ML23151A393

PR-002 - 52FR36215 - Policy and Procedue for Enforcement Actions: Policy Statement Involving Reopening Closed Cases

ML23151A393
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Issue date:	09/28/1987
From:	Chilk S NRC/SECY
To:
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PR-002, 52FR36215
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ADAMS Template: SECY-067 09/28/1987 PR-002 - 52FR36215 - POLICY AND PROCEDURE FOR ENFORCEMENT ACTIONS:POLICY STATEMENT INVOLVING REOPENING CLOSED CASES PR-002 52FR36215 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF PROPOSED RULE:

PR-002 RULE NAME:

POLICY AND PROCEDURE FOR ENFORCEMENT ACTIONS: POLI CY STATEMENT INVOLVING REOPENING CLOSED CASES PROPOSED RULE FED REG CITE:

52FR36215 PROPOSED RULE PUBLICATION DATE:

09/28/87 ORIGINAL DATE FOR COMMENTS: 11/27/87 NUMBER OF COMMENTS:

EXTENSION DATE:

I I

12 1

FINAL RULE FED. REG. CITE: 53FR09429 FINAL RULE PUBLICATION DATE: 03/23/88 TES ON: COMMIS~I.ON APPROVED REVISION OF A POLICY STATEMENT BY A 5-0 VOTE (

ATUS SRM-M880224B).

FILE LOCATED ON Pl.

OF RULE:

PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE:

POLICY AND PROCEDURE FOR ENFORCEMENT ACTIONS: POLI CY STATEMENT INVOLVING REOPENING CLOSED CASES PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 87-152 SRM DATE:

09/10/87 SIGNED BY SECRETARY:

09/23/87 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 88-033 SRM DATE:

03/02/88 SIGNED BY SECRETARY:

03/17/88 STAFF CONTACTS ON THE RULE CONTACTl: JAMES LIEBERMAN CONTACT2:

MAIL STOP: 9604MNBB PHONE: 492-8214 MAIL STOP:

PHONE:

PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY

DOCKET NO. PR-002 (52FR36215)

In the Matter of POLICY AND PROCEDURE FOR ENFORCEMENT ACTIONS: POLI CY STATEMENT INVOLVING REOPENING CLOSED CASES DATE DATE OF DOCKETED DOCUMENT 09/23/87 10/19/87 11/10/87 11/16/87 11/17/87 09/23/87 10/13/87 11/05/87 11/11/87 10/12/87 TITLE OR DESCRIPTION OF DOCUMENT FEDERAL REGISTER NOTICE - REVISED POLICY STATEMENT COMMENT OF RELIANCE ELECTRIC/UTILITY PRODUCTS (JOHNS. DEMA) (

3)

COMMENT OF OHIO CITIZENS FOR RESPONSIBLE ENERGY (SUSAN L. HIATT) (

1)

COMMENT OF ECOLOGY/ALERT (E. NEMETHY) (

2)

COMMENT OF SOURCE PRODUCTION & EQUIPMENT CO., INC.

(R.D. DONNY DICHARRY) (

4) 11/20/87 11/23/87 11/23/87 11/25/87 11/20/87 11/18/87 11/19/87 11/25/87 COMMENT OF TENNESSEE VALLEY AUTHORITY (SANDY BROWN) (

COMMENT OF GEORGIA POWER COMPANY (L.T. GUCWA) (

COMMENT OF KERR-MCKEE CORPORATION (J.C. STAUTER) (

COMMENT OF EIGHTEEN POWER REACTOR LICENSEES (NICHOLAS S. REYNOLDS) (

8)

COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (DONALD W. EDWARDS) (

9)

6)

5)

7) 11/27/87 11/27/87 12/21/87 11/25/87 11/25/87 12/16/87 COMMENT OF CONNER & WETTERHAHN (TROY B. CONNER, JR.) (

10) 03/21/88 03/17/88 04/19/88 04/15/88 COMMENT OF WASHINGTON PUBLIC POWER SUPPLY SYSTEM (G.C. SORENSEN) (

11)

FEDERAL REGISTER NOTICE - POLICY STATEMENT:

MODIFICATION COMMENT OF OHIO CITIZENS FOR RESPONSIBLE ENERGY (SUSAN L. HIATT, OCRE REPRESENTATIVE) (

12)

NUCLEAR REGULATORY COMMISSION 10 CFR PART 2 DOCKETED USNRC

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RECONSIDERATION OF ENFORCEMENT POLICY PROVISION INVOLVING REOPENING CLOSED CASES AGENCY :

Nu~lear Regulatory Corrrnission ACTION :

Policy statement: Modification.

SUMMARY

The NRC is publishing a m1nor modification to 1ts Enforcement Policy to clarify its policy on reopening closed enforcement actions. This policy 1s codified as Appendix C to 10 CFR Part 2.

DATES:

Since this action concerns a general statement of po11cy, no prior notice is required and, hence, this modification to the Enforcement Policy is effective March 23, 1988. CofflTlents may b~ submitted on or before May 23, 1988.

ADDRESSES: Send corrments to: Secretary, U.S. Nuclear Regulatory Corrrniss1on, Washington, O.C. 20555.

ATTN:

Docketing and Service Branch.

Hand deliver comnents to:

Ro0tn 1121, 1717 H Street, NW., Washington, DC between 7:30 a.m.

to 4: 15 p.m.

-Copies of corrrnents may be examin~d at the NRC Public Document, 1717 H Street, N.W., Washington, DC.

FOR FURTHER INFORMATION CONTACT:

James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Corrm1ss1on, Washington, DC 20555 (301-492-0741). 3 f u1r 1.J>-5 jJJ--

SUPPLEMENTARY INFORMATION:

The CoRl!11ssion on September 23, 1987 issued a rev1sed Enforcement Po11cy (52 FR 36215, September 28, 1987) in which Section V.F. addressed reopening closed enforcement actions.Section V.F. provided that if significant new information is received which indicates that a previous enforcement sanction was incorrectly applied, the action could be reopened.

The policy also e

stated that {l) reopening should occur only if renied1al action is necessary to abate a continued harm or 1f the new information shows that the violation was less serious than originally believed or that the violation did not occur, and (2) normally actions would not be reopened where the only change to the prior action would be to increase the severity level of a violation or to impose or increase a c1vil penalty.

Hh11e comments submitted in response to the September 28, 1987 Policy Statement

"'Were generally favorable to the wording of section V.F, the Commission has reconsidered this po11cy because it i111>lies that an enforcement action would not normally be reopened to increase a sanction even if such action was warranted. For example, reopening may be warranted to increase a sanction such as a c1v11 penalty on the basis of new information if the reason NRC did not have the 1nfonnation initia11y was because the licensee misled the NRC by providing false information or w1thhold1ng the 1nformat1on from the NRC.

In such a case, any prejudice to the licensee is the result of 1ts own action.

Reopening would be justified under the terms of the current enforcement policy to impose the appropriate sanction.

Not to do so would reward a licensee's failure to cooperate with the NRC, which of course cannot be tolerated.

It should be noted that the issue here is reconsidering the existence of the original violation or the circumstances and severity of the original violation.

If the new information supports a different violation, then reopening is not the issue because a new and different enforcement action can be taken.

Whether or not to reopen a completed enforcement act1on 1 requires the exercise of sound discretion and judgment *. It is difficult 1n the absence of a specific case to establish what action if any should be taken as a result of new information. Considerations in making a determination to reopen a closed case m1ght include: whether the licensee knew or should have known of the information at the time the original action was closed, whether the doctrine of ill judicata applies, the opportunities available to learn of the information earlier and the reason for NRC not obta1n1ng it earlier, the significance of the new information, the extent of the change to the enforcement action warranted by the new information, the resources necessary to reopen the case, the need for an increased sanction to provide additional deterence fer the impacted licensee and other similar licensees, whether the licensee acquiesced to the original enforcement action, whether remedial action is needed to abate the effect of the original violation, whether the original violation in fact occurred, and whether the licensee would be severely or unjustly prejudiced by a reopening decision (apart from receiving a more severe sanction).

Recognizing that th1s 1s an issue which arises infrequently and that there are many considerations relevant to a reopening decision on the basis of new 1nformat1on, the COfllllission has determined to modify Section V.F. of the Enforcement Policy to emphasize that the decision to reopen a case 1s to be made on a case-by-case bas1s.

List of Subjects 1n 10 CFR Part 2

~---------~----------~--------~--------

Adm1nistrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discr1m1nat1on, Source material, Special nuclear material, Waste treatment and d1sposal.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C.- 553, the NRC 1s adopting the following mod1fication to its statement of Enforcement Policy 1n Appendix C to 10 CFR Part 2.

Part 2 - Rules of Practice for Domestic Licensing Proceedings

1.

The authority citation for Part 2 continues to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.

2241); sec. 201, 88 Stat. 1242, as. amended (42 u.s.c. 5841); 5 u.s.c. 552.

Section_-2. 101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 u.s.c. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 u.s.c. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Sections 2.102, 2. 103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239).

Section 2. 105 also issued under Pub~ L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).

Sections 2.200-

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amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846).

Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat.

853 as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770 also issued under 5 U.S.C. 557.

Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 u.s.c. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.

Section 2.809 also issued under 5 u.s.c. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat. 1473 (42 u.s.c. 2135).

Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).

2.

Section V.F. of Append1x C is revised to read as follows:

Appendix C - General Statement of Poi1cy and Procedure for NRC Enforcement Act1ons; V.

Enforcement Actions* *

• F.

Reopening Closed Enforcement Actions If significant new information is received or obtained by NRC which indicates that an enforcement sanction was incorrectly applied, consideration may be given, dependent on the circumstances, to re-opening a closed enforcement action to increase or decrease the severity of a sanction or to correct the record. Reopening decisions will be made on a case-by-case basis, are expected to occur rarely, and require the specific approval of the Deputy Executive Director for Regional Operations.

Dated at Washington, DC, this lt~day of L\\l~-Q..

1988.

For the Nuclear Regulatory Corrm1ssion

/:

• I U.S. Nl.JCLEAR R~GULATORY COMMl SSIOS DOCKETING & ~.EPV! ([ SECT roN OfFICt OF THF S:CRH/.RY OF TH~ CC.11\\,'.,',ISSIOH Postr.iar~ Dr1fe

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l':r88 "ffi APR 19 P12 :25 COMMENTS OF OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

<"OCRE 1 >

ON MOD-IF IC,ATION TO ENFORCEMENT POLICY SHHEMENT (53 FE fWiG*

9429, MARCH 23, 1988)

OOCKEi h.

BR;..

The NRC is changing its policy statement on enforcement to allow reop e ning closed enrorcement actions on a case-by-cose ba s is; previau~lY, the pOlicy statement would not allow reopening of closed actions where the only change would be to escal~te the enforcement action.

OCRE supports this revi~ian.

The previous policy clearly sent the wrong message to licensees, and indeed would reward the m for concealing information about the severity of a violation, knowing thQt the action *oul d not be reo;;,ened if the truth came out.

The NRC is to be commended for this modification in support or strict and fair enrarcenent.

Respectfully submitted, Susan L. Hia t*l:

OCRE Representative 8275 Munson Road Mentor, OH 44060

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WASHINGTON PUBLIC POWER SUPP~q}.~~i~TEM P.O. Box 968

• 3000 George Washington Way

• R.,;lai£t '21sh~f~9352 December 16, 1987 U.S. Nuclear Regulatory Commission ATTN:

Docketing & Service Branch Washington~ D. C.

20555 Gentlemen:

Subject:

REVISED POLICY STATEMENT ON ENFORCEMENT The Supply System has reviewed the subject rev1s1ons to the NRC 1s Enforcement Policy.

In general ~ we find that these revisions represent positive steps ~ and with exceptions as noted~ we support them.

The Supply System would like to acknowledge the law firm of Bi shop ~ Cook ~

Purcell & Reynolds (BCP&R) and the comments which they have filed on this matter.

The Supply System is one of the utilities represented by their comments.

Additionally ~ the Supply System wishes to express its concern regarding the potential negative effects of this policy on individual ; licensed operators as well as its implications for public health and safety.

Supply System management is as concerned as the NRG that our operating personnel should exemplify the highest standards of performance and attention to duty.

We feel certain that our present staff more than meets this goal.

However ~ in applying its enforcement powers against individuals the NRG may risk creation of a situation which is adverse to safety; a situation where licensed operators may be overly cautious or timid in cases which require decisive action, especially if there is an unknown threat of possible future action.

For this reason, we would urge the Commission to reconsider this new policy direction.

If reconsideration is not possible ~ we would urge the Commission to move slowly and cautiously in this area.

Enforcement action against individuals should be taken only after careful and exhaustive examination of each circumstance.

The criteria and procedural controls governing implementation of this new policy should be clearly and explicitly constructed to assure consistency and fairness.

The potentially serious effects on the individuals involved; which would include loss of livelihood; and the unknown implications for public safety demand nothing less.

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Docketing and Service Branch Comments - Revised Policy Statement on Enforcement Page 2 Finally, we note that the Commission may now begin issuing civil penalties for Severity Level IV violations that are "similar" to previous violations.

While generally in line with the Commission's philosophy on escalation of enforcement actions (Section V.D), we cannot help but think the imposition of a civil penalty at this level could place too much emphasis on violations that are considered less serious than Severity Level III, but of more than minor concern.

It is suggested that the Commission impose civil penalties only for Severity Level III violations and above.

Civil penalties represent a significant enforcement tool~ and imposition of a civil penalty is inevitably congruent with maximum local press coverage.

These events are closely tied to significant safety problems in the public's mind.

They are not associated with problems that are, not to diminish their importance, less than serious safety violations.

We believe that, in these cases, the punishment does not fit the crime.

A different approach such as special news rel eases, enforcement conferences, or lowered SALP ratings, all of which are currently available to the staff, could be more effective than civil penalties in encouraging licensee self-identification and correction of problems at this level.

Thank you very much for this opportunity to participate in the NRC's policy development process.

Should you have any questions on this subject, please feel free to contact me.

Very truly

• A.;

• orensen, Manager Regulatory Programs cc:

D. Willi ams/BPA NS Reynolds/BCP&R

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1747 PENNSYLVANIA AVENUE, N. W.

DOCKETED USNRC TROY B. CONNER, JR.

WASH I NGTON, D. C. 20006

'87 NOV 27 Pl2 :08 MARK J. WETTERHAHN ROBERT M. RADER NILS N. NICHOLS BERN HARD Q.BECHHOEFER November 25, 1987 OP COUNSEL Samuel J. Chilk Secretary of the Commission United States Nuclear Regulatory Commission Washington, D.C.

20555

Dear Mr. Chilk:

Re:

Revised NRC Policy Statement On Enforcement Actions CABLE ADDRESS: ATOMLAW I

am responding to the Commission's request for com-ments regarding revisions to its policy statement on en-forcement actions, codified at 10 C.F.R. Part 2, Appendix C.

See 52 Fed. Reg. 36215 (September 28, 1987).

The Commission has made the changes immediately effective, subject to receipt of comments.

We agree that the changes made by the Commission are minor and we have no particular comment on them.

However, we wish to express our belief that the Commission should act to redefine "material false statements" as urged by the Commission's own Advisory Committee For Review Of The Enforcement Policy established in 1984.

Like the Advisory Committee, we continue to believe that the existing material false statement doctrine is unfair and unworkable.

We previously communicated our position on this subject to you in our letter dated April 10, 1987 regarding the proposed rule codifying obligations of licensees and applicants to provide complete and accurate information.

See 52 Fed. Reg. 7432 (March 11, 1987).

We incorporate that portion of our previous letter dealing with material false statements by reference.

To summarize, as we stated in our previous letter at page 5, the Commission should define "material false statement" as "the willful provision of false information to the Commission in a material respect, in writing or orally under oath, knowing that the information is false."

See X-Ray Engineering Company, 1 AEC 553, 555 (1960).

This definition NOV 3 0

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Samuel J. Chilk November 25, 1987 Page 2 should be formally added to Part 2, Appendix C, Supplement VII.

Further, the severity levels for material false statements under Supplement VII should be revised to take into account the potential risk to the public heal th and safety; the common defense and security; the degree of management involvement; voluntary initiatives to detect and correct a misstatement; the degree to which the NRC relied upon the misstatement; and any other relevant considerations.

Inasmuch as the Commission is in the process of adopt-ing new rules which would cover inadvertent misstatements and misstatements by omission, there is no longer any need to saddle the material false statement doctrine with these and other like concerns.

Sincerely, Troy B. Conner, Jr.

TBC/ac

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~~y 1671 Worcester Road, Framingham, Massachusetts {81010 2:1 Pl2 :OO November 25, 1987 FYC 87- 025 GLA 87-175 Secretary of the Commission United States Nuclear Regulatory Commission Washington, DC 20555 Attention:

Docketing and Service Branch

Subject:

Revised Enforcement Policy Statement (52FR36215)

Dear Sir:

OFF"IC!: OF 5: d< t:1,,~,

OOCKfT ING.S-. SfilVICf BRANCH Yankee Atomic Electric Company appreciates the opportunity to reply to the subject NRC revised statement of policy on enforcement.

Yankee Atomic Electric Company owns and operates a nuclear power plant in Rowe, Massachusetts.

Our Nuclear Services Division also provides engineering and licensing services for other nuclear power plants in the Northeast, including Vermont Yankee, Maine Yankee, and Seabrook.

We endorse the changes made to the Enforcement Policy of 10CFR, Part 2.

We note that important recommendations made to the Commission by the independent Ad Hoc Advisory Committee for review of the Enforcement Policy have been incorporated in the revised policy statement.

We are pleased to see changes, such as allowance for 100% mitigation of a Severity Level I violation and provision for expanded discretion by NRC in issuing violations and/or civil penalties.

Such provisions allow overt recognition and encouragement of good performance by licensees.

In its report to the Commission, the Ad Hoc Advisory Committee also emphasized that the material false statement issue concerns the regulated community more than any other aspect of the Enforcement Policy.

We agree with the Committee's conclusion and have similarly stated our views in previous comment letters.

We believe that the Commission has recognized the need to eliminate such concerns, and, as a result, proposed appropriate changes to the material false statement policy in March of this year.

However, the absence yet to date of a final revised policy has contributed nothing to achieving the results intended by such a revision - namely, to limit use of the term "material false statement" to egregious enforcement actions.

We urge the Commission to expeditiously issue the revised policy on material false statements.

Such an action is essential to maintaining an efficient and unimpeded flow of information between the NRC and licensees.

Very truly yours, di~

Donald W. Edwards Director of Industry Affairs JMG/22. 3 77 NOV 3 0 1987 '

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TELECO PIER{i~c;,..a):e ~7-,9846 November 25, 1987 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attn:

Docketing and Serv i ce Branch Re:

Revisions to Enforcement Policy (52 Fed. Reg. 36215)

On September 28, 1987, the NRC (the "Commission") published in the Federal Register several revisions to its Enforcement Policy.

See 52 Fed. Reg. 36215.!/

The revisions are intended to further explain enforcement actions involving individuals, to describe the criteria to be used for reopening c l osed enforcement actions, to provide for the exercise of discretion to refrain from issuing a Notice of Violation or a proposed civil penalty under certain limited circumstances, and to make minor deletions and language changes.

The revised Enforcement Policy became immediately effective, as of September 28, 1987.

Nevertheless, the NRC has solicited public comments on the revisions.

On behalf of the eighteen power reactor licensees set forth below, we respectfully submit the following comments.~/

!/ The Enforcement Policy is codified as Appendix C to 10 C.F.R. Part 2.

~/

Alabama Power Company; Arkansas Power & Light Company; Baltimore Gas & Electric Company; Commonwealth Edison Company; Consolidated Edison Company of New York, Inc.; Duke Power Company; Georgia Power Company; Long Island Lighting Company; New York Power Authority; Niagara Mohawk Power Corporation; Northeast Utilities; Pacific Gas & El ectric Company; Rochester Gas & Electric Corporation; South Carolina Electric & Gas Company; System Energy Resources, Inc.; TU Electric; Washington Public Power Supply System; Wisconsin Public Servi ce Corp.

J i.J.S. l'lUCLEAR Rrr,11tATOR.Y COMMISSIO DOCKET!,*~ & r.rRViG SECTION omc~ OF I, ' s -P.r.T 6.RY OF TH: CC/, ', 1SS!C,-l

1.

Enforcement Actions Against Individuals Traditionally, NRC policy generally has been to take enforcement actions against facility licensees rather than against licensed operators or other responsible individuals.

The Commission, however, is now apparently changing that policy.

A discussion on when direct enforcement action against an individual (as opposed to a licensee) will be considered has been provided in renumbered Section V.E. of the revised Enforcement Policy.

Most violations by individuals at Severity Level III, IV, or V will be handled, properly in our view, by citing only the facility licensee.

However, more serious violations, including those involving the integrity of the individual (~,

lying to the NRC) and concerning matters within the scope oitfie individual's responsibilities, will now, according to the Commission, be considered for enforcement action against the individual.

Licensees are certainly as concerned as the NRC with promoting high standards of performance by their employees.

However, we do not believe that in applying the new policy the NRC should unduly emphasize enforcement actions against individuals.

This could lead to an atmosphere at operating plants whereby licensed operators and other individuals feel that they are putting their job and career on the line each time they make a decision to perform some action.

This could be counterproductive from the standpoint of nuclear operations and safety.

rt could create an overly timid operating staff, an overly stressful environment, and an increase in the already acknowledged difficulties of successful utility recruitment.

This indirectly could lead to greater mistakes and such problems as increased scram rates.

Therefore, even in the situations listed by the Commission as appropriate for enforcement action against an individual, we believe that the Commission should be extremely circumspect in taking such an extraordinary measure.

Before taking that action the Commission should assure itself that the action will actually achieve the agency's objectives.

The Commission's revised discussion provides some examples of when enforcement action against an individual will and will not be appropriate.

The Commission states that it will not take enforcement action against an individual in situations such as:

inadvertent individual mistakes resulting from inadequate training or guidance provided by the facility licensee; violations resulting from compliance with an express direction of management; and violations resulting from inadequate procedures.

The Commission will take enforcement action against an individual in situations such as:

recognizing a violation of procedural requirements and willfully not taking corrective action; willfully performing unauthorized bypassing of required reactor safety systems; sleeping or being intoxicated while on duty; and falsifying records.

2 -

Assuming the NRC is going to take enforcement actions against individuals, we agree generally with the Commission that action against the individual should not be taken if the improper action by the individual was caused by management failures.

Moreover, as stated above, minor violations certainly should not be handled by citing the individual.

However, while the examples the Commission provides may appear to meet these objectives in the abstract, we believe that actual application of the examples may be problematical.

The examples include fairly broad principles (~, training has been "inadequate", an unauthorized bypassing of~ety systems is "willful").

As a result, these examples call for considerable interpretation of the facts of any given case.

Enforcement actions against individuals could therefore easily become the subject of disputes which would be detrimental to employee morale and performance.

This again underscores our view that this enforcement mechanism should be used only infrequently and in clearly appropriate cases.

The above discussion also raises another important question regarding enforcement actions against individuals.

In cases of disputes over the enforcement action, the burden would appear to be on the individual to contest the NRC staff's findings.

The Enforcement Policy, however, is silent as to the opportunities that will be afforded individuals to challenge individual enforcement actions.

The policy in our view should address this issue, particularly with respect to an employee that is not a licensee under Part 55.

Individuals should be afforded an opportunity for a hearing, especially in cases of the most severe sanctions.

The Commission's revised policy explicitly contemplates enforcement actions against both NRC-licensed operators and unlicensed individuals.

In the former case, the NRC would consider issuing (in ascending order of severity) a letter of reprimand, a Notice of Violation, or an order modifying, suspending, or revoking the operator's license.

In the latter case, the Commission states only that it would consider an order modifying the facility license to require the removal of the individual from all nuclear-related activities.

This latter case is one in which it would seem particularly important that the individual involved (as opposed to the licensee subject to the order) be afforded some hearing rights.

Enforcement actions against individuals create a new category of NRC sanctions.

The discussion in the revised policy raises two unanswered questions in our minds:

(1) Will individual enforcement actions be factored into a.facility's enforcement history as a violation equal to other violations (for example, for escalation/mitigation consideration)? (2) What specific transgressions will be sufficient to revoke an operator's Part 55 license or to require removal of a non-licensed individual from nuclear activities?

These are questions which should be addressed in the Enforcement Policy.

3 -

we recommend that individual enforcement actions should not be factored into a facility's enforcement history.

Such actions should relate only to subsequent enforcement actions against the individual.

Further, if the Commission intends to apply its enforcement authority under Section 234 of the Atomic Energy Act (civil penalties) to non-licensed employees of power reactor licensees, it would be exceeding the scope of that authority.

The legislative history of Section 234 shows that the section was intended to enable the NRC to impose civil penalties against a limited type of non-licensee, viz., a person who failed to obtain a license when required to do ~or who once had a license but allowed it to expire and continued performing a licensed activity.

In short, the authority of the Commission to impose civil penalties directly on individuals extends only to individuals licensed pursuant to 10 C.F.R. Part 55 to operate power reactors and to individuals subject to Section 206 of the Energy Reorganization Act.3/ Properly, therefore, the revised policy does not ap1 ear to contemplate civil penalties against individual& (actua ly, neither licensed nor non-licensed).

However, we recommend that the policy more explicitly address this point by citing that civil penalties will not be assessed against individuals.

2.

Enforcement Discretion for Certain Severity Level IV and V violations Previously, under Section V.A. of the Enforcement Policy, the Commission stated that it would exercise its discretion to abstain from enforcement action for certain licensee-identified, low severity level violations.

Under the Commission's current revisions, this discussion has been removed from Section V.A.

In its place the Commission has created an entirely new Section V.G., Exercise of Discretion.

Under the new and expanded policy, the Commission will not issue a Notice of Violation for certain Severity Level III, IV or-V Violations.

First, as under the old policy, the CommTssion -

will generally not issue a Notice of Violation for licensee-identified and reported minor violations (Severity Levels IV and V).

For discretion to apply, the licensee must also have taken corrective action and the violation must not have been a violation that could reasonably have been prevented by prior corrective actions.

Appropriately, there is no change here from current policy.

We support this existing standard for the exercise of discretion, with the comment that discretion should See AEC Omnibus Legislation -

1969:

Hearinf before the Joint Committee on Atomic Energy, 91st Congress, st Session 31-34 (1969) (Colloquy between Committee Members and the Committee Staff with Joseph Hennessey, AEC General Counsel and other AEC representatives); cf. 48 Fed. Reg. 44170 (1983)

(explaining authority of Commission to issue notices of violations to non-licensees).

4 -

also be available in these circumstances for Severity Level III violations.

More importantly, the Commission has expanded the circumstances where discretion may be exercised.

The Commission has decided that discretion may also be exercised to refrain from issuing a Notice of Violation if all of the following criteria, listed in a new paragraph, are met:

0 0

0 0

(a) NRC has taken significant enforcement action based upon a major safety event contributing to an extended shutdown of an operating reactor or a materials licensee; (b) the licensee has developed and is implementing during the shutdown a comprehensive program for problem identification and correction; and (c) NRC concurrence is needed by the licensee prior to restart; Non-willful violations are identified by the licensee (as opposed to the NRC) as the result of its comprehensive program; The violations are based upon activities of the licensee prior to the events leading to the shutdown; and The non-willful violations would normally not be categorized as higher than Severity Level III violations under the NRC's Enforcement Policy.

We support the Commission's decision to exercise enforcement discretion in these circumstances.

We have long advocated (for example, in comments on prior revisions of the Enforcement Policy) that licensee-identified violations of less significance (such as Severity Level III, IV or V violations) should not be the basis for a Notice of Violation.

Such a policy would further encourage licensees to be proactive in identifying violations and reporting them to the NRC -- all without fear of citations and adverse publicity.

In addition, the particular fact situation identified by the Commission in the above criteria is one in which this policy would be particularly appropriate.

Two additional observations, however, are in order.

First, there is no reason enforcement discretion should not be applied to Severity Level III violations.

This applies to both the broad test retained from the old Enforcement Policy (in which discretion is currently not contemplated for Severity Level III violations) and to the new situations provided for in the revised Enforcement Policy (in which the Commission would exercise discretion for Severity Level III violations).

The philosophy behind enforcement discretion recognized in the new test applies 5 -

equally to all non-willful, licensee-identified Severity Level III violations.

Therefore, as mentioned above, we recommend that the old test (Section V.G.1 of the Enforcement Policy) be expanded to include Severity Level III violations.

Second, in the new example of circumstances where enforcement discretion is appropriate (Section V.G.2 of the Enforcement Policy), we believe that the Commission should temper the four-prong test with a touch of flexibility.

The first criterion provided is by far the most important test.

If this criterion is met, the licensee's facility is already shutdown, which is the strongest possible deterrent to further similar violations.

Therefore, in appropriate circumstances, the NRC staff should be free to exercise discretion even if the 'other three criteria are not strictly met.

The Enforcement Policy should include a direction to the staff that this new four-prong test is not meant to be a strictly limiting example.

3.

Allowing Miti1 ation of Civil Penalties for Severity Leve I violations We agree with the Commission that mitigation of a civil penalty for a Severity Level I violation should be available on the same basis as for Severity Level II, III and IV violations since the rationale for allowing mitigation of these violations is the same:

i.e., to encourage self-identification and reporting, and to recognize extensive corrective actions and good performance by a licensee.

The second paragraph under Section V.B. of the Enforcement Policy is modified as follows:

[C]ivil penalties are imposed absent mitigating circumstances for Severity Level I and II violations, are considered for Severity Level III violations, and may be imposed for Severity Level IV violations that are similar to the previous violations for which the licensee did not take effective corrective action.

We believe that this is a positive revision and we therefore support it.

4

• Supplement VII:

Violations of Section 210 Supplement VII to the Enforcement Policy lists the severity categories and examples for various "Miscellaneous Matters",

including violations involving harassment of and retaliation against employees who report safety concerns.

In the revised policy, the reference to Section 210 of the Energy Reorganization Act has been replaced with a reference to 10 C.F.R. S 50.7 and similar NRC regulations prohibiting discrimination against employees.

The replacement of the reference in Supplement VII to Section 210 is appropriate, according to the Commission, because NRC regulations, not Section 210, form the basis for violations 6 -

and enforcement actions related to wrongful discrimination or harassment.

While it is true that S 50.7 rather than Section 210 must form the basis for NRC enforcement actions, we do not believe that the Commission should remove all reference to Section 210 from the Enforcement Policy.

We believe that the NRC should, whenever possible, await and rely upon findings by the Department of Labor ("DOL") in a Section 210 case that a violation of Section 210 occurred before citing a violation of§ 50.7.

This practice ensures 1) that a record is properly developed on the subject incident, and 2) DOL expertise in matters related to labor/employment law is brought to bear, allowing proper perspective on the incident.

Obviously, if no claim is filed with DOL, or no DOL findings are made, NRC will not be able to rely on a Section 210 case.

In these situations the NRC should conduct its own investigation before citing a violation of S 50.7.

5.

Reopening Closed Enforcement Actions The Commission has added to Section Va new paragraph, Reopening Closed Enforcement Actions.

The Commission believes that reopening should occur only if:

(1) remedial action is necessary to abate the continued harm caused by a violation to the public health and safety, the common defense or security, or the environment; or (2) new information shows that a violation was less serious than originally believed or that it did not occur.

Reopening is expected to occur rarely.

We support these criteria for reopening the record in enforcement actions.

These criteria ensure that, on the one hand, enforcement action is not precluded when public health and safety is at stake and, on the other hand, that the public record properly reflects the seriousness of violations previously identified.

we understand that there has been some concern voiced regarding the Commission's statement that enforcement actions "would not normally be reopened where the only change to the prior action would be to increase the severity level of a violation or to impose or increase a civil penalty."

We believe that this policy is appropriate.

It is axiomatic that there must be some finality to enforcement actions.

In fairness, licensees should not forever be subjected to the uncertainty that a past violation could be reopened simply to increase the severity level or the civil penalty amount.

A policy allowing reopening for this purpose would serve no deterrent purpose beyond the deterrence already achieved by the original enforcement action.

In contrast, due to the importance of the perceptions of the public and the public utilities commissions with respect to enforcement actions, licensees have a strong interest in assuring an appropriate record for all enforcement cases.

If new information would truly change the outcome of an enforcement 7 -

action to reduce the Severity Level or civil penalty, reopening is appropriate.ii

6.

Profiting From A Violation The Commission has deleted the following sentence in the second paragraph under Section I of the Enforcement Policy:

"[i]t is the Commission's intent that sanctions should be designed to ensure that a licensee does not deliberately profit from violations of NRC requirements."

The Commispion believes that the wording is ambiguous and that few violations are based on a deliberate desire to profit from noncompliance.

Moreover, other wording in the policy clearly states that sanctions and severity levels may be increased for deliberate violations.

We agree with the Commission that the deleted language is unnecessary.

we appreciate this opportunity to provide our comments on the Commission's Enforcement Policy changes.

, PURCELL Compare Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 800 at n.

66 (1983) (addressing the criteria for reopening the record of an NRC adjudicatory proceeding).

8 -

DOCKET NUMBER

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PROPOSED RULE PR-h LV C j-;l F~..Jt:t I£} -*~

@) KERR-MCGEE CORPORA"ON KERR-McGEE CENTER OKLAHOMA CITY, OKLAHOMA 73125 November 19, 1987 ENVIRONMENT AND HEAL TH MANAGEMENT DIVISION Secretary U. S. Nuclear Regulatory Commission Washington, DC 20555 ATTN:

Docketing and Service Branch RE:

10 CFR Part 2; Policy and Procedure for Enforcement Actions:

Policy Statement (52 FR 36215; September 28, 1987)

Dear Mr. Secretary:

OOC:KETED USNRC

-r7 tlJV 23 P2 :02 These comments on NRC I s revi sect policy statement regarding enforcement actions are submitted by Kerr-McGee Corporation on behalf of Kerr-McGee Chemical Corporation, Sequoyah Fuels Corporation and Quivira Mining Company.

These companies are wholly owned subsidiaries of Kerr-McGee Corporation and are holders of NRC licenses.

GENERAL Kerr-McGee believes the mi nor revisions in the referenced notice that were effective on September 28, 1987 are proper and will be beneficial overall both to NRC and its licensees.

The revisions provide licensees with clearer guidance concerning the types of enforcement actions, the mitigating circumstances taken into account in establishing a notice of violation severity or scale of civil penalty and the provisions for reopening a previously closed enforcement proceeding when new facts are presented.

The formalization of policy concerning exercise of discretion by the NRC is an especially desirabl e action which we believe will enhance the licensee/licensor relationship.

SPECIFIC Section V.F.

Reopening Closed Enforcement Actions Although Kerr-McGee believes there should be prov1s1on for reopening a closed enforcement action, we believe further clarification and guidance should be provided concerning any reopening for the purpose of increasing the severity level of a violation or to impose or increase a civil penalty.

Such an action, even though requiring the approval of the Deputy Executive Di rector for Regional Operations, provides the licensee with no opportunity for recourse prior to the action.

We believe that, precedent to the NRC taking official reopening action, a tiOV 2 5 19.a7.

~~~-1ovv *ertg_erl* b'P ~a<<l. ~.:~:;;;:;;:"'...,..~.,:;.;..w

Georgia Power Company 333 Piedmont Avenue Atlanta, Georgia 30308 Telephone 404 526-6526 Mailing Address:

Post Office Box 4545 Atlanta, Georgia 30302 L. T. Gucwa Manager Nuclear Safety and Licensing DOCKET NUMBER PR-"6 PROPOSED RULE~~ 2 / 5" _)

{52F,e 0 OOCKEiEC USNRC

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1)7 tlJV 23 A11 :2()Georgia Power

//1e southern electnc sy~tem OFF!C!:. 0~ 5~ChC1111**

• OOCKEi 1NG ~ '3E HV ICf.

November 18, 1987 BRA NC~

SL-3676 0630U X7GJ17-C220 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 GEORGIA POWER COMPANY COMMENTS ON A PROPOSED REVISION TO THE ENFORCEMENT POLICY Gentlemen:

The following comments are submitted in response to the proposed rev1s1on to the Enforcement Policy dated September 28, 1987.

We appreciate this opportunity to comment.

Georgia Power (GPC) agrees with the Commission's decision to continue its practice of generally not issuing a notice of violation for severity level IV or V violations which were identified by the licensee and for which the licensee has taken appropriate reporting and corrective actions.

Licensees will certainly be encouraged to place significant stress on finding and correcting problems.

GPC also agrees with the Commission's decision to exercise enforcement discretion for certain severity level III violations.

However, GPC believes that the criteria established as a prerequisite for the exercise of such discretion are unnecessarily restrictive.

In particular, the exercise of enforcement discretion for non-willful severity level III violations which are identified by an aggressive and comprehensive licensee program for problem identification and correction, should be equally applicable whether shutdown or operating.

The NRC staff should also be permitted to exercise its enforcement discretion in non-repetitive cases involving severity level I and II violations under similar circumstances.

Additionally, the Supplementary Information for the policy states:

"the Commission has decided that discretion may be exercised, provided there is prior staff consultation, to refrain from issuing a Notice of Violation and a proposed civil penalty for violations that meet all of the... criteria which are listed in a new paragraph in Section V.

11 52 FR 36217 (emphasis added).

"Prior staff consultation" is not listed among the criteria of Section V.G.2. of the policy.

NOV 2 5 1987

~

i

• I

, I lJ.5. NUCLEAR REGU ATOi?Y COMMISSIOB 0OCKHING & :cRVI C" ': ECTION OFFICE OF r-l~ "**

"ARY OF TH[ c:c;v * *

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Postmark Date Copies Roci,,- r-,J Add' I Cc.pi ' ~ ::.,:;r Special D1~lr1culi,;;

11/11,.----

Georgia Power J!.

U. S. Nuclear Regulatory Commission November 18, 1987 Page Two Therefore, GPC assumes that such consultation refers to consultation between the NRC Office of Enforcement and other cognizant NRC Staff personnel.

The Commission should, however, clarify the intent of this language.

With regard to the policy ' s stance on enforcement actions against individuals, GPC agrees with the general statement that such action should be limited to significant violations of requirements involving incompetence or willfulness or where it appears incompetence i s a factor.

GPC finds the use of the word "significant", without definition or example, to be unfortunate.

With regard to enforcement action against individuals, we feel that an enforcement policy which outlines clearly the sanctions to be taken against individuals and licensees as well as the circumstances mandating them, would provide a stronger deterrence against noncompliance.

The Commission has not listed civi l penalties among the examples of sanctions that may be appropriate for individuals.

The Commission, however, should specifically state that civil penalties will not be imposed against individuals if that is its intent.

Finally, GPC regrets that the NRC has not yet clarified its position regarding Material False Statements.

It is noted that this revision was not listed in the latest Semiannual Regulatory Agenda (52FR41202).

It is GPC's hope that the NRC will act on this matter promptly.

If you have any questions in this regard, please contact this office at any time.

MJB:LTG:ju c: Georgia Power Company Sincerely, c#'74 e -o-L. T. Gucwa Mr. J. P. O'Reilly, Sr. Vice President - Nuclear Operations Mr. J. T. Beckham, Jr., Vice President - Plant Hatch Mr. G. Bockhold, Jr., General Manager - Plant Vogtle GO-NORMS 0630U

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COMMENTS ON NRC ENFORCEMENT POLICY CHANGES DATED SEPTEMBER 28, 1987 A

The revisions to the NRC's enforcement policy, as published at 52 FR 36215 (September 28, 1987), generally strike a reasonable balance between the importance of enforcement actions and the need for incentives for self-identification, reporting, corrective action, and overall good performance by a licensee.

As stated by tbe we in its policy:

URC attaches great importance to comprehensive licensee programs for detection, correction, and reporting of problems that may constitute, or lead to, violation of regulatory requirements.... To encourage licensee self-identification and correct.ion of violations and to avoid potential concealment of probl$lll$ of safety significance, application of the adjustment factors... may result in no civil penalty being assessed for violations which a~e identified, reported (if ~equired), and effectively corrected by the lieanaee.

52 ~

a 3622~.

T e c*s concl~sion that the basis for mitigating save~ity Levels II and III violations also applies to severity Level I violations,appropriately recognizes that incentives in an enforcement policy should apply to all violation levels.

Similarly, the Nae's recognition that "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 a4dressing the causes of the violations," is consistent with the purpose of its enforcement policy.

52 VR at 36217.

However, it is not clear Why this policy is limited to Severity Level III and lower violations.

AJ;J notad by the NRC, "the rationale for refraining from civil penalty enforcement action may be the same for Severity Level I and ll violations.... "

Id.

Further, the above-referenced quote concerning mitigation of civil penalties would apply equally well to this area of enforcement discretion, and, under ttie NRC's revised policy, theoretically even a civil penalty for a seve~ity Level I violation could be mitigated in its entirety.

The NRC to explain this limitation $tates that exercise of discretion would not normally extend to Severity Level I and II violations because with violations at higher levels "it may be important to convey a mesaa.ge to other license~s regarding the significance and con equenc so( such violations.** Id.

The fact of a forced shutdown itself conveys a message, both to th~ impacted licensee and to other licensees, much 2.,

J

stronger and more expensive than any civil penalty action.

The imposition of a civil penalty on top of a shutdown will add little, if anything, towat'd aeeomplishing the purposes of the lffl.C*s enfora8m8nt policy, and could, as reeogni~ed by the NllC, in f act detract from those purposes.

Moreover, the objective of providing incentives, where a~propriate, for comprehensive programs of aggressive problem identification and correction during a forced shutdown is even more important in the case of Severity Level I and Il violations.

Accordingly, since the NRC is willing to allow mitigation of Severity Level I and II violations, it should also consider not issuing civil penalties for Severity Level I and II violations where the licensee is in a forced ahut4own and tha other specified conditions are met.

TENNESSEE VALLEY AtrrHORlTY NUCLEAR SERVICES CRATTANOOGA, TENNESSEE

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0.E CO (r:) (Y\\ \\ S' St <S'/'-J (NAME)

(TVA Address)

(TVA/B~siness Exteusion)

OR (Company Name)

TRANSMITTING ONE (l) COVER SHEET AND

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TELECOPIER No. /cl8"- afo 3 <{-333 '-/

VERIFICATION No. /cl~ - #s"(- fo 3 <../ - 33 ;;i._o

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SPECIAL INSTRUCTIONS: ____.~!..Js.~----.Q;;;-i,-.~~t___.-'-,d::~--¢=~~~~~~~---

DOCKET NUMBER PR PROPOSED RULE

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October 12, 1987 Secretary of the Commission Nuclear Regulatory Commission Washington, DC 20555 ATTN:

Docketing /service Branch

Subject:

Public Comment OOC.:KEiEQ USNRC 1fl t11Y 17 P3 :03 OFFICE OF.3: l.Ht 1AK (

OOCKEilNG & Sff<VIC[

BRANC~

"General Statement of Policy and Procedure for Enforcement Actions" Sir; New3Release No. 87 131 September 28, 1987 Does the above policy change refer to industrial radiography licensees as well as reactor operations?

If this policy does apply to industrial radiography licensees please advise how I may obtain background information and documentation.

I am in favor of this policy statement.

Cordia{>>! -/

1(Zf1CYJ7 R.~. Donny Di~harry President RD/kd

• Source Production & Equipment Co., Inc.

NOV 18 1987

~cknowledged by ca rd.*,, *.,. ~,,r;,;;;:;,iijij(IP 113 Teal Street St. Rose, LA 70087-9691 Phone 504/464-9471 Telex 460156 FAX 504/467-7685

U.S. NUCLEAR REGULATORY COMMISSIOti DOCKETING & SERVICE SECTtON OFFICE OF THE SECRET ARY Of THE COMMISSION Docu1.irnt $iali:.tics F'ostmark Date

_ /tJ /t 3,-,_:.,_ ___ _

Copies Received Add' I Copies R'!;;rc,:..,:~d 2-- ---

Special Distribution I

• Reliable Electric / Utility Products 11333 Addison Street / Box 1915 Franklin Park, IL 60131 312-455-8010 TWX 910 227 3159 TLX 72-8393

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u::iNfC COMM/TEC

'17 OCT 19 A7 :59 October 13~ 1987 SECRETARY, WASHINGTON ATTENTION:

U.S. NUCLEAR REGULATORY COMMISSION DC 20555 DOCKETING AND SERVICE BRANCH ROOM 1121

Dear Sir,

I fully agree with the rules and regulations set forth in policy and procedure for enforcement actions revised policy statement of Vol. 52 No. 187 pages 36215 to 36228.

JD/kah

. NOV 1 8 1987 iokAQWledged by card..* ;;:;;._:;;;::;:;_;;_ ~&liiiiil GO 5 (REV 11 /83)

Reliance Commun1cat1ons Technology A Unit of Reliance Electric

0, S. NUCLEAR REGULA T0RY c:nM DOCKETING & ~fR.V!CE ~f OFFICE OF Hfr !,~( ~r-~ A' OF THE CC:f\\1.N I'~- I, Docurm." *'

Postmark Date

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1*,COLOGY/ALER'l' BOX 621 BLOOMS BURG 17815 E Nemethy, Sec,y Sec'y -

RC 00(,KEiEO U!:>Ni~C

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Nov 11 -87 Re: Revised policy statment on Enforcement Actions

-S7 NOV 16 PS :49 Fed Reg -Sept 28-81, p 36215 ATT: DOCKETING & SIDRIVlttffi f3µ..iiii~*t DOCK£ tTuG&~H'1'1t [

Gent.1emen -

BRANCH The S ring/Summer issue of "Groundswell, publi shed by the Nuclear Information and esource Service, reports these revel-ations from Congressional hearings on the RC:

o Commis s ioner Thomas Roberts leaked confidential info about an ongoing investigation to Louisiana Power & Light.

Also had "improper contacts" with Indiana & Michigan Electric and TVA while they were under investigation.

p I'ictor Stello, NRC 's Exe cu ti ve Director of Operat 1.ons, in-tervened to squelch an investigation of TVA's Watts Bar reactors.

o NRC voted 4-1 not to investigate reports of employee harass-ment at Kansas Gas & Electric's olf Creek reactor.

o Findings by NRC's Office of Investigations - of safety concerns at the Comanche Peak reactors in Texas -

were removed from tne final inspection repor t.

Oct 29, NRC approved a rule change to allow "consideration" of operat i ng licaases for the Seabrook and Shoreham reactors, despite opposition of the governors of MA and NY to their evacu-ation planning.

NRC said this doesn't guarantee t he plants will be licensed.

(But don't bet your paycheck on itt)

In view of all this, we !ave nagging misgivings about RC's revised policy statment on Enforcement Actions.

Though it ranks violations into five beverity Categories, and lists pen-alties for each category, it includes some escap e clauses.

They raise some questions.

For example, how vigorously does NRC intend to enforce t L1is policy?

Judging from the activities of some of its top officials, NRC policies seem wonderfully elastic.

In our comments on this policy on Apr 5-84, we suggested a penalty schedule based on a number of hours' gross income.

We amend this to hours of net income (based on the most recent quar terly report) - TO~DEDUCTED FROM SHAREOWNER DIVIDENDS, NOT ADDED TO RATEPAYERS' BILLS.

We believe this would be a more qquitable way to assign penalties -

and suggest the pen-alty for Severity I violations be at least 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />' net income (see chart).

IJ, S, NUCtEAR REGUt,'\\T,....RY C..0, Ml SSIOB DOCKETING & $fR. '?, E SEC JN OFFICE oe Ti*',., f A Y OF Tl f

,o,rmark Date Copies Rec'a!*.,.,

Add' I Cop1**, f.

jpec:ial Oistrib.:*i

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2-2-2 Utility Net income,

+ 8760 (hrs/yr)

$100,000 in terms yr ended 6/87

-net income/hr of hrs of net mn-come GPU

$23tl,758,000 27,141 3 hr, 40 min PPL 300,532, 0001 34,307 2 hr, 54 min Phttic 550,234,000 62,812 1 hr, 35 min (In comparative terms, a 100,000 fine would penalize GPU 2.3 times as much as Phil a Elec)

The Deputy Executive Director for Regional Operations is named a s principal enf orcement officer, who issu e s notices of violations, civil penalties, etc.

Question:

Does he come under t he authority of Mr Stello, the Executive Director of Operat Lons?

If so, what's to pr¥vent Mr Stello from countermanding or modifying his decisions?

And incidentally -

what's RC's policy, and penalty provisions, for top officials who tip off utilities while they're under in-vestigation'?

Re: your "mitigating circumstances" - which may reduce base penalties by 50% (for prompt identification and reporting and "unusually prompt and extensive corrective action"), and as much as 100% for "prior good p erformance"...

Hell, a11;!agffiesBbol~m~~a£a~~n f or granted.

And if the licen-see fails to perform proper y, the base penalty s h ould be increased.

In short, the stick, not t he carrot.

Licensees ou,ght to be kept aware they're operating in a hazardous indu s try, and s loppiness will not be tolerated.

As for mitigating s everity I violati ons -

e can sum up our react i on in one wor:

Unspeakable.

Finally, re: Section 210 of the Energy Reorganization Act and 10 CFR 50~7 -~'whi ch prohibits discrimination against employ~es for engaging in certain protected activities... "

Are you talking about whistleblowers?

rece nt If so, Jack Anderson 's/column re: your suit vs the Govt Account-ability Project rent the veil about RC 's record along these lines.

Which is another reas on we ask:

How vigorously does NRC intend to enforce this policy?

November 5, 1987 DOCKET NUMBER

• ,r, {jJ PROPOSED RULE PR -;,& --~- -

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(.S-:lF£.!~Zlff}

DOC-KCT[D USNHC COMMENTS OF OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC.

(" OCRE " )

0 N p O L I ~ ~ ~. s TATEM EN T : ~ ~ 0;; I Cy AN~

p R 2 CED u ~ ~ ~. FOR EN FOR C E t&'wrNOV 10 Pl2 =46 ACTION,,_,.::. FED. REG.

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pr*o vi ding these gene r a 1 com men 1: =*

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+::he limit on ci vil penalties ofBRAJ'cHEtlvJCf.

$100,000 per vi olatio n per day has no deterrent value:

The fin es must be substantiall y larger to ensure that compliance is indeed less expensive than noncompliance

( is that wh y that sente nce was removed from the second paragraph of section I?).

Second, the NRC should incorporat e the recommendations of t he recent GAO r eport, which found NRC enfocement action to be inconsistent a n d lacki ng specific guidelines on when to order a reactor to shut down.

GAO

found, contrary to the last sentence of section I,

that licensees who cannot maintain adequate levels of protect-ion are permitted to conduct licensed activities.

Third, the NRC s hou ld step up its enforcement actions to ensure that its regulations are followed, OCR E has attached an e xc erp t from its comments on NU REG-1251,

" I mplications of the Accident at Chernobyl ror Safety Re gulation of comm e rcial Nuclear power Plants in the Un ited States", which amplify thes e concerns.

Respectfully submitted,

5 :J*;;an L. Hio*l:t OCR E Representati v e 8275 Mun son Road Mentor, OH 44068 (216) 255 - 3158

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0.,5. NUCLEAR REGU! t !0RY COMMISSIOli DOCKETING & ~--,,.... E SECTION OFFICE CF T

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How can human errors and deliberate violation of procedures be minimized?

Clearly, good procedures and effective training play a role.

But of equal or even greater importance is attitude.

Plant personnel need to have a

realization that nuclear power is an inherently dangerous technology, and that safety is of the utmost importance, Did the Chernobyl operators have the proper attitude?

The February 1986 issue of Soviet Life may provide some clues.

In an article featuring the Chernobyl station, plant personnel are quoted as saying that nuclear power is perfectly

safe, safer than driving a car.

such statements are remarkably similar to those routinely made by the U.S. nuclear power industry, These statements reflect a mindset that nuclear power is basically safei on obvious corollary is that accidents don't happen. When one operates within this belief

system, recognizing and responding properly to an accident or other dangerous condition is hampered, It may not be possible to replace this belief system with one more attuned to reality, It is probably a

natural result of working in a hazardous industry. "Familiarity breeds contempt* is one factor causing this.

Another is that it becomes necessary psychologically ta deny the danger to simply be able to work in a hazardous industry, The only solution to this problem is to substitute strict, vigorous enforcement by the NRC for the proper

attitude, If operators won't respect reactor physics, then pe~haps they will respect enforcement action entailing significant economic penalties.

This means that the NRC ' s enfarceme1t policy and actions must be severe, swift, and consistent.

The NRC should not hesitate to order a

plant to shut down or to impose meaningful monetary penalties should conditions warrant.

The present limit of 5100,000 per penalty per day is a

Joke.

Utilities routinely complain that each day a plant is shut down costs them $1-2 million.

This means that noncompliance is cheaper than compliance, if compliance requires a shutdown (and especially if the licensee does not get caught).

This also raises the question of whether enhanced NRC monitoring of licensee operations is necessary, OCRE believes that it is, contrary to the conveyed in NUREG-1251, operating events demonstrate personnel and management do not always concern for safety.

For example, the a Ct W i l;h operationol impression thc1t plant the utmost history of the Fermi-2 plant is a lesson on ~ow not to run n nuclear power

plant, Qperators there have thoroughly demonstrated their inability to follow procedures by the criticality incident of

,July 1985 and the hea{;up ir,cident of",June 26, 19i:l7. Incredibly, a control room operator at Fermi-2 had never even read the plant Technical 5pecifications.

The peach Bottom plant is another example of plant personnel disregarding administrative controls, on March 17, 1986 an operator withdrew a control rod out of sequence.

The second operator monitoring the rod withdrawals did not notice the error.

The Rod S~quence control System blocked an attempt to withdraw additional control

rods, and was bypassed by the operators.

See Abnormal Occurrence Rep,:,rt, 52 Federal Registe1~ 4428 (Februa1~y 11, 15*87).

That the NRC has found it necessary to repeatedly remind licensees Of

the necessity of maintaining a

professional attitude and atmosphere in the control room is a

strong indication that these expected standards are not always met, see Information Notice 87-21; Information Notice 85-53; IE Circu~ar 81-02.

The NRC has shut down the Peach Bottom faci_ity due to the problem cited in IN 87-21, operators sleeping in the control roo m, and earlier incidents incl u ding the out of sequence control rod withdrawal.

Fermi-2, howe ver, continues to operate, albeit at a restricted power level.

The inconsistenc y of the NRC ' s enforcement actions has been noted bY the U.S.

General Accounting Office, report GAO / RCED-87-141, August 1987.

GAO also found that the NRC has allowed plan t s With marginal inspection records and operating experience to orerate for man y y ea r s without re~uiring an improvement program.

GAO recommends that the NRC develop guidelines fo r deciding whether to order shutdown of plant.

Such guidelines, if religiously, would put licensees on notice of what is expected of them and that severe penalties will if they dO not meet that performance standard, followed performance be imposed The NRC has been fa r too utilities need to be regulated lenient with b y an NRC that lic*ensees, he There must be a constant e x pectation that licens~es all regulatory requirements at all times, with s~ift penalties for noncompliance.

The NRC should gr~nt from the regulations extremely sparingly, only

~hen benefit will occur from the exemption.

" Living business.

will meet and se v ere exemptions a

safet y integra t ed schedules* and allowing operation while in noncc,mpliance with regulator y requirements must be discontinued.

If li~ensees do not have the monetar y, technical, and human reso ~ rces to meet all of the NRC ' s requirements then they do not licensees.

deserve to be

AGENCY:

ACTION:

SUMMARY

NUCLEAR REGULATORY COMMISSION 10 CFR Part 2

[7590-01]

Policy and Procedure for Enforcement Actions; Policy Statement Nuclear Regulatory Commission.

Revised policy statement.

• a7 SEP 23 p 1 :!

The NRC is publishing minor revisions to its Enforcement Policy to further explain enforcement actions involving individuals, to describe the criteria to be used for reopening closed enforcement actions, to provide for the exercise of discretion to refrain from issuing a Notice of Violation or a proposed civil penalty under certain limited circumstances, and to make minor deletions and language changes.

The policy statement is intended to inform licensees, vendors, and the public of the bases for taking various enforcement actions.

The policy is codified as Appendix C to 10 CFR Part 2

• DATES:

This revised statement of policy is effective September 28, 1987 while comments on the changes are being received.

Submit comments on or before Nov. 2 7

, 1987.

ADDRESSEES:

Send comments to:

Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

ATTN:

Docketing and Service Branch.

Hand deliver colTITIE!nts to:

Room 1121, 1717 H Street, NW., Washington, DC between 7:30 a.m. to 4:15 p.m.

Copies of co11JT1ents may be examined at* the NRC Public Document Room, 1717 H Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT:

James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Comnission, Washington, DC 20555 (301-492-8214}.

SUPPLEMENTARY INFORMATION:

Background:

The criteria used by the Collill1ssion to conduct its enforcement activities were first published on October 17, 1972 {37 FR 21962}.

These criteria were subsequently modified on January 3, 1975 (40 FR 820} *and on December 3, 1979 (44 FR 77135).

In late 1979, the Comnission directed the staff.to prepare a comprehensive statement of enforcement policy. This staff effort was given added urgency by the enactment of Pub. L.96-295 (signed June 30, 1980}, that, among other things, amended Section 234 of the Atomic Energy Act to raise the maximum civil penalty the NRC can impose from $5,000 to $100,000 per violation per day and eliminated the provis1or limiting the total civil penalties for any 30-day period to $25,000.

On September 4, 1980, the Comnission approved a proposed general statement of policy on enforcement.

Corrrnents were solicited on the policy and a series of public meetings was held.

On March 9, 1982, the Collillission published a final version of the policy (47 FR 9987).

After the policy had been in effect for about two years, the Collillission determined that certain minor revisions should be made.

These revisions were published in the 2

Federal Register {49 FR 8583) and became effective on March 8, 1984.

The criteria were further revised to describe how the NRC Enforcement Policy applies to vendors of products or<services on November 20, 1985 (50 FR 47716).

In conjunction with approving the March 1984 revision to the Enforcement Policy, the Convnission decided to establish a co1J111ittee of outside experts to review the Enforcement Policy and provide the Conmission with recommendations on any changes* it believed advisable.

The co1J111ittee was established on August 31, 1984 and issued its-report on November 22, 1985.

The Conmission subsequently decided that the Enforcement Policy should be revised to include some of the recommendations of the conmittee and other changes. Accordingly, the Commissio~ has approved the following revisions to the Enforcement Policy which explain enforcement actions involving individuals, add a section regarding the criteria to be.used for reopening closed enforcement actions, provide for the exercise of discretion to refrain from issuing a Notice of Violation or a proposed civil penalty under certain limited conditions, and make language deletions and changes in other sections

• Revisions to the Enforcement Policy Revisions to the policy now being made are described in the following

• paragraphs.

Only the sections to which changes were made are discussed here.

The numbering of the sections tracks the section numbers in the.policy.

I.

Introduction and Purpose Profiting from Violation - The Convnission is deleting the following sentence in the second paragraph under Section I of the Enforcement Policy. "It is the Corrmission 1s intent that sanctions should be 3

designed to ensure that a licensee does not deliberately profit from violations of NRC requirements." The Commission believes that the wording is ambiguous and that, in fact, few violations are the result of a calculated judgment to profit from noncompliance.

Other wording in the policy clearly states that sanctions and severity levels may be increased for deliberate violations.

V.

Enforcement Actions Notice of Violation for Certain Severity Level IV and V Violations -

Section V.A., Notice of Violation, previously discussed circumstances under which the NRC will not generally issue a Notice of Violation for Severity Level IV or V violations. Because this could be regarded as a type of discretionary enforcement, the discussion has been moved to the new Section V.F., Exercise of Discretion.

Enforcement Actions Against Individuals - The NRC has taken actions against individual licensed operators in certain instances where mis-conduct occurred. Generally, the staff policy has been that the NRC should defer to the licensee 1n the supervision of operators but should take action directly against licensed operators when their actions result in significant violations of NRC requirements involving incompetence*or willfulness 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 wh1ch is responsible for operator training and for developing adequate procedures to govern facility operations.

4

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. Specifically, the regulations state that:

0 0

0 0

0 Generally, only licensed operators are permitted to manipulate the controls that directly affect reactivity {10 CFR 50.54{1});

Licensed operators must be present at the controls at all times during the operation of the facility {10 CFR 50.54{k; Mechanisms and apparatus, other than controls, the operation of which may indirectly affect the power level or reactivity of a reactor, may be manipulated only with the knowledge and consent of an operator licensed in accordance with Part 55 {10 CFR 50.54{j}); Licensed senior operators must be present at the facility during specified conditions, and available or on call at other times during operation {10 CFR 50.54{m)); and An NRC licensed individual must observe all applicable rules, regulations and orders of the Commission, whether or not stated in the license {10 CFR 55.3l{d)). 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 renumbered Section V.E. 5

Allowing Mitigation of Civil Penalties for Severity Level I Violations - The Corrmission believes that mitigation of a civil penalty for a Severity Level I violation should be available on the same basis as for Severity Level II and III violations since the practical justifications for allowing mitigation of these violations is the same; i.e., to encourage selr-identificatfon and reporting, extensive corrective actions, and good performance by a licensee. The second paragraph under V.B. of the Enforcement Policy is modified as follows: "Civil penalties are imposed absent mitigating circumstances for Severity Level I and II violations, are considered for Severity Level III violations, and may be fmposed for Severity Level IV violations that are similar to the previous violations for which the licensee did not take effective corrective action.* Reopening Closed Enforcement Actions: - The agency's enforcement program does not address the criteria for reopening closed enforcement actions. There have been rare instances where it was appropriate to reopen an enforcement action to correct an inappropriately applied action. A new paragraph on Reopening Closed Enforcement Actions is added to Section V. The Cormiiss,ion believes that reopening a previously closed enforcement action may be appropriate under certain circumstances. If significant new information is received by the NRC which indicates that an enforcement sanction was incorrectly applied, that action could be reopened to correct the record. Reopening should occur only (1) 1f remedial action, e.g., in the.form of an order, is necessary to abate the continued harm of a violation to the public health and safety, the co111110n defense and security, or the environment or (2) if new information shows that a viol~tion was 6

less serious than originally believed or that it did not occur. Enforce-ment action would normally not be reopened where the only change to the prior action would be to increase the severity level of a violation or to impose or increase a civil penalty. Reopening an enforcement action is expected to occur only rarely and would require specific approval of the Deputy Executive Director for Regional Operations. Exercise of Discretion -.As discussed in Section I above, the discussion of circumstances under which the NRC will not generally issue a Notice of Violation for Severity Level IV or V violations has been moved to new Section V.G., Exercise of Discretion. Additionally, discussion of other circumstances under which a Notice of Violation or proposed civil penalty might not be issued by the NRC is added. 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 provide incentives to meet the objectives set forth 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. 7

In view of this, the Co111T1ission has decided that discretion may be exercised, provided there is prior staff consultation, to refrain from issuing* a Notice of Violation and a proposed civil penalty for violations that meet all of the following criteria *which are* listed in a new paragraph in Sect.ion V:

1.

(a) NRC has taken significant enforcement actJon based upon a major safety event contrib~ting to an ~xtended shutdown of an operating reactor or a material licensee (or a work stoppage at a construction site), or the licens~ is forced into an extended shutdown or work stoppage relate*d to generally poor performance over a long period; (b) the licensee has developed and is aggressi.vely implementing during the shutdown a comprehensive program for problem identification and correction; and (c) NRC concurrence is needed by the licensee prior to restart;

2.

Non-willful violations are identified by the 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 violations, the NRC should determine whether enforcement action is necessary to achieve remedial action;

3.

The violations are based upon activities of the licensee prior to the events leading to the shutdown; and 8

4.

The non-willful violations would normally not be categorized as higher than Severity Level III violations under-the NRC's Enforcement Policy. Notwithst~nding 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. The reason for the first condition is to limit the circumstances under which such discretion would be exercised to cases in which the incentives for problem identification and correction ate the greatest and the deterrent effects of civil penalty enforcement act1'on are likely.to be fewest--when the licensee is in an extended shutdown caused by a major event or period of poor performance so significant that the NRC will not allow restart until it is sure that major problems have been satisfactorily resolved. The reason for the second condition is 1o provide ai incentive for licensee identification of violations. If the NRC finds the problem, and believes that the licensee's corrective action program is not working adequately, civil penalty enforcement action may be appropriate. The reason for the third condition is that if violations are identified associated with work performed after the event or shutdown, this may also indicate that the incentives for conducting an adequate program are not sufficient and the deterrent effects of civil pen~lty enforcement may be necessary. 9

The reason for the fourth condition is to distinguish less significant violations from more significant violations. Although the rationale for refraining from civil penalty enforcement action may be the same for Severity Level I and II violations that meet the other three criteria, with violations at this level, it may be important to convey a message to other licensees regarding the significance and consequences of such violations. Supplement VII The reference to*section 210 of the Energy Reorganization Act, which prohibits discrimination against employees for engaging in certain protected activities, has been replaced with a reference to 10 CFR 50.7 and similar NRC regulations prohibiting discriminations against employees. The requirements of §50.7 apply to Part 50 licensees, but similar requirements appear in other parts of NRC regulations governing other types of licensed activity. Harassment and intimidation of quality assurance workers may constitute violations of the independence criterion for quality assurance programs, such as is required under 10 CFR Part 50, Appendix B. The replacement of the reference in Supplement VII to Section 210 with a reference to NRC regulations is appropriate because NRC regulations, not Section 210, form the basis for violations and enforcement actions related to wrongful discrimination or harassment. 10

List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal. For the reasons set out in the preamble and under the a~thority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 u.s.c. 553, the NRC is adopting the following statement of policy as Appendix C to 10 CFR Part 2. Part 2 - Rules of Practice for Domestic Licensing Proceedings

1.

The authority citation for Part 2 1s revised*to read as follows: Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat.* 1242, as amended (42 u.s.c. 5841); 5 U.S.C. 552. Section 2. 101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133~ 2134, 2135); sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended {42 U.S.C. 4332); sec. 301, 88 Stat. 1246 (42 U.S.C. 5871). Sections 2. 102, 2. 103, 2. 104, 2. 105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended {42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2. 105 also issued under Pub. L. 97-415, 96 Stat. 2073 {42 U.S.C. 2239}.

• Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, 11

as amended (42 U.S.C. 2236, 2282}; sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190,

• \\

83 Stat. 853 as amended (42 U.S.C. 4332}. Sections 2.700a, 2.719 also issued under 5 u.s.c. 554. Sections 2.754, 2.760, 2.770 also issued.under 5 U.S.C. 557. Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133} and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039}. Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239}; sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 u.s.c. 10154}. Appendix A also issued under sec. 6, Pub. L. 91-580, 84 Stat. 1473 (42 u.s.c. 2135}. Appendix B also issued under sec. 10, Pub. L. 99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).

2.

Appendix C to Part 2 is revised to read as follows: APPENDIX C - GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS The following stater.1ent of general policy and procedure explains the enforcement policy and procedures of the U.S. Nuclear Regulatory Cormiission and its staff in initiating enforcement actions, and of presiding officers, the Atomic Safety and Licensing Appeal Boards, and the Commission in reviewing these actions. This statement is applicable to enforcement in matters involving the public health and safety, the connnon defense and security, and the environment. 1/ l/ Antitrust enforcement matters will be dealt with on a case-by-case basis. 12

I. INTRODUCTION AND PURPOSE The purpose of the NRC enforcement program is to promote and protect the radiological health and safety of the public, including employees* health and safety, the co1t1110n defense and security, and the environment by: Ensuring co"1)liance with NRC regulations and license conditions; Obtaining prompt correction of violations and adverse quality conditions which may affect safety; Deterring future violations and occurrences of conditions adverse to quality; and Encouraging improvement of licensee and vendor J!/ performance, and by example, that of industry, including the prompt identification and reporting of potential safety problems. Consistent with the purpose of this program, prompt and vigorous enforce-ment action will be taken when dealing with licensees or vendors who do not achieve the necessary meticulous attention to detail and the high standard of compliance which the NRC expects. Each enforcement action is dependent on the circumstances of the case and requires the exercise of discretion after consideration of these policies and procedures. In no case, however, will licensees who cannot achieve and maintain adequate levels of protection be permitted to conduct licensed activities. ]!/ The term "vendor" means a supplier of products or services to be used in an NRC-licensed facility or activity. 13

II. STATUTORY AUTHORITY AND PROCEDURAL FRAMEWORK - A. STATUTORY AUTHORITY The NRC's enforcement jurisdiction is drawn from the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act (ERA} of 1974, as amended. Section 161 of the Atomic Energy Act authorizes NRC to conduct inspections and investigations and to issue orders as may be necessary or desirable to promote the conunon defense and security or to protect health or to - minimize danger to life or property. Section 186 authorizes NRC to revoke licenses under certain circumstances (e.g., for material false statements, in response to conditions that wouid have warranted refusal of a license on an original application, for a licensee's failure to build or operate a facility in accordance with the terms of the permit or license, and for violation of an NRC regulation). Section 234 authorizes NRC to impose civil penalties not to exceed $100,000 per violation per day for the violation of certain specified licensing provisions of the Act, rules, orders,,and license terms implementing these provisions, and for violations for which licenses can be revoked. In addition to the enumerated provisions in section 234, sections 84 and 147 authorize the imposition of civ11 penalties for violations of regulations implementing those provisions. Section 232 authorizes NRC to seek injunctive or other equitable relief for violation of regulatory requirements. Section 206 of the Energy Reorganization Act authorizes NRC to impose civil penalties for knowing and conscious failures to provide certain safety information to the NRC. 14

Chapter 18 of the Atomic Energy Act provides for varying levels of criminal penalties (1.e., monetary fines and 1mpr1s~nment) for willful violations of the Act and regulations or orders issued under Sections 65, 16l(b), 161(1), or 161(0) of the Act. Section 223 provides that criminal penalties may be imposed on certain individuals employed by firms constructing or supplying basic components of any utilization facility 1f the individual knowingly and willfully violates NRC requirements such that a basic component could be significantly impaired. Section 235 provides that criminal penalties may be imposed on persons who interfere with inspectors. Section 236 provides that criminal penalties may be imposed on persons who attempt to or cause sabotage at a nuclear facility or to nuclear fuel. Alleged or suspected criminal violations of the Atomic Energy Act are referred to the Department of Justice for appropriate action. B. PROCEDURAL FRAMEWORK Subpart B of 10 CFR Part 2 of NRC's regulations sets forth the procedures the NRC uses in exercising its enforcement authority. 10 CFR 2.201 sets forth the procedures for issuing notices of violation. The procedure to be used in assessing civil penalties is set forth in 10 CFR 2.205. This regulation provides that the appropriate NRC Office Director initiates the civil penalty process by issuing a notice of violation and proposed 1mpos1t1on of a civil penalty. The licensee is provided an opportunity to contest in writing the proposed imposition of a c1v11 penalty. After evaluation of the licensee's response, the Director may mitigate, remit, or impose the civil penalty. An opportunity 1s provided for a hearing if a civil penalty is imposed. 15

The procedure for issuing an order to show cause why.a license should not be modified, suspended, or revoked or why such other action should not be taken is set forth 1n 10 CFR 2.202. The mechanism for modifying a license by order is set forth in 10 CFR 2.204. These sections of Part 2 provide an opportunity for a hearing to the affected licensee. However, the NRC is authorized to make orders immediately effective if the public health, safety or interest so requires or, in the case of an order to show cause, if the alleged violation is willful. III. SEVERITY OF VIOLATIONS Regulatory requirements g_/ have varying degrees of safety; safeguards, or environmental significance. Therefore, the relative importance of each violation must be identified as the first step in the enforcement process. Consequently, violations are categorized in terms of five levels of severity to show their relative importance within each of the following eight activity areas: I. Reactor Operations; II. Facility Construction; III. Safeguards; g_/The term "requirement" as used in this policy means a legally binding requirement such as a statute, regulation, license condition, technical specification, or order. 16

IV. Health Phys1cs; V. Transportat1on; VI. Fuel Cycle and Materials Operations; VII. Miscellaneous Matters; and VIII. Emergency Preparedness. Licensed activities not directly covered by one of.the above listed areas, e.g., export license act1v1ties, will be placed in the activity area most suitable in light of the particular violation involved. Within each activity area, Severity Level I has been assigned to violations that are the most significant and Severity Level V violations are the least* significant. Severity Level I and II violations are of very significant regulatory concern. In general, violations that are included in these severity categories involve actual or high potential impact on the public. Severity Level III violations are cause for significant concern~ Severity Level IV violations are less serious but are of more than minor concern; i.e., if left uncorrected, they could lead to a more serious concern. Severity Level V violations are of minor safety or environmental concern. Comparisons of sisnificance between activity areas are inappropriate. For example, the i1T111ediacy of any hazard to the public associated with Severity Level I violations in Reactor Operations is not directly comparable to that. associated with Severity Level I violations 1n Reactor Construct1on. 17

I While examples are provided in Supplements I through VIII for determining the appropriate severity level for violations in each of the efght activity areas, the examples are neither exhaustive nor controlling. These examples do not create new requirements. Each is designed to illustrate the significance which the NRC places on a particular type of violation of NRC requirements. Each of the examples in the supplements is predicated on a violation of a regula~ory requirement. In each case, the severity of.a violation will be characterized at the level best suited to the significance of the particular violation. In some cases, violations may be evaluated in the aggregate and a single severity level assigned for a group of violations. The severity level of a violation may be increased if the circumstances surrounding the matter involve careless disregard of requirements, deception, or other indications of willfulness. The term "willfulness" as used here embraces a spectrum of violations ranging from deliberate intent to violate or falsify to and including careless disregard for requirements. Willfulness does not include acts which do not rise to the level of careless disregard, e.g., inadvertent clerical errgrs in a*document submitted to the NRC. In determining the specific severity level of a violation involving willfulness, consideration will be given to such factors as the position of the person involved 1n the violation (e.g., first-line supervisor or senior manager), the significance of any underlying violation, the intent of the violator (i.e., negligence not - amounting to careless disregard, careless. disregard, or deliberateness), and the economic advantage, if any, gained as a result of the violation. The relative weight given to each of these factors in arriving at the 18

appropriate severity level will be dependent on the circumstances of the violation. The NRC expects licensees to provide full, complete, timely, and accurate information and reports. Accordingly, unless otherwise categorized in the Supplements, the severity level of a violation involving the failure to make a required report to the NRC will be based upon the significance of and the circumstances surrounding the matter that should have been reported. A licensee will not normally be cited for a failure to report a condition or event unless the licensee was actually aware of the condition or event which it failed to report. However, the severity level of an untimely report, in contrast to no report, may be reduced depending on the circumstances surrounding the matter. IV. ENFORCEMENT CONFERENCES Whenever the NRC has learned of the existence of a potential violation for which a civil penalty or other escalated enforcement action may be warranted, or recurring nonconformance on the part of a vendor, the NRC will normally hold an enforcement conference with the licensee or vendor prior to taking enforcement action. The NRC may also elect_ to hold an enforcement conference for other violations, e.g., Severity Level IV violation which, if repeated, could lead to escalated enforcement action. The purpose of the enforcement conference is to (l} discuss the violations or nonconformance, their significance and causes, and the licensee's or vendor's corrective actions, (2) determine whether there are any aggravating or mitigating circumstances, and 19

{3) obtain other information which will help determine the appropriate enforcement action. In add,ition, during the enforcement conference, the licensee or vendor will be given an opportunity to explain to the NRC what corrective actions {if any) were taken or will be taken following discovery of the potential violation or nonconfonnance. Licensees or vendors will be told when a meeting is an enforcement conference. Enforcement conferences will not normally be open to the public. When needed to protect the public health and safety or common defense and security, escalated enforcement action, such as the issuance of an inmedfately effective order modifying, suspending, or revoking a license, will be taken prior to the enforcement conference. In such cases, an enforcement conference may be held after the escalated enforcement action is taken. V. ENFORCEMENT ACTIONS This section describes the enforcement sanctjons available to NRC and specifies the conditions under which each may be used. The basic sanctions are notices of violation, civil penalties, and orders of various types. Additionally, related administrative mechanisms such as bulletins and confirmatory action letters, notices of nonconfor~ance and notices of deviation are used to'supplement the enforcement program. In selecting the enforcement sanctions to be applied, NRC will consider enforcement actions taken by other Federal or State regulatory bodies having con-current jurisdiction, such as in transportation matters. With very 20

lim1ted exceptions, whenever a violat1on of NRC requ1rements is identified, enforcement action is taken. The nature and extent of the enforcement act1on is 1ntended to reflect the seriousness of the violation involved. For the vast majority of violat1ons, action by an NRC regional office is appropriate in the form of a Notice of Violat1on requir1ng a formal response from the rec1pient describing its correct1ve actions. In situations involving nonconformance on the part of vendor, a Notice of. Nonconformance will be issued. The relatively small nuimer of cases involving elevated enforcement action receives substantial attention by the public, and may have significant impact on the licensee's operation. These elevated enforcement a.ctions include c1vil penalties; orders modifying, suspend1ng or revoking licenses; or orders to cease and des1st from designated act1vities. A. NOTICE OF VIOLATION A notice of violat1on is a written notice setting forth one or more v1olations of a legally bind1ng requirement. The ~ot1ce normally requires the recipient to provide a written statement describing (1) corrective steps which have been taken and the results achieved; {2) corrective steps which will be taken to prevent recurrence; and (3) the date when full compl1ance will be achieved. NRC may require responses to notices of violation to be under oath. Normally, responses under oath will be required only 1n connection with civil penalties and orders.

• NRC uses the notice of violation as the standard method for formalizing the existence of a violation. A notice of violation is normally the only enforcement action taken, except 1n cases where the cr1teria for civil 21

penalties and orders, as set forth in Sections V.B and V.C, respectively, are met. In such cases, the notice of violation will be issued in conjunction w1th the elevated actions. Licensees are not ordinarily cited for violations resulting from matters not w1th1n their control, such as equipment failures that were not avoidable by reasonable licensee quality assuranc~ measures or management - controls. Generally, however, licensees are held responsibl~ for the acts of their employees. Accordingly, this policy should not be construed to excuse personnel errors. B. CIVIL PENALTY A civil penalty is a monetary penalty that may be imposed for violation of (a) certain specified licensing provisions of the Atomic Energy Act or supplementary NRC rules or orders, {b) any requirement for which a license may be revoked, or {c) reporting requirements under Section 206 of the Energy Reorganization Act. Civil penalties are designed to emphasize the need for lasting remedial action and to deter future violations. Civil penalties are imposed absent mitigating circumstances for Severity Level I and II violations, are considered for Severity Level III violations, and may be imposed for Severity Level IV violations that are similar~/ to previous violations for which the licensee did not take effective corrective action. 11rhe word "similar," as used in this policy, refers to those violations which could have been reasonably expected to have been prevented by the licensee's corrective action for the previous violation. 22

In applying this guidance !or Severity Level IV violations, NRC normally considers civil penalties only for similar Severity Level IV violations that occur after the date of the last inspection or within two years, whichever period is greater. Civil penalties will normally be assessed for knowing and conscious violations of the reporting requirements of Section 206 of the Energy -Reorganization Act, and for any willful violation of any Co1T111ission requirement including those at any severity level. NRC-imposes different levels of penalties for different severity level violations and different classes of licensees. Tables lA and 18 show the base civil penalties for various reactor, fuel cycle, and materials programs. The structure of these tables generally takes into account the - gravity of the violation as a primary consideration and the ability to pay as a secondary consideration. Generally, operations involving greater nuclear material inventories and greater potential consequences to the public and licensee employees receive higher civil penalties. Regarding the secondary factor of ability of various classes of licensees to pay the civil penalties, it is not the NRC's intention that the economic impact of a civil penalty be such that it puts a licensee out of business (orders, rather than civil penalties, are used when the intent is to terminate licensed activities) or adversely affects a licensee's ability to safely conduct licensed activities. The deterrent effect of civil penalties is best served when the amounts of such penalties take into account a licensee's uability to pay." In determining the amounts of civil penalties for licensees for whom the tables do not reflect the ability to 23

pay, NRC will consider as necessary an increase or decrease on a case-by-case basis. NRC attaches great importance to comprehensive licensee programs for detection, correction, and reporting of problems that may constitute, or lead to, violation of regulatory requirements. This is emphasized by giving credit for effective licensee audit programs when licensees find, correct, and report problems expeditiously and effectively. To encourage licensee self-identification and correction of violations and to avoid potential concealment of problems of safety significance, application of the adjustment factors set forth below may result in no civil penalty being assessed for violations which are identified, reported {if required), and effectively corrected by the licensee. On the other hand, ineffective licensee programs for problem identification or correction are unacceptable. In cases involving willfulness, flagrant NRC-identif1ed violations, repeated poor performance 1n an area of concern, or serious breakdown in management controls, NRC ~ intends to apply its full enforcement authority where such action is warranted, including issuing appropriate orders and assessing civil penalties for continuing violations on a per day basis, up to the statutory limit of $100,000 per violation, per day. In this regard, while management involvement, direct or indirect, in a violation may lead to an increase in the civil penalty, the lack of such involvement may not be used to mitigate a civil penalty. 24

Allowance of mitigation could encourage lack of management involvement in licensed activities and a decrease in protection of the public health and safety.

• NRC reviews each proposed civil penalty case *on its own merits and adjusts the base civil penalty values upward or downward *appropriately. Tables lA and 1B identify the base civil penalty* values for different severity levels, activity areas, and classes of licensees. After considering',all relevant circumstances, adjustments to these values may be made for the factors described b~low:

l.

Prompt Identiftcation and Reporting Reduction of up to 50% of the base civil penalty may be given when a licensee identifies the violation and promptly reports the violation to the NRC. In weighing this factor, consideration will be given to, among other things, the length of time the violation existed prior to discovery, the opportunity available to discover the violation, the ease of discovery and the promptness and completeness of any required report. No consideration will be given to this factor if the licensee do~s not take 1nmediate action to correct the problem upon discovery.

2.

Corrective Action to Prevent Recurrence Recognizing that corrective action is always required to meet regulatory requirements, the promptness and extent to which the licensee takes corrective action, including actions to prevent recurrence, may be considered in modifying the civil penalty to 25

3.

be assessed. Unusually prompt and extensive corrective action may result in reducing the proposed civil penalty as much as 50% of the base value shown in Table 1. On the other hand, the civil penalty may be increased as much as 50% of the base value if initiation of corrective action is not prompt or if the corrective action is only minimally acceptable. In weighing this factor, consideration will be given to, among other things, the timeliness of the corrective action, degree of licensee initiative, and comprehensiveness of the corrective action--such as whether the action is focused narrowly to the specific violation or broadly to the general area of concern. Past Performance Reduction by as much as 100% of the base civil penalty shown in Table 1 may be given for prior good performance-in the general area of concern. On the other hand, the base civil penalty may be increased as much as 100% for prior poor performance in the general area of concern. In weighing this factor, consideration will be given to, among other things, the effectiveness of previous corrective action for similar problems, overall performance such as Systematic Assessment of Licensee Performance (SALP) evaluations for power reactors, and prior enforcement history including Severity Level IV and V violations in the area of concern. For example, failure to implement previous corrective action for prior similar problems may result in an increase in the civil penalty. 26

4.

Prior Notice of Similar Events

5.

The base civil penalty may be increased as much as 50% for cases where the licensee had prior knowledge of a problem as a result of a licensee audit, or specific NRC or industry notification, and had failed to take effective preventive steps. Multiple Occurrences The base civil penalty may be increased as much as 50% where multiple examples of a particular violation are identified during the inspection period. The above factors are additive. However, in no instance will a civil penalty for any one violation exceed $100,000 per day. The duration of a vio.lation may also be considered in assessing a civil penalty. A greater civil penalty may be imposed if a violation continues for roore than a day. For example: (1) If a licensee is aware of the existence of a condition which results in an ongoing violation and fails to initiate corrective action, each day the condition existed may be considered as a separate violation and, as such, subject to a separate additional civil penalty. (2) If a licensee is unaware of a condition resulting in a continuing violation, but clearly should have been aware of the condition or had an opportunity to correct the condition but failed to do so, a separate violation and attendant civil penalty may be considered for each day that the licensee clearly 27

should have been aware of the condition or had an opportunity to correct the condition, but failed to do so. (3) Alternatively, whether or not a licensee is aware or should have been aware of a violation that continues for more than one day, the civil penalty imposed for one violation may be increased to reflect the added significance resulting from the duration of the violation. The Tables and the mitigating factors determine the civil penalties which may be assessed for *each violation. However, to focus on the fundamental underlying causes of a problem for which enforcement action appears to be warranted, the cumulative total for all violations which contributed to or were unavoidable consequences of that problem may be based on the amount ~hown in the table for a problem of that Severity Level, as adjusted. If an evaluation of such multiple violations shows that more than one fundamental problem is involved, each of which, if viewed independently, could lead to civil penalty action by itself, then separate civil penalties may be assessed for each such fundamental problem. In addition, the failure to make a required report of an event requiring such reporting is considered a separate problem and will normally be assessed a separate civil penalty, if the licensee is aware of the matter that should have been reported. 28

a. Power Reactors

b. Test Reactors TABLE lA BASE CIVIL PENALIIES Plant Operations, Const, Health Physics and EP Safeguards

$100,000 10,000

c. Research Reactors & 5,000

$100,000 10,000 5,000 Critical Fac1lities Transportation Type A Greater than Quantity Tyµe A Quantity!/ or less~/ $100,000

• 10,000 5,000

$5,000 2,000 1,000

d. Fuel Fabricators 25,000 and Industrial 100,000.1/

2.5,000 _5, 000 Processors 3/

e. Mills and Uranium 10,000 5,000 2,000 Conversion Facilities

f. Industrial Users of Material 5/

10,000 5,000 2,000

g. Waste Disposal 10,000 5,000 2,000 Licensees

h. Academic or Medical 5,000 2,500 1,000 Institutions §/

1. Other Material 1,000 2,500 1,000 Licensees 1/ Includes irradiated fuel, high level waste, unirradiated fissile material, and any other quantities requiring*Type B packaging.

2/ Includes low specific activity waste (LSA), low level waste, Type A packages, and excepted quantities and articles~ 11 Large firms engaged in manufacturing or distribution of byproduct, source, or special nuclear material. 4/ This amount refers to Category 1 licensees (as defined 1n 10 CFR 73.2 (bb)). Licensed fuel fabricators not authorized to possess C~tegory l material have a base penalty amount of $50,000. ~ 5/ Includes industrial radiographers, nuclear pharmacies, and other industr1al 1,1sers. &/ This applies to nonprofit institutions not otherwise categorized under sections "a" through "gu in this table. 29

SEVERITY LEVEL I II III IV V TABLE 18 BASE CIVIL PENALTIES BASE CIVIL PENALTY AMOUNT (% of Amount Listed in Table lA) 30 100% 80% 50% 15% 5%

C. ORDERS An order is a written NRC directive to modify, suspend, or revoke a license; to cease and desist from a given practice or activity; or to take such other action as may be proper (~ 10 CFR 2.202 and 2.204). Orders may be issued as set forth below. Orders may also be issued 1n lieu of, or in addition to, civil penalties, as appropriate. (1) License Modification Orders are issued when some change in licensee equipment, procedures, or management controls is necessary. (2) Suspension Orders may be used: (a) To remove a threat to the public health and safety, co1T1T10n defense and security, or the environment; (b) To stop facility construction when (i) further work could . preclude or significantly hinder the identification or correction of an improperly constructed safety-related system or component, or (ii) the licensee 1 s quality assurance program implementation is not adequate to provide confidence that construction activities are being properly carried out; (c) When the licensee has not responded adequately to other enforcement action; 31

(d) When the licensee interferes with the conduct of an inspection or investigation; or (e) For any reason not mentioned above for which license revocation is legally authorized. Suspensions may apply to all or part of the licensed activity. Ordi~arily, a licensed activity is not suspended (nor is a suspension prolonged) for failure to comply with requirements where such failure is not willful and adequate corrective action has been taken. (3) Revocation Orders may be used: {a) When a licensee 1s unable or unwilling to comply with NRC requirements, (b) When a licensee refuses to correct a violation, (c) When a licensee does not respond to a notice of violation where a response was required, {d) When a licensee refuses to pay a fee required by 10 CFR Part 170, or (e) For any other reason for which revocation is authorized under Section 186 of the Atomic Energy Act (e.g., any condition which would warrant refusal of a license on an original application). 32

(4) Cease and Desist Orders are typically used to stop an unauthorized activity that has continued after notification by NRC that such activity 1s unauthorized. Orders are made effective inmediately, without prior opportunity for hearing, whenever it is determined that the public health, interest, or safety so requires, or when the order is responding to a violation involving willfulness. Otherwise, a prior opportunity for a hearing on the order is afforded. For cases in which the NRC believes a basis could reasonably exist for not taking the action as proposed, the licensee will ordinarily be afforded an opportunity to show cause why the order should not be issued in the proposed manner. D. ESCALATION OF ENFORCEMENT SANCTIONS NRC considers violations of Severity Levels I, II, or III to be serious. If serious violations occur, NRC will, where necessary, issue orders in

• conjunction with civil penalties to achieve irrmediate corrective actions and to deter further recurrence of serious violations.

NRC carefully considers the circumstances of each case in selecting and applying the sanction{s) appropriate to the case in accordance with the criteria described 1n Sections V.B and V.C, above. Examples of enforcement actions that could be taken for similar Severity Level I, II, or III violations are set forth in Table 2. The actual progression to be used in a particular case will depend on the circumstances. However, enforcement sanctions will normally escalate for recurring similar violations. 33

Normally the progression of enforcement actions for similar violations will be based on violations under a single license. When more than one facility is covered by a single license, the normal progression will be based on similar violations at an individual facility and not on similar violations under the same license. However, it should be noted that undet some circumstances, e.g., where there is co11100n control over some facet of facility operations, similar violations may be charged even though the second violation occurred at a different facility or under a different license. For example, a physical security violation at Unit 2 of a dual unit plant that repeats an earlier violation at Unit l might be considered similar. 34

TABLE 2 EXAMPLES OF PROGRESSION OF ESCALATED ENFORCEMENT ACTIONS FOR SIMILAR VIOLATIONS IN THE SAME ACTIVITY AREA UNDER THE SAME LICENSE Number of similar v1olat1ons from the date Sever1ty of Violation of the last inspection or within the previous two years (whichever period is greater) I II III 1st a+b a

a.

C1v11 penalty 2nd a+b+c a+b . a 3rd d a+b+c a+b

b.

Suspension of affected operations until the Office Director is satis-fied that there is reasonable assurance that the licensee can operate in compliance with the applicable requirements; or modificat.ion of the license, as appropriate.

c.

Show cause for modification or revocation of the license, as appropriate.

d.

Further action, as appropriate. 35

E. ENFORCEMENT ACTIONS INVOLVING INDIVIDUALS Enforcement actions involving individuals, including licensed operators, are significant personnel actions, which will be closely controlled and judiciously applied. An enforcement action will normally be taken only when there is little d~ubt that the individual fully understood, or should have understood, his or her responsibility; knew, or should have known, the required actions; and knowingly, or with careless disregard (i.e., with more than mere negligence) failed to take required actions which have actual or potential safety significance. Most transgressions of individuals at the level of Severity Level III, IV or V violations will be handled by citing only the facility licensee. More serious violations, including those involving the integrity of an individual (e.g., lying to the NRC) concerning matters within the scope of the individual's responsibilities, will be considered for enforcement action against the individual. Action against the individual, however, will not be taken if the improper action by the individual was caused by management failures. The following examples of situations illustrate this concept: 0 0 Inadvertent individual mistakes resulting from inadequate training or guidance provided by the facility licensee. Inadvertently missing an insignificant procedural requirement when the action is routine, fairly uncomplicated, and there is no unusual 36

0 0 0 circumstance indicating that the procedures should be referred to and followed step-by-step. Compliance with an express direction of management, such as the Shift Supervisor or Plant Manager, resulted in a violation unless the individual did not express his or her concern or objection to the direction. Individual error directly resulting from following the technical advice of an expert unless the advice was clearly unreasonable and the licensed individual should have recognized it as such. Violations resulting from inadequate procedures unless the individual used a faulty procedure knowing it was faulty and had not attempted to get the procedure corrected. Examples of situations which could result in enforcement actions against individuals include, but are not limited to, violations which involve: 0 0 0 0 Recognizing a violation of procedural requirements and willfully not taking corrective action. Willfully performing unauthorized bypassing of required reactor safety systems. Willfully defeating alarms which have safety significance. Unauthorized abandoning of reactor controls. 37

0 0 0 0 0 Inattent1on to duty such as sleeping or being intoxicated while on duty. Willfully taking actions that violate TS Limiting Conditions for Operation. Falsifying records required for NRC regulations or by the facility licensee. Willfully failing to take "irm1ediate actions* of emergency procedures. Willfully withholding safety significant information rather than making such information known to appropriate supervisory or technical personnel. Any proposed enforcement action against individuals must be done with the concurrence of the Deputy Executive Director for Regional Operations. The opportunity for an Enforcement Conference with the individual will usually be provided. Examples of sanctions that may be appropriate against NRG-licensed operators are: 0 0 issuance of a letter of reprimand to be placed in the operator 1s license file, issuance of a Notice of Violation, and 38

0 suspension for a specified period, modification, or revocation of the license. The sanctions are listed in escalating order of significance. 1/ The particular sanction to be used should be determined on a case-by-case basis. In the case of an unlicensed individual, an Order modifying the facility license to require the removal of the individual from all nuclear-related activities for a specified period of time or indefinitely may be appropriate. F. REOPENING CLOSED ENFORCEMENT ACTIONS If significant new information is received by'the NRC which indicates that an enforcement sanction was incorrectly applied, that action could be reopened to correct the record. This should occur only {l) if remedial action, e.g., in the form of an Order, is necessary to abate the continued harm of a violation to the public health and safety, the cotrm0n defense and security, or the environment, or (2) if new information shows that a violation was less serious than originally believed or that it did not occur. Enforcement actions would not normally be reopened where the only change to the prior action would be to increase the severity level of a violation or to impose or increase a civil penalty. Reopening an Except for individuals subject to civil penalties under section 206 of the Energy Reorganization Act of 1974, as amended, NRC will not normally impose a civil penalty against an individual. However, section 234 of the Atomic Energy Act {AEA) gives the Commission authority to impose civil penalties for violations on "any person. "Person" is broadly defined in Section lls of the AEA to include individuals, a variety of organization$, and any representatives or agents. This gives the Co1T1Tifssion authority to impose civil pe~a1ties on employees of licensees or on separate entities when a violation of a requirement directly imposed on them is committed. 39

enforcement action is expected to occur only rarely and would require specific approval of the Deputy Executive Director for Regional Operations. G. EXERCISE OF DISCRETION

l.

Because the NRC wants to encourage and support licensee initiative for self-identification and correction of problems, NRC will not generally issue a notice of violation for a violation that meets all of the following criteria:

a.

It was identified by the licensee;

b.

It fits in Severity Level IV or V;

c.

It was reported, if required;

d.

It was or will be corrected, including measures to prevent recurrence, within a reasonable time; and

e.

It was not a violation that could reasonably be expected to have been* prevented by the licensee's corrective action for a previous violation.

2.

The NRC may also refrain from issuing a Notice of Violation or a proposed civil penalty for violations that meet all of the following criteria:

a.

1)

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 a work 40

stoppage a~ a construction site), or the licensee 1s forced into an extended shutdown or work stoppage related to generally poor performance over a long period; 11) the licensee has developed and 1s aggressively implementing during the shutdown a comprehensive program for problem identification and correction; and 111) NRC concurrence 1s needed by the licensee prior to restart.

b.

Non-willful violations are identified by the 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 NRC identifies the violation, the NRC should determine whether enforcement action is necessary to acnieve remedial action.

c.

The violations are based upon activities of the licensee prior to the events leading to the shutdown, and

d.

The non-willful violations would 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. 41

H. RELATED ADMINISTRATIVE ACTIONS In addition to the formal enforcement mechanisms of notices of violation, civil penalties, and orders, NRC also uses administrative mechanisms, such as bulletins, information notices, generic letters, notices of deviation, notices of nonconformance and confirmatory action letters to supplement its enforcement program. NRC expects licensees and vendors to adhere to any obligations and co11111itments resulting from these processes and will not hesitate to issue appropriate orders to licensees to make sure that such comnitments are met. (1) Bulletins, Information Notices and Generic Letters are written notifications to groups of licensees identifying specific problems and reconmending specific actions. (2) Notices of Deviation are written notices describing a licensee's failure to satisfy a corrm1tment where the corrmitment involved has not been made a legally binding requirement. A notice of deviation requests a licensee to provide a written expianation or statement describing corrective steps taken (or planned), the results achieved, and the date when corrective action will be completed. (3) Confirmatory Action Letters are letters confirming a licensee's or a vendor's agreement to take certain actions to remove significant concerns about health and safety, safeguards, or the environment. (4) Notices of Nonconformance are written notices describing non-licensees' failures to meet corrmitments which have not been made legally binding requirements by NRC. An example is a commitment made in a procurement 42

contract with a licensee as required by 10 CFR Part 50, Appendix B. Notices of Nonconformances request non-licensees to provide written explanations or statements describing corrective steps (taken or planned), the results achieved, the dates when corrective actions will be completed, and measures taken to preclude recurrence. I. REFERRALS TO DEPARTMENT OF JUSTICE Alleged or suspected criminal violations of the Atomic Energy Act {and of other relevant Federal laws) are referred to the Department of Justice for investigation. Referral to the Department of Justice does not preclude the NRC from taking other enforcement action under this General Statement of Policy. However, such actions will be coordinated with the Department of Justice to the extent practicable. VI. PUBLIC DISCLOSURE OF ENFORCEMENT ACTIONS In accordance with 10 CFR 2.790, all enforcement actions and licensees' responses are publicly available for inspection. In addition, press releases are generally issued for civil penaities and orders. In the case of orders and civil penalties related to violations at Severity Levels I, II, or III, press releases are issued at the time of the order or the proposed imposition of the civil penalty. Press releases are not normally issued for Notices of Violation. VII. RESPONSIBILITIES The Deputy Executive Director for Regional Operations (DEDRO), as the principal enforcement officer of the NRC, has been delegated the authority 43

to issue notices of violations, civil penalties, and orders.~/ Regional Administrators may also issue notices of violation for Severity Level IV and V violations and may sign notices of violation for Severity Level III violations with no proposed civil pena1ty and proposed civil penalty actions with the concurrence of the DEDRO. In recognition that the regulation of nuclear activities in many cases does not lend itself to a mechanistic treatment, the DEDRO or the Regional Administrator must exercise judgment and discretion in determining the severity levels of the violations and the appropriate enforcement sanctions, including the decision to impose a civil penalty and the amount of such penalty, after considering the general principles of this statement of policy and the technical significance of the violations and the surrounding circumstances. The Convnission will be provided written notification of all enforcement actions involving civil penalties or orders. The ColTWllission will be consulted prior to taking action in the following situations (unless the urgency of the situation dictates immediate action): (1) An action affecting a licensee's operation that requires balancing the public health and safety or conmon defense and security ~/The-Director, Office of Enforcement, acts for the Deputy Executive Director for Regional Operations in the latter's absence or as directed. The Directors of the Offices of Nuclear Reactor Regulation, Nuclear Material Safety and Safeguards, and Special Projects have also been delegated authority to issue orders, but it is expected that normal use of this authority by NRR, NMSS, and OSP will be confined to actions necessary in the interest of public health and safety. The Director, Office of Administration and Resources Management, has been delegated the authority to issue orders where licensees violate Conmission regulations by nonpayment of license fees. (It is planned to consider redelegation of some or all of these authorities to the Administrators of the NRC Regional Offices over the next several years.) 44

impl1cations of not operating with the potential radiological or other hazards associated with cont1nued operat1on. (2) Proposals to impose civil penalties in amounts greater than 3 times the Severity Level I values shown in Table lA; (3) Any proposed enforcement action that involves a Severity Level I violat1on; (4) Any enforcement action that involves a finding of a material false statement; (5) Refraining from taking enforcement action for matters meeting the criteria of Section V.F.2. (6) Any action the Office Director believes warrants Corrmiss1on involve-ment; or (7) Any proposed enforcement action on which the Corrmission asks to be consulted. VIII. VENDOR ENFORCEMENT The Conmiss1on's enforcement policy is also applicable to non-licensees (vendors). Vendors of products or services provided for use in nuclear activities are subject to certain requirements designed to ensure that the products or services supplied that could affect safety are of high quality. Through procurement contracts with reactor licensees, vendors are required to have quality assurance programs that meet applicable 45

requirements including lO_CFR Part 50, Appendix B, and 10 CFR Part 71, Subpart H. Vendors of reactor and materials licensees and Part 71 licensees are subject to the requirements of 10 CFR Part 21 regarding reporting of defects in basic components. The NRC conducts inspections of reactor licensees to determine whether they are ensuring that vendors are meeting their contractual obligations with regard to quality of products or services that could have an adverse effect on safety. As part of the effort of ensuring that licensees fulfill their obligations in this regard, the NRC inspects reactor vendors to determine if they are meeting their obligations. These inspections include examination of the quality assurance programs and their implementation by the vendors through examination of product quality. The NRC may also inspect vendors, including suppliers of Part 71 and materials licensees, to determine whether they are complying with Part 21. When inspections determine that violations of NRC requirements have occurred, or that vendors have failed to fulfill contractual commitments that could adversely affect the quality of a safety significant product or service, enforcement action will be taken. Notices of Violation and civil penalties will be used, as appropriate, for licensee failures to ensure that their vendors have programs that meet applicable requirements including Part 21. Notices of Violation will be issued for vendors which violate Part 21. Civil penalties will only be imposed against individual directors or responsible officers of a vendor organization who knowingly and consciously fail to provide the notice required by 10 CFR 21.2l(b)(l). Notices of Nonconformance will be used for vendors which fail to meet co11111itments related to NRC activities. 46

SUPPLEMENT I - SEVERITY CATEGORIES REACTOR OPERATIONS A. Severity I - Violations involving for example:

1.

A Safety Limit, as defined in 10 CFR 50.36 and the Technical Specifi-cations, being exceeded;

2.

6/ A systenr-designed to prevent or mitigate a serious safety event not being able to perform its intended safety function!-/ when actually called upon to work;

3.

An accidental criticality; or

4.

Release of radioactivity offsite greater than ten (10) times the Technical Specifications limit.~/ §/ "SystemN as used i-n these supplements, includes administrative and managerial control systems, as well as physical systems. ZI Intended safety functionn means the total safety function, and is not directed toward a loss of redundancy. For example, considering a BWR 1s high pressure ECCS capability, the violation must result in complete invalidation of both HPCI and ADS subsystems. A loss of one subsystem does not defeat the intended safety function as long as the other subsystem is operable. ~/ The Technical Specification limit as used in this Supplement (Items A.4, B.2 and C.5) does not apply to the instantaneous release limit. 47

B. Sever1ty II - V1olat1ons involving for example:

l.

A system des1gned to prevent or mitigate serious safety events not being able to perform its intended safety function; or

2.

Release of radioactivity offsite greater than five (5) times the Technical Specifications limit. C. Severity III - Violations involving for example:

l.

A significant violation of a Technical Specification Limiting Condition for Operation where the appropriate Action Statement was not satisfied within the time allotted by the Action Statement, such as:

a. In a pressurized water reactor, in the applicable modes, having one high-pressure safety injection pump inoperable for a period in excess of that allowed by the action statement; or

b. In a boiling water reactor, one primary containment isolation valve inoperable for a period in excess of that allowed by the action statement.

2.

A system designed to prevent or mitigate a serious safety eyent not being able to perform its intended function under certain conditions (e.g., safety system not operable unless offsite power is available; materials or components not environmentally qualified); 48

3.

Dereliction of duty on the part of personnel involved in licensed activities;

4.

Changes in reactor parameters wh,ch cause unanticipated reductions in margins of safety; 5.- Release of radioactivity offsite. greater than the Technical Specifications limit;

6.

Failure to meet the requirements of 10 CFR 50.59 such that a required license amendment was not sought; or

7.

Licensee failure to conduct adequate oversight of vendors resulting in the use of products or services which are of defective or indeterminate quality and which have safety significance. D. Severity IV - Violations involving for example:

l. A less significant violation of a Technical Specification Limiting Condition for Operation where the appropriate Action Statement was not satisfied within the time allotted by the Action Statement, such as:

a. In a pressurized water reactor, a 5% deficiency in the required volume of the condensate storage tank; or

b. In a boiling water reactor, one subsystem of the two independent MSIV leakage control subsystems inoperable.

49

2. Failure to meet the requirements of 10 CFR 50.59 that does not result in a Severity Level I, II, or III violation;

3. Failure to meet regulatory requirements that have more than minor safety or environmental significance; or

4. Failure to make a required Licensee Event Report.

E. Severity Level V - Violations that have minor safety or environmental significance. SUPPLEMENT II - SEVERITY CATEGORIES PART 50 FACILITY CONSTRUCTION A. Severity I - Violations involving a structure or system that is completeci,21 in such a manner that it would not have satisfied its intended safety related purpose. B. Severity II - Violations involving for example:

1.

A breakdown in the quality assurance program as exemplified by deficiencies in construction QA related to more than one work activity (e.g., structural, piping, electrical, foundations). Such 1111completed 11 means completion of construction including review and acceptance by the construction QA organization. 50

deficiencies normally involve the licensee's failure to conduct adequate audits or to take prompt corrective action on the basis of such audits and normally involve multiple examples of deficient construction or construction of unknown quality due to inadequate program implementation; or

2.

A structure or system that 1s completed in such a manner that it could have an adverse effect on the safety of operations. C. Severity III - Violations involving for example:

l.

A deficiency in a licensee quality assurance program for construction related to a single work activity (e.g., structural, piping, elec-trical or foundations). Such significant deficiency normally involves the licensee's failure to conduct adequate audits or to take prompt corrective action on the basis of such audits, and normally involves multiple examples of deficient construction or construction of unknown quality due to inadequate program implementation;

2.

Failure to confirm the design *safety requirements of a structure or system as a result of inadequate preoperational test program implementation; or

3.

Failure to make a required 10 CFR 50.55(e) report. D. Severity IV - Violations involving failure to meet regulatory requirements including one or more Quality Assurance Criterion not amounting to 51

Sever1ty Level I, II, or III violations that have more than minor safety or env1ronmental significance. E. Severity V - V1olat1ons that have m1nor safety or env1ronmental significance. SUPPLEMENT III - SEVERITY CATEGORIES SAFEGUARDS

• A.

Sever1ty I - Violat1ons involving for example:

1.

An act of radiological sabotage or actual theft, loss, or diversion of a formula quantity of strategic special nuclear material..l.Q/

2.

Actual entry of an unauthorized 1ndividual into a vital area or material access area from outside the protected area (i.e., penetration of both barriers) that was not detected at the t1me of entry; or

3.

Failure to promptly report knowledge of an actual or attempted theft or diversion of SSNM or an act of radiological sabotage. lQ/ See 10 CFR 73.2(bb). 52

B. Severity II~ Violations involving for example:

1.

Actual theft, loss or diversion of special nuclear material (SNM) of moderate strategic significance;ll/

2.

Failure to control access such that all three elements of access ~ control (barrier, monitoring, and response) at the protected area or vital area are inadequate or two of three elements are inadequate in both the protected and vital area;

3.

Failure to implement approved compensatory measures when the central and secondary alarm stations are inoperable;

4.

Failure to establish or maintain safeguards systems designed or used to prevent or detect the unauthorized removal of a formula quantity of SNM from areas of authorized use or storage; or

5.

Failure to use established transportation security systems designed or used to prevent the theft, loss, or diversion of a formula quantity of SNM or acts of radiological sabotage. C. Severity III - Violations involving for example: l *. Failure to control access such that two of the three elements of access control at the vital area or protected area barrier are inadequate; ]l/ See 10 CFR 73.2(x). 53

2.

Failure to control access to a transport vehicle or the SNM being transported that does not constitute a Severity I or II violation;

3.

Failure to establish or maintain safeguards systems designed or used to prevent or detect the unauthorized removal of SNM of moderate strategic significance from areas of authorized use or storage

4.

5 *. Failure to implement approved compensatory measures when the central (or secondary) alarm station is inoperable; Failure to conduct a proper search at the access control point that results in introduction to the site of firearms, explosives, incendiary devices, or other items which could be used for industrial sabotage; or

6.

Failure to properly secure or protect classified or other sensitive safeguards information which would significantly assist an individual in an act of radiological sabotage or theft of special nuclear material. D. Severity IV - Violations involving for example:

1.

Failure to establish or maintain safeguards systems designed or used to prevent or detect the unauthorized removal of SNM of low strateg1c significance _]_g/ from areas of authorized use or storage; _lg/ See 10 CFR 73.2(y). 54

2.

Failure to implement 10 CFR Parts 25 and 95 and information addressed under Section 142 of the Act, and the NRC approved security plan relevant to those parts;

3.

Failure to control access to a vital area or material access area from inside the protected area or failure to control access to the protected area in that one of the three elements of access control is inadequate;

4.

Failure to properly secure or protect classified or other sensitive safeguards information which would not significantly assist an indi-vidual in an act of radiological sabotage or theft of special nuclear material; or

5.

Other violations, such as failure to follow an approved security plan, that have more than minor safeguards significance

• E.

Severity V - Violations that have minor safeguards significance. 55

SUPPLEMENT IV - SE.VERITY CATEGORIES HEALTH PHYSICS 10 CFR PART 20.D/ A. Severity I - Violations involving for example:

1.

Single exposure of a worker in excess of 25 rems of radiation to the whole body, 150 rems to the skin of the whole body, or 375 rems to the feet, ankles, hands, or forearms;

2.

Annual whole body exposure of a member of the public in excess of 2.5 rems of radiation;

3.

Release of radioactive material to an unrestricted area in excess of ten times the limits of 10 CFR 20. 106;

4.

Disposal of licensed material in quantities or concentrations in excess of ten times the limits of 10 CFR 20.303; or

5.

Exposure of a worker in restricted areas of ten times the limits of 10 CFR 20. 103 * .. D/Personnel overexposures and associated violations, incurred during a life saving effort, will be treated on a case-by-case basis. 56

B. Severity II - Violations involving for example:

1.

Single exposure of a worker in excess of 5 rems of radiation to the whole body, 30 rems to the skin of the whole body, or 75 rems to the feet, ankles, hands or forearms;

2.

Annual whole body exposure of a member of the public in excess of 0.5 rems of radiation;

3.

Release of radioactive material to an unrestricted area in excess of five times the limits of 10 CFR 20. 106;

4.

Failure to make an 1irmed1ate notification as required by 10 CFR 20.403(a)(l) and 10 CFR 20.403(a)(2);

5.

Disposal of licensed material in quantities or concentrations in excess of five times the limits of 10 CFR 20.303; or

6.

Exposure of a worker in restricted areas in excess of five times the limits of 10 CFR 20. 103. C. Severity III - Violations involving for example:

1.

Single exposure of a worker in excess of 3 rems of radiation to the whole body, 7.5 rems to the skin of the whole body, or 18.75 rems to the feet, ankles, hands or forearms; 57

2.

A radiation level in an unrestricted area such that an individual could receive greater than 100 millirem in a one hour period or 500 millirem in any seven consecutive days;

3.

Failure to make a 24-hour notification as required by 10 CFR 20.403(b) or an i111T1ediate notification required by 10 CFR 20.402(a);

4.

Substantial potential for an exposure or release in excess of 10 CFR 20 whether or not such exposure or release occurs (e.g., entry into high radiation areas, such as under reactor vessels or in the vicinity of *exposed radiographic sources, without having performed an adequate survey, operation of a radiation facility with a nonfunctioning interlock system);

5.

Release of radioactive material to an unrestricted area in excess of the limits of 10 CFR 20. 106;

6.

Improper disposal of licensed material not covered in Severity Levels I or II;

7.

Exposure of a worker in restricted areas in excess of the limits of 10 CFR 20. 103;

8.

Release for unrestricted use of contaminated or radioactive material or equipment which poses a realistic potential for significant exposure to members of the public, or which reflects a programmatic (rather than isolated) weakness in the radiation control program; 58

9.

Cumulative worker exposure above regulatory limits when such cumu-lative exposure reflects a progranmatic, rather than an isolated weakness in radiat1on protect1on;

10.

Conduct of 11censee activities by a technically unqualified person; or l~. Significant failure to control licensed material. D. Severity IV - Violations involving for example:

l.

Exposures in excess of the limits of 10 CFR 20. 101 not constitut1ng Severity Level I, II, or III violations;

2.

A radiation level in an unrestricted area such that an individual could receive greater than 2 millirem in a one-hour period or 100 millirem in any seven consecutive days;

3.

Failure to make a 30-day notification required by 10 CFR 20.405;

4.

Failure to make a followup written report as required by 10 CFR 20.402(b), 20.408, and 20.409; or

5.

Any other matter that has more than minor safety or environmental significance. E. Severity V - Violations that have minor safety or environmental significance. 59

SUPPLEMENT V - SEVERITY CATEGORIES TRANSPORTATIO~/ A. Severity I - Violations of NRC transportation requirements involving for example:

1.

2.

Annual whole body radiation exposure of a member of the public in excess of 0.5 rems of radiation; or Breach of package integrity resulting in surface contamination or external radiation levels in excess of ten times the NRC limits. B. Severity II - Violations of NRC transportatio~ requirements involving for example:

1.

Breach of package integrity resulting in surface contamination or external radiation levels in excess of NRC requirements;

2.

Surface contamination or external radiation levels in excess of five times NRC limits that did not result from a breach of package integrity; or .!1/some transportation requirements are applied to more than one licensee involved in the same activity such as a shipper (10 CFR 73.20) and a carrier (10 CFR 70.20a). When a violation of such a requirement occurs, enforcement action will be directed against the responsible licensee which, under the circumstances of the case, may be one or more of the licensees involved. 60

3.

Failure to make requtred initial notifications associated with Severity Level I or II violations. C. Severity III - Violations of NRC transportation requirements involving for example:

1.

Breach of package integrity;

2.

Surface contamination or external radiation levels in excess of, but less than a factor of five above NRC requirements, that did not result from a breach of package integrity;

3.

Any noncompliance with labelling, placarding, shipping paper, packaging, loading, or other requirements that could reasonably result in the following:

a.

Improper identification of the type, quantity, or form of material;

b.

Failure of the carrier or recipient to exercise adequate controls; or

c.

Substantial potential for personnel exposure or contamination, or improper transfer of material; or

4.

Failure to make required initial notification associated with Severity Level III violations. 61

D. Severity IV - Violations of NRC transportation requirements involving for example:

l.

Package selection or preparation requirements which do not result in a breach of package integrity or surface contamination or external radiation levels in excess of NRC requirements; or

2.

Other violations that have 1110re than minor safety or environmental significance. E. Severity V - Violations that have minor safety or environmental significance. SUPPLEMENT VI - SEVERITY CATEGORIES FUEL CYCLE AND MATERIALS OPERATIONS A. Severity I - Violations involving for example:

1.

Rad1ation levels, contamination levels, or releases that exceed ten times the limits specified in the license;

2.

A system designed to prevent or mitigate a serious safety event not being operable when actually required to perform its design function; or

3.

A nuclear criticality accident. 62

B. Severity II - Violations involving for example:

1.

Radiation levels, contamination levels, or releases that exceed five times the limits specified in the license; or

2.

A system designed to prevent or mitigate a serious safety event being inoperable. C. Severity III - Violations involving for example:

1.

Failure to control access to licensed materials for radiation purposes as specified by NRC requirements;

2.

Possession or use of unauthorized equipment or materials in the conduct of licensee activities which degrades safety;

3.

Use of radioactive material on humans where such use is not authorized;

4.

Conduct of licensed activities by a technically unqualified person;

5.

Radiation levels, contamination levels, or releases that exceed -the limits specified in the license; or

6.

Medical therapeutic misadministrations. D. Severity IV - Violations involving for example:

1.

Failure to maintain patients hospitalized who have cobalt-60, cesium-137, or iridium-192 implants or to conduct required leakage or 63

E. contamination tests, or to use properly calibrated equipment;

2.

Other violations that have more than minor safety or environmental significance; or

3.

Failure to report medical diagnostic misadministrations. Severity V - Violations that have minor safety or environmental significance. SUPPLEMENT VII - SEVERITY CATEGORIES MISCELLANEOUS MATTERS A. Severity I - Violations involving for example:

1.

A Material False Statement (MFS).1§./ in which the statement made was deliberately false;

2.

Falsification of records which NRC requires be kept of significant information in which the records were deliberately falsified by or with the knowledge of management; 1~1In essence, a Material False Statement is a statement that 1s false by omission or commission and is relevant to the regulatory process. As can be seen in the examples, in determining the specific* severity level of a violation involving material false statements or falsification of records, consideration will be given to such factors as the position of the person involved in the violation (e.g., first 1ine supervisor or senior manager), the sig~ificance of the information involved, and the intent of the violator (i.e., negligence not amounting to careless disregard, careless disregard, or deliberateness). The relative weight given to each of these factors in arriving at the appropriate severity level will be dependent on the circumstances of the violation. 64

3.

A knowing and intentional failure to provide the notice required by Part 21; or

4.

Action by senior corporate management in v1olat1on of 10 CFR 50.7 or similar regulations against an employee. B. Severity II - Violations involving for example:

1.

A MFS or a report1ng failure, involving 1nformation which, had it been available to the NRC and accurate at the time the information should have been submitted, would have resulted in regulatory action or would 11kely have resulted in NRC seeking further information;

2.

A MFS in which the false statement was made with careless disregard;

3.

Deliberate falsification of records wh1ch NRC requires be kept involving significant information;

4.

Act1on by plant management above first-line supervision in violation of 10 CFR 50.7 or similar regulations against an employee; or

5.

A failure to provide the notice required by Part 21

• C.

Severity III - Violations involving for example:

1.

A MFS not amounting to a Severity Level I-or II violation.

2.

Deliberate falsification, or falsification by er with the knowledge of management, of records which the NRC requires be kept that did not involve significant information.

3.

Action by first-line supervision in violation of 10 CFR 50.7 or similar regulations against an employee; or

4.

Inadequate review or failure to review such that, if an appropriate review had been made as required, a Part 21 report would have been made. 65

D. Severity IV - Violations involving for example:

1.

Inadequate review or failure to review under Part 21 or other procedural violations associated with Part 21 with more than minor safety significance;

2.

A false statement caused by an inadvertent clerical or similar error involving informatio~ which, had it been available to NRC and accurate at the time the information should have been submitted, would probably not have resulted in regulatory action or NRC seeking additional information; or E. Severity V - Violations of minor procedural requirements of Part 21. SUPPLEMENT VIII - SEVERITY CATEGORIES EMERGENCY PREPAREDNESS A. Severity I - Violations involving for example: In a general emergency, licensee failure to promptly (1) correctly classify the event, (2) make required notifications to responsible Federal, State, and lo~al agencies, or (3) respond to the event (e.g., assess actual or potential offsite consequences, activate emergency response facilities, and augment shift staff). B. Severity II - Violations involving for example:

1.

In a site area emergency, licensee failure to promptly (1) correctly classify the event, (2) make required notifications to responsible Federal, State, and local agencies, or (3) respond to the event 66

(e.g., assess actual or potential offsite consequences, activate emergency response facilities, and augment shift staff); or

2.

Licensee failure to meet or implement more than one emergency planning standard involving assessment or notification. C. Severity III - Violations involving for example:

1.

In an alert, licensee fa~lure to promptly (1) correctly classify the event, (2) make required notifications to responsible Federal, State, and local agencies, or (3) respond to the event (e.g., assess actual or potential offsite consequences, activate emergency response faci-lities, and augment shift staff); or

2.

Licensee failure to meet or implement one emergency planning standard involving assessment or notification. D. Severity IV - Violations involving for example: Licensee failure to meet or implement any emergency planning standard or requirement not directly related to assessment and notification. 67

e E. Severity V - Violations that have minor safety or environmental significance. Dated at Washington, DC, this J."3J day of )e~~ 1987. For the Nuclear Regulatory Commission. 68}}