Miller, Regional Administrator, Region I Luis A. Reyes, Regional Administrator, Ril i

James E. Dyer, Regional Administrator, Rill Ellis W. Merschoff, Regional Administrator, RIV i

Samuel J. Collins, Director, NRR William Kane, Associate Director For inspection & Programs, NRR l

Brian W. Sheron, Associate Director for. Project Licensing &

j Technical Analysis, NRR Elizabeth Q. Ten Eyck, Director, Division of Fuel Cycle i

Safety and Safeguards, NMSS Donald A. Cool, Director, Division of Industrial and Medical Nuclear Safety, NMSS John T. Greeves, Director, Division Waste Management, NMSS William E. Brach, Director, Spent Fuel Projects Office, NMSS

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FROM:

James Lieberman, Director Office of Enforcement

SUBJECT:

ENFORCEMENT GUIDANC$ MEMORANDUM - GUIDANCE TO IMPLEMENT INTERIM POWER REACTOR NCV POLICY On January 22,1999, the Commission approved a revision to the Enforcement Policy to address Severity Level IV violations at power reactors. Appendix C was added to the Enforcement Policy and revises the treatment of individual Severity Level IV violations by:

(1) expanding the use of Non-Cited Violations (NCVs) to include Severity Level IV violations identified by the NRC; (2) providing that except under limited, defined circumstances, individual Severity Level IV violations will normally result in NCVs and not Notices of Violation (NOVs);

and (3) permitting closura of most Severity Level IV violations based on their having been entered into a licensee's corrective action program. This revision to the Enforcement Policy was published in the Federal Register on February 9,1999 (64 FR 6388), and will be effective 30 days following publication, i.e., March 11,1999. The Policy revision and this EGM will be available on OE's Home Page.

The purpose of this EGM is to provide gu! dance to the staff to implement the new NCV policy for power reactors. This guidance also provides that the Office of Enforcement (OE) will concur on all Severity Level IV NOVs for a 3-month period to assure consistency in the application of V

this Policy revision. However, this period may be adjusted based on the staff's experience.

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The guidance addresses:

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the' background and purpose of the Policy revision,

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2. the new definition of an NCV and the criteria the staff will use to determine whether to i

issue an NCV or NOV for a Severity Level IV violation; f

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9903110157 990226 PDR ORG SE SEN PDR

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e Multiple Addressees 3. the documentetion and tracking of Severity Level IV violations;

4. the coordination and review for Severity Level IV violations;

5. the signature authority for Severity Level IV violations;

6. the exercise of enforcement discretion for Severity Level IV violations (beyond the defined exceptions in Appendix C); and

7. the provision for and the implementation of an NCV appeal process.

NOTE: The guidance in this EGM should be implemented for all inspection reports issued ca or after March 11,1999. At such time, the guidance in this EGM will supercede the guidance in EGM 98-006 (with the exception of section 4) for Part 50 licensees. The guidance in section 4 of EGM 98-006 addressing reviews of licensee corrective action program records remains valid.

In addition, EGM 98-006 will still be app!icable for Part 76 certificate holders and Part 70 licensees with resident inspectors. In addition, guidance specifically addressed in this EGM supercedes corresponding guidance in the Enforcement Manual, e.g., definition of an NCV, coordination and review, signature authority for Severity Level IV power reactor NOVs, etc.

Guidance in the Enforcement Manual is still valid for issues that are not directly addressed in this:, EGM, e.g., use of multiple examples, exercising discretion under Sections Vll.B.2 - Vll.B.6 for Severity Level IV issues, etc.

l. Background and Purpose of Revised Policy Severity Levol IV violations are defined in the NRC's Enforcement Policy as violations of more than minor concern which, if left uncorrected, could lead to a more serious concern. Violations i

1 at Severity Level IV involve noncompliance with NRC requirements that are not considered significant based on risk. This should not be misunderstood to imply that Severity Level IV issues have no risk significance.

From a safety perspective, Severity Level IV findings may not be the most important matters being addressed in a licensee's corrective action program and represent a small fraction of issues identified by licensees and included in licensee corrective action programs. In some cases, the past Enforcement Policy approach has resulted in licensees placing a higher priority on these violations than their risk significance would merit. The Commission has concluded that there is a benefit to safety if licensees are able to prioritize the resolution of Severity Level IV violations based on their safety significance. This can be accomplished if most Severity Level IV violations are closed by the NRC based on their being entered into a licensee's corrective action program. NOVs will be reserved for those cases where the NRC considers it important to obtain a description of the licensee's corrective actions on the docket.

These changes will enhance the ability of licensees to address issues in their corrective action programs in accordance with their safety and risk significance and may reduce unnecessary burden associated with Severity Level IV violations. It is important that those involved in implementing the NRC's inspection and enforcement programs clearly appreciate that the goal of this revised enforcement approach is not to eliminate regulatory burden or discourage identification of violations. Our regulatory process by its nature properly creates some burden.

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Therefore, this revised enforcement approach does not modify the NRC's emphasis on compliance with requirements. Inspectors should continue to identify and document Severity Level IV violations associated with matters they inspect. The new policy modifies the process for dispositioning Severity Level IV violations; it does not change the threshold for Severity Level IV violations.

Severity Level IV violations will continue to be described in inspection reports, although the NRC will close these violations based on their being entered into the licensee's corrective action program. At the time a violation is closed in an inspection report, the licensee may not have completed its corrective actions or begun the process to identify the root cause and develop action to prevent recurrence. Thus, NRC may not have an understanding of the licensee's planned corrective actions. Licensees are expected to take corrective actions commensurate with the safety significance of the violation. The NRC inspection program will provide an assessment of the effectiveness of the corrective action program. If such assessments identify -

significant violations or programmatic deficiencies in a licensee's corrective action program, broader and more in depth inspections may be carried out to understand the extent of the problem. The NRC will monitor the licensee's restoration of its corrective action program. In addition to documentation in inspection reports, violations will continue to be entered into the Plant Issues Matrix (PIM) that the NRC maintains for each facility to assist in identifying declining performance and determining repetitiveness. The revised approach will allow licensees to dispute violations described as NCVs (see the guidance in Section Vil of this e

EGM).

In conclusion, the intent of these Enforcement Policy changes is to improve process efficiency while continuing to meet NRC objectives. The staff should keep in mind that a basic objective of non escalated enforcement - that is, to monitor Severity Level IV violations as one way of tracking and understanding licensee periarmance trends - remains unchanged. In fact, by reducing the administrative burden on NRC and licensee staff, and by increasing the emphasis on credible, healthy licensee corrective action programs, these changes should improve, rather than reduce, NRC capabilities in this area.

11. NCV Definition and Criteria for Dispositioning Power Reactor Severity LevelIV Violations As previously stated, the new Policy for power reactors provides that Severity Level IV i

violations will normally be dispositoned as NCVs. Notwithstanding that this is the normal policy, the disposition of a Severity Level IV violation as an NCV is still an exercise of discretion, in that l

the agency is making a conscious decision not to issue a legal citation (NOV) for a violation of l

the requirements. Therefore, the definition of an NCV is:

"A Severity Level IV violation for which the staff chooses to exercise discretion in accordance with the Enforcement Policy and refrain from issuing a Notice of Violation pursuant to 10 CFR 2.201."

Although the new Policy provides that Severity Level IV violations will normally be dispositioned j

as NCVs, Appendix C identifies four exceptions where an NOV should be issued. For

- implementation purposes, these four exceptions can be translated into the following decisional points or criteria for determining whether a Severity Level IV violation should be dispositioned i

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-4 as an NCV or NOV: (1) did the licensee fail to restore compliance within a reasonable time after a violeon ovas identified, (2) did the licensee fail to place the violation into a Corrective Action Program (CAP) to address recurrence, (3) is the violation repetitive as a result of inadequate corrective action and was it NRC-identified, and (4)is the violation willful. If the answer to any one of those questions is "yes," then an NOV (normally requiring a formal written response from the licensee) should be issued. These general criteria are more fully discussed below. In addition, Attachment 1, " Severity Level IV Flowchart for Power Reactors," graphically represents the process for dispositioning power reactor Severity Level IV violations as NCVs or NOVs.

1. Did the licensee fail to restore compliance within a reasonable time after a violation was identified?

Note: This criterion applies only to violations that are continuing at the time of discovery (see further discussion below).

The purpose of this criterion is to emphasize the need to take appropriate action to restore compliance in a reasonable period of time once a licensee becomes aware of a violation and, if compliance cannot be reasonably restored, to take compensatory measures until compliance is restored. Absent an exemption, license amendment, or Notice of Enforcement Discretion (NOED), action must be taken to restore compliance. Until compliance can be restored, compensatory measures, as warranted, must be taken.

Restoring compliance is important to prevent an ongoing violation.

For purposes of this criterion, restoring compliance includes those actions taken to stop an ongoing violation from continuing. It does not 2nclude actions necessary to address root causes and prevent recurrence. The NRC recognizes that somo violations require prompt action to restore compliance and some do not based on whether the undcrlying requirement is continuous or conditional. Thus,"within a reasonable time"in this criterion refers to the time needed to stop an ongoing violation from continuing (which should be as soon as possible) or the time needed to take compensatory actions for a continuing violation, and if I

compensatory action is not allowed by the requirement, the time to be in a state where the requirement no longer applies if relief is not provided from the NRC.

For example, if a valve is found in the wrong position, the NRC expects a licensee to take prompt action to either place the valve in the position required by the current mode of operation, take action to be in a state where the requirement no longer applies, or take appropriate compensatory actions. On the other hand, the requirement may not be applicable for the mode or circumstances the licensee is in at the time the violation is identified (as opposed to when it occurred). Reasonableness allows the licensee to delay corrective actions until the requirement is next applicable. For example, if the violation involved an inadequate procedure only used in refueling, action to address the particular procedure and prevent recurrence would not need to be taken until before the next time the procedure would be used; in this case prior to the next refueling.

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2. Did the licensee fail to place the violation into a corrective action program to address recurrence?

The purpose of this criterion is to emphasize the need to consider actions beyond those necessary to restore compliance, including actions necessarf to address root causes and prevent recurrence. Placing a violation into a corrective achon program to prevent recurrence is fundamental to the NRC's ability to close out a violation in an inspection report without detailed information regarding the licensee's corrective actions. The licensee would be expected to provide the NRC with a file reference evidencing that the violation had been placed in the corrective action program. This will assist the NRC should it review the particular violation as part of an NRC inspection of the effectiveness of the licensee's corrective action program.

The staff recognizes that there are violations that do not require substantial efforts to prevent recurrence. For example, an isolated implementation error with more than minor safety significance not reflecting inadequate training, procedures, resources, or oversight.

In such cases, a corrective action process that includes: (1) restoring compliance; (2) evaluating the need for additional corrective actions to prevent recurrence; and (3) maintaining records for trending so that the licensee can have assurance that the matter is in fact isolated, and that may be inspected at a later time would be adequate to avoid an NOV under this criterion.

3.

Is the violation repetitive as a result ofinadequate corrective action AND was it NRC-identified?

The purposes of this criterion are to emphasize the importance of effective corrective action to prevent recurrence and the importance of licensees identifying recurring kSues.

Therefore, an NOV would not normally be considered for a licensee-identified repetitive violation.

For purposes of applying this exception, a repetitive violation is:

A violation that reasonably could have been prevented by the licensee's corrective action for a previous violation or a previous docketed licensee noncompliance finding that occurred within the 2 years prior to the date of the violation.

Consistent with the guidance on determining repetitiveness in Section Vll.B.1.b, it should be noted that an original issue may be a previous violation or a previous licensee finding. In other words, an issue can be considered under this exception lf a licensee identifies a compliance issue that requires corrective action in a Licensee Event Report (LER). It is not necessary for the original compliance issue to be documented and labeled a violation by the NRC.

In determining whether a violation is repetitive, the test is not just whether the violation recurs. The fact that a violatico recurs does not necessarily mean that past corrective action was not reasonable or effective. A violation is considered repetitive if: (1) corrective action for the previous violation or licensee finding had sufficient time to take effect and was deemed inadequate; or (2) adequate corrective action for the previous violation or licensee

l Multiple Addressees finding wasn't taken in a time frame commensurate with its safety significance. The standard for evaluating the past corrective actions is the reasonableness of those actions as they pertain to the nature and significance of the originally identified problem. As long as the corrective actions acceptably address the identified causes and no other significant credible causes exist, and the schedule for and actions necessary for implementation of the corrective actions were appropriate, the licensee's past actions should be considered acceptable and the violation should not be considered repetitive. Further, an NOV would not result if, despite the violation's recurrence, the NRC finds the licensee's corrective actions for the previous violation reasonable at the time the first violation was identified. In making a citation under this criterion, the NRC is expected to be able to address why the licensee's actions were unreasonable and why reasonable corrective action would have prever. ed the second violation.

The previous discussion is especially important when dealing with procedural violations.

Given the vast multitude and diversity of procedural requirements, the fact that a previous procedural violation occurred does not necessarily mean that the current procedural violation is repetitive. The scope of the previous corrective action must be considered. For example, the failure to follow a maintenance procedure would not be considered a repetitive procedural violation based on the existence of a failure to follow a radiation protection procedure that occurred 1 year ago, because it is not reasonable to expect that corrective action for the radiation protection procedural violation (e.g., procedure revision, enhanced training) would have prevented the maintenance procedure violation. There must be a sufficient nexus between the current issue and the previous corrective action.

For implementation purposes, the determination of whether or not a violation is repetitive i

need only be made for those violations identified by the NRC. As previously stated, the purpose of this exception is to encourage licensee identification and correction of repetitive issues. Licensee-identified, non-willful repetitive violations would be cited only if the ineffectiveness of the licensee's corrective action program is significant enough to rise to Severity Level Ill. Before making a decision to issue such a Severity Level lil violation, consideration would be given to additionalinspection effort, issuance of Demands for Information, management meetings, predecisional enforcement conferences, and outcomes of performance assessments.

In applying this exception, it is important to note that the NRC need not have identified the original violation or licensee finding. In addition, for the purposes of this guidance, a violation should not be considered NRC-identified if it is reasonable to conclude that the licensee would have identified the violation in a timely manner had it not been for the NRC identifying the issue. For example, an NOV should not be considered unoer this exception if the NRC identifies a self-disclosing event that the licensee likely would have identified in a timely manner. This provision provides for flexibility to address those situations where it is only happenstance that the NRC identifies a violation first and the lack of licensee identification is not due to inadequate performance.

Therefore, for NRC-identified violations, reasonable reviews must be performed to ensure that the current violation is not a repetitive issue before concluding that an NCV is appropriate. The reviews should be two-part.

l Multiple Addressees The expectation for these reviews would first include a review of NRC inspection findings included in the Plant issues Matrixes (PIMs) and the Reactor Program System (RPS) for previous NCVs and NOVs to determine whether the mrrent violation had previously occurred. In considering previous NRC violations c ansee findings, the staff should only uso docketed information so that the licensee will have been put on notice L, the NRC of the need to take corrective action for a noncompliance or that the licensee is on record as having identified a noncompliance issue that requires corrective action (e.g., LER). Use of licensee corrective action program records is appropriate only to the extent that the inspector or regional staff had previously described the issue in an inspection report or it was described in other docketed inforr.iation. Notwithstanding this provision, the NRC's level of concern about a recurring violation is unrelated to whether it can be cited. In the event a recurring violation is identified and the previous violation was not docketed, then the violation should be dispositioned as an NCV and the documentation should note the NRC's concern about its recurrence and that an NOV will be issued if the violation recurs.

Consistent with existing guidance, original noncompliance issues should be of more than minor significance. In other words, the policy for documenting minor violations and guidance on thresholds of significance in Manual Chapter 0610 has not changed, inspectors should not document minor violations for the purpose of establishing repetitiveness.

In conclusion, the PIM should generally serve as the reference for determining previous l

occurrences for the first review, as it should provide notice to the licensee of NRC findings or violatic-l If this first review identifies a previous violation, then a second review must be performed to determine if: (1) corrective action for the previous violation had sufficient time to take effect and was deemed inadequate; or (2) adequate corrective action for the previous violation j

wasn't taken in a time framo commensurate with its safety significance. Responses to previous NOVs, inspection reports, or the licensee's corrective action program should be reviewed to make this determination. It is acceptable to request background information from the licensee to address this review.

4.

Is the violation willful? If willful, an NCV may be appropriate ifit meets all of the criteria for discretion in Section Vll.B.1 of the Enforcement Policy.

The purpose of this criterion is to emphasize the importance of integrity and candor in carrying out licensed activities, as expressed in Section IV.C. of the Enforcement Policy.

Nonetheless, certain licensee-identified willful violations would remain eligible for treatment as NCVs, as they are under the current policy in Section Vll.B.1. Specifically, an NCV may be appropriate provided:

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a. The information concerning the violation, if not previously reported to the Commission, j

was promptly provided to appropriate NRC personnel, such as a resident inspector or regional branch chief who, in turn, is responsible to get the information to the appropriate regional staff;

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b. The violation involved the acts of a low-level individual (and not a licensee official as defined in Section IV.C of the Enforcement Policy);

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c. The violation appears to be the isolated action of the employee without management j

involvement and the violation was not caused by lack of managernent oversight as evidenced by either a history of willful violations or a lack of adequate audits or supervision of employees; and i

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d. 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.

While removal of the employee from licensed activities is not necessarily required, substantial disciplinary action is expected.

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l In addition, willfulness may result in increasing the severity level of a violation; the use of this criterion refers only to those situations where the significance of the willfulness does not Justify an increase to Severity Level lil; if it did, escalated enforcement action would be considered.

j Ill. Severity Level IV Violation Documentation and Tracking 4

This section provides guidance for the documentation and tracking of Severity Level IV 4

violations that are dispositioned as (1) NCVs, and (2) NOVs.

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1. NCVs Severity Level IV violations that satisfy the criteria for dispositioning as an NCV (i.e., the answer to all of the questions in the Severity Level IV Flowchart is "No") should be documented in inspection reports in accordance with the normal procedures for documenting violations as addressed in Inspection Manual Chapter 0610. The documentation should briefly describe the requirem3nt and how the requirement was violated. (This is especially important since licensees will have the opportunity to appeal our determination that a violation occurred.) The documentation should also include the licensee's corrective action program file reference. In many cases, the licensee will not have yet developed the corrective actions at the time of the inspection report's issuance. If the inspector is aware of the licensee's corrective actions, they may choose to document them in the inspection report. Documentation of the licensee's corrective actions is not required for enforcement purposes.

NCVs should be discussed in the report details, observation and findings, and executive summary sections of the report. A conclusion should be included that formal enforcement action will not be taken, as follows:

"This Severity Level IV violation is being treated as a Non-Cited Violation, consistent with Appendix C of the NRC Enforcement Policy. This violation is in the licensee's corrective action program as (include file reference)."

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NCVs should be addressed in the inspection report transmittal letter (cover letter) after any cited violations. Tne staff should use the cover letter in Form 2 ll, included as, as applicable. The discussion should simply note how many NCVs were identified, and include " appeal" process language (see Section Vil for guidance on the NCV appeal process).

The details of specific NCVs should not normally be discussed in inspection report cover lettors. However, there may be instances where a brief discussion of an NCV is warranted, such as cases where categorization at Severity Level ill was seriously considered and where it is important to emphasize the importance of corrective action or where an NOV likely would have been issued for a recurring violation had the previous violation been described on the docket (see question 3 in Section ll).

Cover letters should not be used as a substitute for an NOV. In particular, cover letters should not normally seek additional information about an NCV.

In accordance with the existing guidance in Section 5.2.1.e of the Enforcement Manual, the region should continua the practice of requesting an EA number for a willful violation that will be dispositioned as an NCV.

NCVs will be tracked in the Reactor Program System (RPS) and the PlM.

2. SeverityLevelIVNOVs Severity Level IV violations that meet one of the exceptions in Appendix C of the Enforcement Policy for consideration as an NOV (i.e., the answer to any one of the questions in the Severity Level IV Flowchart is "Yes") should be documented in inspection reports in accordance with the normal procedures for documenting violations as addressed in Inspection Manual Chapter 0610.

In addition, regional Enforcement Coordinators are responsible for documenting the basis for each Severity Level IV violation included in an NOV by completing the " Severity Level IV NOV Worksheet for Power Reactors," included as Attachment 3. This information will be used for auditing purposes and should be used, as appropriate, in the NOV cover letter.

The NOV cover letter MUST clearly state why a citation is being issued in terms of which exception in Appendix C they met and how/why it was met. Information from the Worksheet should be included in the cover letter, as appropriate. The staff should use the cover letter in Form 211, included as Attachment 2. The staff should NOT use the cover letter included in exhibit 2 from Insooction Manual Chapter 0610 as the standard format.

Consistent with existing practice, the staff may waive a licensee's written response to an NOV, provided sufficient information is already on the docket in an inspection report, LER, or other correspondence, in an effort to better track Severity Level IV NOVs, each individual Severity Level IV violation included in an NOV will be assigned an EA number. The Enforcement Action

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l Tracking System (EATS) will be used to record the disposition of these NOVs in terms of j

which exception was rnet, j

Severity Level IV NOVs will be tracked in the Reactor Program System (RPS) and the PlM.

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IV. Severity Level IV Violation Coordination and Review 1

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This section provides guidance for the coordination and review of Severity Level IV violations j

that are dispositioned as (1) NCVs, and (2) NOVs.

1. NCVs i

j NCVs for power reactors will continue to be issued by the region normally without prior OE i

approval. Enforcement Coordinators are available and should be consulted on NCVs, as 4

warranted.

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The regional Division Director should concur on an NCV prior to issuance if: (1) the Branch

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Chief and Enforcement Coordinator disagree on the disposition of the issue, (2) the staff is informed by the licensee during the exit that it disagrees that the issue is a violation or that i

the violation warrants Severity Level IV categorization, or (3) the staff wants to exercise l

discretion and refrain from citing a Severity Level IV that meets one of the Appendix C exceptions (see the guidance in Section VI).

Consistent with existing guidance in Section 6.3.1.c the Enforcement Manual, the approval of the Director, OE, with consultation with the DEDE as warranted, is required for issuing an 4

NCV where a willful violation is involved.

i The region must get prior approval from OE if it chooses not to cite a Severity Level IV violation that fails the NCV criteria (see additional discussion in Section VI).

2. Severity LevelIV NOVs NOVs must be concurred on by the regional Enforcement Coordinator prior to issuance.

The regional Division Director must also concur on all Severity Level IV NOVs.

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For at least the first 3-month period, all Severity Level IV NOVs for power reactors will require OE approval prior to issuance. These cases need not be discussed during the j.

regular weekly enforcement panel conference calls. The region should simply submit a completed Worksheet along with a draft inspection report cover letter (or excerpt), NOV, and inspection report (or excerpt). Within two working days, OE should either concur or contact the region to discuss OE's concems.

l The approval of the EDO is required for issuing a Severity Level IV NOV beyond the defined i

exceptions in Appendix C (see the discussion in Section Vi below).

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-11 V. Severity LevelIV Violation Signature Authority This section provides guidance for the signature authority of Severity Level IV violations that are dispositioned as (1) NCVs, and (2) NOVs.

1. NCVs Branch Chiefs will normally sign and issue inspection reports that include NCVs.

2. SeverityLevelIVNOVs Except as noted below, the ReDional Administrator may delegate to Branch Chiefs and above, the authority to sign and issue Severity Level IV NOVs after appropriate coordination

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and review.

VI. Exercise of Enforcement Discretion for Severity Level IV Violations Judgement cannot or should not be totally eliminated from enforcement decisions. There may be casas where the use of judgement results in a more equitable approach than might otherwise be called for by strict application of the policy. Although it should be rare, this section g<

provides guidance for situations when, notwithstanding the outcome of the normal process for dispositioning Severity Level IV violations (depicted in the flowchart in Attachment 1), the staff chooses to exercise discretion (represented in the flowchart by a "D" in a circle) and either (1) issue an NOV notwithstanding not meeting one of the exceptions, or (2) issue an NCV notwithstanding meeting one of the exceptions.

1. Citing Severity LevelIV Violations Beyond the Defined Exceptions in Appendix C The purpose of the power reactor NCV discretion is to enhance the ability of licensees to address issues in their corrective action programs in accordance with their safety and risk significance. Therefore, Severity Level IV violations for power reactors are expected to be dispositioned as NCVs provided they do not meet one of the exceptions in Appendix C of the Enforce.aent Policy. In other words, an NOV should not normally be considered for situations beyond the defined exceptions in Appendix C.

Notwithstanding not meeting one of the exceptions in Appendix C, there may be situations where a Severity Level IV violation warrants citation in an NOV. In these cases, the Director of OE and the EDO must approve the action. OE will coordinate the action with NRR. The region should prepare a 3-day EN to notify the Commission of the staff's intent to issue an NOV, notwithstanding the policy. The Regional Administrator must sign the transmittal letter. The cover letter transmitting the NOV must clearly state the reason for issuing the NOV, notwithstanding that it was not one of the defined circumstances identified in Appendix C of the Enforcement Policy.

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Multiple Addressees 2. Not Citing Severity LevelIV Violations that are includedin the Exceptions in Appendix C Notwithstanding meeting one of the exceptions in Appendix C, there may be situations where a Severity Level IV violation does not warrant citation in an NOV. These cases should be discussed during the regular weekly enforcement panel conference calls, in these cases, the Regional Administrator and the Director of OE must approve the action prior to issuance. The cover letter transmitting the NCV should clearly state the reason for not citing the issue, notwithstanding that it met one of the defined circumstances identified in Appendix C of the Enforcement Policy.

Vll. NCV Appeal Process 4

Licensees will be provided an opportunity to dispute NCVs in terms of whether they disagree that the issue is a violation or that the issue warrants a Severity Level IV categorization. The inspection report cover letter should include the following appeal process language:

'J "If you contest the violation or severity level of the NCV, you should provide a response within 30 days of the date of this inspection report, with the basis for your denial, to the Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington DC 20555-0001, with a copies to the Regional Administrator, Region

. and the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001."

l As with other disputed violations, the region should normally respond to the licensee within 30 days. The response, which should be sent to the same person and address as the inspection report, should address the licensee's points of contention. If the licensee denies the violation based on additional information not previously disclosed, the region should prepare a l

more detailed response as appropriate. Licensee denials include disputes involving NRC l

requirements, facts of the case, application of the Enforcement Policy, and severity levels. Any l

errors identified in the inspection report must be addressed in the region's response.

I Within 21 days of the date of the licensee's denial, the region should submit its prepared N

response to the licensee to the Deputy Director, OE, to determine the degree of involvement or N

review for OE (i.e., whether OE has no interest in the dispute, whether OE will conduct a N

48-hour review of the dispute, or whether OE will conduct a full review of the regional response). The region's submittal to OE should include all documents necessary to support the region's position and sufficient information to initiate an EA number.

Within 3 days of the date of the region's submittal, OE will normally inform the region of the degree of OE involvement and provide the region an EA number for the case.

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Multiple Addressees cc: Chairman Jackson Commissioner Dicus Commissioner Diaz Commissioner McGaffigan Commissioner Merrifield W. Travers, EDO F. Miraglia, DEDR M. Knapp, DEDE J. Zwolinski, NRR C. Paperiello, NMSS L. Chandler, OGC J. Goldberg, OGC SECY I

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ATTACHMENT 1 SEVERITY LEVEL IV FLOWCHART FOR POWER REACTORS 1.

2.

3.

4.

,g Re re P ce n Repetitive &

Willful Non-Cited Violations CAP RC ID'd?

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violation

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D YES YEs YEs YES*

Nodce of

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vi 6

olation in determining whether to disposition a Severity Level IV violation for a power reactor as an NCV or an NOV, the following decisional points should be considered:

1.

Did the licensee fail to restore compliance within a reasonable time after the violation was identified?

If compliance could not be immediately restored, were satisfactory compensatory measures l

implemented?

2.

Did the licensee fail to place the violation into a Corrective Action Program (CAP) to address recurrence and did the licensee provide the NRC with a CAP file reference?

3.

Is the violation a repetitive issue as a result of inadequate corrective action AND was it NRC-identified?

4.

Is the violation willful? *1f yes, an NCV may be appropriate provided:

a. The information concerning the violation, if not previously reported to the Commission, was promptly provided to appropriate NRC personnel, such as a resident inspector or regional branch chief who, in turn, is responsible to get the information to the appropriate regional staff; b.

The violation involved the acts of a low-level individual (and not a licensee official as oefined in Section IV.C of the Enforcement Policy);

c.

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

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. While rerboval of the employee from licensed activities is net necessarily required, substantial disciplinary action is expected.

If the answer to any one of these questions is "Yes,"then an NOV should be issued. If an NOV is warranted, the cover letter transmitting the action MUST clearly articulate why a citation is being issued in terms of which Appendix C exception was met and howAvhy it was met.

If an NCV is appropriate, the inspection report should include standard language as follows: "This Severity Level IV violation is being treated as a Non-Cited Violation, consistent with Appendix C of the NRC Enforcement Policy. This violation is in the licensee's corrective action program as (inc!ude file reference).

ATTACHMENT 2 FORM 2 II:

Cover Letter Transmitting Inspection Report (includes optional paragraphs for Severliy Level IV NOVs, NCVs, and " apparent" violations)

EA (If applicable)

(Narno of Licensee)

(Addrgsl_.,

s

SUBJECT:

NRC [ include type of inspection, e.g., "lNTEGht...:0, SPECIAL'] INSPECTION REPORT NO(S). XX-XXX/YY-NN [if applicable, add "AND (INVESTIGATION REPORT NO(S). X-XX-XXX)"][if applicable, add," AND NOTICE OF VIOLATION"]

==Dear

==

This refers to the inspection conducted on (date(s)) at the (olant name) facility. [Use (Citv.

State) for material licensees.] [May inc!ude purpose statement, e.g., "The purpose of the inspection was to follow up on the loss of main feedwater event that occurred on May 7."] Thc enclosed report presents the results of this inspection. [Any subsequent meetings and/or telephone discussions should be documented.]

[May inciude optional sentencc/short paragraph that provides an overall assessment of the licensee's activities during the inspection period, e.g., "During the inspection period, your conduct of activities at the Dirojac facility was generally characterized by safety-conscious operations, sound engineering and maintenance practices, and careful radiological work controls." Note that this element is riot necessarv.)

[For inspection reports with Severity Level IV NOVs, include the next paragraph and include either the " response required' or the "no response required" paragraph.]

Based on the results of this inspection, the NRG has determined that a violation (s) of NRC requirements occurred. The(se) violation (s) is (are) cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding it (them) are described in detail in the subject inspection report. The violation (s) is (are) of concern because [an explanation MUST be included that clearly articulates why a NOV is being issued in terms of the Appendix C NCV criter!a they failed. This explanation may be expanded, where warranted, to convey the apptopriate message to the licensee in terms of those actions that require additional attention.

In addition, for Severity Level IV citations meeting the power reactor NCV criteria, this explanation shall include the basis for issuing the citation, notwithstanding the guidance in

/c gendix C of the Enforcement Policy.]

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. [Other specific responses required should be 3

addressed as appropriate.] The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensura compliance with regulatory requirements.

[Fer Severity Level IV NOVs where the region has determined

• hat no response is required, the following paragraph may be substituted, in addition, the last paragraph of the letter referencing the responses directed by the letter and Notice should also be deleted.]

A

2-s The NRC has concluded that information regarding the reason for the violation, the corrective actms taken and planned to correct the violation and prevent recurrence is already adequately addressed on the docket in [ indicate correspondence, e.g., inspection Report No. XX-XXX/YY-NN, LER YY-NNN, or letter from Licensee] dated Therefore, you are not required to respond to this letter unless the description therein does not accurately reflect your corrective actions or your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice.

(For inspection reports with NCVs, include the following paragraph.]

Based on the results of this inspection, the NRC has (also) determined that (number)

(additional) violation (s) of NRC requirements occurred. These violations are being treated as Non-Cited Violations (NCVs), consistent with Appendix C of the Enforcement Policy. The(se)

NCVs are described in the subject inspection report. If you contest the violation or severity level of the(se) NCV(s), you should provide a response within 30 days of the date of this inspection report, with the basis for your denial, to the Nuclear Regulatory Commission, ATTN:

Document Control Desk, Washington DC 20555-0001, with a copies to the Regional Administrator, Region

. and the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001.

(include the next three pwagraphs if " apparent" violations are being addressed and a predecisional enforcement conference is being confirmed (" conference letter").]

In addition, (number) apparent violation (s) was (were) identified 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).] Accordingly, no Notice of Violation is presently being issued for these inspection findings. In addition, please be advised that the number and characterization of apparent violations described in the enclosed inspection report may change as a result of further NRC review.

An open (A closed) predecisional enforcement conference to discuss this (these) apparent violation (s) has been scheduled for (date_)_. The decision to hold a predecisional enforcement conference does not mean that the NRC has determined that a violation has occurred or that enforcement action wil! be taken. This conference is being held to obtain information to enable the NRC to make an enforcement decision, such as a common understanding of the facts, root causes, missed opportunities to identify the apparent violation sooner, corrective actions, significance of the issues and the need for lasting and effective corrective action. (if appropriate, add: "In particular, we expect you to address

".] In addition, this is an opportunity for you to point out any errors in our inspection report and for you to provide any information concerning your perspectives on 1) the severity of the violation (s),

2) the application of the factors t'1at the NRC considers when it determines the amount of a civil penalty that may be assessed in accordance with Section VI B.2 of the Enforcement Policy, and

3) any other application of the Enforcement Policy to this case, including the exercise of discretion in accordance with Fotion Vll.

i You will be advissi by separate correspondence of the results of our deliberations on this matter. N? response regardirig the(se) apparent violation (s) is required at this time.

(include the next five paragraphs if " apparent" violations are being addressed and a response is being requested (" choice letter").]

.o In addition, (number) apparent violation (s) was (wcre) identified 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 appUcacie section(s) of the inspection report.] [ Describe the information the NRC became aware of, including how, by whom and when it was communicated, e.g., "The circumstances surrounding these apparent violations, the significance of the issues, and the need for lasting and effective corrective action were discussed with members of your staff at the inspection exit meeting on (date)."] As a result, it may not be necessary to coriduct a predecisional enforcement conference in order to enable the NRC to ma! e an enforcement decision.

[ Insert the following paragraph for cases in which a civil penalty is not being considered:"In addition, since you identified the violation (or your facility has not been the subject of escalated enforcement actions within the last 2 years, (alternatively, use, "last two inspections'], and based on our understanding of your corrective action, a civil penalty may not be warranted in accordance with Section VI.B.2 of the Enforcement Policy. The final decision will be based on your confirming on the license docket that the corrective actions previously described to the staff have been or are being taken."]

)

Before the NRC makes its enforcement decision, we are providing you an opportunity to either (1) respond to the apparent violations addressed in this inspection report within 30 days of the date of this letter or (2) request a predecisional enforcement conference. If a conference is held, it will be open for public observation. The NRC will also issue a press release to announce the conference. Please contact (name) at (phone number) within 7 days of the date of this letter to noti'y the NRC of your intended response.

Your response should be clearly marked as a " Response to An Apparent Violation (s) in inspection Report No(s). XX-XXX\\YY-NN" 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. [ Add the following discussion for material and fuel cycle licensees: "In presenting your corrective action, you should be aware that the promptness and comprehensiveness of your actions will be considered in assessing any civil penalty for the apparent violations. The guidance in the enclosed excerpt from NRC Information Notice 96-28,

' SUGGESTED GUIDANCE RELATING TO DEVELOPMENT AND IMPLEMENTATION OF CORRECTIVE ACTION," may be helpful."] Your 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 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.

In addition, please be advised that the number and characterization of apparent violations described in the enclosed inspection report may change as a result of further NRC review. You will be advised by separate correspondence of the results of our deliberations on this matter.

In accordance with 10 CFR 2.790 of the NRC's ' Rules of Practice," a copy of this letter, its enclosure (s), and your response will be placed in the NRC Public Document Room.

i Sincerely, Regional Administrator or Designee Docket No.

License No.

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ATTACHMENT 3 SEVERITY LEVEL IV NOV WORKSHEET EA FOR POWER REACTORS 1.

2.

3.

4.

Severity alled to NO Failed to NO NO NO Level lV Restore Place in Repetitive &

Willful Non-Cited Violations

.AP NRC ID'd?

?

Violation

?

?

D YES YES YES YES*

Notice of 3

Violation NOTE:

In completing this Worksheet, use as much s;nce as necessary to support the basis for NRC action.

Only address the exception (s) that are applicable; the supporting questions should be used as an aid to develop the appropriate rationale; the remaining exceptions and questions should be deleted from the Worksheet.

Region:

Licensee:

Facility:

Docket Number:

Last Day of Inspection:

Inspection Report Number:

Brief Description of Violation:

Keyword for Disposition: 090331 - failed to restore compliance 090332 failed to place in CAP 090333 - repetitive and NRC-identified 090334 - willful 090335 other reason Basis for issuance of an NOV:

1. Licensee failed to Restore Compliance, j

Explain the actions the licensee took to attempt to restore compliance and institute compensatory actions and.dly they were unreasonable. Explain why the licensee's failure to restore compliance was not willful; did the licensee seek relief from the requirement, why did the licensee need to take compensatory action pending restoration of compliance? For example, were there actions or equipment needs that the licensee could not foresee? If the licensee failed to restore compliance, did the licensee's i

compensatory measures essentially restore the safety or regulatory benefit of the requirement?

2. Licensee Failed to Place the Violation into a Corrective Action Program.

t Did the licensee evaluate the need to take corrective action to prevent recurrence or identify and correct other similar violations?

Why were the licensee's actions unreasonable?

3. Violation Was Repetitive and NRC-identified.

Based on the information the licensee had at the time the violation was first identified, why were the licensee's corrective actions unreasonable given the information it had or should have had? Was the root cause analysis inadequate? What other significant i

credible causes existed that the licensee fai'sd to identify or adequately address? Was the schedule for and implementation of the corrective actions inappropriate? Why was it not expected that the licensee, but for NRC actions, would not have identified the violation within a reasonable time?

4. Violation Was Willful and Falled to Meet Criteria for Discretion.

Explain the undertying significance of the violation, the intent of the violator, and the criteria the licensee failed to meet.

5. Violation Met NCV Criteria But Warrants Citation in an NOV.

f Explain why, notwithstanding meeting the NCV criteria, a citation in an NOV is warranted.

Enforcement Coordinator:

/ /

4 v DISTRIBUTION:

JLieberman RBorchardt OE Staff Enforcement Coordinators by E-Mail i

MBanerjee, NRR BSmith, NMSS SGreene, NMSG WEB (1-week after issuance)

NUDOCS PDR (1-week after issuance)

Day File EGM File l

DOCUMENT NAME: G;\\EGM99002.RP g

To receive a copy of this document, Indicate in the tqx: "C" = Copy without attachment / enclosure "E" = Copy with attachment / enclosure "N" = No coarf

\\/

OFFICE lOE RM l

DD:06 l

D;O$

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NAbiE RPedersen RWElffhardt diebrman gE 02M999 02&$ /99 02ON/99 OFFICIAL RECORD COPY l

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