ML20337A296

IMC 0609 Att 2 Process for Appealing NRC Characterization of Inspection Findings (SDP Appeal Process)

ML20337A296
Person / Time
Issue date:	01/25/2021
From:	David Aird NRC/NRR/DRO/IRAB
To:
David Aird, NRR/DRO/IRAB
Shared Package
ML20339A000, ML21025A061	List:
References
CN 21-006, DC 20-044
Download: ML20337A296 (7)

Text

NRC INSPECTION MANUAL IRAB INSPECTION MANUAL CHAPTER 0609, ATTACHMENT 2 PROCESS FOR APPEALING NRC CHARACTERIZATION OF INSPECTION FINDINGS (SDP APPEAL PROCESS)

Effective Date: 01/25/2021 0609.02-01 PURPOSE To define the process by which a licensee may appeal the staffs final significance determination of an inspection finding documented in an NRC inspection report or final significance determination letter as White, Yellow, or Red. Consistent with the intent of the significance determination process (SDP) to assess significance in a timely manner using the best available information, the staff should be cautious to ensure that the appeal process does not become a protracted review requiring extensive staff resources.

0609.02-02 PREREQUISITES It is assumed that prior to issuing the final significance determination, coloring the finding, and documenting this in an inspection report, including the SDP basis for significance, the staff would have completed the following:

a. Applying the best available information, the responsible inspector would have established the licensees performance deficiency and characterized the finding as potentially greater than Green. Using the applicable SDP appendix, the inspector/analyst would have determined the proposed preliminary color for the finding (White, Yellow, Red, or greater-than-Green).

b. Each finding that the staffs significance determination has preliminarily characterized White, Yellow, Red, or greater-than-Green would have been presented to and reviewed by the NRC Significance and Enforcement Review Panel (SERP). Subsequently, the staff would have informed the licensee of the preliminary characterization of the issue in a preliminary significance determination letter which included an invitation for the licensee to present additional information.

c. If the licensee opted for an opportunity to present additional information to the staff either by meeting with regional management at a Regulatory Conference or by submitting additional information in writing on the docket, such information would have been reviewed and dispositioned by the staff. Additional information that the licensee indicated was not available to present at the Regulatory Conference, should be received by the staff within a reasonable period of time (agreed upon between the licensee and the staff, and documented), to allow the staff adequate time to review the information.

Issue Date: 01/25/21 1 0609.02

d. The staff has sent the licensee a letter which states the staffs final significance determination and broadly responds to the information provided by the licensee.

0609.02-03 LIMITATIONS Once the above prerequisites have been met, licensee appeals to reduce the significance of an inspection finding will be considered as having sufficient merit for review by this appeal process only if the licensees contention falls into one of the following categories:

a. The staffs significance determination process was inconsistent with the applicable SDP guidance or lacked justification. Issues involving the staffs choice of probabilistic risk modeling assumptions used in the SDP will not be considered appealable under this process, provided the staff documented its justification in those cases where the licensee presented a different point of view.

b. Actual (verifiable) plant hardware, procedures, or equipment configurations, identified by the licensee to the NRC staff at the Regulatory Conference or in writing prior to the staff reaching a final significance determination, was not considered by the staff.

c. A licensee submits new information which was not available at the time of the Regulatory Conference. New information will be considered only if the licensee informed the staff that additional information was under development prior to or during the Regulatory Conference, or in their written response to the preliminary significance determination. The information under development should have been received within a reasonable period of time (agreed upon between the licensee and the staff) for the staff to review it.

0609.02-04 INSPECTION REPORT COVER LETTER TRANSMITTING FINAL SIGNIFICANCE DETERMINATION The following statement will be added to each inspection report cover letter or other official correspondence that transmits an inspection finding of White, Yellow, or Red significance:

You have 30 calendar days from the date of this letter to appeal the staffs determination of significance for the identified [white/yellow/red] finding[s]. Such appeals will be considered to have merit only if they meet the criteria given in NRC Inspection Manual Chapter 0609, Attachment 2.

0609.02-05 APPEAL PROCESS

a. The licensee must submit its letter of appeal to the Regional Administrator (RA) or to the NRC Office Director responsible for the inspection within 30 calendar days of the date of the transmittal letter.

b. The RA or responsible NRC Office Director should determine within 30 calendar days of the receipt of the licensees appeal request whether the appeal meets the above merit guidelines. Following the determination, but still within the 30 calendar days, the RA or responsible NRC Office Director should inform the licensee in writing of the decision Issue Date: 01/25/21 2 0609.02

and its basis. If the decision is not to accept the appeal, the basis in the written letter should specifically address which appeal criteria were not met and why. For example, if the appeal is not accepted because the information in the appeal had already been considered, the letter should describe how the information was previously considered.

The Director or Deputy Director of the Division of Reactor Oversight in NRR and/or the applicable Division Director or Deputy Division Director in NSIR should concur on the letter transmitting the decision (accept or not accept appeal). The RA, the Director of NRR, and/or the Director of NSIR (for security or emergency preparedness related findings) should also concur on the letter transmitting the decision not to accept the appeal.

c. If the appeal is accepted, the associated review and written notification to the licensee stating the results of the appeal review should be limited to 30 calendar days following the acceptance of the appeal. The RA or responsible NRC Office Director will appoint an appeal panel consisting of, at a minimum, two technical experts in the cornerstone being discussed and an enforcement specialist. The RA or responsible NRC Office Director may also request representation by the Office of General Counsel. The cornerstone experts for initiating events, mitigating systems, and barrier integrity will be two persons with risk analysis experience (one from the RAs regional office and one from headquarters). Other persons with related technical expertise may also be appointed from any regional or headquarters office. At least one panel member will not have had prior involvement with the significance determination under appeal. The principal purpose of the panel is to arrive at a consensus regarding the validity of the licensees appeal.

d. If an appeal was accepted for review, the licensee may request a public meeting to present the information included in their appeal submittal. The meeting should be scheduled to occur within 10 calendar days of the licensee receiving notification that the appeal request has been accepted for review. Any information presented at the public meeting shall have merit consistent with the limitations for appeals. Any information presented at the public meeting should have been included in the original letter from the licensee requesting an appeal.

e. The appeal panel will review the inspection finding, its significance characterization and basis, any new information that was being developed at the time of the Regulatory Conference, and the licensees points of contention. The panel will conduct its review based only on docketed information either provided by the licensee, issued by the staff, or otherwise publicly available. The panel may recommend one of the following:

1. No further action and the significance determination is unchanged, or

2. more detailed justification of the basis for the significance determination is required, or

3. change the significance determination (either increase or decrease), as appropriate.

The panel may also recommend changes to the SDP, regardless of whether such changes would affect the outcome of the appeal under review.

Issue Date: 01/25/21 3 0609.02

f. The appeal panel will provide its conclusions to the SERP in writing. Within 10 working days of the date of the appeal panels conclusions, the SERP will consider the results of the appeal panel. The SERP will provide the results of their review to the RA, and to the Director of NRR, and/or the Director of NSIR (for security or emergency preparedness), within 5 working days.

Within five working days of receiving the final recommendation memorandum, the RA and the Director of NRR, and/or the Director of NSIR (for security or emergency preparedness related findings) will confer and jointly agree on the final decision and obtain concurrence from Director of OE. Subsequently the RA or responsible NRC Office Director will notify the licensee in writing of the final agency position. Both the RA and the responsible NRC Office Director(s) should concur on this correspondence.

The results of the appeal process are final with no further avenues for appeal within the significance determination process.

END Issue Date: 01/25/21 4 0609.02

ATTACHMENT 1 Revision History for IMC 0609.02, Process for Appealing NRC Characterization of Inspection Findings (SDP Appeal Process)

Commitment Accession Description of Change Description of Comment Resolution Tracking Number Training and Closed Feedback Number Issue Date Required and Form Accession Change Notice Completion Number (Pre-Date Decisional, Non-Public Information) 04/21/00 Initial issuance. This manual chapter CN 00-007 supports the New Reactor Oversight Program for the significance determination of findings. The significance determination process detailed in the manual chapter is designed to characterize the significance of inspection findings for the NRC licensee performance assessment process using risk insights as appropriate.

08/16/01 IMC 0609.02 (Initial Assessment of CN 01-015 Inspection Observations For SDP Entry) is deleted. The information contained in this attachment has been included in IMC 0610*, "Power Reactor Inspection Reports." IMC 0609.03 (Process For Appealing NRC Characterization of Inspection Findings (SDP Appeal Process)) has been renumbered, and is now IMC 0609.02 Issue Date: 01/25/21 Att 1-1 0609.02

Commitment Accession Description of Change Description of Comment Resolution Tracking Number Training and Closed Feedback Number Issue Date Required and Form Accession Change Notice Completion Number (Pre-Date Decisional, Non-Public Information) 04/30/02 IMC 0609.02 (Process For Appealing NRC CN 02-022 Characterization of Inspection Findings (SDP Appeal Process)) has been revised to include some editorial changes specifying management concurrence at the branch chief levels.

N/A ML052870174 IMC 0609 Att 02 (Significance and N/A N/A 11/22/05 Enforcement Review Panel Process) has CN 05-030 been revised to emphasize that the NRC is not obligated to consider new information from the licensee once the final significance determination is made.

N/A ML070360229 This revision provides additional detail for N/A ML080280240 01/31/08 considering SDP appeals. The addition of CN 08-004 a Prerequisites section, establishment of new time limits, 30 calendar days for merit determination plus additional 30 calendar days for completion. Lastly, the appeal panels recommendations will go to SERP and the final decision will be signed by the regional administrator and Director, NRR or NSIR (for Security or Emergency Preparedness).

N/A ML101400502 This revision clarifies that licensees submit NO ML103490458 06/08/11 additional information within a reasonable CN 11-010 period of time agreed upon between the staff and licensee.

Issue Date: 01/25/21 Att 1-2 0609.02

Commitment Accession Description of Change Description of Comment Resolution Tracking Number Training and Closed Feedback Number Issue Date Required and Form Accession Change Notice Completion Number (Pre-Date Decisional, Non-Public Information)

N/A ML18187A186 This revision provides a minor clarification No ML18191A003 10/23/18 to the required documentation when CN 18-036 denying an appeal.

N/A ML20337A296 Minor revision to 1) clarify opportunity for No training is ML20339A001 01/25/21 public meeting for accepted appeals, and required.

CN 21-006 2) formalize concurrence for appeals correspondence. Additional context for these changes is available in an NRC response letter to NEI (ML19324C685).

Issue Date: 01/25/21 Att 1-3 0609.02