ML20238E693
| ML20238E693 | |
| Person / Time | |
|---|---|
| Issue date: | 09/11/1987 |
| From: | Lieberman J NRC |
| To: | |
| Shared Package | |
| ML20238E690 | List: |
| References | |
| FOIA-87-573 NUDOCS 8709150142 | |
| Download: ML20238E693 (10) | |
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_.L ENFORCEMENT PROCEEDINGS y
-James Lieberman U.S. Nuclear Regulatory Commission I.
Current Enforcement Policy The Commission's General Statement of Policy and Procedures
.for Enforcement Actions (Appendix C to.10 CFR Part 2 of NRC's regulations) provides a structured scheme.for categorizing violations of NRC requirements by severity and selecting the appropriate sanction.taking into account various mitigating and exacerbating factors. The most recent~ revision of the policy was published at 50 FR 47718 on. November 20, 1985. A further revision to the Enforcement Policy is pending before the Commission for changes that are discussed later.
Authority The NRC's enforcement jurisdiction is drawn from the Atomic Energy Act of 1954, as amended, and the Energy Reorganiza-tion Act of.1974, as amended. The statutory authority authorizes the NRC to conduct inspections and investiga-tions, issue orders to promote the common defense and security or to protect the public health and safety, revoke licenses, impose civil penalties not to exceed $100,000 per violation per day, and seek injunctions or other' equitable relief for violation of regulatory requirements.
Enforcement Proceedings Less serious violations of NRC requirements are addressed through the issuance of Notices of Violation by Regional Administrators. The Notice requires a licensee to inform the NRC of its corrective actions and actions to avoid future violations. More serious violations are addressed through civil penalties and orders. The procedure to be used in assessing civil penalties provides that the appropriate NRC. Regional Administrator initiates the civil penalty process by issuing a notice of violation and proposed imposition of a civil penalty. The licensee is
.provided an opportunity to contest in writing the proposed imposition of the civil penalty. After evaluation of the licensee's response, the Deputy Executive Director for Operation may mitigate, remit, or impose the civil penalty.
An opportunity is provided for a hearing if a civil penalty is imposed.. The procedure for issuing an order to show cause why a license should not be modified, suspended, or B709150142 870911 PDR FOIA FELTONB7-573 PDR
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revoked or w'hy such other action.should not be taken is f
set forth in 10 CFR 2.202.
The mechanism for-L modifying a license by order is set forth in 10 CFR 2.204. These sections of Part 2 provide an opportunity e
.9 for, a hearing tolthe affected licensee. However, the NRC is authorized to make orders immediately effective-
.if the public health, safety or interest so requires-J or,.in the case of an order to show cause, if the alleged violation is willful.
1 II.. Office of Enforcement On' April.12, 1987, the NRC under went a major reorganization that resulted in the elevation of some offices, the creation of several new offices, and the consolidation of others.
Among the' changes, enforcement was elevated from a staff function within.the Office of Inspection and Enf6rcement to a staff office reporting to the Executive Director for Operations. The Office of Enforcement: 1) Develops policies and procedures for enforcement of NRC requirements,
'2) Manages major enforcement actions, and 3) Assesses effectiveness and uniformity of regional enforcement-actions.
III Recent Issues in Enforcement A.
Material False Statements The NRC is in the process of amending its regulations to clarify and codify, in a uniform way, its require-ments governing licensees' obligations to provide the Commission with complete and accurate information, to maintain accurate records and to disclose information which they identify as significant for. licensed activities.
The Commission also is revising those parts of its j
present Enforcement Policy relating to sanctions if l
licensees provide incorrect material information, i
orally or;in writing, or provide material information i
which is incomplete or inaccurate because information i
has been omitted. Material information is considered u
to be-information which has a natural tendency or capability to influence agency action.
1 Under the amendments, identical language is being l
placed in appropriate parts of the NRC's regulations which:
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'(1) Lrequire that all information provided to the e
Commission by an applicant for a license or a licensee,'or required by the Commission to be maintained by the applicant or. licensee, be complete and accurate in all material respects;
.and
-(2) require applicants.and. licensees to report to the
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NRC information. identified by the applicant or licensee as having significant implications for L
the public health and safety or common defense and security.
Until now, the obligation of applicant's and licensees to provide-accurate information to the NRC was covered, though-not.on'a' uniform basis, in. requirements governing the submission of applications which are contained ~in various parts:of the regulations.
In addition, a 1976 Commission decision in an enforcement action taken against Virginia Electric and Power
. Company (VEPC0) established a comprehensive' requirement for applicants and licensees to provide complete and accurate information to the Commission.
Virginia Electric & Power Company (North Anna. Power Station, t
Units 1 and 2), CLI-76-22, 4 NRC 480 (1976), aff'd,.
571 F.2d.1289 (4th Cir. 1978). However, under VEPC0 the term " material false statement" has been applied to both intentional and innocent communication errors.
Under the amendments, the Commission will have the
, mechanism available to apply the full range of enforcement sanctions to inaccurate communication.s or records without relying on the use of the term
" material false statement".-
On March 11, 1987 the proposed rule on " Completeness and Accuracy of Information" was published in the Federal' Register (52 FR 7432). The comment period expired on April 10, 1987.
The Commission received comments from 23 organizations and individuals.
B.
' Enforcement Action Against Individuals - The NRC has taken actions against individual licensed operators in certain instances where misconduct occurred.
Generally, the staff policy has been that the NRC should defer to the licensee in the supervision of
. operators but should take action directly against licensed operators when their actions result in 1
h' si_gnificant violations of NRC requirements involving incompetence or wi11 fulness or where it appears.
operators are not competent'to safely perform their duties. Such an approach places primary responsibility _
for operator errors where it belongs - with the facility licensee which is responsible for operator training and for developing adequate procedures to govern facility operations.
Despite this philosophy, the NRC does issue licenses to operators and has many regulations that recognize that timely actions by NRC-licensed individuals are an important part'of safety.
Because of the importance the Commission places on high standards of performance by facility staff, the guidance on when enforcement action against an individual will be considered has been expanded in the revision to the Enforcement-Policy currently before the Commission.
C.
Exercise of Discretion - Although strict application of the escalating and mitigating factors set forth in the enforcement policy would suggest that issuance of a civil penalty in a particular case would be appropriate, the benefits to be gained from issuing a civil penalty are doubtful for violations identified by a licensee during a forced shutdown where a licensee is diligently and aggressively addressing the causes of the violations.
In particular, it is questionable whether such an action would arovide incentives to meet the objectives set forti in the enforcement policy:
specifically, encouraging prompt correction of existing violations and adverse conditions;. deterring future violations and adverse conditions, and encouraging improved performance by the licensee and, by example, that of the industry; and, at the same time, not discouraging aggressive and comprehensive implementation of a structured program to identify and correct problems.
In view of this, the Commission has decided that discretion may be exercised, provided there is prior staff consultation, to refrain from i; suing a Notice of Violation and a proposed Jvil penalty for viola-tions that meet all of the fo11cwing criteria which will be listed in the revised Enforcement Policy:
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(a) NRC has taken significant enforcement action j
based upon a~ major safety event contributing to an 1
c extended shutdown of an operating reactor or a -
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material licensee (or a work stoppage at a construction site), or the licensee is forced into.
an extended shutdown or work stoppage related to generally poor performance over a long period; (b) the licensee has developed.and is aggressively implementing during the shutdown a comprehensive program for problem identification and correction; and (c) NRC concurrence is needed by the licensee i
prior to restart.
2.
Non-willful violations are identified by the
-l licensee (as opposed to the NRC) as the result of its comprehensive program, or the violations are identified as a result of an employee allegation to the= licensee.
If the NRC identifies the viola-tions,'the NRC should determine whether enforcement action is necessary to achieve.
remedial action.
3.
The violations are based upon activities o_f the licensee prior to the events leading to the shutdown, and 4.
The non-willful violations wou1d normally not be categorized as higher than Severity Level III violations under the NRC's Enforcement Policy.
Notwithstanding the above, a civil penalty may be proposed in'a case where multiple Severity Level III violations are discovered. This action would be taken when judgment warrants it on the circumstances of the individual case.
D.
Policy and Reculation - As regulators, the NRC is responsible for. acting on any allegation or observation
.of an unsafe occurrence or practice. All such' findings are appropriately reviewed and addressed regardless of whether t1e matter is covered by a rule or a policy.
If plant safety is potentially affected, the Commission's authority to order remedial action to correct the potentially unsafe condition is not l
diminished simply because the unsafe condition is a 1
matter of; policy, rather than rule. While the NRC
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may not use a policy statement as the basis for enforcement actions such as civil penalties, there is l
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8 no doubt of the NRC's ability to address any condition that has the potential to compromise safety. The NRC can issue orders directing appropriate corrective actions when necessary.
E.
Enforcement Concerning Discrimination Against Employees for Raising Safety Concerns - It is the NRC
. position that employees are engaged in protected activities if they are reporting potential safety concerns to the NRC or to their management. Licensees will.be held responsible in enforcement actions for the discriminatory actions of their contractors.
Under a Memorandum of Understanding between NRC and DOL,.if D0L receives a complaint concerning a possible violation of Section 21G(a) of the Energy Reorganiza-tion Act, it will promptly notify the NRC and inform the NRC of whether DOL intends to conduct an investi-gation into the matter. DOL also will notify the NRC of the results of the Area Director's Notice of Determination (the results of the DOL investigator's conciliation effort and-investigation), of the recomended Decision and Order of the Administrative Law Judge (if the Notice of Determination is appealed by either party), and of the Final Order of the Secretary of Labor. The NRC will facilitate D0L's investigations by taking all reasonable steps to assist DOL in obtaining access to licensed facilities and any necessary security clearances.
The NRC will normally await completion of DOL investigations and other proceedings before initiating its own investigation of, or formal enforcement action for, a complaint of discrimination. However, for each case in which the D0L Area Director finds discrimina-tion occurred, the Region will request the licensee to provide a description of the actions taken or )lanned to assure the alleged discriminatory act, whetler actual or perceived, does not have a chilling effect on other employees raising safety concerns. Of course if an allegation is made to the NRC that involves significant public health and safety implications, the NRC will investigate the allegation, resolve it, and taken appropriate enforcement action. Furthermore, j
any technical issues raised in connection with the i
discrimination complaint will be resolved expeditiously l
without waiting for the results of the DOL proceedings.
l If the Secretary of Labor finds that discrimination has E
occurred, the NRC will normally take enforcement action f
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iforaviolationof.10CFR50.7forPart50licenseesor a
similar requirements which appear in other parts'of NRC s
l regulations: governing other'. types of licensed activity.'
The NRC will also consider taking enforcement action if LDOL does not act, the case is settled, or DOL reaches a.
conclusion at'any stage of the proceedings of no
' discrimination and if the facts available to the NRC su) port a finding of a violation'of 10 CFR 50.7 or otler applicable NRC requirements.
F.
Enforceability of FSAR Commitments - The Final Safety Analysis Report (FSAR), required.by 10 CFR 50.34 to be submitted as part of the license application, contains design bases,. operational. limits and analyses of structures,. systems and components of the facility, i.e., it is a statement by t_he applicant.of how it intends to comply with NRC requirements. Consequently, a licensee who fails to meet an FSAR commitment that-describes how it intends to meet a regulatory require.
ment may, depending on the circumstances, have violated that requirement.
If this is the case, enforcement 1
action may be taken directly.against the basic requirement. Whether or not such a violation has occurred as a result of a departure from the FSAR, the departure'may be enforceable by means of NRC's k.
regulations in 10 CFR 50.59.
.III. Selected Enforcement Actions Recent. enforcement actions involving a variety of issues are
, briefly described below.
Copies of the complete cases are available in the NRC Public Document Room and are published in NUREG-0940'(Enforcement Actions:
Si The Enforcement Action (EA)gnificant Actions Resolved).
case number is included for reference.
V. A. Edward Hines, Jr. Medical Center EA 87-150 (August 1987) - A physician's failure to. report a diagnostic misadministration, his subsequent actions to conceal-the misadministration, and'his actions to impede the NRC investigation - Order to remove the physician's' authority o use or supervise the use of licensed material and require other corrective actions.
GPU Nuclear EA 87-92 (August 1987) - Failure to do appropriate safety reviews at Oyster Creek - $205,000.
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4 ATEC Associates EA 87-126 (August 1987) - Failure to control _ moisture density gauges - 5400.00.
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E. L. Conwell and Co. EA 87-141 (August 1987) - Failure to control. moisture density gauges - 5750.00.
1-LTV Steel Co. EA 87-31 (August 1987) -' Failure to control 1
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licensed material - 52,000.
Florida Power and Light Co. EA 87-98 (July 1987) -
Failure to maintain positive access control at Turkey
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Point - $75,000.
Florida Power and Light Co. EA 87-97 (July 1987) - Failure.
l to take prompt corrective action and failure to follow procedures prior to performing core alterations at Turkey Point - $100,000.
4 St. Luke's Radiologists EA 87-113 (July 1987) - Failure to notify NRC of a misadministration - 51,250.
Kermit 8utcher EA 87-96 (July 1987) - Breakdown in the management oversight and control of radiation safety program - $500.00.
Consolidated NDE, Inc. EA 87-121 (July 1987) - Failure to keep people out of an area while a radiographic source was exposed - $5,000.
Duke Power Company EA 87-101 (July 1987) - Failures at Oconee to properly implement a start-up procedure which resulted in two High Pressure Injection (HPI) trains and all three Reactor Building Cooling (RBC) units being inoperable - $25,000.
Advanced Medical Systems EA 87-139 (July 1987) - Failure to take steps to initiate meaningful decontamination efforts and modify the facility to minimize contamination -
Order Modifying License, effective immediately, and a Demand for Information.
Arkansas Power and Light Company EA 87-90 (July 1987) -
Seven examples of breaches in vital area barriers and two examples of sleeping security guards at ANO, Unit 1 -
$75,000.
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L Southern California Edison Co. EA 87-63 (June 1987) -
l-Failure to control byproduct material at San Onofre, Unit 3 resulting in release of the material, an overexposure, and failure to report the overexposure in a timely manner -
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$100,000.
Milford Memorial Hospital EA 87-44 (June 1987) -
Falsification of records. Order to remove R50 and obtain independent party audits of radiation safety program.
United States Testing Company, Inc. EA 87-52 (June 1986). -
Findings which demonstrate a significant breakdown in the management oversight and control of the licensee's radiation safety program - Order requiring licensee to temporarily cease all operations.
Arkansas Power and Light Co. EA 87-62 (June 1987) -
Inoperable pressurizer code safety valve at ANO, Unit.1 -
$25,000.
PTL Inspectorate, Inc. EA 87-65 (May 1987) - Failure to keep people out of an area while a radiographic source was exposed - $5,000.
Detroit Edison Company EA 87-50 (May 1987) - Deficiencies-in the implementation of the surveillance testing program at Fermi - $100,000.
Florida Power and Light Company EA 87-40 (April 1987) -
Violations at Point involving a security guard asleep on duty and an unescorted visitor in a vital area - $75,000.
Florida Power Corporation EA 87-47 (April 1987) -
Violations at Crystal River involving a security guard asleep on duty and the failure of security guards to check security badge authorizations - $50,000.
Power Authority of the State of New York EA 87-48 (April 1987) - Violations involving radiation exposure 3rotection requirements and an overexposure at ritzpatrick - $75,000.
A-1 Inspection, Inc. EA 87-41 A3ril 1987 - Licensee hiring
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individual to conduct radiograp1y without assuring that the individual was qualified or added to the license, repeat violation, and licensee attempted to deceive the NRC - Order Temporarily Suspending License (Effective Immediately) and Order to Show Cause.
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q Philadelphia Electric' Company EA 87-46:(March 1987) -
Inattention to, duty by. licensed. operators and others at the. Peach Bottom Atomic Power Station ' order suspending.
nower operation.
Seouoyah Fuels-Corporation EA:86-91 (October 1986.-
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. Violations associated.with the, rupture:of a uranium hexafluoride cylinder.- $310;000 and order modifying o
license.
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The Pesses Com)any'EA 85-122 (January 1986).
Licensee.
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abandoned the ' esses. plant without. notifying the NRC -
3 Order issued to licensee.and its.lega1Esuccessorlin interest requiring decontamination of-the' site.
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