ML23153A079

PR-002 - 60FR34381 - Revision of the NRC Enforcement Policy

ML23153A079
Person / Time
Issue date:	06/30/1995
From:	Hoyle J NRC/SECY
To:
References
PR-002, 60FR34381
Download: ML23153A079 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 06/30/1995 TITLE: PR-002 - 60FR34381 - REVISION OF THE NRC ENFORCEMENT POLICY CASE

REFERENCE:

PR-002 60FR34381 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NO. PR-OO2 (6OFR34381)

In the Matter of REVISION OF THE NRC ENFORCEMENT POLICY DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

06/26/95 06/23/95 FEDERAL REGISTER NOTICE - PROPOSED RULE 08/16/95 08/14/95 COMMENT OF MARYLAND SAFE ENERGY COALITION (RICHARD OCHS, DIRECTOR) ( 1) 08/17/95 08/15/95 COMMENT OF NUCLEAR ENERGY INSTITUTE (WILLIAM H. RASIN) ( 2) 08/18/95 08/14/95 COMMENT OF TOLEDO EDISON (JOHN P. STETZ) ( 3) 08/21/95 08/14/95 COMMENT OF DIAMOND H TESTING (RICHARD COOK, GENERAL MANAGER) ( 4) 08/30/95 08/12/95 COMMENT OF MARVIN I. LEWIS ( 5) 03/25/96 03/22/96 FEDERAL REGISTER NOTICE - POLICY STATEMENT; CORRECTION

DOCKETED USNRC

[7590-01-P]

'96 MAR 25 P2 :as NUCLEAR REGULATORY COMMISSION OF FIC ~ o~ ~YLRET.fi.RY Revision of the NRC Enforcement Pol icy; Correction OOCK ETJr~A/c~Er. *ic[

AGENCY: Nuclear Regulatory Conmission.

ACTION: Policy statement: Correction.

SUMMARY

This document corrects a notice appearing in the Federal Regjster on June 30, 1995 (60 FR 34381), that announced the revision of the Nuclear Regulatory Commission's (NRC's) Enforcement Policy. This action is necessary to correct an inadvertent omission of the Paperwork Reduction Act Statement for the policy statement. Because this notice and a notice announcing the

- removal of the NRC's Enforcement Policy from the Code of Federal Regulations

{60 FR 34380; June 30, 1995) were subsequently issued in their entirety as NUREG-1600, NUREG-1600 also failed to incl ude the Paperwork Reduction Act Statement for the revised policy statement . An errata for NUREG-1600 is being issued to address this issue.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, tel ephone (301) 415-2741.

2 On page 34383, after the first full paragraph in the first column, (i.e., immediately preceding the revised policy statement), insert the following section:

Paperwork Reduction Act Statement This policy statement does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0136. The approved information collection requirements contained in this policy statement appear in Section VII.C.

Dated at Rockville, Maryland, this JJ.'iay of }ia-1LA 1996.

For the Nuclear Regulatory Commission.

DOCKET NLUBER na - -~--

PROPOSED RULE..!.f~ll~------ DOCKETED

(_(po r"~ ~-\3~ ') USNRC r!;:1r- v:i.n I.,

1 LEi*~\l :i.s 3133 Fairfield Street *95 AUG 30 P2 :56 Philadelphia, PA 19136 (215)676 1291 OFFICE OF SECRETARY DO CKETING & ERVICE BRA -CH In the matter of Revision of the NRC Enforcement Policy.

I have always wondered why the NRC avoids using any of my comments no matter what the costs. The costs have been high. I actually won my contention at the TMI#1 Restart Hearings. I have figured out why the lack of interest in using my comments.

My comments ain't no fun. At least using industry comments, the reviewer is assured of powerful friends agreeing with him.

Using my comments, the reviewer mi.1st depend upon the truth protecting him. My comments just ain't no fun.

I submit my previous comments on 10CFR Part 2 Reexamination of the NRC Enforcement Policy as they are relevant to this Policy Statement. I enclose another copy.

I wish that I could say, respectfully 8-12-95

U.S. NUCLEAR RE:. V M, ISSIO DOCKETING & SER.., ICE ECTION OFFICE Of THE SECRETARY OF THE COMMISSION Oocunent Statistics Postmar1( Date __.'-\--'-~- - - - -

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\

l"iarvin 1. Lewis 8188 rairfield Street Philadelphia, PA 19186

( 215) 6 '/ 6 12'-t 1 ln the matter of 10L~R Part 2 Reexamination of the NkL

~nforcement Policy; Proposed Rule; Request for Public Comment.

lo David Myers, Chief, Rules Review and Directives Branch, Div.

rOI, NRC, Washington, 0. C. 20SSS.

Chief Myers and Commissioners; fhis rulemaking should really be called examination of the t'\JRC's D.PD.--:-enforcement policy. The NRC enforces its rules very harshly against the small businessperson and leaves the misadventures of the large licensee go unpunished. The NRC endangers and discourages *whistleblowers' who would tell the NRC of misdeeds and dangers perpetuated by certain licensees.

1. The NRC enforces its rules very harshly against the small businessperson.

Ruth Miner and Manny Mendelsohn have attended enforcement hearings in King of Prussia Region headquarters. From their reports, I have ascertained a pattern of unnecessary harshness against small businesspeople who have made honest paperwork mistakes which did not endanger employees or the general public.

2. The NRC leav~s the misadventures of the large licensee go unpunished.

11

• rhe NRC staff did not propose a fine for this alleged vic,lation because it involvJd a problem that originated more than seven years a~o." NUREG/BR 0082 V14 No 33 Item No.94-129 NRL Staff prc,poses tc, Nc,rtheast Nuclear Energy Cc,mpany $8'7,500 fc,r alleged violations of NRC requirements at Millstone Unit 2.

This quote seems to be saying that if you hide a violation long enough, you will not get fined for endangering the employees and public for those many years. I sent a request for an explanation of this statement and have re~eived no reply. I must consider my interpretation correct for large companies: hide a violation long enough and you will not get fined.

3. Ths NRC endangers and discourages 'whistleblowers' who would tell the NRC of misdeeds and dangers perpetrated by certain licensees.

lhe Christian Science Monitor of ~-29-94 has an excellent article, NRC Discourages Whistle Blowing at Nuke Plants. This article specifies names, circumstances and verification by the NRG Inspectc,r 13eneral c,f endangerment and misdeeds.

Finally, all these non-enforcement policies pale into insignificance beside the NRC own admission that the NRC is the licensee advocate instead of its regulator in S~CY 92-043, EXERCISE OF DISCRETION NOT TO .ENFORCE COMPLI.ANCE WITH L.ICENSE GQl'.!IDJTIQNS~ I have heard many jc,kes abc,ut regulators being in bed with the regulated, but this is not a joke.

2.

Senator Joseph Lieberman has requested the text of SECY 92-043 with limited results. He has alsc, suggested that "Notices of Enforcement Discretion" require public comment. I hope that the NRC decides to answer the Senator instead of ignoring him as I have been ignored with my letter regarding my interpretation of the NRC policy not to fine violations which have endangered the public for a long time.

How about enforcing your rules against large, powerful licensees, and don~t give the identity of informants to the v ic,l atc,rs.

I wish that I could say, Respectfully submitted, 10-2-94.

ll)iamond t1 1re5tinQ ILaboratori e~qfKETEO 4CJ~CJ fellowstone .4.ve., Chubbuck, Ill) 831~oijSNRC IJho ne: ~()8/~J:1'-~66:1 i/8l()1()-81fHi-8tii80 lfax: ~os1~31:,-01:,1 *95 AUG 21 AlO :45

!Letter lrran§m ittal OFFIC F. OF SECRETA RY DOCKETING & SERVICE August 14, 1995 BRANCH The Secretary of the Commission U.S. N.R.C.

Washington DC, 20555 Attention : Docketing and Service Branch Re: NuReg-1600, Vol. 60 No. 126

- From: Richard Cook - General Manager - Diamond H Testing Laboratories This letter is being written in reference to NuReg - 1600, Vol. 60, No. 126. General Statement of Policy and Procedure for NRC Enforcement Actions. Paragraph VI. B.2.b (2) (i) and VI B. 2. c.

In accordance with Regulations, each organization licensed is required to review, monitor, evaluate and audit itseH to assure compliance with requirements. In the normal course of business, noncomfonnances may occur which require corrective action to be taken and when noted are dealt with within the organization. This is a reasonable and justifiable course of action.

Yet we have concerns in regards to the referenced sections shown above. We feel that an inhouse program then becomes sett incriminating in regards to Civil penalties. We agree that comments on such findings is reasonable. But to levy penalties, would be considered unreasonable.

We wish a review and comments on this matter. Clarification is needed on the power given the Inspector on this issue and what guidelines would keep the inspector from being overly zealous in his actions or call.

Thank You, Richard Cook General Manager

U.S. NUCLEAR REGULATORY COMMISSIOr.

DOCKETING & SERVICE SECTK>N OFFICE OF THE SECRETARY OF THE COMMISSION Doctmlent Statistics Postmcm Date _1> \ 1

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~

CENTERIOR ENERGY DOCKETED SNRC 300 Madison Avenue John P. Statz Toledo, OH 43652-0001 *95 AUG 18 P2 :27 Vice President - Nuclear 419-249-2300 Davis-Besse OF FlC. OF SECR ETAR Y OOCKE t'IN G & --~R VI CE BHANCH Docket Number 50-346 DOCKET NUMBER p PROPOSED RULE~....;ol  :;;.___

License Number NPF-3 (boF"12. 5"\-o'8 \) @

Serial Number 2315 August 14, 1995 Secretary of the Commission United States Nuclear Regulatory Commission Vashington, D. C. 20555 Attention: Docketing and Service Branch

Subject:

Comments on Revision of the NRC Enforcement Policy (60FR34381, June 30, 1995)

Gentlemen:

Toledo Edison (TE), a subsidiary of Centerior Energy, is partial owner of and is responsible for operation of the Davis-Besse Nuclear Power Station ( DBNPS ). Toledo Edison has been authorized for power operation of the DBNPS since April 1977. As a 10 CFR Part 50 licensee, TE has a vested interest in any policies the Nuclear Regulatory Commission (NRC) may adopt which can affect the management and operation of a commercial nuclear power plant. Toledo Ed.ison has reviewed the subject Federal Register notice and submits the following comments for consideration.

Subpart B of 10 CFR Part 2 describes procedures used by the NRC for issuing Orders, issuing Notices of Violations (NOVs), imposing Civil Penalties, and issuing Demands for Information. The applicable regulations for each of these enforcement actions allow licensees (or other persons against whom the actions are taken) to dispute or contes t the enforcement actions. In each case, except for NOVs, the applicable regulations also provide a course of action to be taken by the NRC to resolve disputed or contested enforcement actions .

The revised NRC Enforcement Poli cy (as was the cas e wi th t he previous version) similarly provides guidance for resolvi ng di sputed Orders, Demands for Information, and Civil Penalties, but does not provide guidance for resolution of contested NOVs that are not associated with Civil Penalties pursuant to 10 CFR 2.205.

Operating Companies: rsEP 2 1 1995, Cleveland Electric Illuminating Toledo Edison Acknowledged by card ................................,,

U.S. NUCLEAR I l~'-' v-v,l !.. : ri'.' G' M *1!SSl0 "1 DOCKETING & SERVICE SECTION OrFICE OF THE SECRET ARY OF THE COMMISSION Dorument Statistics Postmm Date _.,,,_~"+--"- - - - -

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Special DisbitxJtion ~; o~ lBbtt:tO rs:, 3

Docket Number 50-346 License Number NPF-3 Serial Number 2315 Page 2 The only NRC guidance that TE could locate to handle contested NOVs is contained in the NRC Enforcement Manual . Toledo Edison believes that this guidance is vague. Based upon our past experience with contesting NOVs, we believe that this guidance is inadequate and resulted in the contested NOVs not being processed by the NRC in a methodical, consistent manner.

For example, TE recently contested two violations cited during an inspection of the Motor Operated Valve Testing Program on the basis that the regulations TE was cited for not meeting could not legally be imposed on the program by the NRC. Yet, based upon a review of the concurrences for the NRC's response to the contested violations, no review of the NRC's response i nvolving the legality contention was conducted by the Office of General Counsel (OGC). Additionally, the level of independence of the review of the contested violations was inadequate. In other instances where TE has contested NOVs, varying levels of independent review have been encountered in the resolution of the issues.

To remedy this situation, TE recommends that the NRC Enforcement Policy be revised to include specific guidance on this issue. The NRC Enforcement Manual should be revised to provide more explicit procedural guidance for the NRC staff in resolving contested NOVs, and to specify the appropriate level of independent reviews and management invol vement in these issues.

In addressing these issues, the NRC should also consider establishing clearer guidance on the appropriate level of independent review and management involvement for the issuance of NOVs pursuant to 10 CFR

2. 201.

Should you have any questions or requi re additional information, please contact Hr. William T. O'Connor, Manager - Regulatory Affairs, at (419) 249-2366.

Very truly yours, NKP:24 /ti cc: L. L. Gundrum, NRC Proj ect Manager H.J. Hiller, Regional Administrator, NRC Region III Y. H. Rasin, Nuclear Energy Institute

s. Stasek, DB-1 NRC Senior Resident Inspector USNRC Document Control Desk Utility Radiological Safety Board

DOCKETED US RC NU CLEAR ENERGY IN ST I T UT E

• 95 AUG 17 A10 :4 1 William H. Rasin OrFIGt.. OF SECRr- f', R,Yo* v1crnes1DENT 00cKETnI G & sE .,r ir rNICAl/lEGULA TOIV BRA , '":H August 15, 1995 DOCKET NUMBER Mr. John C. Hoyle PROPOSED RULE_;;..P.;.;;..s:0-::

~ --

Secretary U.S. Nuclear Regulatory Commission ( boF'2. 3+3~ \J@

Washington, D.C. 20555-0001 ATTENTION: Docketing and Service Branch

SUBJECT:

Policy and Procedure for Enforcement Actions; Removal (60 Fed. Reg. 34380, June 30, 1995); and Revision of the NRC Enforcement Policy (60 Fed. Reg. 34381, June 30, 1995)

Dear Mr. Hoyle:

On June 30, 1995, the U.S. Nuclear Regulatory Commission (NRC) published two notices in the Federal Register concerning the NRC Enforcement Policy. The first of the two notices announced the removal of the Policy and Procedure for Enforcement Actions (Enforcement Policy) from the Code of Federal Regulations, and the second notice was a revision to the Enforcement Policy. The Nuclear Energy Institute (NEI) 1, on behalf of the commercial nuclear energy industry, previously submitted comments on the Enforcement Policy (see letters to the NRC dated 10/24/94; 11/1/94; and 12/28/94) and also actively participated in public meetings with the NRC where we expressed our views on the Enforcement Policy.

We agree with the Commission's view that the Enforcement Policy should be treated as a policy statement and not as a regulation, and that removing it from 10 CFR helps to make that clear.

The NRC' s review of the Enforcement Policy provided an opportunity for a comprehensive evaluation of the agency's approach to enforcement based upon the need to consider fundamental changes. We believe that several of the changes can 1 The Nuclear Energy Institute (NEI) is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including regulatory aspects of generic operational and technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, materials licensees, and other organizations and individuals involved in the nuclear energy industry. ,rar *s~1 1995.

Ac1mow1edged by card,...,...., o** v*** w-.

1776 I STREET , NW SUITE 400 WASHINGTON, DC 20006-3708 PHONE 2*02 739 8088 FAX 202 785 1898

U.S. NUCLEAR ;,,:, .;~- TOR CO,'. 11S IOt.

DOCKETING & SERVICE SECTI N OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmartt Date ~ JClt..ll.l:l,!.,QD. _ __ __

Copes Recei Add'l Copies

Mr. John C. Hoyle August 15, 1995 Page2 significantly improve the NRC's enforcement program. While the industry has expressed serious concern about various aspects of the previous policy and its implementation, and we continue to have some concerns about the revised policy, we will be in a better position to judge the effectiveness of the new policy after the eighteen-month trial period.

We strongly encourage the Enforcement Policy be implemented in a manner consistent with its stated purpose and be clearly focused on matters related to safety. The significant improvement in industry safety performance and the continuing positive trend in overall plant performance should be reflected in fewer escalated enforcement actions.

We appreciate the opportunity to participate in your Enforcement Policy review process and look forward to commenting following the close of the trial period.

Sincerely,

~:t~- .

William H. Rasin WHR/ec

DOCKETED Maryland Safe Energy Coalition USNRC P.O. Box 33111 Baltimore, MD 21218 *95 AUG 16 P1 :37 410-243-2077 FAX 235-5325 or r*; r'F O ..; * "R TARY ro0001@ep1rt2. ep1rfbatto. oig OOCKE T!t~G & SERVI CE August s ~~ C 995 The Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 DOCKET NUMBER PROPOSED RULE.!..!!~~~----

ATTN: docketing and Service Branch ( <ocr~ ~~e,-=ti \)

Re: Comment on Revision of NRC Enforcement Policy CD

Dear Secretary:

As reported in the Federal Register, Vol.60, No. 126, Friday, June 30, 1995, the NRC requested comments on Revision of NRC Enforcement Policy. The following comments concern part IV of the Notice, page 34385, on severity of Violations, A. Aggregation of Violations and B. Repetitive Violations.

The experience of the Peach Bottom Atomic Power station offers a good example of aggregation and repetition of violations.

Enclosed is a list of 106 events, transients, weaknesses, fail ures , breakdowns and errors, including 2 severity Level III Violations, 4 Severity Level IV Violations and 7 Notices of Vio l a tion, occurring between October 15, 1992 and May 24, 1995.

Reading through this list of 106 failures, a reasonable person could conclude several things: 1) such an aggregation of failures presents the possibility of combined or overlapping failures, resulting in greater severity failures; 2) many of the failures should have been termed violations; 3) several of the Notices of Violation should have been a higher severity level; 4) punitive fines should be assessed for all failures and violations; and 5) the NRC shou l d define a threshold amount of failures and violations which would warrant shutting down the reactors for mec hanical overhaul and personnel training.

This scandalous list of 106 failures in less than 3 years is not exceptional for Peach Bottom. A similar account of failures and vio l ations is documented during the entire history of these reactors. such performance is unacceptable and we protest the lenient regulation they have been accorded by the NRC.

The NRC's position that "several violations with a common cause may be more significant collectively" does not go far enough. The words "with a common cause" should be stricken. The cumulative effect, synergistic effect or simultaneous effect of multiple failures are definitely more significant collectively than

!AUG 1 8 1995 Acknowledged by eanf ...........................,,...:;

U.S. NUCLEAR REGUu T0:1 ,. OM l"S DOCKETING & SERVICE SECT OFFICE OF THE SECRETARY Of THE COMMISSION Document Statistics Postmartt Date _.,.__µ:..'"4--..=.-- - - -

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2 individually regardless if they have a common cause or not.

Moreover, repetitive failures or violations are significant even if they are not similar. While common cause and similarity of violations are significant, dissimilar but cumulative failures are also. The NRC should revise the enforcement policy to reduce the large number of failures at plants like Peach Bottom. The seriousness of possible catastrophe requires the strictest of regulation in the public interest.

How many failures will the NRC accept before fines and shutdowns are mandated: one hundred a year, one hundred a month, or no limit whatsoever, which is the current NRC policy?

What is the NRC's calculus of cumulative effect, synergistic effect or simultaneous effect of failures? What is the NRC's calculus of probability of accidents when multiple failures occur? Does the NRC have such formu l ae? If so, what are they? If not, why not?

Sincerely yours,

~JOL Richard Ochs, Director

- October 15, 1992 - Unit-3 scrammed and recirculation pumps shutdown, "there was a significant cooldown in the bottom head as a result of the loss of forced circulation" (IA 50-277/94-04 and 50-278/94-04.)

- October 16, 1992 - The NRC identified programmatic weaknesses related to the System Manager program . (NRC IA 50-277/92-26 and 50-278/92-26.) *

- November 16, 1992 - The NRC noted: "An industrial safety concern, which involved the potential for loss of power in the drywell...had not yet been resolved and warrants your attention" (NRC IA 50-277/92-30 and 50-278/92-30.)

- December 2 and 11, 1992 - Failures of the containment, atmospheric, dilution (CAD) system gas analyzer occurred at Unit-2. On both occasions PECO personnel did not "understand" or "recognize" the problem with the CAD. (NAC IA 50-277/92-29 and 50-278/92-29.)

- December 4, 1992 - Several weaknesses were reported during the the Initial SALP of licensee Performance "including num erous component failures. lapses in the operating procedure and deficiencies in eng ineering and technical support" (YQ.rk_

Daily Record. January 9, 1993.) "Among the areas identified for improvement were plant performance monitoring and engineering and technical support" (PECO, Report to the Shareholders, March 1, 1993.)

- December 7, 1992 - During Unit-2 start-up, the '28' Recirculation Pump failed.

(NAC IA 50-277/92-32 and 50-278/92-32.) (See March 2, 1993 for a related incident.)

- December 17, 1992 - Turbine control oscillations occurred while Unit-2 was operating at 89.5% power. The plant was "stabilized" at 76.5% power. (NAC IA 50-277/92-32 and 50-278/92-32.}

- December 19, 1992 - An Unusual Event was declared "due to a loss of emergency communications capabilities. Both units were operating at 20% power" (NAC IA 50-277/92-32 and 50-278/92-32.}

- January 1, 1993 - The Unit-2 high pressure coolant injection system was declared inoperable. (NAC IA 50-277/92-32 and 50-278/92-32.) (See January 25 and 31, March 1 and August 9, 1993, for related incidents.)

- January 21 , 1993 - A Notice of Violation (NOV) was issued relating to the NAC's Motor-Operated Valve (MOV) Inspection on October 19-23 and November 3, 1992. PECO "1) did not document nonconforming positions, 2) did not properly disposition existing nonconforming conditions, and 3} did not take timely corrective actions to evaluate and resolve nonconforming conditions in MOVs ... " (NRC IA 50-277/92-82; 50-278/92-82.)

- January 25, 1993 - During surveillance testing, the Unit-3 high pressure coolant injection system was declared inoperable. (NAC IA 50-277/93-01 and 50-278/93-01 .) (See January 1 and 31, March 1 and August 9, 1993, for related incidents.)

- January 31, 1993 - The Unit-2 high pressure coolant injection system *was declared inoperable. (NAC IA 50-277/93-01 and 50-278/93-01 .) (See January 1 and 25, March 1, and August 9, 1993, for related incidents.)

- March 2, 1993 - Unit-2 scrammed while operating at 70% reactor power. (NRC IR 50-277/93-03 and 50-278/93-03.)

- March 2, 1993 - The Unit-2 '2A' reactor recirculation pump and '2A' condensate pump tripped while the Unit was operating at 100% power" (NRC IR 50-277/93-03 and 50-278/93-03.) (See December 7, 1992 for a related incident.}

- March 3, 1993 - The Unit-2 high pressure coolant injection system was declared inoperable. (NRC IA 50-277/93-03 and 50-278/93-01 .) (See January 1, 25 and 31 and August 9, 1993 for related incidents.)

- March 7, 1993 - [R]eactor scram, due to a low reactor vessel level. Reactor feed pump trip while lowering reactor power to with in bypass valve capacity, to allow work on turbine valves" (IA 50-277/94-04 and 50-278/94-04.)

- March 10, 1993 - During a radiological safety inspection (February 8-9, 1993 and March 1-2, 1993), relating to a "breakdown of personnel access controls associated with the Transversing In-core Probe (TIP), the NRC found: " ... control of personnel during such operations is considered very important as the TIPs represent one of the higher radiation sources that personnel have a potential for encountering" (NRC IR 50-277/93-02; 50-278/93-02.) (For related incidents see. June 22 and 25, -

Septem ber 24, October 4, and November 11, 1993 and June 19 and November 29, 1994.)

March 23, 1993 - High oxygen concentration was found in Unit- 2 containment during power operation. (NRC IA 50-277/93-03 and 50-278/93-03.) (See January 17, 1992 for a related incident.)

- April 24, 1993 - Unit-2 was manually scrammed "following declaration of all reactor vessel level instrumentation served by the '28' condensing chamber inoperable" (NRC IR 50-277/93-06 and 50-278/93-06.) (See related incident on March 27 and July 26, 1992 and September 22, 1993.)

- April 30, 1993 - A Notice of Violation was issued following an an N RC inspection of the electrical distribution system. Other design and operational weaknesses were identified relating to the emergency diesel generator. (NRC IA 50-277/93-80 and 50-278/93-80.)

- May 26*, 1993 - Three individuals were found to be "inattentive" or "sleeping."

(C. Anderson, NRC Region I.}

- June 22, 1993 - "Controls over a special high radiation area entry were not fully effective in that a higher than expected dose rate was identified upon the entry" (IR 50-277/94-04 and 50-278/94-04.} (See March 10, June 25, September 24 and October 4 and November 11, 1993 and January 19 and November 29, 1994.)

- June 24, 1993 - PECO discovered a "mispositioned" control rod at Unit-2. The reactor was operating at 60% power. (NRC IA 50-277/93-15 and 50-278/93-15.)

- June 25, 1993 "[U]unlock[ed] high radiation area door" (IA 50-277/94-04 and 50-278/94-04.) (See March 10, June 22, July 22, September 24, October 4 and November 11,1993 and January 19 and November 29, 1994.)

- July 4, 1993 - Unit 3 was shutdown. "An unplanned Unit 3 mid-cycle outage began on July 6, 1993, to replace to known leaking fuel bundles." A fuel leak was detected in May 1992. (NRC IA 50-277/93-15 and 50-278/93-15.)

- July 30, 1993 - Unit-3 was manually scrammed "after a loss of condenser vacuum" (NRC IA 50-277/93-15 and 50-278/93-15.)

- August 9, 1993 - The Unit-3 high pressure injection system was rendered inoperable (NRC IR 50-277/93-17 and 50-278/93-17.) (For related incidents see, January 1, 25 and 31 and March 1, 1993.)

- August 11, 1993 - Unit-2 was manually scrammed. (NRC IA 50-277/93-17 and 50-278/93-17.)

- August 14, 1993 - Unit-3 was shut down after three of four residual heat pumps were deemed inoperable. The plant was operating at 100% power. (NRC IA 50-277/93-17 and 50-278/93-17.)

- September 14, 1993 - The reactor feed pump tripped due to "flow oscillations" at Unit-3.

- Septem ber 16, 1993 - An inspection of Peach Bottom's Emergency preparedness program on June 28-30,* 1993 found: "Significant areas for potential improvement included wind direction information use by emergency response groups, event annour:icements in the Emergency Operations Facility by the ERM (Emergency Response Manager], and ERM recogni tion of the best indication of main stack radiation" (NRC IA 50-277/93-10; 50-278/93-10.)

- September 22, 1993 - The NRC "noted that weaknesses in isolation of the reactor vessel water level instrumentation du ring installation of the [water level backfill]

modification resulted in the generation of a false low signal. This low label signal caused the ECCS initiation signals and entry into a technical specification required shutdown condition at Unit 3" (For related incidents see, March 27 and July 26, 1992 and April 24, 1993.) Also the NRC completed their investigation into the recirculation pump trip on July 27, 1992. (NRC IA 50-277/93-17 and 50-278/93-17.)

-September 24, 1993 - "Workers in Unit-3 were unaware of higher than expected radiation levels" (IA 50-277/94-04 and 50-278/94-04.) (See March 10, June 22 and 25, October 4 and November 11, 1993 and January 19 and November 29, 1994.)

- September 24, 1993 - "During core off load a fuel bundle became stuck partially inserted in its storage rack in the Unit 3 fuel pool..." (NRC IA 50-277/93-24 and 50-278/93-24.) (See February 21-22, 1993 for related events.)

- October 4, 1993 - An NRC inspection (August 2-6, 1993) found: "The lack of comprehensive corrective actions for some radiological discrepancies developed under the ROA [Radiological Occurrence Reporting]

process was considered a significant radiological controls program weakness.

A previous audit of the radiological controls program by the NOA [Nuclear Quality Assurance] identified a significant breakdown concerning radiological controls oversight. In particular, a weakness was noted in the area of radiation worker attention to detail and adherence to instructions provided by radiological controls staff" (NRC IA 50-277/93-19; 50-278/93-19.) (See March 10, June 22 and 25, October 4, September 24 and November 11, 1993 and January 19 and November 29, 1994.)

- October 6, 1993 - "[C]ontrol switch for control room emergency ventilation left in the off position following restoration" (IA 50-277/94-04 and 50-278/94-04.)

- November 11, 1993 "Unlocked high radiation door" (IA 50-277/94-04 and 50-278/94-04.) (See March 10, June 22 and 25, September 24 and October 4, 1993 and January 19 and November 29, 1994.)

- November 15, 1993 - "5th point heater valve out of position following Unit-3 start-up, leading to a steam leak to the turbine building" (IR 50-277/94-04 and 50-278/94-04.)

- November 22, 1993 - A Notice of Violation was issued for "a poor safety review of a temporary change to a reactor core isolation cooling testing procedure led to the inadvertent release of radioactive contamination within the Unit 3 reactor building.

While this resulted in a minor clothing contamination, our review indicated poor management review and control of activities related to the specific testing" (NRC IA 50-277/93-24 and* 50-278/93-24.)

- December 18, 1993 - "Missed continuous fire watch" (50-277/94-04 and 50-278/94-04.) (See related data on Thermo-Lag, September 29, 1994.)

- January 1 , 1994 - Philadelphia Electric Company changed its name to PECO Energy Company.

- January 19, 1994 - "During the inspection [October, 4-8 and November 8-10, 1993] the NRC reviewed the circumstances associated with three examples of failure by three different individuals to adhere to procedural requirements concerning entries to high radiation areas in two cases, and a respiratory protection required area in the third case." A Severity Level Ill violation was announced by the NRC.

"Particularly disturbing to the NRC is the fact that the plant equipment operator, on October 27, and the engineer on October 29, willfully violated the radiological controls in that they understood that they were no to enter the areas, yet did so anyway to complete certain tasks without first meeting the necessary radiation protection requirements. The entry by the engineer on October 29 was more significant since he had been warned by health physics personnel not to enter the area pending receipt of air activity results, yet did so anyway" (Thomas Martin, NRC, Regional Administrator, January 19, 1994.) (See March 10, June 22 and 24, September 24 and October 4, 1993 and November 29, 1994 for related incidents.)

- January 24, 1993 - The High-Pressure Coolant Injection system was declared inoperable in Unit-3.

- February 3, 1994 - Unit-3 was manually scrammed due to a Generator Field Ground alarm . The reactor was operating at 100% power.

- Febn~ary 22, 1994 - During power restoration at Unit-2, a control rod (38-15) was mispositioned for approximately two min utes.

- February 23, 1994 - A jet pump grappling hook was dropped into the Unit-3 spent fuel pool.

- March 3, 1994 - Two four hour event notification reports were filed with the NRC due to the inoperability of the control room emergency system and problems associated with the Unlt-2 high pressure coolant injection system . Both reports were later retracted.

- March 9, 1994 - Increased contamination was detected in the Unit-3 high pressure coolant injection, pump room . As a result, seven shoe contamination reports were filed.

- March 31, 1994 - A high-pressure coolant injection leak was identified.

- Spring 1994 - "The Public Utility Commission (PUC) recently approved a settlement with PECO Energy Company (PECO.) PECO will give $217,000 to a grant program for low income consumers and pay a $24,000 fine for violating PUC regulations. For 1991, the PUC found 241 violations of the Commission's regulations.

Many had to do with PECO's handling of billing disputes and service shut-offs" ("Utility Consumer Line," Bureau of Public Liaison, PA PUC, Spring/Sum.mer 1994.) *

- April 18, 1994 - Further weld thinning was identified in the Emergency Service Water supply .

- April 27, 1994 - Unit-s experienced a reactor vessel water transient. "Pitting" was identified in this area in November 1993.

- May 14, 1994 - Power was reduced at Unit-2 to "approximately 77% to perform a rod pattern adjustment and to repair a non-safety main steam moisture separator drain tank (MSDT) drain valve. During the power restoration on May 16, the 2A reactor recirculation pump (ARP) speed increased unexpectedly, causing reactor power to increase above the average power range monitor flow biased high power scram setpoint, resulting in a reactor scram" (IA 50-277/94-06 and 50-278/94-06.)

- May 26, 1994 - A Severity Level IV violation was issued after the NRC "identified requirements for collecting a representative sample of the water river flowing into the site were not being met" (Edward C. Wenzinger, Chief, Projects Branch 2, Division of Reactor Projects, NRC.)

- June 16, 1994 - The NRC reported the following problems during Peach Bottom's most recent Radiological Emergency Preparedness Exercise: "... 14 Areas Requiring Corrective Action (ARCA), two Planning Issues {Pl), and eight Areas Recommended for Improvement {ARFI) were identified in the Commonwealth of Pennsylvania and the State of Maryland combined." (James Joyner, Chief, Facilities 9 Radiological Safety and Safeguards Branch, NRC.)

June 22; 1994 - "PECO made four 10 CFR 50.72 four hour notification reports to the NRC during the period. Subsequently, PECO retracted three of the event reports"

{IA 50-277/94-06 and 50-278/94-06.)

- June 23, 1994 - "The [NRC] inspectors continued to review the installation of the new control room radiation monitoring system ... Specifically, system operating procedures were not in place when the system was placed in service and considered operable, the system was operated in an unanalyzed mode of operation because of unclear documentation, and one channel of the system was inadvertently removed from service due to the use of an improper drawing [A Notice of Violation was issued.)"

Edward C. Wenzinger, Chief, Projects Branch 2, Division of Reactor Projects, NRC.)

- June 30, 1994 - "Two small surface cracks were found last September in welds on the core shroud of Peach Bottom Unit 3 near Delta., Pa., said Bill Jones, a spokesman for PECO Energy Co., the plant's operator... The shrouds are 2-inch thick stainless steel cylinders that direct the flow of radioactive water around the fuel core. A nuclear reaction boils water into the steam used to generate electricity" (The Patriot News, July 1, 1994 AS.)

• A three-inch crack was identified in the reactor vessel shroud at Brunswick-1 in the summer of 1993. Cracks have also been found in the core-shrouds of Dresden-3 and Quad Cities-1. All of these reactors are GE Mark 1 designs.

- July 18, 1994 - A Severity Level IV Violation was issued for failure to implement maintenance procedu res* on the Unit-2 high pressure coolant injection system. PECO issued an LEA.

- July 22, 1994 - "PECO identified that the existing instrument reference calibration placards were incorrectly installed with respect to the bottom of the torus of each unit" {IA 50-277/94-013 & 50-278/94-013.) PECO issued an LEA.

- July 27, 1994 - An NRC inspection "noted that there had been no in-depth training provided to some of the [rad waste] shipping engineers since 1988 ... As such, the training provided to shipping engineers remains a program weakness. Licensee management informed the inspector they consider their current shipping engineer training program to be adequate" (I A 50-277/94-18 and 50-278/94-18.)

- August 3, 1994 - " ... PECO Energy personnel unknowingly placed the emergency cooling water system in a configuration that prevented safety-related equipment from receiving design cooling water flow rates ... The overall safety consequences of this event were small ... however, this condition represented a significant degradation in plant safety... " An enforcement conference was held on October 18, 1994. (Richard W. Cooper, 11, Director, Division of Reactor Projects, NRC,

- September 29, 1994.) (See November 21, 1994 for civil penalty and violation.)

- August 4, 1994 - PECO personnel missed a fire watch. (See August 1O and September 29, 1994 for related incidents.)

- August 10, 1994 - A "minor fire was extinguished on the Unit-2 reactor building roof. During this episode, the Unit-2 secondary containment was breached.

- August 11, 1994 - The high-pressure, coolant-injection system was inoperable during maintenance activities. (See September 24, 1994 for related incident.)

- August 17, 1994 - "... procedures were not implemented for the operation of the reactor building [Unit-3) ventilation and standby gas treatment system" {PECO Energy, Gerald R. Rainey, Vice President, Peach Bottom Atomic Power Station, October 19, 1994.) A Severity Level IV Violation was issued.

- August 18, 1994 - An NOV was issued relating to vision problems of a LAO.

- August 26, 1994 - A NOV was issued relating to Motor Operated Valve Testing

- September 7, 1994 - A high-pressure, service water pump failed at Ur:1it-3.

- September 8, 1994 - "Standard and Poor's Corporation (S&P) has revised its rating outlook on the company from 'negative" to stable"' (J.F. Paquette, Jr., Chairman of the Board and Chief Executive Officer.)

- September 20, 1994 - During the refueling outage, air bubbles were found leaking into the reactor cavity.

- September 21, 1994 - PECO notified the NRG of a loss of shutdown cooling at Unit-2 due to a preventive maintenance operation .

- September 23, 1994 - A broken fuel rod was discovered.

- September 24, 1994 - A high- pressure, coolant-injection steam supply leak was discovered at Unit 3. (See August 11, 1994 for related incident.)

- September 29, 1994 - "Thermal Science Inc. and its president, Rubin Feldman, were indicted September 29 by a federal grand jury on seven criminal charges, including willful violations of the Atomic Energy Act, a decade-long conspiracy to defraud the US government, false statements, and more. The charges are the culmination of a nearly two-year grand jury investigation of the company, which manufactures Thermo-Lag, the ineffective fire barrier used in more than 70 nuclear reactors [including Peach Bottom.]" (The Nuclear Monitor, October 17, 1994.) (See December 18, 1993.)

- October 10, 1994 - The NRG reported "four individuals entered the Unit 2 offgas pipe tunnel high radiation area (HRA), which was visibly posted as a HRA, and the individuals were not provided with the required radiation monitoring device, nor was positive control provided by an individual qualified in radiation protection procedures, nor did the individuals adhere to posted instructions regarding entry requirements, a requirement of the Radiation Work Permit under which the entry was made" (IA 50-277/95-05 and 50-278/95-05 and Notice of Violation.) (See October 31, 1994, November 29, 1994 and March 14, 1995 for related incidents and Notice of Violation .)

- October 16 -17, 1994 The Unit-2 reactor pressure vessel (RPV) exceeded 212 degrees F. "After reviewing operators' involvement in this event, Region I management initiated continuous coverage of the Unit-2 start-up, to ensure that operators performed a controlled and safe return of the unit to power operation" (Richard W. Cooper, II, Director, Division if Reactor Projects, November 21 , 1994.)

Severity Level IV Violations were issued.

- October_21, 1994 - FEMA assessed a Deficiency against the State of Maryland Emergency Operations Center for communications failure during the full-participation exercise on August 22, 1994.

- October 24, 1994 - A Licensee Event Report (LEA) was filed for "Main Safety Relief and Safety Valve Setpoint Drift." *

- October 27, 1994 - The DER reported that the "PECO inspection of the core shroud of Peach Bottom-2 did not find any significant flaws ... Therefore, there is no repair needed for the time being." The NRG stated: "During the Unit 2 outage PECO conducted an ultrasonic inspection of the reactor vessel core shroud accessible weld areas. These examinations identified cracking of a similar nature found at Unit 3, but of much less magnitude. Based on an engineering analysis of the examination results, PECO determined that the Unit 2 shroud was structurally sound and that no actions were required to ensure its stability over the next operating cycle" (IR 50-277/94-21 &

50-278/94-21.)

- October 31, 1994 - The NRC reported "a Senior Reactor Operator' (SRO) entered the Unit 2 high pressure coolant injection (HPCI) turbine room, which was visibly posted as a HRA, and the individual was not provided with the required alarming dosimeter, nor positive control provided by an individual qualified in radiation protection procedures, nor did the individuals adhere to posted instructions regarding entry requirements, a requirement of the Radiation Work Permit under which the entry was made" (IA 50-277/95-05 and 50-278/95-05 and Notice of Violation .) (See October 10, 1994, November 29, 1994 and March 14, 1995 for related incidents and a Notice of Violation.) *

- November 10, 1994 - A LEA was filed for "Non-Conservative Flow Biased Setpoints."

- November 18, 1994 - "A load drop to about 55% power occurred on November 18, 1994, to support cleaning of the main condenser waterboxes." Unit-2 returned to full power the following day. (IA 50-277/94-27 & 50-278/94-27.)

- November 21, 1994 - The NRC proposed a Severity Level Ill Violation and an

$87,500 fine for the emergency service water configuration problem on August 3, 1994.

- November 21, 1994 - Three items of weakness were noted by an NRC Nondestructive Examination Laboratory Inspection: "these were not marking the weld centerline on welds for UT (ultrasonic inspection] as part of the ISi [inservice inspection} program, not finding or recording a geometric reflector in excess of 50% of DAC [distance amplitude correction) while conducting UT per the ASME [American Society of Mechanical Engineers] code on a RWCU [reactor water clean-up] system weld, and having radiographs that show signs of aging in storage for work performed after original construction" (IA 50-277/94-28 & 50-278/94-28.)

- November 29, 1994 - "Two separate events occurred, involving a total of five radiation workers, where personnel entered a high radiation area without having the required dose rate monitoring equipment. Individually, these events were of low radiological consequence; however, they reflect a continuing station weakness in personnel adherence to posted boundary requirements (Section 6.0). These events are considered an Unresolved Item (URI- 94-25-01) (IA 50-277/94-25 & 50-278/94-25.)

"Wh ile we recognize that you are aggressively taking actions* to prevent recurrence the events are similar in nature to other recent radiological events for which escalated enforcement action was taken" (Clifford J. Anderson, Section Chief, Projects Section 2B, Division of Reactor Projects.) (For related incidents see October 1O and 31 , 1994 and March 14, 1995

• For similar events see March 10, June 22 and 25, September 24 and October 4, 1993 and January 19, 1994.

- December 9, 1994 - PECO made a four hour event notification after the utility discovered two doors that separate the main stack from the environment were left open for four hours.

- December 12, 1994 - PECO was among a consortium of 33 utilities actively pressuring the Mescalero Apaches to build a high-level radioactive waste dump on their land.

- December 19-23, 1994 - An inspector "identified a condition where manual operation of fire protection system controls located outside of the vital security areas could affect the operation of vital safety systems" (William H. Ruland, Chief, Electrical Section, Divisi6n of Reactor Safety, NRC, February 3, 1995.)

- December 20, 1994 - An NRC inspector determined there was poor control e.

over the use of a non safety-related battery charger at Unit-2.

- December 22, 1994 - A steam/water discharge to the reactor building during reactor water cleanup system testing resulted in minor shoe contamination to three individuals and contamination in portions of the Unit-2 reactor building.

- January 7, 1995 - "Reactor power was reduced to below 75% [Unit 2] ...to allow for the repair of a steam leak that developed from the stem packing of an outboard MSIV" (IA 50-277/95-10 and 50-278/95-01 .)

- February 14, 1995 - A Violation was issued (Severity Level IV) for PECO's "failure to properly evaluate the installation, during outages in 1993, of 'temporary' shielding above each bank of hydraulic control units (HCU) at Units 2 and 3 (four locations total), which shielding is till in place ... your staff's response, past and present, to questions about the shielding arrangements demonstrated a poor questioning attitude" ( Clifford J. Anderson, Section Chief, Projects Section 2B, Division of *Reactor Projects, NRC.)

March 1, _1995 - A High pressure Service Leak was identified by PECO at Unit-2.

March 6, 1995 - " .. .operational errors involving a mis-positioned valve, an inadequate valve position verification, and poor communications resulted in the loss of keep fill pressure on the 2B core spray (CS) sub-system [Unit 2.)" (IA 50-277/95-04

- and 50-278/95-04.)

- March 14, 1995 - "However, based on the results of this inspection, certain of your activities were in violation of NRC requirements, as specified in the enclosed Notice of Violation (Notice). The violation is of concern and being cited because of the number of improper high radiation area entries which are described in the enclosed inspection report. .. in the most recent events, radiological control personnel failed to carry out their assigned duties in accordance with radiological control management's expectations; no similar causal factors were identified in the 1993 events.") (James H.

Joyner, Facilities Radiological Safety and Safeguards Branch, Division of Radiation Safety and Safeguards, NRG.)

- March 17, 1995 - "An automatic recirculation pump runback reduced power

[Unit-2] to about 70% on March 17, because of a mis-conducted reactor feed pump test." (IA 50-277/95-04 and 50-278/95-04.) The incident was caused by an operator error.

March 19, 1995 - High Pressure Coolant Injection (HPCI) suction valve was mispositioned at Unit-2 due to operator error. A Notice of Violation was issued.

(Severity Level IV.) "Also, two subsequent shift turnover panel walkdowns failed to identify the abnormal system line-up and allowed the HPCI system to remain in the abnormal lineup for 18 hou rs." (Clifford J. Anderson, Section Chief, Projects Section 2B, Division of Reactor Projects.)

March 23, 1995 -Unit-3 was manually scrammed "after the air-operated main steam supply isolation valve to the 'B' steam jet air ejector (SJAE) failed closed causing a loss of condenser vacuum ." (IR 50-277/95-08 & 50-278/95-08.)

April 10, 1995 - "The inspectors opened the three unresolved items pending review of your staff's assessment and planned corrective actions. The first issue addresses the possibility that, due to an equipment failure, a low pressure coolant injection sub-system (one of four) was not maintained with its piping full to prevent water hammer following an injection. The second issue deals with the secondary containment flood control portion of your emergency operating procedures, which could lead an operator to flood two emergency cool cooling pumps rooms , a condition outside the plant's design basis. Lastly, the third issue deals with inconsistencies between the standby liquid control system inservice testing methodology and ASME Section XI requirements for pump run time before operational data is requested. "

(Clifford J. Anderson, Section Chief, Projects Section 28, Division of Reactor Projects.)

April 16, 1995 - All control rods were "conservatively" declared inoperable at Unit-2 for 4.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />.

April 21, 1995 - Control rod 46-07 "unexpectedly drifted" out of position at Unit-

2. (IA 50-277/95-08 & 50-278/95-08.)

May 24, 1995 " ...several events involving plant operators indicate a negative trend in plant operations performance. These instances include problems with procedural adherence, attention to detail, and control of maintenance activities."

Executive Plant Performance Results, Richard W. Cooper, NRC, Director, Division of Reactor Projects.)

DOCKETED US RC NUCLEAR REGULATORY COMMISSION Revision of the NRC Enforcement Policy AGENCY: Nuclear Regulatory Co11111ission.

ACTION: Policy Statement.

SUMMARY

As a result of an assessment of the Nuclear Regulatory Commission ' s (NRC) enforcement program, the NRC has rev ised its General Statement of Pol i cy and Procedure for Enforcement Actions (Enforcement Policy or Pol i cy ) . By a separate action published today in the Federal Register, the Commission i s removing the Enforcement Policy from the Code of Federal Regulations .

6 /30/C, s DATES: This action is effective on [ Insert date of Publication in the Federal Register], whil e comments are being received . Submit comments on or before tf-/lL-j/'7_f (45 days after publication in the Federal Register) . Add i tionally , the Commission intends to provide an opportuni ty for public comments after this revised Enforcement Policy has been in effect for about 18 months .

2 ADDRESSES: Send written comments to: The Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555. ATTN: Docketing and Service Branch. Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm, Federal workdays. Copies of comments received may be examined at the NRC Public Document Room, 2120 L Street, NW, (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, (301) 415-2741.

SUPPLEMENTARY INFORMATION:

On May 13, 1994, the NRC's Executive Director for Operations established a review team to assess the NRC enforcement program. In its report (NUREG-1525 1 , "Assessment of the NRC Enforcement Program," April 5, 1995),

the review team concluded that the existing NRC enforcement program, as implemented, ts appropriately directed toward supporting the agency's overall 1

Copies of NUREG-1525 may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Mail Stop SSOP, Washington, DC 20402-9328. Copies are also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161. A copy is also available for inspection and copying for a fee in the NRC Public Document Room, 2120 L Strc:et, NW. (Lower Level),

Washington, DC 20555-0001.

3 safety mission. This conclusion is reflected in several aspects of the program:

• The Policy recognizes that violations have differing degrees of safety significance. As reflected in the severity levels, safety significance includes actual safety consequence, potential safety co~sequence, and regulatory significance. The use of graduated sanctions from Notices of Violation to orders further reflects the varying seriousness of noncompliances.*

• The enforcement conference is an important step in achieving a mutual understanding of facts and issues before making significant enforcement decisions. Although these conferences take time and effort for both the NRC and licensees, they generally contribute to better decision-making.

• Enforcement actions deliver regulatory messages properly focused on safety. These messages emphasize the need for licensees to identify and correct violations, to address the root causes, and to be responsive to initial opportunities to identify and prevent violations.

• The use of discretion and judgment throughout the deliberative process recognizes that enforcement of NRC requirements does not lend itself to mechanistic treatment.

4 However, the Review Team found that the existing enforcement program at times provided mixed regulatory messages to licensees, and room for improvement existed in the Enforcement Policy. The review suggested that the program's focus should be clarified to:

• Emphasize the importance of identifying problems before events occur, and of taking prompt, comprehensive corrective action when problems are identified;

• Direct agency attention at licensees with multiple enforcement actions 1n a relatively short period; and

• Focus on current performance of licensees.

In addition, the review team found that the process for assessing civil penalties could be simplified to improve the predictability of decision-making and obtain better consistency between regions.

As a r.esult of its review, the review team made several recommendations to revise the NRC Enforcement Policy to produce an enforcement program with clearer regulatory focus and more predictability. The Commission is issuing this policy statement after considering those recommendations and the bases for them in NUREG-1525.

5 The more significant changes to the current Enforcement Policy are described below:

I. Introduction and Purpose This section has been modified to emphasize that the purpose and objectives of the enforcement program are focused on using enforcement actions:

(1) As a deterrent to emphasize the importance of compliance with requirements; and (2) To encourage prompt identification and prompt, comprehensive correction of violations.

IV. Severity of Violations

• Severity Level V violations have been eliminated.

level have been withdrawn from the supplements.

The examples at that Formal enforcement actions will now only be taken for violations categorized at Severity Level I tQ IV to better focus the inspection and enforcement process on safety. To the extent that minor violations are described in an inspection report, they will be labeled as Non-Cited Violations (NCVs). When a licensee does not take corrective action or repeatedly or willfully co11111its a minor violation such that a formal response would be needed, the violation should be categorized at least at a Severity Level IV.

6 The NRC staff will be reviewing the severity level examples in the supplements over the next 6 months. The purpose of this review is to ensure the examples are appropriately focused on safety significance, including consideration of actual safety consequence, potential safety consequence, and regulatory significance.

Y. Predecisional Enforcement Conferences Enforcement conferences are being renamed predecisional enforcement 11 conferences. 11 These conferences should be held for the purpose of obtaining information to assist NRC in making enforcement decisions when the agency reasonably expects that escalated enforcement actions will result. They should also normally be held if requested by a licensee. In addition they should normally be held before issuing an order or a civil penalty to an unlicensed individual.

In light of the changes to the Enforcement Policy, the Commission has decided to continue a trial program of conducting approximately 25 percent of eligible conferences open to public observation pending further evaluation.

(See 57 FR 30762; July 10, 1992, and 59 FR 36796; July 19, 1994). The intent of open conferences is not to maximize public attendance, but is rather for determining whether providing the public with an opportunity to observe the regulatory process is compatible with the NRC's ability to exercise its regulatory and safety responsibilities. The provisions of the trial program have been incorporated into the Enforcement Policy.

7 VI. Enforcement Actions A. Notice of Violation This section was modified to clarify that the NRC may waive all or portions of a licensee's written response to a Notice of Violation to the extent relevant information has already been provided to the NRC in writing or documented in an NRC inspection report and is on the applicable docket in the NRC Public Document Room.

B. Civil Penalty

1. Base Civil Penalty Tables IA and 18 have been revised. In Table 18 the percentage for e Severity Level IV violations has been deleted since such violations will not

• be subject to civil penalties. If a violation that would otherwise be categorized at a Severity Level IV violation merits a civil penalty because of its significance, the violation would normally be categorized at a Severity Level III.

Table IA has been simplified to combine categories of licensees with the same base penalty amounts. The base penalty amounts have generally remained unchang~d. The revised policy notes that the base penalties may be adjusted on a case-by-case basis to reflect the ability to pay and the gravity of the violation. 10 CFR Part 35 licensees (doctors, nuclear pharmacies, and other

8 medical related licensees) are combined into an overall medical category, based on the sim1larity of hazards. Because transportation violations for all licensees are primarily concerned with the potential for personnel exposure to radiation, the violations in this area will be treated the same as those in the health physics area.

The $100,000 base civil penalty amount for safeguards violations, which applies to only two categories of licensees, fuel fabricators and independent fuel and monitored retrievable storage installations, has been deleted. The penalty amount.for safeguards should be the same as for other violations at these facilities. NRC has not had significant safeguards violations at these facilities. If the penalty that would normally be assessed for operational violations is not adequate to address the circumstances of the violation, then discretion would be used to determine the appropriate penalty amount.

The base civil penalty for "other" mater1als licensees, currently set at

$1000, has been increased to $5000. The primary concerns for these licensed activities are individual radiation*exposure and loss of control of material to the environment, both of which warrant a more financially meaningful penalty. A $500 civil penalty for a Severity Level III violation {at 50% of the Severity Level I base amount) does not reflect the seriousness of this type of violation for this category of *licensee. It is noted;that with the revised assessment approach, these licensees will not normally receive a civil penalty if prompt and comprehensive corrective action is taken for isolated non-willful Severity Level III violations.

9

2. Civil Penalty Assessment This section has been renamed to reflect that the process for assessing civil penalties has been substantially changed. The revised process is intended to:

• Continue to emphasize compliance in a manner that deters future violations;

• Encourag~ prompt identification and prompt, comprehensive correction of violations and their root causes;

• Apply the recognition of good past performance to give credit to a licensee committing a non-willful SL III violation who has had no previous significant violations during the past 2 years or 2 ins~ections (whichever is longer);

• Place greater attention on situations of greater concern (i.e., where a licensee has had more than one significant violation in a 2-year or two-inspection period, where corrective action is less than prompt and comprehensive, or where egregious circumstances, such as where it is clear that repetitiveness or willfulness, are involved);

• Streamline the NRC decisional process in a manner that will preserve judgment and discretion, but will provide a clear normative standard and produce relatively predictable results for routine cases; and

10

• Provide clear guidance on applying fewer adjustment factors in various types of cases, in order to increase consistency and predictability.

Once a violation has been categorized at a Severity Level III or above, the assessment process considers four basic decisional points:

(1) whether the licensee has had a previous escalated enforcement action during the past 2 years or past 2 inspections, whichever is longer; (2) whether the licensee should be given credit for actions related to identification; (3) whether the licensee's corrective actions may reasonably be considered prompt and comprehensive; and (4) whether, in view of all the circumstances, the case in question warrants the exercise of discretion. As described in the Enforcement Policy, each of these decisional points may have several associated considerations for any given case. However, the outcome of a case, absent the exercise of discretion, is limited to three results: no civil penalty, a base civil penalty, or a base civil penalty escalated by 100%.

D. Related Administrative Actions The reference to related administrative mechanisms have been replaced with related administrative actions to clarify the documents as actions.

11 VII. *Exercise of Discretion The ability to exercise discretion is preserved with the revised policy.

Discretion is*provided to deviate from the normal approach to either increase or decrease sanctions where necessary to ensure that the sanction reflects the significance of the circumstances and conveys the appropriate regulatory message. This section h~s been modified to provide examples where it is e appropriate to consider civil penalties or escalate civil penalties notwithstanding the normal assessment process in Section VI of the Enforcement Policy. One significant example to note involves the loss of a source. This example is being added to emphasize the importance of licensees being aware of the location of their sources and to recognize that there should not be an economic advantage for inappropriate disposal or transfer. As to mitigation of sanctions for violations i~volving special circumstances, mitigation can be considered if the licensee has demonstrated overall sustained performance which has been particularly good. The levels of approval for exercising discretion are described in this section. Finally, Table 2, "Examples of Progressions of Escalated Enforcement Actions for Similar Violations in the Same Activity Area Under the Same License,* has been withdrawn from the Enforcement Policy. The guidance in that table is not needed because the policy is clear that each case should be judged on its own merits, especially those repetitive violation cases to which the table applied.

12 VIII. Enforcement Actions Involving Individuals The Enforcement Policy has been clarified to provide that some action is normally to be taken against a licensee for violations caused by significant acts of wrongdoing by its employees, contractors, or contractors employees.

The Policy has also been modified to state that the nine factqrs in Section VIII should be used to assist in the decision on whether enforcement action should be taken against an unlicensed individual as well as the licensee. The Po1icy*currently uses these fac~ors to determine whether to take enforcement action against an unlicensed person rather than the licensee.

These changes are consistent with the intent of the Commission in promulgating the rule on deliberate misconduct (56 FR 40664, 40666, August 15, 1991). Less

~ignificant cases may be treated as an NCV under Section VII.B.l. A Letter of Reprimand is not a sanction and is now referred to as an administrative action consistent with Section VI.D of the Policy.

The Co111nission expects that the changes to the Enforcement Policy should result in an increase in the protectiQn of the public health and safety by better emphasizing the prevention, detection, and correction of violations before events occur with impact on the public. In about 2 years the Conanission intends to review the Enforcement Policy. In that regard, it is expected that in about 18 months an opportunity will be provided to receive public conments on the implementation of this Policy.

13 GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS Table of Contents Preface I. INTRODUCTION AND PURPOSE II. STATUTORY AUTHORITY A. Statutory Authority

8. Procedural Framework

• III. RESPONSIBILITIES IV. SEVERITY OF VIOLATIONS A. Aggregation of Violations B. Repetitive Violations C. Willful Violations D. Violations of Reporting Requirements V. PREDECISIONAL ENFORCEMENT CONFERENCES VI. ENFORCEMENT ACTIONS A. Notice of Violation B. Civil Penalty

1. Base Civil Penalty

14

2. Civil Penalty Assessment

a. Initial Escalated Action

b. Credit for Actions Related to Identification

c. Credit for Prompt and Comprehensfve Corrective Action

d. Exercise of Discretion C. Orders D. Related Administrative Actions VII. EXERCISE OF DISCRETION A. Escalation of Enforcement Sanctions

1. Civil Penalties

2. Orders

3. Daily Civil Penalties B. Mitigation of Enforcement Sanctions

1. Licensee-Identified Severity Level IV Violations

2. Violations Identified During Extended Shutdowns or Work Stoppages

3. Violations Involving Old Design Issues

~- Violations Identified Due to Previous Escalated Enforcement Action

5. Violations Involving Discrimination

6. Violations Involving Special Circumstances C. Exercise of Discretion for an Operating Facility VIII. ENFORCEMENT ACTIONS INVOLVING INDIVIDUALS

15 IX. INACCURATE AND INCOMPLETE INFORMATION X. ENFORCEMENT ACTION AGAINST NON-LICENSEES XI. REFERRALS TO THE DEPARTMENT OF JUSTICE XII. PUBLIC DISCLOSURE OF ENFORCEMENT ACTIONS XIII. REOPENING CLOSED ENFORCEMENT ACTIONS SUPPLEMENTS

16 PREFACE The following statement of general policy and procedure explains the enforcement policy and procedures of the U.S. Nuclear Regulatory Commission (NRC or Commission) and the NRC staff (staff) in initiating enforcement actions, and of the presiding officers and the Commission in reviewing these actions. This statement is applicable to enforcement in matters involving the radiological health and safety of the public, including employees' health and safety, the common defense and security, and the environment. 1 This statement of general policy and procedure will be published as NUREG-1600 to provide widespread dissemination of the Conwnission's Enforcement Policy.

However, this is a policy statement and not a regulation. The Conmission may deviate from this statement of policy and procedure as appropriate under the circumstances of a particular case.

I. INTRODUCTION AND. PURPOSE The purpose of the.NRC enforcement program is to support the NRC's overall safety mission in protecting the public and the environment.

Consistent with that purpose, enforcement action should be used:

• As a deterrent to emphasize the importance of compliance with requirements, and

• To encourage prompt identification and prompt, comprehensive 1

Antitrust enforcement matters will be dealt with on a case-by-case hasis.

17 correction of violations.

Consistent with the purpose of this program, prompt and vigorous enforcement action will be taken when dealing with licensees, vendors 2 ,

contractors, and their employees, who do not achieve the necessary meticulous attention to detail and the high standard of compliance which the NRC expects. 3 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.

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.

i The term *vendor* as used in this policy means a supplier of products or services to be used in an NRC-licensed facility or activity.

3 This policy primarily addresses the activities of NRC licensees and applicants for NRC licenses.

Thorefore, the term "licensee" is used throughout the policy. However, in those cases where the NRC determines that it is appropriate to take enforcement action against a non-licensee or individual, the guidance in this policy will be used, as applicable. Specific guidance regarding enforcement action against individuals and non-licensees is addressed in Sections vm and X, respectively.

18 Section 161 of the Atomic Energy Act authorizes the NRC to conduct inspections 4nd investigations and to issue orders as may be necessary or desirable to promote the conman defense and security or to protect health or to minimize danger to life or property. Section 186 authorizes the NRC to revoke licenses under certain circumstances (e.g., for material false statements, in response to conditions that would 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 the 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 civil penalties for violations of regulations implementing those provisions. Section 232 authorizes the NRC to seek injunctive or other equitable relief for violation of regulatory requirements.

Section 206 of the Energy Reorganization Act authorizes the NRC to impose civil penalties for knowing and conscious failures to provide certain safety information to the NRC.

Chapter 18 of the Atomic Energy Act provides for varying levels of criminal penalties (i.e., monetary fines and imprisonment) for willful violations of the Act and regulations or orders issued under sections 65, 16l(b), 16l(i), or 161(0) of the Act. Section 223 provides that criminal

19 penalties may be imposed on certain individuals employed by firms constructing

--or supplying basic components of any utilization facility i~ 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.

8. 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 civil penalty process is initiated by issuing a Notice of Violation and Proposed Imposition of a Civil Penalty. The licensee or other person is provided an opportunity to contest in writing the proposed imposition of a civil penalty. After evaluation of the response, the civil penalty may be mitigated, remitted, or imposed. An opportunity is provided for a hearing if a civil penalty is imposed. If a civil penalty is not paid following a hearing or if a hearing is not requested, the matter may be referred to the U.S. Department of Justice to institute a civil action in District Court.

20 The procedure for issuing an order to institute a proceeding to modify, suspend, .or revoke a license or to take other action agains~ a licensee or other person subject to the jurisdiction of the Comission is set forth in 10 CFR 2.202. The licensee or any other person adversely affected by the order may request a hearing. The NRC is authorized to make orders immediately effective if required to protect the public health, safety, or interest, or if the violation is willful .. Section 2.204 sets out the procedures for issuing a Demand for Information (Demand) to a licensee or other person subject to the COR111ission's jurisdiction for the purpose of detennining whether an order or other enforcement action should be issued. The Demand does not provide hearing rights, as only information is being sought. A licensee must answer a Demand. An unlicensed person may answer a Demand by either providing the requested information or explaining why the Demand .should not have been issued.

III. RESPONSIBILITIES The Executive Director for Operations (EDO) and the principal enforcement officers of the NRC, the Deputy Executive Director for Nuclear Material Safety, Safeguards and Operations Support (DEDS) and the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations, and Research (DEDR}, have been delegated the authority to approve or issue all escalated enforcement actions. 4 The DEDS is responsible to the EDO for the

" The term *escalated enforcement action" as used in this policy means a Notice of Violation or civil penalty for any Severity Level I, II, or ID violation (or problem) or any order based upon a violation.

21 NRC enforcement programs. The Office of Enforcement (OE) exercises oversight of and implements -the .NRC.enforcement programs. The Direct~r, OE, acts for the Deputy Executive Directors in enforcement matters in their absence or as delegated.

Subject to the oversight and direction of OE, and with the approval of the appropriate Deputy Executive Director, where necessary, the regional offices normally issue Notices of Violation and proposed civil penalties.

However, subject to the same oversight as the regional offices, the Office of Nuclear Reactor Regulation (NRR) and the Office of Nuclear Material Safety and Safeguards (NMSS) may also issue Notices of Violation and proposed civil penalties for certain activities. Enforcement orders are normally issued by a Deputy Executive Director or the Director, OE. However, orders may also be issued by the EDO, especially those involving the more significant matters.

The Directors of NRR and NMSS have also been delegated authority to issue orders, but it is expected that normal use of this authority by NRR and NMSS will be confined to actions not associated with compliance issues. The Director, Office of the Controller, has been delegated the authority to issue orders where licensees violate Co111nission regulati~ns by nonpayment of license and inspection fees.

In recognition that the regulation of nuclear activities in many cases does not lend itself to a mechanistic treatment, judgment and discretion must be exercised in determining the severity levels of the violations and the appropriate enforcement sanctio~s, including the decision to issue a Notice of Violation, or to propose or impose a civil penalty and the amount of this

22 penalty, after considering the general principles of this statement of policy and the technical significance of the violations and the surrounding circumstances.

Unless Colllllission consultation or notification is required by this policy, the staff may depart, where warranted in the public's. interest, from this policy as provided in Section VII,"Exercise of Enforcement Discretion."

The Comission will be provided written notification of all enforcement actions involving civil penalties or orders. The Commission will also be provided notice in those cases where discretion is exercised as discussed in Section VII.B.6. In addition, the Co11111ission will be consulted prior to taking action in the following situations (unless the urgency of the situation

'dictates illlllediate action):

(1) An action affecting a licensee's operation that requires balancing the public health and safety or common defense and security implications of not operating with the potential radiological or-other hazards associated with continued operation; (2) Proposals to impose civil penalties in amounts greater than 3 times the Severity Level I values shown in Table IA; (3) Any proposed enforcement action that involves a Severity Level I violation; (4) Any enforcement action that involves a finding of a material false statement; (5) Exercising discretion for matters meeting the criteria of Section VII.A.I for Col!lllission consultation;

23 (6) Refraining from taking enforcement action for matters meeting the criteria of Section ~11.B.2; (7) Any proposed enforcement action that involves the issuance of a civil penalty or order to an unlicensed individual or a civil penalty to a licensed reactor operator; (8) Any action the EOO believes warrants Co11111ission involvement; (9) Any proposed enforcement case involving an Office of Investigation (01) report where the staff (other than the 01 staff) does not arrive at the same conclusions as those in the 01 report concerning issues of intent if the Director of 01 concludes that Commission consultation is warranted; and (10) Any proposed enforcement action on which the Con111ission asks to be consulted.

IV. SEVERITY OF VIOLATIONS Regulatory requirements 5 have varying degrees of safety, safeguards, or enyironmental significance. Therefore, the relative importance of each violation, including both the technical significance and the regulatory.

significance is evaluated as the first step in the enforcement process.

Consequently, for purposes of formal enforcement action, violations are normally categorized in terms of four levels of severity to show their relative importance within each of the following eight activity areas:

5 The term *reqwrement* as used in this policy means a legally binding requirement such as a statute, regulation, license condition, technical specification, or order.

24 I. Reactor Operations; II. facility Construction;

• III. Safeguards; IV. Health Physics; V. Transportation; VI. Fuel Cycle and Materials Operations; VII. Miscellaneous Matters; and VIII. Emergency Preparedness.

Licensed activities will be placed in the activity area most suitable in light of the particular violation involved including activities not directly covered by one of the above listed areas, e.g., export license activities.

Within each activity area, Severity Level I has been assigned to violations that are the most significant and Severity Level IV 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 regulatory 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.

The Coll'lllission recognizes that there are other violations of minor safety or environmental concern which are below the level of significance of Severity Level IV violations. These minor violations are not the subject of fonnal enforcement action and are not usually described in inspection reports.

To the extent such violations are described, they are noted as Non-Cited

25 Violations. 6 Comparisons of significance between activity areas are inappropriate.

For example, the imed1acy 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 in Facility Construction.

Supplements I through VIII provide examples and serve as guidance in detennin1ng the appropriate severity level for violations in each of the eight activity areas. However, the examples are neither exhaustive nor controlling.

In addition, these examples do not create new requirements. Each is desi~ned to illustrate the significance that 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 regulatory requirement.

The NRC reviews each case being considered for enforcement action on its own merits to ensure that the sev.erhy of a vi o1at ion is characterized at the level best suited to the significance of the particular violation. In some cases, special circumstances may warrant an adjustment to the severity level categorization.

6 A Non-Cited Violation (NCV) is a violation that has not been formali7.l'>d into a 10 CFR* 2.201 Notice of Violation.

• 26 A. Aggregation of Violations A group of Severity Level IV violations may be evaluated in the aggregate and assigned a single, increased severity level, thereby resulting in a Severity Level III problem, if the violations have the same underlying cause or prograrrmatic deficiencies, or the violations contributed to or were unavoidable consequences of the underlying problem. Normally, Severity Level II and III violations are not aggregated into a higher severity level.

The purpose of aggregating violations is to focus the licensee's attention on the fundamental underlying causes for which enforcement action appears warranted and to reflect the fact that several violations with a connon cause may be more significant collectively than individually and may therefore, warrant a more substantial enforcement action.

8. Repetitive Violations The severity level of a Severity Level IV vi_olation niay be increased to Severity Level III, if the violation can be considered a repetitive violation. 7 The purpose of escalating the severity level of a repetitive violation is to acknowledge the added significance of the situation based on the licensee's failure to implement effective corrective action for the 7

The term "repetitive violation" or "similar violation" as U8ed in this JX>licy statement means a violation that reasonably could have been prevented by a licensee's corrective action for a previous violation normally occurring (1) within the past 2 years of the inspection at issue, or (2) the period within the last two inspectiODB, whichever is longer.

27 previous violation. The decision to escalate the severity level of a repetitive violation will depend on the circumstances, sue~ as, but not limited to, the number of times the violation has occurred, the similarity of the violations and their root causes, the adequacy of previous corrective actions, the period of time between the violations, and the significance of the violations.

C. w;11ful V1o7at1ons Willful.violations are by definition of particular concern to the Cormnission because its regulatory program is based on licensees and their contractors, employees, and agents acting with integrity and communicating with candor. Willful violations cannot be tolerated by either the Commission or a licensee. Licensees are expected to take significant remedial action in responding to willful violations commensurate with the circumstances ~uch that I

- it demonstrates the seriousness of the violation thereby creating a deterrent effect within the licensee's organization. Although removal of the person is not necessarily required, substantial disciplinary action is expected.

Therefore, 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 in this policy 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 errors in

28 a document submitted to the NRC. In determining the specific severity level of a viol4tion involving willfulness, consideration will be_ given to such factors as the position and responsibilities *of the person involved in the violation (e.g., licensee official 8 or non-supervisory employee), the significance of any underlying violation, the intent of the violator (i.e.,

careless disregard or deliberateness), and the economic or other advantage, if any, gained as a result of the violation. 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. However, if a licensee refuses to correct a minor violation within a reasonable time such that it willfully continues, the violation should be categorized at least at a Severity Level IV.

D. Violations of Reporting Requirements The NRC expects licensees to provide complete, accurate, and timely 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. However, the severity level of an untimely report, in contrast to no report, may be 1

The term "licensee official" as used in this policy statement means a first-hne supervisor or above, a licensed individual, a radiation safety officer, or an authorized user of licensed material whether or not listed on a license. Notwithstanding an individual's job title, severity level categorization for willful acts involving individuals who can be considered licensee officials will consider several factors, including the position of the individual relative to the licensee's organizational structure and the individual's responsibilities relative to the oversight of licensed activities and to the use of licensed material.

29 reduced depending on the circumstances surrounding the matter. A licensee will not nonnally be cited for .a failure to report a conditton or event unless the licensee was actually aware of the condition or event that it failed to report. A licensee will, on the other hand, normally be cited for a failure to report a condition or event if the licensee knew of the infonnation to be reported, but did not recognize that it was required to make a report .

• V. PREDECISIONAL ENFORCENENT CONFERENCES Whenever the NRC has learned of the existence of a potential violation for which escalated enforcement action appears to be warranted, or recurring nonconfonnance on the part of a vendor, the NRC may provide an opportunity for a predecisional enforcement conference with the licensee, vendor, or other person before taking enforcement action. The purpose of the conference is to obtain information that will assist the NRC in detennining the appropriate enforcement action, such as: (1) a corrmon understanding of facts, root causes and missed opportunities associated with the apparent violations, (2) a corrmon understanding of corrective action taken or planned, and (3} a cofflllon understanding of the significance of issues and the need for lasting comprehensive corrective action.

If the NRC concludes that it has sufficient infonnation to make an informed enforcement decision, a conference will not nonnally be held unless the licensee requests it. However, an opportunity for a conference will normally be provided before issuing an order based on a violation of the rule on Deliberate Misconduct or a civil penalty to an unlicensed person. If a

30 conference is not held, the licensee will normally be requested to provide a written response to*an inspection report, if issued, -as to -the licensee's views on the apparent violations and their root causes and a description of planned or implemented corrective action.

During the predecisional enforcement conference, the licensee, vendor, or other persons will be given an opportunity to provide information consistent with the purpose of the conference, including an explanation to the

• NRC of the i1T111ediate corrective actions (if any) that were taken following identification of the potential violation or nonconformance and the long-term comprehensive actions that were taken or will be taken to prevent recurrence.

Licensees, vendors, or other persons will be told when a meeting is a predecisional enforcement conference.

A predecisional enforcement conference is a meeting between the NRC and the licensee. Conferences are normally held in the regional offices and are not normally open to public observation. However, a trial program is being conducted to open approximately 25 percent of all eligible conferences for public observation, i.e., every fourth eligible c0nference involving one of three categories of licensees (reactor, hospital, and other materials licensees) will be open to t~e public. Conferences will not normally be open to the public if the enforcement action being contemplated:

(1) Would be taken against an individual, or if the action, though not taken against an individual, turns on whether an individual has committed wrongdoing;

31 (2) Involves significant personnel failures where the NRC has requested that the individual{s) involved be present at the conferenc~;

{3) Is based on the findings of an NRC Office of Investigations report; or (4) Involves safeguards information, Privacy Act information, or

• information which could be considered proprietary; In addition, conferences will not normally be open to the public if:

{5) The conference involves medical misadministrations or overexposures

• and the conference cannot be conducted without disclosing the exposed individual's name; or (6) The conference will be conducted by telephone or the conference will be conducted at a relatively small licensee's facility.

Notwithstanding meeting any of these criteria, a conference may still be open if the conference involves issues related to an ongoing adjudicatory proceeding with one or more intervenors or where the evidentiary basis for the conference is a matter of public record, such as an adjudicatory decision by the Department of Labor. In addition, with the approval of the Executive Director for Operations, conferences will not be open to the public where good cause has been shown after balancing the benefit of the public observation against the potential impact on the agency's enforcement action in a

32 particular case.

As soon as it is determined that a conference will be open to public observation, the NRC will notify the licensee that the conference will be open to public observation as part of the agency's trial program. Consistent with the agency's policy on open meetings, "Staff Meetings Open to Public,"

published September 20, 1994 (59 FR 48340}, the NRC intends to announce open conferences normally at least 10 working days in advance of conferences through (1) notices posted in the Public Document Room, {2} a toll-free telephone recording at 800-952-9674, and {3) a toll-free electronic bulletin board at 800-952-9676. In addition, the NRC will also issue a press release and notify appropriate State liaison officers that a predecisional enforcement conference has been scheduled and that it is open to public observation.

The public attending open conferences under the trial program may observe but not participate in the conference. It is noted that the purpose of conducting open conferences under the trial program is not to maximize public attendance, but rather to determine whether providing the public.with opportunities to be informed of NRC activities is compatible with the NRC's ability to exercise its regulatory and safety responsibilities. Therefore, members of the public will be allowed access to the NRC regional offices to attend open enforcement conferences in accordance with the "Standard Operating Procedures For Providing Security Support For NRC Hearings And Meetings,"

published November 1, 1991 (56 FR 56251). These procedures provide that visitors may be subject to personnel screening, that signs, banners, posters, etc., not larger than 18" be permitted, and that disruptive persons may be

33 removed.

Members of the public attending open conferences will be reminded that (1) the apparent violations discussed at predecisional enforcement conferences are subject to further review and may be subject to change prior to any resulting enforcement action and (2) the statements of views or expressions of opinion made by NRC employees at predecisional enforcement conferences, or the lack thereof, are not intended to represent final determinations or beliefs.

Persons attending open conferences will be provided an opportunity to submit written comments concerning the trial program anonymously to the regional office. These comments will be subsequently forwarded to the Director of the Office of Enforcement for review and consideration.

When needed to protect the public health and safety or common defense and security, escalated enforcement action, such as the issuance of an

- inmediately effective order, will be taken before the conference. In these cases, a conference may be held after the escalated enforcement action is taken.

VI. ENFORCEMENT ACTIONS This section describes the enforcement sanctions available to the NRC and specifies the conditions under which each may be used. The basic enforcement sanctions are Notices of Violation, civil penalties, and orders of various types. As discussed further in Section VI.D, related administrative actions such as Notices of Nonconformance, Notices of Deviation, Confirmatory

34 Action Letters, letters of Reprimand, and Demands for Information are used to supplement.the enforcement_program. In selecting the enfor~ement sanctions or

-administrative actions, the NRC will consider enforcement actions taken by other Federal or State regulatory bodies having concurrent jurisdiction, such as in transportation matters. Usually, whenever a violation of NRC requirements of more than a minor concern is identified, enforcement action is taken. The nature and extent of the enforcement action is intended to reflect the seriousness of the violation involved. For the vast majority of violations, a Notice of Violation or a Notice of Nonconformance is the normal action.

A. Notice of Violation A Notice of Violation is a written notice setting forth one or more violations of a legally binding requirement. The Notice of Violation normally requires the recipient to provide a written statement describing (1) the reasons for the violation or, if. contested, the basis for disputing the violation; (2) corrective steps that have been taken and the results achieved;

{3} corrective steps that will be taken to prevent recurrence; and {4} the date when full compliance will be achieved. The NRC may waive all or portions of a written response to the extent relevant information has already been provided to the NRC in writing or documented in an NRC inspection report.

The NRC may require responses to Notices of Violation to be under oath.

Normally, responses under oath will be required only in connection with Severity Level I, II, or III violations or orders.

35 The NRC uses the Notice of Violation as the usual method for formalizing the existence ,of-a,v~olation. Issuance of a Notice of Violation is normally the only enforcement action taken, except in cases where the criteria for issuance of civil penalties and orders, as set forth in Sections VI.Band VI.C, respectively, _are met. However, special circumstances regarding the violation findings may warrant discretion being exercised such that the NRC refrains from issuing a Notice of Violation. (See Section VII.B, "Mitigation

• of Enforcement Sanctions.n) In addition, licensees are not ordinarily cited for violations resulting from matters not within their control, such as equipment failures that were not avoidable by reasonable licensee quality assurance measures or management controls. Generally, however, licensees are held responsible for the acts of their employees. Accordingly, this policy should not be construed to excuse personnel errors.

B.' Civil Penalty A civil penalty 1s a monetary penalty that may be imposed for violation of (1) certain specified licensing provisions of the Atomic Energy Act or supplementary NRC rules or orders; (2) any requirement for which a license may be revoked; or (3) reporting requirements under section 206 of the Energy Reorganization Act. Civil penalties are designed to deter future violations both by the involved licensee as well as by other licensees conducting similar activities and to emphasize the need for licensees to identify violations and take prompt comprehensive corrective action.

36 Civil penalties are considered for Severity Level III violations. In addition, *civil -penalties will normally be -assessed for .Severity Level I and II violations and knowing and conscious violations of the reporting requirements of section 206 of the Energy Reorganization Act.

Civil penalties are used to encourage prompt identification and prompt and comprehensive correction of violations, to emphasize compliance in a manner that deters future violations, and to serve to focus licensees' attention on violations of significant regulatory concern.

• Although management involvement, direct or indirect, in a violation may lead to an increase in the civil penalty, the lack of management involvement may not be used to mitigate a civil penalty. Allowing mitigation in the latter case could encourage the lack of management involvement in licensed activities and a decrease in protection of the public health and safety.

1. Base Cjvi7 Penalty The NRC imposes different levels of penalties for different severity level violations and different classes of licensees, vendors, and other persQns. Tables lA and 1B show the base civil penalties for various reactor, fuel cycle, materials, and vendor programs. (Civil penalties issued to individuals are determined on a case-by-case basis.) 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

37 potential consequences to the public and licensee employees receive higher civil pena1ties. , Regarding -the s-econdary factor of.. ability. of various cl asses of licensees to pay the civil penalties, it is not the NRC's intention that the economic impact of a civil penalty be so severe that it puts a licensee out of business (orders, rather than civil penalties, are used when the intent is to suspend or 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 the penalties take into account a licensee's ability to pay. In determining the amount of civil penalties for licensees for whom the tables do not reflect the ability to pay or the gravity of the violation, the NRC will consider as necessar,y an increase or decrease on a case-by-case basis. Normally, if a licensee can demonstrate financial hardship, the NRC will consider payments over time, including interest, rather than reducing the amount of the civil penalty.

However, where a licensee claims financial hardship, the licensee will normally be required to address why it has sufficient resources to safely conduct licensed activities and pay license and inspection fees.

2. Civil Penalty Assessment In an effort to (1) emphasize the importance of adherence to requirements and (2) reinforce prompt self-identification of problems and root causes and prompt and comprehensive correction of violations, the NRC reviews each proposed civil penalty on its own merits and, after considering all relevant circumstances, may adjust the base civil penalties shown in Table IA and 1B for Severity Level I, II, and III violations as described below.

38 The civil penalty assessment process considers four decisional points:

(a) whether the licensee -has had any previous escalated .enforcement action (regardless of the activity area) during the past 2 years or past 2 inspections, whichever is longer; (b) whether the licensee should be given credit for actions related to identification; (c) whether the licensee's corrective actions are prompt and comprehensive; and (d) whether, in view of all the circumstances, the matter in question requires the exercise of discretion. Although each of these decisional points may have several associated considerations for any given case, the outcome of the assessment process for each violation or problem, absent the exercise of discretion, is limited to one of the following three results: no civil penalty, a base civil penalty, or a base civil penalty escalated by 100%. The flow chart presented below is a graphic representation of the civil penalty assessment process.

39 llJ CP BASE CP NO BASE NO CP

+100%

~ Should 1tle lloeftaee be gtven ONldtt tor act1on111 related to ldentffloetlon?

@ Dlacnltion. t.Q.. SL I Hd I Vlo11111Gffll ehottld nonna11r rNult In a dvll penalty "'fillln:IMe of ID and CA.

a. Jnjtjal Escalated Actjon When the NRC determines that a non-willful Severity Level III violation or problem has occurred, and the licensee has not had .fillY previous escalated actions (regardless of the activity area) during t~e past 2 years or 2 inspections, whichever is longer, the NRC will consider whether the licensee's corrective action for the present violation or problem is reasonably prompt and comprehensive (see the discussion under Section VI.B.2.c, below). Using 2 years as the basis for assessment is expected to cover most situations, but considering a slightly longer or shorter period might be warranted based on the circumstances of a particular case. The starting point of this period should be considered the date when the licensee was put on notice of the need

40 to take corrective action. For a licensee-identified violation or an event, this would be-when -the licensee is aware that a problem or ~iolation exists requiring corrective action. For an NRC-identified violation, the starting point would be when the NRC puts the licensee on notice, which could be during the inspection, at the inspection exit meeting, or as part of post-inspection cotm1unication.

If the corrective action is judged to be prompt and comprehensive, a Notice of Violation normally should be issued with no associated civil penalty. If the corrective action is judged to be less than prompt and comprehensive, the Notice of Violation normally should be issued with a base civil penalty.

b. Credit for Actions Related to Identification (1) If a Severity Level I or II violation or a willful*Severity Level III violation has occurred--or if, during the past 2 years or 2 inspections, whichever is longer, the .licensee has been issued at least one other escalated action--the civil penalty assessment should normally consider the factor of identification in addition to corrective action (see the discussion under Section VI.B.2.c, below). As to identification, the NRC should consider whether the licensee should be given credit for actions related to identification.

In each case, the decision should be focused on identification of the problem requiring corrective action. In other words, although giving credit

41 for Identification and Corrective Action should be separate decisions, the

.concept ,of Identification p~esumes that the identifier recog~izes the existence of a problem, and understands that corrective action is needed. The decision on Identification requires considering all the circumstances of identification including:

(i) Whether the problem requiring corrective action was NRC-.

- identified, licensee-identified, or revealed through an event 9 ;

(ii) Whether prior opportunities existed to identify the problem requiring corrective action, and if so, the age and number of those opportunities; (iii) Whether the problem was revealed as the result of a licensee self-monitoring effort, such as conducting an audit, a test, a surveillance, a

- design review, or troubleshooting; 9

An "event,* as used here, means (1) an event cbaracteriz:ed by an active adverse impact on equipment or personnel, readily obvious by human observation or instrumentation, or (2) a radiological impact oo personnel or the environme.nt in excess of regulatory limits, such as an overexposure, a release of radioactive material above NRC limits, or a loss of radioactive material. For example, an equipment failure discovered through a spill of liquid, a loud noise, the failure to have a system respond properly, or an annunciator alarm would be considered an event; a system discovered to be inoperable through a document review- would not. Similarly, if a licensee discovered, through quarterly dosimetry readings, that employees bad been inadequately monitored for radiation, the issue VIIOUld normally be CODSidered licensee-identified; however, if the same dosimetry readings disclosed an overexposure, the issue would be considered an ~ent.

42

{iv} For a problem revealed through an event, the ease of discovery,

~nd the degree of licensee initiative in identifying the roqt cause of the problem and any associated violations;

{v) For NRC-identified issues, whether the licensee would likely have identified the issue in the same time-period if the NRC had not been involved;

{vi) For NRC-identified issues, whether the licensee should have identified the issue (and taken action} earlier; and

{vii) For cases in which the NRC identifies the overall problem requiring corrective action (e.g., a programmatic issue}, the degree of licensee initiative or lack of initiative in identifying the problem or problems requiring corrective action.

(2) Although some cases may consider all of the above factors, the importance of each factor will vary based on the type of case as discussed in the following general guidance:

{i) Licensee-Identified. When a problem requiring corrective action is licensee-identified {i.e., identified before the problem has resulted in an event), the NRC should normally give the licensee credit for actions related to identification, regardless of whether prior opportunities existed to identify the problem.

43 (ii) Identified Through an Event. When a problem requiring corrective action is .identified through an event, the decision on wheth~r to give the licensee credit for actions related to identification normally should consider the ease of discovery, whether tne event occurred as the result of a licensee self-monitoring effort (i.e., whether the licensee was "looking for the

.problem*), the degree of licensee initiative in identifying the problem or problems requiring corrective action, and whether prior opportunities existed

- to identify the problem.

Any of these considerations may be overriding if particularly noteworthy or particularly egregious. For example, if the event occurred as the res.ult of conducting a surveillance or similar self-monitoring effort {i.e., the licensee was looking for the problem), the licensee should normally be given credit for identification. As a second instance, even if the problem was easily discovered (e.g., revealed by a large spill of liquid), the NRC may e choose to give credit because noteworthy licensee effort was exerted in .

ferreting out the root cause and ~ssociated violations, or simply because no prior opportunities (e.g., procedural cautions, post-maintenance testing, quality control failures, readily observable parameter trends, or repeated or locked-in annunciator warnings) existed to identify the problem.

(iij) NRC-ldentified. When a problem requiring corrective action is NRC-identified, the decision on whether to give the licensee credit for actions related to Identification should normally be based on an additional question: should the licensee have reasonably identified the problem {and taken action} earlier?

44

• In-most cases, th1s*reasoning may be based-simply on the ease of the NRC Jnspector's discovery (e.g., conducting a walkdown, observi~g in the control room, performing a confirmatory NRC radiation survey, hearing a cavitating pump, or finding a valve obviously out of position). In some cases, the licensee's missed opportunities to identify the problem might include a similar previous violation, NRC or industry notices, internal audits, or

~eadily observable trends.

If the NRC identifies the violation but concludes that, under the circumstances, the licensee's actions related to Identification were not unreasonable, the matter would be treated as licensee-identified for purposes of assessing the civil penalty. In such cases, the question of Identification credit shifts to whether the licensee should be penalized for NRC's identification of the problem.

(iv) Mixed Identification. For *mixed" identification situations (i.e., where multiple violations exist, some NRC-identified, some licensee-identified, or where the NRC prompted the license~ to take action that resulted in the identification of the violation), the NRC's ev~luation should normally determine whether the licensee could reasonably have been expected to identify the violation in the NRC's absence. This determination should consider, among other things, the timing of the NRC's discovery, the information available to the licensee that caused the NRC concern, the specificity of the NRC's concern, the scope of the licensee's efforts, the

-level of licensee resources given to the investigation, and whether the NRC's path of analysis had been dismissed or was being pursued in parallel by the

45 licensee.

In some cases, the licensee may have addressed the isolated symptoms of each violation (and may have identified the violations), but failed to recognize the common root cause and taken the necessary comprehensive action.

Where this is true, the decision on whether to give licensee credit for actions related to Identification should focus on identification of the

- problem requiring corrective action (e.g., the programmatic breakdown). As such, depending on the chronology of the various violations, the earliest of the individual violations might be considered missed opportunities for the licensee to have identified the larger problem.

(v)

• Missed Opportunities to Identify. Missed opportunities include prior notifications or missed opportunities to identify or prevent violations such as (1) through normal surveillances, audits, or quality assurance (QA) activities; (2) through prior notice 1.e., specific NRC or industry notification; or (3) through other reasonable indication of a potential problem or violation, such as observations of empl~yees and contractors, and failure to take effective corrective steps. It may include findings of the NRC, the licensee, or industry made at other facilities operated by the licensee where it is reasonable to expect the licensee to take action to identify or prevent similar problems at the facility subject to the enforcement action at issue. In assessing this factor, consideration will be given to, among other things, the opportunities available to discover the violation, the ease of discovery, the similarity between the violation and the notification, the period of time between when the violation occurred and when

46 the notification was issued, the action taken {or planned) by the licensee in response to .the notification, and the level of.management r~view that the notification received {or should have received).

The evaluation -0f missed opportunities should normally depend on whether the information available to the licensee should reasonably have caused action that would have prevented the violation. Missed opportunities is normally not applied where the licensee appropriately reviewed the opportunity for application to its activities and reasonable action was either taken or planned to be.taken within a reasonable time.

In some situations the missed opportunity is a violation in itself. In these cases, unless the missed opportunity is a Severity Level III violation in itself, the missed opportunity violation may be grouped with the other violations into a single Severity Level III "problem." However, if the missed opportunity is the only violation, then it shQuld not normally be counted twice (i.e., both as the violation and as a missed opportunity--"double counting") unless the number of opportunities missed was particularly significant.

The timing of the missed opportunity should also be considered. While a rigid time-frame is unnecessary, a 2-year period should generally be considered for consistency in implementation, as the period reflecting relatively current performance.

(3) When the NRC determines that the licensee should receive credit for

47 actions related to Identification, the civil penalty assessment should normally result in either no civil penalty or a base civil penalty, based on whether Corrective Action is judged to be reasonably prompt and comprehensive.

When the licensee is not given credit for actions related to Identification, the civil penalty assessment should normally result in a Notice of Violation with either a base civil penalty or a base civil penalty escalated by 100%,

depending on the quality of Corrective Action, because the licensee's performance is clearly not acceptable.

c. Credit for Proapt and Co11prehensive Corrective Action The purpose of the Corrective Action factor is to encourage licensees to (1) take the invnediate actions necessary upon discovery of a violation that will restore safety and compliance with the license, regulation(s), or other requirement(s); and (2) develop and implement (in a timely manner) the lasting

- actions that will not only prevent recurrence of the violation at issue, but will be appropriately comprehensive, given the significance and complexity of the violation, to prevent occurrence of violations with similar root causes.

Regardless of other circumstances {e.g., past enforcement history, identification), the licensee's corrective actions should always be evaluated as part of the civil penalty assessment process. As a reflection of the importance given to this factor, an NRC judgment that the licensee's corrective action has not been prompt and comprehensive will always result in issuing at least a base civil penalty.

48 In assessing this factor, consideration will be given to the timeliness of the corrective action-(including the promptness in developing the schedule for long term corrective action), the adequacy of the licensee's root cause analysis for the violation, and, given the significance and complexity of the issue, the comprehensiveness of the corrective action (i.e., whether the action is focused narrowly to the specific violation or broadly to the general area of concern). Even *in cases when *the NRC, at the time of the enforcement conference, identifies additional peripheral or minor corrective action still to be taken, the licensee may be given credit in this area, as long as the licensee's actions addressed the underlying root cause and are considered sufficient to prev~nt recurrence of the violation and similar violations.

Normally, the judgment of the adequacy of corrective actions will hinge I

on whether the NRC had to take action to focus the licensee's evaluative and corrective process in order to obtain comprehensive corrective action. This will normally be judged at the time of the enforcement conference (e.g., by outlining substantive additional areas where corrective action is needed).

Earlier informal discussions between the licensee and NRC inspectors or management may result in improved corrective action, but should not normally be a basis to deny credit for Corrective Action. For cases in which the licensee does not get credit for actions related to Identification because the NRC identified the problem, the assessment of the licensee's corrective action should begin from the time when the NRC put the licensee on notice of the problem. Notwithstanding eventual good comprehensive corrective action, if i11111ediate corrective action was not taken to restore safety and compliance once the violation was identified, corrective action would not be considered

49 prompt and comprehensive.

Corrective -action for violations involving discrimination should normally only-be considered comprehensive if the licensee takes prompt, ,

comprehensive corrective action that (1) addresses the broader environment for raising safety concerns in the workplace, and (2) provides a remedy for the particular discrimination at issue.

d. Exercise of Discretion As provided in Sect ion VII, 11 Exercise of Discretion, 11 discretion may be exercised by either escalating or mitigating the amount of the civil penalty determined after applying the civil penalty adjustment factors to ensure that the proposed civil penalty reflects the NRC's concern regarding the violation at issue and that it conveys the appropriate message to the licensee.

- However, in no instance will a civil penalty for any one violation exceed

$100,000 per day.

50 TABLE lA--BASE CIVIL PENALTIES

a. Power reactors .*....*....**...**.................. $100,000

b. Fuel fabricators, industrial processors, and independent spent fuel and monitored retrievable storage installations ...*.............. $25,000

c. Test reactors, mills and uranium conversion facilities, contractors, vendors, waste disposal licensees, and industrial radiographers ...*....*..*...**..................... $10,000

d. Research reactors, academic, medical, or other material licensee 1 ************************* $5,000 1

This applies to nonprofit institutions not otherwise categorized in this table, mobile nuclear services, nuclear pharmacies, and physician offices.

51 TABLE 1B-BASE CIVIL PENALTIES Severity Level Base Civil Penalty Amount (Percent of amount listed in Table IA)

I . . . . . . . . . . . . . . . . . . * . . . . . . . . . . . . * * . . . . . . 100%

I I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80%

I I I . . . . . . . . . . * . . . . . . . . . . . . . . . . . . . . . . . . . . . 50%

52 C. Orders An order is a wr1tten 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 (see 10 CFR 2.202). Orders may also be issued in lieu of, or in addition to, civil penalties, as appropriate for Severity Level I, II, or III violations. Orders may be issued as follows:

I. License Modification orders are issued when some change in licensee equipment, procedures, personnel, or management controls is necessary.

2. Suspension Orders may be used:

(a) To remove a threat to the public health and safety, common 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's quality assurance program implementation is not adequate to provide confidence that construction activities are being properly carried out;

53 (c) When the licensee has not responded adequately to other enforcement action; (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.

Ordinarily, 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 is unable or unwilling to comply with NRC requirements; (b) When a licensee refuses to correct a violation;

{c) When licensee does not respond to a Notice of Violation where a response was required;

54

{d} When a licensee refuses to pay an applicable fee under the Commission's regulations; 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).

4. Cease and Desist Orders may be used to stop an unauthorized activity that has continued after notification by the NRC that the activity is unauthorized.

5. Orders to unlicensed persons, including vendors and contractors, and employees of any of them, are used when the NRC has identified deliberate misconduct that may cause a licensee to be in violation of an NRC requirement or where incomplete or inaccurate information is deliberately submitted or where the NRC loses its reasonable assurance that the licensee will meet NRC requirements with that person involved in licensed activities.

Unless a separate response is warranted pursuant to 10 CFR 2.201, a Notice of Violation need not be issued where an order is based on violations described in the order. The violations described in an order need not be categorized by severity level.

Orders are made effective immediately, 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

55 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 why the order should not be issued in the proposed manner by way of a Demand for Information. (See 10 CFR 2.204)

D. Related Administrative Actions In addition to the formal enforcement actions, Notices of Violation, civil penaltie$, and orders, the NRC also uses administrative actions, such as Notices of Deviation, Notices of Nonconformance, Confirmatory Action Letters, Letters of Reprimand, and Demands for Information to supplement its enforcement program. The NRC expects licensees and vendors to adhere to any obligations and conmitments resulting from these actions and will not hesitate to issue appropriate orders to ensure that these obligations and conmitments 4I are met.

l. Notices of Deviation are written notices describing a licensee's failure to satisfy a conmitment where the conmitment involved has not been made a legally binding requirement. A Notice of Deviation requests a licensee to provide a written explanation or statement describing corrective steps taken (or planned), the results achieved, and the date when corrective action will be completed.

2. Notices of Nonconformance are written notices describing vendor's failures to meet comitments which have not been made legally binding

~

requirements by NRC. An example is a commitment made in a procurement contract with a licensee as required by 10 CFR Part 50, App~ndix B. Notices of Nonconformances request non-licensees to ~rovide 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.

3. Confirmatory Action Letters are letters confirming a licensee's or vendor's agreement to take certain actions to remove significant concerns about health and safety, safeguards, or the environment.

4. Letters of Reprimand are letters addressed to individuals subject to Convnission jurisdiction identifying a significant deficiency in their performance of licensed activities.

5. Demands for Information are demands for information from licensees or other persons for the purpose of enabling the NRC to determine whether an order or other enforcement action should be issued.

VII. EXERCISE OF DISCRETION Notwithstanding the normal guidance contained in this policy, as provided in Section III, "Responsibilities," the NRC may choose to exercise discretion and either escalate or mitigate enforcement sanctions within the Comission's statutory authority to ensure that the resulting enforcement action appropriately reflects the level of NRC concern regarding the violation

57 at issue and conveys the appropriate message to the licensee.

A. Escalation of Enforce/Went Sanctions The NRC considers violations categorized at Severity Level I, II, or III to be of significant regulatory concern. If the application of the nonnal guidance in this policy does not result in an appropriate sanction, with the approval of the appropriate Deputy Executive Director and consultation with the EOO and Commission, as warranted, the NRC may apply its full enforcement authority where the action is warranted. NRC action may include (1) escalating civil penalties, (2) issuing appropriate orders, and (3) assessing civil penalties for continuing violations on a per day basis, up to the statutory limit of $100,000 per violation, per day.

1. Civil penalties. Notwithstanding the outcome of the normal civil penalty assessment process addressed in Section VI.B, the NRC may exercise discretion by either proposing a civil penalty where application of the factors would otherwise result in zero penalty or by escalating the amount of the resulting civil penalty (i.e., base or twice the base civil penalty) to ensure that the proposed civil penalty reflects the significance of the circumstances and conveys the appropriate regulatory message to the licensee.

Consultation with the Commission is required if the deviation in the amount of the civil penalty proposed under this discretion from the amount of the civil penalty assessed under the normal process is more than two times the base civil penalty shown in Tables IA and 1B. Examples when this discretion should be considered include, but are not limited to the following:

r 58 (a) Problems categorized at Severity Level I or II; (b) Overexposures, or releases of radiological material in excess of NRC requirements; (c) Situations involving particularly poor licensee performance, or involving-willfulness; (d) Situations when the licensee's previous enforcement history has been particularly poor, or when the current violation is directly repetitive of an earlier violation; (e) Situations when the excessive duration of a problem has resulted in a substantial increase in risk; (f) Situations when the licensee made a conscious decision to be in noncompliance in order to obtain an economic benefit; or (g) Cases involving the loss of a source. In addition, unless the licensee self-identifies and reports the loss to the NRC, these cases should normally result in a civil penalty in an amount at least in the order of the cost of an authorized disposal of the material or of the transfer of the material to an authorized recipient.

2. Orders. The NRC may, where necessary or desirable, issues orders in conjunction with or in lieu of civil penalties to achieve or formalize

59 corrective actions and to deter further recurrence of serious violations.

3. Daily civil penalties. In order to recognize the added technical safety significance or regulatory significance for those cases where a very strong message is warranted for a significant violation that continues for more than one day, the NRC may exercise discretion and assess? separate violation and attendant civil penalty up to the statutory limit of $100,000 e for each day the violation continues. The NRC may exercise this discretion if a licensee was aware or clearly should have been aware of a violation, or if the licensee had an opportunity to identify and correct the violation but failed to do so.

B. Hitigation of Enforcement Sanctions The NRC may exercise discretion and refrain from issuing a civil penalty

- and/or a Notice of Violation, if the outcome of the normal process described in Section VI.B does not result in a sanction consistent with an appropriate regulatory message. In addition, even. if the NRC exercises this discretion, when the licensee failed to make a required report to the NRC, a separate enforcement action will normally be issued for the licensee's failure to make a required report. The approval of the Director, Office of Enforcement, with consultation with the appropriate Deputy Executive Director as warranted, is required for exercising discretion of the type described in Section VII.B.l.b where a willful violation is involved, and of the types described in Sections VII.B.2 through VII.B.5. Commission consultation is required for exercising discretion of the type described in Section VII.B.2 and the

60 approval of the appropriate Deputy Executive Director and COfllllission notification is required for exercising the discretion of the type described in Section VII.8.6. Examples when discretion should be considered for departing from the normal approach in Section VI.B include but are not limited to the following:

l. Licensee-Identified Severity Level IV Violations. The NRC, with the approval of the Regional Administrator or his des1gnee, may refrain from issuing a Notice of Violation for a Severity Level IV violation that is documented in an inspection report (or official field notes for some material cases) and described therein as a Non-Cited Violation (NCV} provided that the inspection report includes a brief description of the corrective action and that the violation meets all of the following criteria:

(a) It was identified by the licensee, including identification through an event; (b) It was not a violation that could reasonably be expected to have been prevented by the licensee's corrective action for a previous violation or a previous licensee finding that occurred within the past 2 years of the inspection at issue, or the period within the last two inspections, whichever is longer;

{c) It was or will be corrected within a reasonable time, by specific corrective action committed to by the licensee by the end of the inspection, including immediate corrective action and comprehensive corrective action to

61 prevent recurrence; (d) It was not a willful violation or if it was a willful violation; (1) The information concerning the violation, if not required to be reported, was promptly provided to appropriate NRC personnel, such as a resident inspector or regional section or branch chief;

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

(iii} The violation appears to be the isolated action of the employee without management involvement and the violation was not caused by lack of management oversight as evidenced by either a history of isolated willful violations or a lack of adequate audits or supervision of employees; and (iv) Significant remedial action co11111ensurate with the circumstances was taken by the licensee such that it demonstrated the seriousness of the violation to.other employees and contractors, thereby creating a deterrent effect within the licensee's organization. Although removal of the_ employee from licensed activities is not necessarily required, substantial disciplinary action is expected.

2. Violations Identified During Extended Shutdowns or Work Stoppages.

The NRC may refrain from issuing a Notice of Violation or a proposed civil penalty for a violation that is identified after (i) the NRC has taken

62 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 stoppage at a construction site), or (ii) the licensee enters an extended shutdown or work stoppage related to generally poor performance over a long period of time, provided that the violation is documented in an inspection report (or official field notes for some material cases) and that it meets all of the following criteria:

(a) It was either licensee-identified as a result of a comprehensive program for problem identification and correction that was developed in response to the shutdown or identified as a result of an employee allegation to the licensee; (If the NRC identifies the violation and all of the other criteria are met, the NRC should determine whether enforcement action is necessary to achieve remedial action, or if discretion may still be appropriate.)

(b) It is based upon activities of the licensee prior to the events leading to the shutdown; (c) It would not be categorized at a severity level higher than Severity Level II; (d) It was not willful; and (e) The licensee's decision to restart the plant requires NRC concurrence.

63

3. Violations Involving Old Design Issues. The NRC may refrain from proposing a civil penalty for a Severity Level II or III violation involving a past problem, such as in engineering, design, or installation, provided that the violation is documented in an inspection report (or official field notes for some material cases) that includes a description of the corrective action and that it meets all of the following criteria:

ca> It was a licensee-identified as a result of its voluntary initiative; (b) lt was or will be corrected, including invnediate corrective action and long term comprehensive corrective action to prevent recurrence, within a reasonable time following identification (this action should involve expanding the initiative, as necessary, to identify other failures caused by similar root causes); and (c) It was not likely to be identified (after the violation occurred) by routine licensee efforts such as normal surveillance or quality assurance (QA) activities.

In addition, the NRC may refrain from issuing a Notice of Violation for cases that meet the above criteria provided the violation was caused by conduct that is not reasonably linked to present performance (normally, violations that are at least 3 years old or violations occurring during plant construction) and there had not been prior notice so that the licensee should have reasonably identified the violation earlier. This exercise of discretion

64 is to place a premium on licensees initiating efforts to identify and correct subtle violations that are not likely to be identified by routine efforts before degraded safety systems are called upon to work.

4. Violations Identified Due to Previous Escalated Enforceaent Action. The NRC may refrain from issuing a Notice of Violation or a proposed civil penalty for a violation that is identified after the NRC has taken escalated enforcement action for a Severity Level II or III violation, provided that the violation is documented in an inspection report (or official field notes fo~ some material cases) that includes a description of the corrective action and that it meets all of the following criteria:

(a) It was licensee-identified as part of the corrective action for the previous escalated enforcement action; (b) It has the same or similar root cause as the violation for which escalated enforcement action was issued; (c) It does not substantially change the safety significance or the character of the regulatory concern arising out of the initial violation; and (d) It was or will be corrected, including imediate corrective action and long term comprehensive corrective action to prevent recurrence, within a reasonable time following identification.

5. Violations Involving Certain Discrimination Issues. Enforcement

65 discretion may be exercised for discrimination cases when a licensee who, without the need for government intervention, identifies an issue of discrimination and takes prompt, comprehensive, and effective corrective action to address both the particular situation and the overall work environment for raising safety concerns. Similarly, enforcement may not be warranted where a complaint is filed with the Department -of Labor (OOL) under Section 211 of the Energy Reorganization Act of 1974, as amended, but the licensee settles the matter before the DOL makes an initial finding of discrimination and addresses the overall work environment. Alternatively, if a finding of discrimination is made, the licensee may choose to settle the case before the evidentiary hearing begins. In such cases, the NRC may exercise its discretion not to take enforcement action when the licensee has addressed the overall work environment for raising safety concerns and has publicized that a complaint of discrimination for engaging in protected activity was made to the DOL, that the matter was settled to the satisfaction e of the employee {the terms of the specific settlement agreement need not be posted), and that, if the DOL Area Office found discrimination, the licensee has taken action to positively reemphasize that discrimination will not be tolerated. Similarly, the NRC may refrain from taking enforcement action if a licensee settles a matter promptly after a person comes to the NRC without going to the OOL. Such discretion would normally not be exercised in cases in which the licensee does not appropriately address the overall work environment

( ~ , by using training, postings, revised policies or procedures, any necessary disciplinary action, etc., to communicate its policy against discrimination) or in cases that involve: allegations of discrimination as a result of providing information directly to the NRC, allegations of

66 discrimination caused by a manager above first-line supervisor (consistent with current Enforcement Policy classification of Severity Level I or II violations}, allegations of discrimination where a history of findings of discrimination {by the DOL or the NRC) or settlements suggests a programmatic rather than an isolated discrimination problem, or allegations of discrimination which appear particularly blatant or egregious.

6. Violations Involving Special Circumstances. Notwithstanding the outcome of the normal civil penalty assessment process addressed in Section VI.B, as provided in Section III, "Responsibilities," the NRC may reduce or refrain from issuing a civil penalty or a Notice of Violation for a Severity Level II or III violation based on the merits of the case after considering the guidance in this statement of policy and such factors as the age of the violation, the safety significance of the violation, the overall sustained performance of the licensee has been particularly good, and other relevant circumstances, including any that may have changed since the violation. This discretion is expected to be exercised only where application of the normal guidance in the policy is unwarranted.

C. Exercise of Discretion for an Operating Facility On occasion, circumstances may arise where a licensee's compliance with a Technical Specification (TS) Limiting Condition for Operation or with other license conditions would involve an unnecessary plant transient or performance of testing, inspection, or system realignment that is inappropriate with the specific plant conditions, or unnecessary delays in plant startup without a

67 corresponding health and safety *benefit. In these circumstances, the NRC staff -may.choose not to enforce the applicable TS or other license condition.

This enforcement discretion, designated as a Notice of Enforcement Discretion (NOED), will only be exercised if the NRC staff is clearly satisfied that the action is consistent with protecting the public health and safety. A licensee seeking the issuance of a NOED must provide a written justification, or in circumstances where good cause is shown, oral justification followed as soon as possible by written justification, which documents the safety basis for the request and provides whatever other information the NRC staff deems necessary in making a decision on whether or not to issue a NOED.

The appropriate Regional Administrator, or his or her designee, may issue a NOED where the noncompliance is temporary and nonrecurring when an amendment is not practical. The Director, Office of Nuclear Reactor Regulation, or his or her designee, may issue a NOED if the expected noncompliance will occur during the brief period of time it requires the NRC staff to process an emergency or exigent license amendment under the provisions of 10 CFR 50.9l(a}{5) or (6). The person exercising enforcement discretion will document the decision.

For an operating plant, this exercise of enforcement discretion is intended to minimize the potential safety consequences of unnecessary plant transients with the accompanying operational risks and impacts or to eliminate testing, inspection, or system realignment which is inappropriate for the particular plant conditions. For plants in a shutdown condition, exercising enforcement discretion is intended to reduce shutdown risk by, again, avoiding

68 testing, inspection or system realignment which is inappropriate for the particular plant conditions, 1n that, it does not provide a safety benefit or may, in fact, be detrimental to safety in the particular plant condition.

Exercising enforcement discretion for plants attempting to startup is less likely than exercising it for an operating plant, as simply delaying startup does not usually leave the plant in a condition in which it could experience undesirable transients. In such cases, the Conrnission would expect that discretion would be exercised with respect to equipment or systems only when it has at least concluded that, notwithstanding_ the conditions of the license:

(1) The equipment or system does not perform a safety function in the mode in which operation is to occur; (2) the safety function performed by the equipment or system is of only marginal safety benefit, provided remaining in the current mode increases the likelihood of an unnecessary plant transient; or (3) the TS or other license condition requires a test, inspection or system realignment that is inappropriate for the particular plant conditions, in that it does not provide a safety benefit, or may, in fact, be detrimental to safety in the particular plant condition.

The decision to exercise enforcement discretion does not change the fact that a violation will occur nor does it imply that enforcement discretion is being exercised for any violation that may have led to the violation at issue.

In each case where the NRC staff has chosen to issue a NOED, enforcement action will normally be taken for the root causes, to the extent violations were involved, that led to the noncompliance for which enforcement discretion was used. The enforcement action is intended to emphasize that licensees should not rely on the NRC's authority to exercise enforcement discretion as a

69 routine substitute for compliance or for requesting a license amendment.

Finally, it is expected that the NRC staff will exercise enforcement discretion in this area infrequently. Although a plant must shut down, refueling activities may be suspended, or plant startup may be delayed, absent the exercise of enforcement discretion, the NRC staff is under no obligation to take such a step merely because it has been requested. The deciston to

• forego enforcement is discretionary. When enforcement discretion is to be exercised, it is to be exercised only if the NRC staff is clearly satisfied that such action is warranted from a health and safety perspective.

VIII. 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 involving an individual will normally be taken only when the NRC is satisfied 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 or IV 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

70 individual's responsibilities, will be considered for enforcement action against the individual as well as against the facility lice~see. 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:

• 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 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 advise was clearly unreasonable and the licensed individual should have recognized it as such.

• Violations resulting from inadequate procedures unless the individuaf used a faulty procedure knowing it was faulty and had not attempted to get the procedure corrected.

71 Listed below are examples of situations which could result in enforcement actions involving individuals, ljcensed or unli~ensed. If the

. actions described in these examples are taken by a licensed operator or taken deliberately by an unlicensed individual, enforcement action may be taken directly against the individual. However, violations involving willful conduct not amounting to deliberate action by an unlicensed individual in these situations may result in enforcement action against a licensee that may

- impact an individual. The situations include, but are not limited to, violations that involve:

• Willfully causing a licensee to be in violation of NRC requirements.

• Willfully taking action that would have caused a licensee to be in violation of NRC requirements but the action did not do so because it was

- detected and corrective action was taken.

• Recognizing a violation of procedural requirements and willfully not taking corrective action.

• Willfully defeating alarms which have safety significance.

• Unauthorized abandoning of reactor controls.

• Dereliction of duty.

72

• Falsifying records required by NRC regulations or by the facility license.

~ Willfully providing, or causing a licensee to provide, an NRC inspector or investigator with inaccurate or incomplete infonnation on a matter material to the NRC.

• Willfully withholding safety significant information rather than making such information known to appropriate supervisory or technical personnel -1n the licensee's organization.

• Submitting false information and as a result gaining unescorted access to a nuclear power plant.

• Willfully providing false data to a licensee by a contractor or other person who provides test or other services, when the data affects the licensee's compliance with 10 CFR part 50, appendix B, or other regulatory requirement. *

• Willfully providing false certification that components meet the requirements -0f their intended use, such as ASHE Code.

• Willfully supplying, by vendors of equipment for transportation of

~adioactive material, casks that do not comply with their certificates of compliance.

73

• Willfully performing unauthorized bypassing of required reactor or other facility safety systems.

• Willfully taking actions that violate Technical Specification Limiting Conditions for Operation or other license conditions (enforcement action for a-willful violation will not be taken if that violation is the result of action taken following the N~C's decision to forego enforcement of the Technical Specification or other license condition or if the operator meets the requirements of 10 CFR 50.54 (x), (i.e., unless the operator acted unreasonably considering all the relevant circumstances surrounding the emergency.)

Normally, some enforcement action is taken against a licensee for violations caused by significant acts of wrongdoing by its employees, contractors, or contractors' employees. In deciding whether to issue an 4lt enforcement action to an unlicensed person as well as to the licensee, the NRC recognizes that judgments will have to be made on a case by case basis. In, making these decisions, the NRC -will consider factors such as the following:

1. The level of the individual within the organization.

2. The individual's training and experience as well as knowledge of the potential consequences of the wrongdoing.

3. The safety consequences of the misconduct.

I

74

4. The benefit to the wrongdoer, e.g., personal or corporate gain.

5. The degree of supervision of the individual, i.e., how closely is the individual monitored or audited, and the likelihood of detection {such as a radiographer working independently in the field as contrasted with a team activity at a power plant).

6. The employer's response, e.g., disciplinary action taken.

7. The attitude of the wrongdoer, e.g., admission of wrongdoing~

acceptance of responsibility.

8. The degree of management responsibility or culpability.

9. Who identified the misconduct.

Any proposed enforcement action involving individuals must be issued with the concurrence of the appropriate Deputy Executive Director. The particular sanction to be used should be determined on a case-by-case basis. 10 Notices of Violation and Orders are examples of enforcement actions that may be appropriate against individuals. The administrative action of a Letter of Reprimand may also be considered. In addition, the NRC may issue 10 Except for individuals subject to civil penalties under section 206 of the Energy Reorgani.7.ation Act of 1974, as amended, NRC will not normally impose a civil penalty again.st an individual. However, section 234 of the Atomic Energy Act (AEA) gives the Commission authority to impose civil penalties on "any pel'SOn. *

"Person* is broadly defined in Section 11s of the AEA to include individuals, a variety of organi2'Jl1i.ons, and any representatives or agents. This gives the Commission authority to impose civil penalties on employees of licensees or on separate entities when a violation of a requirement directly_ unposed on them is committed.

75 Demands for Information to gather information to enable it to determine whethe~ an-order or other enforcement action should be iss4ed.

Orders to NRC-licensed reactor operators may involve suspension for a specified period, modification, or revocation of their individual licenses.

Orders to unlicensed individuals might include provisions that would:

• Prohibit involvement in NRC licensed activities for a specified period of time (normally the period of suspension would not exceed 5 years) or until certain conditions are satisfied, e.g., completing specified training or meeting certain qualifications.

• Require notification to the NRC before resuming work in licensed activities.

• Require the person to tell a prospective employer or customer engaged in licensed activities that the person has been subject to an NRC order.

In the case of a licensed operator's failure to meet applicable fitness-for-duty requirements {10 CFR 55.53(j)), the NRC may issue a Notice of Violation or a civil penalty to the Part 55 licensee, or an order to suspend, modify, or revoke the Part 55 license. These actions may be taken the first time a licensed operator fails a drug or alcohol test, that is, receives a confirmed positive test that exceeds the cutoff levels of 10 CFR Part 26 or the facility licensee's cutoff levels, if lower. However, normally only a

76 Notice of Violation will be *issued for the first confirmed positive test in the absence--0f aggravating circumstances such as errors in the performance of licensed duties or evidence of prolonged use. In addition, the NRC intends to issue an order to suspend the Part 55 license for up to 3 years the second time a licensed operator exceeds those cutoff levels. In the event there are less than 3 years remaining in the term of the individual's license, the NRC may cons*ider not renewing the individual's license or not issuing a new license after the three year period is completed. The NRC intends to issue an -

order to revoke the Part 55 license the third time a licensed operator exceeds those cutoff levels. A licensed operator or applicant who refuses to participate in the drug and alcohol testing programs established by the facility licensee or who is involved in the sale, use, or possession of an illegal drug is also subject to license suspension, revocation, or denial.

In addition, the NRC may take enforcement action against a licensee that may impact an individual, where the conduct of the individual places in question the NRC's reasonable assurance that licensed activities will be properly conducted. The NRC may take enforcement action for reasons that would warrant refusal to issue a license on an orisinal application.

Accordingly, appropriate enforcement actions may be taken regarding matters that raise issues of integrity, competence, fitness-for-duty, or other matters that may not necessarily be a violation of specific Co11111ission requirements.

In the case of an unlicensed person, whether a firm or an individual, an order modifying the facility license may be issued to require {1} the removal of the person from all licensed activities for a specified period of time 9r

77 indefinitely, (2) prior notice to the NRC before utilizing the person in licensed activittes, or (3) the licensee to provide notice of the issuance of such an order -to other persons involved in licensed activities making reference inquiries. In addition, orders to employers might require retraining, additional oversight, or independent verification of activities perfonned by the person, if the person is to be involved in licensed activities.

IX. INACCURATE AND INCOMPLETE INFORMATION A violation of the regulations involving submittal of incomplete and/or inaccurate information, whether or not considered a material false statement, can result in the full range of enforcement sanctions. The labeling of a communication failure as a material false statement will be made on a case-by-case basis and will be reserved for egregious violations. Violations involving inaccurate or incomplete information or the failure to provide significant information identified by a licensee normally will be categorized based on the guidance herein, in Section IV, "Severity of Violations," and in Supplement VII.

The Commission recognize_s that oral information may in some situations be inherently less reliable than written submittals because of the absence of an opportunity for reflection and management review. However, the Commission must be able to rely on oral communications from licensee officials concerning significant information. Therefore, in determining whether to take enforcement action for an oral statement, consideration may be given to

78 factors such as (1) the degree of knowledge that the c00111unicator should have

.had, regarding the-matter, in view of his or her position, training, and experience; (2) the opportunity and time available prior to the communication to assure the accuracy or completeness of the information; (3} the degree of intent or negligence, if any, involved; (4} the formality of the COf1111unication; (5) the reasonableness of NRC reliance on the information;

{6) the importance of the information which was wrong or not provided; and (7) the reasonableness of the explanation for not providing complete and accurate information.

Absent at least careless disregard, an incomplete or inaccurate unsworn oral statement normally will not be subject to enforcement action unless it involves significant information provided by a licensee official. However, enforcement action may be taken for an unintentionally incomplete or inaccurate oral statement provided to the NRC by a licensee official or others on behalf of a licensee, if a record was made of the oral information and provided to the licensee thereby permitting an opportunity to correct the oral information, such as if a transcript of the communication or meeting summary containing the error was made available to the licensee and was not subsequently corrected in a timely manner.

When a licensee has corrected inaccurate or incomplete information, the decision to issue a Notice of Violation for the initial inaccurate or incomplete information normally will be dependent on the circumstances, including the ease of detection of the error, the timeliness of the correction, whether the NRC or the licensee identified the problem with the

79 conununication, and whether the NRC relied on the information prior to the correction. Generally, if-the .matter was promptly identifi~d and corrected by the licensee prior to reliance by the NRC, or before the NRC raised a question about the information, no enforcement action will be taken for the initial inaccurate or incomplete information. On the other hand, if the misinformation is identified after the NRC relies on it, or after some question is raised regarding the accuracy of the information, then some

- enforcement action normally will be taken even if it is in fact corrected.

However, if the initial submittal was accurate when made but later turns out to be erroneous because of newly discovered information or advance in technology, a citation normally would not be appropriate if, when the new information became available or the advancement in technology was made, the initial submittal was corrected.

The failure to correct inaccurate or incomplete information which the licensee does not identify as significant normally will not constitute a separate violation. However, the circumstances surrounding the failure to correct may be considered relevant to the determination of enforcement action for the initjal inaccurate or incomplete statement. For example, an unintentionally inaccurate or incomplete submission may be treated as a more severe matter if the licensee later determi'nes that the initial submittal was in error and does not correct it or if there were clear opportunities to identify the error. If information not corrected was recognized by a licensee as significant, a separate citation may be made for the failure to provide significant information. In any event, in serious cases where the licensee's actions in not correcting or providing information raise questions about its

80 commitment to safety or its fundamental trustworthiness, the Comission may exercise its -authority to tssue orders. modifying, suspending, or revoking the

.license. The Connnission recognizes that enforcement determinations must be made on a case-by-case basis, taking into consideration the issues described in this section.

X. ENFORCENENT ACTION AGAINST NON-LICENSEES The Commission's enforcement policy is also applicable to non-licensees, 4t including employees of licensees, to contractors and subcontractors, and to employees of contractors and subcontractors, who knowingly provide components, equipment, or other goods or services that relate to a licensee's activities subject to NRC regulation. The prohibitions and sanctions for any of these persons who engage 1n deliberate misconduct or submission of incomplete or inaccurate information are provided in the rule on deliberate misconduct, e.g., 10 CFR 30.10 and 50.5.

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 may be required to have quality assurance programs that meet applicable requirements including 10 CFR Part 50, Appendix B, and 10 CFR Part 71, Subpart H. Vendors supplying products or services to reactor, materials, and 10 CFR Part 71 licensees are subject to the requirements of 10 CFR Part 21 regarding reporting of defects 1n basic components.

81 When inspections -0etermine that violations of NRC requirements have occurred, or that vendors have failed to fulfill contractual co11111itments (e.g., 10 CFR Part 50, Appendix B) 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. Notices of Violation will be issued for vendors that

- violate 10 CFR Part 21. Civil penalties will 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 Noncpnformance will be used for vendors which fail to meet comnitments related to NRC activities.

XI. REFERRALS TO THE 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 (DOJ) for investigation. Referral to the DOJ does not preclude the NRC from taking other enforcement action under this policy. However, enforcement actions will be coordinated with the DOJ in accordance with the Memorandum of Understanding between the NRC and the DOJ, 53 FR 50317 (December 14, 1988).

XII. PUBLIC DISCLOSURE OF ENFORCEMENT ACTIONS Enforcement actions and licensees' responses, in accordance with 10 CFR 2.790, are publicly available for inspection. In addition; press

82 releases are generally issued for orders and civil penalties and are issued at the same time the order Dr proposed imposition of the civil_penalty is issued.

In addition, ~ress releases are usually issued when a proposed civil penalty is withdrawn or substantially mitigated by some amount. Press releases are not normally issued for Notices of Violation that are not accompanied by orders or proposed civil penalties.

XIII. 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 reopening 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 appropriate Deputy Executive Director.

SUPPLEMENT I--REACTOR OPERATIONS This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of reactor operations.

A. Severity Level I - Violations involving for example:

I. A Safety Limit, as defined in 10 CFR 50.36 and the Technical

83 Specifications being exceeded;

2. A system11 -designed to prevent-or mitigate a serious safety event not being able to perform its intended safety function 12 when actually called upon to work;

3. An accidental criticality; or

4. A licensed operator at the controls of a nuclear reactor, or a senior operator directing licensed activities, involved in procedural errors which result in, or exacerbate the consequences of, an alert or higher l~vel emergency and who, as a result of subsequent testing, receives a confirmed positive test result for drugs or alcohol.

B. Severity level II - Violations involving for example:

I. A system designed to prevent or mitigate serious safety events not being able to perform its intended safety function; 11 The term "system" as UBed in these supplements, includes administrative and managerial control syste~,

u well as physical system!.

12 "Intended safety function" means the total safety function, and is not directed toward a loss of redundancy. A loss of one subsystem does not defeat the intended safety function as long as the other subsystem is operable.

84

2. A licensed operator involved in the.use, sale, or possession of illegal drugs or the consumption of alcoholic*beverages, within the protected area; or

3. A licensed operator at the control of a nuclear reactor, or a senior operator directing licensed activities, involved in procedural errors and who, as a result of subsequent testing, receives a confirmed positive test result for drugs or alcohol.

C. Severity level III - Violations involving for example:

I. A significant failure to comply with the Action Statement for a Technical Specification Limiting Condition for Operation where the appropriate actfon was not taken within the required time, 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.

85

2. A system designed to prevent or mitigate a serious safety event:

(a} 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); or (b) Being degraded to the extent that a detailed evaluation would be required to determine its operability (e.g., component parameters outside approved limits such as pump flow rates, heat exchanger transfer characteristics, safety valve lift setpoints, or valve stroke times);

3. Inattentiveness to duty on the part of licensed personnel;

4. Changes in reactor parameters that cause unanticipated reductions in margins of safety;

5. A significant failure to meet the requirements of 10 CFR 50 .. 59, including a failure such that a required license amendment was not sought;

6. A licensee failure to conduct adequate oversight of vendors resulting in the use of products or services that are of defective or indeterminate quality and that have safety significance;

7. A breakdown in the control of licensed activities involving a number of violations that are related (or, if isolated, that are recurring violations) that collectively represent a potentially significant lack of

86 attention or carelessness toward licensed responsibilities; or

8. A licensed operator's confirmed positive test for drugs or alcohol that does not result in a Severity Level I or II violation.

9. Equipment failures caused by inadequate or improper maintenance that substantially complicates recovery from a plant transient.

D. Severity Level IV - Violations involving for example:

1. A less.significant failure to comply with the Action Statement for a Technical Specification Limiting Condition for Operation where the appropriate action was not taken within the required time*, 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;

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

3. A failure to meet regulatory r.equirements that have more than minor safety or environmental significance; or

87

4. A failure* to make a required Licensee Event Report.

SUPPLEMENT II--PART 50 FACILITY CONSTRUCTION This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of Part 50 facility construction.

A. Severity level I - Violations involving structures or systems that are completed 13 in such a manner that they would not have satisfied their intended safety related purpose.

B. Severity Level II - Violations involving for example:

1. A breakdown in the Quality Assurance (QA) program as exemplified 9 by deficiencies in construction QA related to more than one work activity (e.g., structural, piping, electrical, foundations). These 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 13 1be term *completed" as used in this supplement means completion of construction including review and acceptance by the construction QA organization.

88

2. A structure or system that is completed in such a manner that it could have an adverse effect on the safety of operations.

C. Severity Level III - Violations involving for example:

1. A deficiency in a licensee QA program for construction related to a single work activity (e.g., structural, piping, electrical or foundations).

This 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. A failure to confirm the design safety requirements of a structure or system as a result of inadequate preoperational test program implementation; or

3. A failure to make a required 10 CFR 50.SS(e) report.

D. .Severity Level IV - Violations involving failure to meet regulatory requirements including one or more Quality Assurance Criterion not amounting to Severity Level I, II, or III violations that have more than minor safety or environmental significance.

89 SUPPLEMENT III--SAFEGUARDS This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of safeguards.

A. Severity level I - Violations involving for example:

1. An act of radiological sabotage in which the security system did not function as required and, as a result of the failure, there was a significant event, such as:

(a) A Safety Limit, as defined in 10 CFR 50.36 and the Technical Specifications, was exceeded;

{b) A system designed to prevent or mitigate a serious safety event was not able to perform its intended safety function when actually called upon to work; or (c) An accidental criticality occurred;

2. The theft, loss, or diversion of a formula quantity 14 of special nuclear material (SNM); or 14 See 10 CFR 73.2 for the definition of "formula quantity."

90

3. Actual unauthorized production of a formula quantity of SNM B. Severity Level II - Violations involving for example:

1. The entry of an unauthorized individual 15 who represents a threat into a vital area 16 from outside the protected area;

2. The theft, loss or diversion of SNM of moderate strategic significance 17 in which the security system did not function as required; or

3. Actual unauthorized production of SNM.

C. Severity Level III - Violations involving for example:

I. A failure or inability to control access through established systems or procedures, such that an unauthorized individual (i.e., not authorized unescorted access to protected area) could easily gain undetected 18 access into a vital area from outside the protected area;

• 15 The term "unauthorized individual" as used in this supplement means someone who was not authonzed for entrance into the area in question, or not authorized to enter in the manner entered.

16 The phrase "vital area* as used in this supplement includes vital areas and matenal access areas.

17 See 10 CFR 73.2 for the definition of "special nuclear material of moderate strategic significance.*

111 - In determining whether access can be easily gained, factors such as predactahility, identifiability, and ease of passage should be considered.

• 91

..2. A failure to-conduct any search at ~he access ~ontrol point or conducting an inadequate search that resulted in the introduction to the protected area of firearms, explosives, or incendiary devices and reasonable facsimiles thereof that could significantly assist radiological sabotage or theft of strategic SNM;

• 3. A failure, degradation, or other deficiency of the protected area intrusion detection or alarm assessment systems such that an unauthorized individual who represents a threat could predictably circumvent the system or defeat a specific zone with a high degree of confidence without insider knowledge, or other significant degradation of overall system capability;

4. A significant failure of the safeguards systems designed or used to prevent or detect the theft, Toss, or diversion of strategic SNM;

5. A failure to protect or control classified or safeguards information considered to be significant while th~ information is outside the protected area and accessible to those not authorized access to the protected area;

6. A significant failure to respond to an event either in sufficient time to provide protection to vital equipment or strategic SNM, or with an adequate response force; f

92

7. A failure to perfonn an appropriate evaluation or background

--investigation so that infonnation relevant to the access determination was not obtained or considered and as a result a person, who would likely not have been granted access by the licensee, if the required investigation or evaluation had been performed, was granted access; or

8. A breakdown in the security program involving a number of violations that are related (or, if isolated, that are recurring violations)

• that collectively reflect a potentially significant lack of attention or carelessness toward licensed responsibilities.

D. Severity Level IV - Violations involving for example:

1. A failure or inability to control access such that an unauthorized individual (i.e., authorized to protected area but not to vital area) could easily gain undetected access into a vital area from inside the protected area -

or into a controlled access area;

2. A failure to respond to a suspected event in either a timely manner or with an adequate response force;

3. A failure to implement 10 CFR Parts 25 and 95 with respect to the infonnation addressed under Section 142 of the Act, and the NRC approved security plan relevant to those parts;

93

4. A failure to make, maintain, or provide log entries in accordance with 10 CFR 73.71 (c) and (d), where the omitted information (i) is not otherwise available in easily retrievable records, and (ii) significantly contributes to the ability of either the NRC or the licensee to identify a programmatic breakdown;

5. A failure to conduct a proper search at the access control point;

6. A failure to properly secure or protect classified or safeguards information inside the protected area which could assist an individual in an act of radiologica~ sabotage or theft of strategic SNM where the information was not removed from the protected area;

7. A failure to control access such that an opportunity exists that could allow unauthorized and undetected access into the protected area but which was neither easily or likely to be exploitable;

8. A failure to conduct an adequate search at the exit from a material access area;

9. A theft or loss of SNM of low strategic significance that was not detected within the time period specified in the security plan, other relevant document, or regulation; or

10. Other violations that have more than minor safeguards significance.

94 SUPPLEMENT IV-HEALTH PHYSICS (10 CFR PART 20)

This .supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of health physics, 10 CFR Part 20. 19 A. Sever;ty Level I - Violations involving for example:

1. A radiation exposure during any year of a worker in excess of 25 rems total effective dose equivalent, 75 rems to the lens of the eye, or 250 rads to the skin of the whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue;

2. A radiation exposure over the gestation period of the embryo/fetus of a declared pregnant woman in excess of 2.5 rems total effective dose equivalent;

3. A radiation exposure during any year of a minor in excess of 2.5 rems total effective dose equivalent, 7.5 rems to the lens of the eye, or 25 rems to the skin of the whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue; 19 Personnel overexposures and associated violations incurred during a life-saving or other emergency respoose effort will be treated on a case-by-case basis.

95

4. An annual exposure of a member of the public in excess of 1.0 rem total effective dose equivalent;

5. A release of radioactive material to an unrestricted area at concentrations in excess of 50 times the limits for members of the public as described in 10 CFR 20.1302(b)(2)(i); or

6. Disposal of licensed material in quantities or concentrations in excess of 10 times the limits of 10 CFR 20.2003.

B. Severity Level II - Violations involving for example:

1. A radiation exposure during any year of a worker in excess of 10 rems total effective dose *equivalent, 30 rems to the lens of the eye, or 100 rems to the skin of the whole body, or to the feet, ankles, hands or

- forearms, or to any other organ or tissue;

2. A radiation exposure over the gestation period of the embryo/fetus of a declared pregnant woman in excess of 1.0 rem total effective dose equivalent;

3. A radiation exposure during any year of a minor in excess of 1 rem total effective dose equivalent; 3.0 rems to the lens of the eye, or 10 rems to the skin of the whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue;

96

4. An annual exposure of a member of the public in excess of 0.5 rem total effective dose equivalent;

5. A release of radioactive material to an unrestricted area at concentrations in excess of 10 times the limits for members of the public as described in 10 CFR 20.1302(b)(2)(i) (except when operation up to 0.5 rem a year has been approved by the Co11111ission under Section 20.1301(c)); .

6. Disposal of licensed material in quantities or concentrations in excess of five times the limits of 10 CFR 20.2003; or

7. A failure to make an i11111ediate notification as required by IO CFR 20.2202 (a)(l) or (a)(2).

C. Severity Level III - Violations involving for example:

I. A radiation exposure during any year of a worker in excess of 5 rems total effective dose equivalent~ 15 rems to the lens of the eye, or 50 rems to the skin of the whole body or to the feet, ankles, hands or forearms, or to any other organ or tissue;

2. A radiation exposure over the gestation period of the embryo/fetus of a declared pregnant woman in excess of 0.5 rem total effective dose equivalent (except when doses are in accordance with the provisions of Section 20.1208(d));

97

3. A radiation exposure during any year of a minor in excess of 0.5 rem total effective dose equivalent; 1.5 rems to the lens of the eye, or 5 rems to the skin of the whole body, or to the feet, ankles, hands or forearms, or to any other organ or tissue;

4. A worker exposure above regulatory limits when sueh exposure reflects a programatic (rather than an isolated) weakness in the radiation control program;

5. An annual exposure of a member of the public in excess of 0.1 rem total effective dose equivalent (except when operation up to 0.5 rem a year has been approved by the Co11111ission under Section 20.1301(c));

6. A release of radioactive material to an unrestricted area at concentrations in excess of two times the effluent concentration limits

• referenced in 10 CFR 20.1302(b)(2)(i) (except when operation*up to 0.5 rem a year has been approved by the Commission under Section 20.l30l(c));

7. A failure to make a 24-hour notification required by 10 CFR 20.2202(b) or an immediate notification required by 10 CFR 20.220l(a)(l)(1);

8. A substantial potential for exposures or releases in excess of the applicable limits in 10 CFR Part 20 Sections 20.1001-20.2401 whether or not an exposure or release occurs;

98

9. Disposal of licensed material not covered in Severity Levels I or II;

10. A release for unrestricted use of contaminated or radioactive material or equipment that poses a realistic potential for exposure of the public to levels or doses exceeding the annual dose limits for members of the public, or that reflects a programmatic (rather than an isolated) weakness in the radiation control program;

11. Conduct of licensee activities by a technically unqualified person;

12. A significant failure to control licensed material; or

13. A breakdown in the radiation safety program involving a number of violations that are related {or, if isolated, that are recurring) that collectively represent a potentially significant lack of attention or carelessness toward licensed responsibilities.

D. Severity Level IV - Violations involving for example:

I. Exposures in excess of the limits of 10 CFR 20.1201, 20.1207, or 20.1208 not constituting Severity Level I, II, or III violations;

2. A release of radioactive material to an unrestricted area at concentrations in excess of the limits for members of the public as referenced

99 in 10 CFR 20.1302(b)(2)(i) (except when operation up to 0.5 rem a year has been approved by the Commission under Section 20.I30l(c)); _

3. A radiation dose rate in an unrestricted or controlled area in excess of 0.002 rem in any 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> (2 mil1irem/hour) or 50 millirems in a year;

4. Failure to maintain and implement radiation programs to keep radiation exposures as low as is reasonably achievable;

5. Doses to a member of the public in excess of any EPA generally applicable environmental radiation standards, such as 40 CFR Part 190;

6. A failure to make the 30-day notification required by 10 CFR 20.220l{a)(l){ii) or 20.2203(a);

• 7. A failure to make a timely written report as required by 10 CFR 20.220l(b), 20.2204, or 20.2206; or

8. Any other matter that has more than a minor safety, health, or environmental significance.

SUPPLEMENT V - TRANSPORTATION This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for

100 violations in the area of NRC transportation requirements 20 *

-A. Severity Level I - Violations involving for example:

1. Failure *to meet transportation requirements that resulted in loss of control of radioactive material with a breach in package integrity such that the material caused a radiation exposure to a member of the public and there was clear potential for the public to receive more than .1 rem to the ,,

whole body;

2. Surface contamination in excess of 50 times the NRC limit; or

3. External radiation levels in excess of 10 times the NRC limit.

B. Severity Level II - Violations involving for example:

1. Failure to meet transportation requirements that resulted in loss of control of radioactive material with a breach in package integrity such that there was a clear potential for the member of the public to receive more than .1 rem to the whole body;

io Some transportation requirements are applied to more than one licensee involved in the same activity such as a shipper and a carrier. 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.

101

2. Surface contamination in excess of 10, but not more than 50 times the NRC limit;

3. External radiation levels in excess of five, but not more than 10 times the NRC limit; or

4. A failure to make required initial notifications associated with Severity Level I or II violations.

C. Severity Level III - Violations involving for example:

1. Surface contamination in excess of five but not more than 10 times the NRC limit;

2. External radiation in ~xcess of one but not more than five times

- the NRC limit;

3. Any noncompliance with labeling, placa~ding, shipping paper, packaging, loading, or other requirements that could reasonably result in the following:

(a) A significant failure to identify the type, quantity, or form of material; (b) A failure of the carrier or recipient to exercise adequate controls; or

102

{c) A substantial potential for either personnel exposure or contamination above regulatory limits or improper transfer of material;

4. A failure to make required initial notification associated with Severity Level III violations; or

5. A breakdown in the licensee's program for the transportation of licensed material involving a number of violations that are related {or, if -

isolated, that are recurring violations) that collectively reflect a potentially significant lack of attention or carelessness toward licensed responsibilities.

D. Severity Level IV - Violations involving for example:

1. A breach of package integrity without external radiation levels exceeding the NRC limit or without contamination levels exceeding five times -

the NRC limits;

2. Surface contamination in excess of but not more than five times the NRC limit;

3. A failure to register as an authorized user of an NRC-Certified Transport package;

103

4. A noncompliance with shipping papers, marking, labeling, placarding, packaging or l-0ading not Amounting to a Severit_y Level I, II, or III violation;

5. A failure to demonstrate that packages for special form radioactive material meets applicable regulatory requirements;

6. A failure to demonstrate that packages meet DOT Specifications for 7A Type A packages; or

7. Other violations that have more than minor safety or environmental significance.

SUPPLEMENT VI--FUEL CYCLE AND MATERIALS OPERATIONS This supplement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of fuel cycle and materials operations.

A. Severity level I - Violations involving for example:

l. Radiation levels, contamination levels, or releases that exceed 10 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;

104

3. A nuclear criticality accident; or

4. A failure to follow the procedures of the quality management program, required by Section 35.32, that results in a death or serious injury (e.g., substantial organ -impairment) to a patient.

B. Severity Level II - Violations involving for example:

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

2. A system designed to prevent or mitigate a serious safety event being inoperable; or

3. A substantial programmatic failure in the implementation of the quality management program required by 10 CFR 35.32 that results in a -

misadministration.

C. Severity Level III - Violations involvjng for example:

1. A 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;

105

-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;

6. Substantial failure to implement the quality management program as required by Section 35.32 that does not result in a misadministration; failure to report a misadministration; or programatic weakness in the implementation of the quality management program that results in a misadministration.

7. A breakdown in the control of licensed activities involving a 4t number of violations that are related {or, if isolated, that are recurring violations) that collectively represent a potentially significant lack of attention or carelessness toward licensed responsibilities;

8. A failure, during radiographic operations, to have present or to use radiographic equipment, radiation survey instruments, and/or personnel monitoring devices as required by 10 CFR Part 34;

9. A failure to submit .an NRC Form 241 ~n accordance with the requirements in Section 150.20 of 10 CFR Part 150;

106

10. A failure to receive required NRC approval prior to the implementation of a change in licensed activities that has radiological or progrannnatic significance, such as, a change in ownership; lack of an RSO or replacement of an RSO with an unqualified individual; a change in the location where licensed activities are being conducted, or where licensed material is being stored where the new facilities do not meet safety guidelines; or a change in the quantity or type of radioactive material being processed or used that has radiological significance; or

11. A significant failure to meet deconnnissioning requirements including a failure to notify the NRC as required by regulation or license condition, ~ubstantial failure to meet deco11111issioning standards, failure to

• conduct and/or complete deco11111issioning activities in accordance with regulation or license condition, or failure to meet required schedules without adequate justification.

D. Severity level IV - Violations involving for example:

1. A failure to maintain patients hospitalized who have cobalt-60, cesium-137, or iridium-192 implants or to conduct required leakage or contamination tests, or to use properly calibrated equipment;

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

107

3. Failure to follow the quality management program, including procedures, whether or not a misadmtnistration occurs, provJded the failures

~re isolated, do not demonstrate a progran111atic*weakness in the implementation of the QM program, and have limited consequences if a misadministration is involved; failure to conduct the required program review; or failure *to take corrective actions as required by Section 35.32; or

4. A failure to keep the records required by Sections 35.32 or 35.33.

108 SUPPLENENT VII--MISCELLANEOUS NATTERS This supplement provides examples of violations in each of the four severity levels as guidance 1n determining the appropriate severity level for violations invoiving miscellaneous matters.

A. Severity Level I - Violations involving for example:

I. Inaccurate or incomplete information 21 that is provided to the NRC (a) deliberately wfth the knowledge of a licensee official that the information is incomplete or inaccurate, or (b) if the information, had it been complete and accurate at the time provided, likely would have resulted in regulatory action such as an inrnediate order required by the public health and safety.

2. Incomplete or inaccurate information that the NRC requires be kept by a licensee that is {a) incomplete or inaccurate because of falsification by or with the knowledge of a licensee official, or (b) if the information, had it been complete and accurate when reviewed by the NRC, likely would have resulted in regulatory action such as an imediate order required by public health and safety considerations; 21 In applying the examples in this supplement regarding inaccurate or incomplete information and records, reference should also be made to the guidance in Section IX, "Inaccurate and Incomplete Information,* and to the definition of "licensee official" contained in Section IV .C.

109

3. Information that the licensee has identified as having significant

- implications for .public health and safety or the co111T1on defense and security

. (significant information identified by a licensee) and is deliberately withheld from the Commission;

4. Action by senior corporate management in violation of 10 CFR 50.7 or similar regulations against an employee;

5. A knowing and intentional failure to provide the notice required by 10 CFR Part 21; or

6. A failure to substantially implement the required fitness-for-duty program. 22 B. Severity Level II - Violations involving for example:

1. Inaccurate or incomplete information that is provided to the NRC (a) by a licensee official because of careless disregard for the completeness or accuracy of the information, or (b) if the information, had it been complete and accurate at the time provided, likely would have resulted in regulatory action such as a show cause order or a different regulatory position; 22 The example for violations for fitness-for-duty rt:late to violations of 10 CFR Part 26.

• 110

2. Incomplete or inaccurate information that the NRC requires be kept by a licensee which is {a} incomplete or inaccurate because ~f careless djsregard for the accuracy of the information on the part of a licensee official, or (b} if the information, had it been complete and accurate when reviewed by the NRC, likely would have resulted in regulatory action such as a show cause order or a different regulatory position; 3~ "Significant information identified by a licensee" and not provided to the Corrmission because of careless disregard on the part of a licensee official;

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

5. A failure to provide the notice required by 10 CFR Part 21;

6. A failure to remove an individual from unescorted access who has been involved in the sale, use, or possession of i~legal drugs within the protected area or take action for on duty misuse of alcohol, prescription drugs, or over-the-counter drugs;

7. A failure to take reasonable action when observed behavior within the protected area or credible information concerning activities within the protected area indicates possible unfitness for duty based on drug or alcohol use; I

f*

111

8. A deliberate failure of the licensee's Employee Assistance Program (EAP} to notify licensee's management when EAP's staff is a~are that an individual's condition may adversely affect safety related activities; or

9. The failure of licensee management to take effective action in correcting a hostile work environment.

C. Severjty Level III - Violations involving for example:

1.  !~complete or inaccurate information that is provided to the NRC (a) because of inadequate actions on the part of licensee officials but not amounting to a Severity Level I or II violation, or (b) if the information, had it been complete and accurate at the time provided, likely would have resulted in a reconsideration of a regulatory position or substantial further inquiry such as an additional inspection or a formal request for infor~ation;

2. Incomplete or inaccurate information that the NRC requires be kept by a licensee that is {a) incomplete or inaccurate because of inadequate actions on the part of licensee offi~ials but not amounting to a Severity Level I or II violation, or (b) if the information, had it been complete and accurate when reviewed by the NRC, likely would have resulted in a reconsideration of a regulatory position or substantial further inquiry such as an additional inspection or a formal request for information;

3. A failure to provide ftsignificant information identified by a licenseeft to the Convnission and not amounting to a ~everity Level I or II

112 violation;

4. Ar.i action by first-line supervisi.on in violation of 10 CFR 50.7 or similar regulations against an employee;

5. An inadequate review or failure to review such that, if an appropriate review had been made as required, a 10 CFR Part 21 report would have been made;

6. A failure to complete a suitable inquiry on the basis of 10 CFR Part 26, keep records concerning the denial of access, or respond to inquiries concerning denials of access so that, as a result of the failure, a person previously denied access for fitness-for-duty reasons was improperly granted access;

7. A failure to take the required action for a person confirmed to have been tested positive for illegal drug use or take action for onsite alcohol use; not amounting to a Severity Level II violation;

8. A failure to assure, as required, that contractors or vendors have an effective fitness-for-duty program;

113

9. A breakdown in the fitness-for-duty program involving a number of violations of the basic elements of the fitness-for-duty pr~gram that collectively reflect a significant lack of attention or carelessness towards meeting the objectives of 10 CFR 26.10; or

10. Threats of discrimination or restrictive agreements which are violations under NRC regulations such as 10 CFR 50.7(f).

D. Severity Level IV - Violations involving for example:

1. Incomplete or inaccurate information of more than minor significance that is provided to the NRC but not amounting to a Severity level I, II, or III violation;

2. Information that the NRC requires be kept by a licensee and that 4lt is incomplete or inaccurate and of more than minor significance but not amounting to a Severity Level I, II, or III violation;

3. An inadequate review or failure to review under 10 CFR Part 21 or other procedural violations associated with 10 CFR Part 21 with more than minor safety significance;

4. Violations of the requirements of Part 26 of more than minor significance;

114

5. A *failure to report acts of licensed operators or supervisors pursuant to 10 CFR 26.73; or

6. Discrimjnation cases which, in themselves, do not warrant a Severity Level III categorization.

SUPPLEMENT VIII-EMERGENCY PREPAREDNESS This suppl-ement provides examples of violations in each of the four severity levels as guidance in determining the appropriate severity level for violations in the area of emergency preparedness. It should be noted that citations are not normally made for violations involving emergency preparedness occurring during emergency exercises. However, where exercises

• reveal (i) training, procedural, or repetitive failures for which corrective actions have not been taken, (ii) an .overall concern regarding the licensee's ability to implement its plan in a manner that adequately protects public -

health and safety, or (iii) poor self critiques of the licensee's exercises, enforcement action may be appropriate.

A. Severity Level 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 local agencies, or (3) respond to the event (e.g., assess actual or potential offsite consequences, activate emergency response facilities, and augment shift staff.)

115 B. Severity Level II - Violations involving for example:

1. In a site 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 (e.g., assess actual or potential offsite consequences, activate emergency response f~cilities, and augment shift staff); or

2. A licensee failure to meet or implement one emergency planning standard involving assessment or notification.

C. Severjty Level III - Violations involving for example:

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

2. A licensee failure to meet or implement more than one emergency planning standard involving assessment or notification; or

3. *A breakdown in the control of licensed activities involving a number of violations that are related {or, if isolated, that are recurring violations) that collectively represent a potentially significant lack of attention or carelessness toward licensed responsibilities.

116 D. Severity Level IV - Violations involving for example:

A licensee failure to meet or implement any emergency planning standard or requirement not directly related to assessment and notification.

Dated at Rockville, -Maryland, this _;:JJ% o f ~ 1995.

For the Nuclear Regulatory Co1T111ission.

Secretary of the Commission.

7

From: Roger Davis To: WNP2.ELJ Date: 10/29/96 11 :09am

Subject:

Public Comment period on Revised Enforcement Policy On June 30, 1995 (60 FR 34381), the Commission's revised enforcement policy was published. While the revised policy became effective on June 30, comments were intivted on before 8/14/95. I'd like to see the file with any such comments. Thanks.

CC: WNP2.CWC

STATUS OF ROLEMAKING PROPOSED RULE: PR-002 OPEN ITEM (Y/N) N RULE NAME: REVISION OF THE NRC ENFORCEMENT POLICY PROPOSED RULE FED REG CITE: 60FR34381 PROPOSED RULE PUBLICATION DATE: 06/30/95 NUMBER OF COMMENTS: 5 ORIGINAL DATE FOR COMMENTS: 08/14/95 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: FINAL RULE PUBLICATION DATE: I I NOTES ON:

STATUS OF RULE:

HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE: REVISION OF THE NRC ENFORCEMENT POLICY PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 06/23/95 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: I I STAFF CONTACTS ON THE RULE CONTACTl: JAMES LIEBERMAN MAIL STOP: 0-7H-5 PHONE: 415-2741 CONTACT2: MAIL STOP: PHONE: