ML20217C184
| ML20217C184 | |
| Person / Time | |
|---|---|
| Site: | Haddam Neck File:Connecticut Yankee Atomic Power Co icon.png |
| Issue date: | 07/14/1993 |
| From: | Zech G NRC |
| To: | Miraglia F, Murley T, Partlow J NRC |
| Shared Package | |
| ML20217C047 | List: |
| References | |
| 2.206, NUDOCS 9803260349 | |
| Download: ML20217C184 (10) | |
Text
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Aty Aisc July 14, 1993,
8,Ye Note to: Tom Murley i
Frank Miraglia
-I Jim Partlow Bill Russell From:
Gary Zech Subj:
Plant Shutdown List As requested at the June SM, attached is a list of plants who, since 1985, have been shut down or held down by the NRC for greater than a six month period. Where available, the applicable NRC document is identified. Additional information is provided under Comments.
RPEB will work with the regions and projects to maintain an updated version of this list.
Gary Zech cc: ERossi SVarga JRoe 5
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Enforcement Policy Review l
t 5.
Mandatory Civil Penalties
+
Comments UCS commented that the Enforcement Policy should produce consistent enforcement actions, and to that end, recommended that the Enforcement Policy be modified to eliminate what it viewed as subjective enforcement based on performance issues.
In particular, UCS recommended that the staff consistently impose a civil penalty every time a licensee fails to meet a requirement, regardless of a licensee's performance or ability to meet requirements in other areas. (The staff assumed that UCS was directing this recommendation at those violations that would currently be subjected to civil penalties, i.e., Severity Level I, II, or III violations.) UCS took the position that civil penalties are necessary to remedy deficiencies. Without a civil
" The Office of Enforcement Annual Repon for Fiscal Year 1996 indicated that licensees were given credit for corrective actions in approximately 85% of cases subjected to the civil penalty assessment process. (See page 33 of the repon.)
28
Enforcement Policy Review penalty, UCS stated that the deficiency may remain uncorrected or resources withheld or deferred.
4 Discussion The staff agrees that consistency is an important element in maintaining a credible and effective enforcement program. Automatically issuing a civil penalty for every Severity Level I, II, or III violation would certainly make the Enforcement Policy consistent. However, the staff believes that an enforcement approach that strikes the proper balance between deterrence and incentives is consistent with the overarching goals of the program, namely that enforcement be used as a deterrent to emphasize the importance of compliance with requirements and to encourage prompt identification and prompt, comprehensive correction of violations." Safety is furthered when licensees have incentives to identify and correct violations. If every violation resulted in the i
same sanction, regardless of the circumstances and the licensee's response to it, the civil penalty merely becomes a penalty and looses its remedial focus. The staff believes that the revisions made to simplify the Enforcement Policy, especially those associated with the civil penalty assessment process, have helped to produce more consistent and predictable enforcement actions.
Notwithstanding the importance of consistency, the staff does not believe that the Enforcement Policy should be reduced to a formula for rigid application.
Few cases are entirely straightforward, and the NRC must always apply judgment in determining whether to give credit for the licensee's actions. Despite years of industry experience, new types of cases frequently arise, and in some cases, strict application of the Policy could result in delivering an inappropriate reFulatory message. As stated in Section III of the Enforcement Policy, "...the regulation of nuclear activities in many cases does not lend itself to a mechanistic treatment, judgment and discretion must be exercised in determining the severity levels of violations and the appropriate sanctions,..."
In addition, the staff does not agree that civil penalties are necessary to remedy deficiencies.
Once a licensee has been put on notice that a violation exists that requires corrective action, the agency requires that corrective actions be taken to restore compliance. Failure to take necessary corrective actions to restore safety and compliance could result in the agency taking more significant enforcement action, such as issuing larger civil penalties or issuing an order that could modify, suspend, or revoke a license. Further, an intentional failure to take corrective actions consistent with those described in the licensee's response to the violation (i.e., pursuant to the provisions of 10 CFR 2.201) could subject the licensee to more significant civil enforcement action, and possible criminal sanctions.
Not only does the staff disagree that civil penalties are necessary to remedy deficiencies, the staff believes that the provisions in the Enforcement Policy for allowing mitigation for corrective actions provides incentives for developing and implementing better corrective actions.
" From Section I of the Enforcement Policy, NUREG-1600.
29 I-
)
Enforcement Policy Review
+
Conclusion The staff believes that the changes to the Enforcement Policy in 1995 helped to improve the predictability and consistency of enforcement actions, while maintaining the agency's desire to use enforcement sanctions for providing appropriate incentives and deterrence to further the public health and safety. The staff will continue to improve its efforts at consistency, but does not believe that more rigidity in the civil penalty assessment process is warranted.
L.
Exercise of Enforcement Discretion
+
Comments Although the revised civil penalty assessment process has improved the predictability of civil penalty outcomes, NEI commented that the process does not always reflect the safety significance of the violation and that consequently, the staff has resorted to exercising discretion more often in accordance with Section VII of the Enforcement Policy to send an appropriate l
regulatory message.
NEI also recommended that the NRC reexamine and refine the current examples in Section VII.B of the Policy addressing mitigation of enforcement sanctions. NEI based this recommendation on its view that the current civil penalty assessment process lacks an effective mechanism to sharpen the regulatory message and that the examples in Section VII.B were crafted well before the revision to the civil penalty assessment process. NEI suggested that mitigation be considered if a licensee is able to meet the majority of the criteria for exercising the particular discretion in Section VII.B. NEI also recommended that the criteria for exercising discretion be re-evaluated for consistency with the objectives of the Enforcement Policy. NEI took the position that the requirement for NRC concurrence for plant restart in Section VII.B.2 (Violations identified During Extended Shutdowns or Work Stoppages) furthers no legitimate objective of the Enforcement Policy.
As discussed in Section II.L.5 of this report, UCS also recommended that the Policy be modified by eliminating the flexibility to exercise enforcement discretion based on performance issues.
Finally, based on experience with the Enforcement Policy, the applicability of Section VII.B may warrant modification to include Severity level IV violations.
4 Discussion Prior to 1995, the civil penalty assessment process in the Enforcement Policy included the consideration of six separate factors that could collectively allow a total range of reductions up to 200% subtracted from the base civil penalty amount or increases up to 500% above the base civil penalty. The complexity of the previous process sometimes resulted in trying to send multiple messages within the issuance of a single sanction. The 1995 Review Team believed that this could at times result in each part of the regulatory message being diluted, or could send 30
Enforcement Policy Review a mixed message as to what the NRC finds to be most important. Therefore, in conside-ing changes to the civil penalty assessment strategy, the Review Team gave particular attention to simplifying the process in a manner that would increase clarity, minimizing the number and complexity of decision points while preserving the desired emphases of the existing Policy.
The staff believes that the revised civil penalty assessment process has resulted in a more predictable, understandable process. However, the staff recognizes that in simplifying the assessment process, there will be situations in which the outcome does not reflect the appropriate regulatory message. Therefore, NEI is correct to a certain extent, that the NRC has exercised discretion in the adjustment of civil penalties more in the current civil penalty assessment process than in the past. The staff believes that this is acceptable, in that issues that are important to the agency are being considered.
However, instead of these issues automatically being considered as part of the process (similar to the past Policy), these issues may be considered after application of the normal process. The staff notes that it has exercised this type of discretion (i.e., increasing or decreasing the civil penalty amount) in approximately 16% of the cases issued during Fiscal Year 1996.86 The staff believes that the current civil penalty assessment process is appropriately structured to take mitigating factors into consideration, such as a licensee's good past performance (reflected in the first decisional block), and a licensee's initiative in identifying and comprehensively correcting violations.
However, the staff recognizes that there may be additional circumstances of a case that warrant exercising discretion.
Therefore, the Enforcement Policy provides flexibility through VII.B.6 (Violations Involving Special Circumstances). Unlike the other examples in Section VII.B. this example does not include specific or limiting criteria for its application, other than the stated expectation that it only be exercised where application of the normal guidance in the Policy is unwarranted. Therefore,
- the staff believes that Section VII.B.6 provides the staff with sufficient flexibility to ensure that the resulting enforcement decision is appropriate for the circumstances of the case and reflects the appropriate regulatory message. However, the staff does believe that the discussion in VII.B.6 should be modified to include additional factors for the staff to consider, such as whether the regulatory requirement that was violated was clear, or given the staff's current irformation, appropriate.
The staff also believes that the existing criteria in the remaining examples in Section VII.B are appropriate.
The staff does not agree that mitigation should be routinely considered, notwithstanding the licensee's inability to meet all of the criteria. In circumstances where a case does not warrant discretion under Sections VII.B.2, VII.B.3, VII.B.4, or VII.B.5, the staff may still consider discretion appropriate under Section VII.B.6. Again, as noted elsewhere in this report, enforcement by its nature requires the exercise of discretion and judgment.
" From the Office of Enforcement's Annual Report for Fiscal Year 1996, page 33.
31 J
Enforcement Policy Review j
The staff does not agree with NEI's view that the requirement for NRC concurrence for plant restart in Section VII.B.2 (Violations Identified During Extended Shutdowns or Work Stoppages) j furthers no legitimate objective of the Enforcement Policy.
The purpose of the NRC enforcement program is to support the NRC's overall safety mission in protecting the public and the environment. The applicability criteria for Section VII.B.2 include situations in which (1) the NRC has taken significant enforcement action based upon a major safety event contributing to an extended shutdown of an operating reactor or a material licensee, or (2) the licensee enters an extended shutdown or work stoppage related to generally poor performance over a long period of time. Either of these situations represent a significant regulatory concern based on performance issues. As the federal agency tasked with ensuring that civilian uses of nuclear materials and facilities are conducted in a manner consistent with public health and safety, the NRC has a responsibility to ensure that it is satisfied that a licensee's corrective actions are acceptable before restart. This provision is not only acceptable, but necessary, j
because in these situations, the agency is not receiving the normal documentation of corrective actions that it would receive if the agency were issuing an enforcement action.
I Finally, in reviewing Section VII.B, it may be appropriate to modify some of the examples to include Severity Level IV violations. The examples in Section VII.B address Severity level II or III violations." However, if the staff believes that the circumstances of a particular case may warrant discretion at Severity Level II, or III, then it would be logical to believe that discretion may be appropriate at Severity Level IV. Therefore, Sections VII.B.3, VII.B.4, and j
VII.B.6 should be modified to reflect that these examples of discretion are applicable for Severity Level IV violations. For example, discretion is warranted when a licensee identifies a violation as part of corrective action form a previous violation, or for an old design issue, or for an unclear requimment.
l
+
Conclusions The staff believes that the current civil penalty assessment process takes appropriate mitigating circumstances into account. The staff believes that the provisions of Section VII.B provide the staff with the necessary flexibility to ensure that resulting enforcement decisions are consistent with the overall goals of the enforcement program. The staff believes that Section VII.B.6 should be modifie.d to include additional factors for consideration, including whether the ugulatory requirement that was violated was clear, or given the staff's current information, appropriate. The staff also believes that Sections VII.B.3, VII.B.4, and VII.B.6 should be modified to make the provisions for discretion applicable to Severity level IV violations.
" The staff has applied enforcement discretion in accordance with Section VII.B.6 to Severity level IV violations.
32 l