ML23156A129

PR-MISC. - 61FR54461 - Policy and Procedure for Enforcement Action, Departures from FSAR

ML23156A129
Person / Time
Issue date:	10/18/1996
From:	Hoyle J NRC/SECY
To:
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PR-MISC., 61FR54461
Download: ML23156A129 (1)

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ADAMS Template: SECY-067 10/18/1996 PR-MISC. - 61 FR54461 - [NUREG-1600] POLICY AND PROCEDURE FOR ENFORCEMENT ACTION, DEPARTURES FROM FSAR PR-MISC.

61FR54461 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NO. PR-MISC.

(61FR54461)

In the Matter of NUREG-1600 POLICY AND PROCEDURE FOR ENFORCEMENT ACTION; DEPARTURES FROM FSAR DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 10/15/96 10/11/96 POLICY STATEMENT: REVISION.

11/19/96 11/18/96 COMMENT OF FOUR UTILITIES (TU ELECTRIC, HLlP, IES l IPC)

(STEVEN P. FRANTZ, ESQ.) (

1) 11/21/96 11/20/96 COMMENT OF ARIZONA PUBLIC SERVICE COMPANY (STEVEN P. FRANTZ, ESQ.) (

2) 11/29/96 11/18/96 COMMENT OF COMMONWEALTH EDISON COMPANY (JOHN C. BRONS, V.P.) (

3) 12/02/96 12/02/96 COMMENT OF NUCLEAR ENERGY INSTITUTE (ROBERT W. BISHOP, V.P.) (

4) 01/16/97 01/11/97 COMMENT OF L.A. GRIME AND ASSOCIATES, INC.

(LARRY A. GRIME, PRESIDENT) (

5)

L. A. Grime and Associates, Inc. @

860 Sandalwood Road West Perrysburg, OH 43551 419/872-9992 Fax: 419/874-9949 January 11, 1997 DOCKET NUMBER PROPOSED RULE A1:se... -

( lo / F~5tllflol)

The Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Services Branch

Subject:

Policy an Procedure for Enforcement Actions; Departure From FSAR I wish to comment on the subject policy published in the Federal Register on October 18, 1996.

The subject notice included the comment on page 54461 :

"However, 10 CFR 50.59 is also used to form the basis for citations when the facility or procedures never met the description in the FSAR. These cases represent de facto changes from the FSAR. A failure of the facility to conform to the FSAR may also mean that the FSAR may contain inaccurate or incomplete information, subjecting the licensee to enforcement action for a violation of 10 CFR 50.59."

I disagree with this comment. Regulation 10 CFR 50.59 applies only to changes, tests and experiments. If the FSAR never properly described the facility or the procedures, this means that the plant configuration or procedures were fixed before the original license was issued. Prior to the license being issued, regulation 10 CFR 50.59 did not apply. If the regulation did not apply when the change was made, there can be no violation of 10 CFR 50.59.

I do not wish to imply that it is acceptable for variances to exist between the plant configuration and the FSAR-to the contrary, they need to be in agreement. However, the violation is not a violation of 10 CFR 50.59.

Please call if you have any q stions or comments.

~*

Larry A. Grime, res, ent JAN 3 0 1997

J.S. NUCLEAR REGULATORY COMMl~ltlr.

DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmark Date-------*

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December 2, 1996 Mr. John C. Hoyle Secretary NUCLEAR ENERGY INSTITUTE "96 O[C -2 P ~~Jk Willis Bishop VICE PRESIDENT &

DOCKET NUMBER PROPOSED RULE PR /'1 t s c -

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

( 6 I F le S LI '-161}

ATTENTION:

Dear Mr. Hoyle:

Docketing and Service Branch Policy and Procedures for Enforcement Actions; Departure from FSAR (61 Fed. Reg. 54,461, October 18, 1996).

On behalf of the nuclear industry, the Nuclear Energy Institute (NEI) 1 hereby submits the following comments on the NRC's revision of the Enforcement Policy (NUREG-1600), Policy and Procedures for Enforcement Actions; Departures from FSAR (61 Fed. Reg. 54,461, October 18, 1996). The revisions of the Enforcement Policy were published for comment in the Federal Register and became effective on October 18, 1996.

NUREG-1600 is being revised to include a number of examples of potential enforcement actions based upon departures from the FSAR. In general, the examples are helpful; however, we do have the following specific concerns.

First, example I.B.4 addresses inspection findings involving a number of failures to meet 10 CFR 50.59 which include several unreviewed safety questions or conflicts with technical specifications "... involving a broad spectrum of problems affecting multiple areas," some of which impact operability of required equipment. We are concerned that "a broad spectrum of problems affecting multiple areas" is too broad a criteria to be used in making an enforcement determination.

1 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.

JAN Q 7 1997 Acknowledged by card................,, *.......,,;.

1776 I STREET, NW SUITE 400 WASHINGTON, DC 20006 - 3708 PHONE 202.739. 8139 FAX 202.785.1898

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Mr. John C. Hoyle December 2, 1996 Page 2 Second, example I.D.7 should be categorized as an example of a minor violation. A Level IV violation might be appropriate only if, as noted in the example under Minor Violation (61 Fed. Reg. 54,466), the failure to update the FSAR would have a material impact on safety or licensed activity.

Finally, example I.D.8 also should be moved to the minor violation category.

NUREG-1600 states, "Severity Level IV violations are less serious but are of more than minor concern; i.e., ifleft uncorrected, they could lead to a more serious concern." We are particularly concerned about the severity level assigned to this example because both the cause and the impacts of past programmatic issues already have been corrected (61 Fed. Reg. 54,463).

Thank you for your consideration of these comments. Please do not hesitate to call me if you have any questions or would like to discuss them further.

Commonwealth Edison Company 1400 Opus Place Downers Grove. IL 60515-5701 November 18, 1996 The Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Service Branch OOCKET NUMBER PROPOSED RULE PR DOC E ET E O ( 6 / F R._ 5-=--~.::.;;.'-.....,

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'96 NO" 29 P 4 :Ql ComEd

SUBJECT:

Commonwealth Edison (ComEd) Comments on Policy and Procedure for Enforcement Actions; Departures From FSAR (FR 54461, Vol. 61, No. 203)

The purpose of this memo is to provide comments to the NRC Staff on the revision to its General Statement of Policy and Procedure for Enforcement Actions as applied to departures from the Final Safety Analysis Report. The comment period for this revision of the policy expires November 18, 1996. CornEd's comments are provided below:

CornEd's comparison of this portion (i.e., SUPPLEMENTARY INFORMATION) of the policy revision identified an apparent discrepancy within a later section of the policy statement, regarding the following section:

"In some cases, the departure from the FSAR, if it does not involve a change to the facility, procedures, or tests or experiments described in the FSAR, may not cause the licensee to be in violation of any legal requirement. In such cases, the departure from the FSAR would not be a violation, and only a Notice of Deviation may be warranted."

ComEd agrees with the above statement. However, in later portions of this policy statement, most notably, Section 1 - Severity Levels, within the discussion regarding Severity Level III violations, the following excerpt appears to conflict with the aforementioned statement and is incongruous:

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"It also includes situations not involving an unreviewed safety question where the licensee would need to perform a detailed evaluation before it would have had a reasonable expectation that an unreviewed safety question was not involved without the performance of a detailed evaluation. This is significant because of the importance of licensees using the required process for maintaining and operating the facilities in accordance with the design and procedures described in the FSAR when there is uncertainty as to whether an unreviewed safety question is present. An after-the-fact evaluation that demonstrates that an unreviewed safety question was not involved would, in general, not mitigate the regulatory significance of failing to perform an appropriate evaluation prior to implementation of the change."

This policy revision appears in conflict with NRC staff guidance provided to licensees in Generic Letter 91-18 and the statement within the basis for issuing a Level III violation:

k:\generic\fsarplcy.doc JAN O 7 1997

~cknowtedged by card A l 'nicom Company

U.S. NUC t.~,.:-. ;-,? :ULA TORY COMMtS~IUN DOC1>.:= ' ;~ G tr. ::;ERVICE SECTION Off\(;t_,. F THE SECRETARY Of THE COMMISSION DoCUtilent Statistics Postmark Dat'l topies necaivod ________ _

Add'I Copia Reproduced _____ _

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U.S. Nuclear Regulatory Commission November 18, 1996 "A significant failure to meet the requirements of 10 CFR 50.59, including a failure such that a required license amendment was not sought."

If an issue arises where an after-the-fact evaluation shows that an unreviewed safety question does not exist, then it is inappropriate to submit this issue to the NRC staff for review and approval as required by 10 CFR 50.59. We agree that the above example highlights imprudent action and poor application of engineering evaluation. However, the above statement within the policy revision is subjective language, destined for inconsistent application and does not appear to result in a violation of a legal requirement to the extent that a Severity Level III violation is warranted. We believe that the incongruity between a policy where a FSAR discrepancy is treated as a deviation when such a discrepancy does not involve a change to the facility, procedures, or tests or experiments described in the FSAR, and a FSAR change where an unreviewed safety question does not exist, indirectly results in a retroactive change to 10 CFR 50.59 (default to an unreviewed safety question and submit license amendment requests). We recommend that the NRC staff re-evaluate its proposed policy change and apply its rulemaking methodology, where appropriate.

Upon issuance of plant licenses, the SAR/FSAR's were issued without complete evaluations of situations where minor deviations were expected to be permitted without explicit discussion and description in the plant safety analyses. Plant application of the SAR/FSAR as updated through the UFSARs has generally been accomplished on a case-by-case basis using plant policies, procedures or other administrative means. The NRC staff has been inspecting and assessing our plants for over 25 years, thus providing implicit acceptance (unless otherwise noted and cited) of such plant policies, procedures and administrative means. We believe such a change in policy by the NRC does result in a backfit to our accepted plant policies, procedures, licensing basis and should be evaluated, by the NRC staff, per the provisions of 10 CFR 50.109.

Please feel free to contact this office if you have any questions pertaining to this review.

Sincerely, bee: Attachment - Recommendations lc.:\gener ic\fsar pky.doc

RECOMMENDATIONS In Section 4, Old Design Issues, the NRC staff policy addressees:

11

• • • enforcement discretion for old design issues and may be applicable to some 10 CFR 50.59 violations to the extent that voluntary action by a licensee identifies a past problem, such as in engineering, design, or installation. This discretion addresses violations that would not likely be identified by routine licensee efforts such as normal surveillance or quality assurance activities. Identification of past violations through required efforts would be treated using the normal policy.

11 Furthermore, the NRC staff is willing to exercise discretion for identification of old design issues if an extraordinary inspection effort is undertaken by licensees and such an inspection effort is described to the NRC staff in writing. The period of time encompassed by this policy change is two years. For such initiatives to be fruitful, ComEd's Engineering organization needs to evaluate the benefits of undertaking such an initiative. develop a plan which includes the scope and schedule of proposed corrective actions to address identified discrepancies. This plan needs to be provided to the NRC staff such that the initiative is complete prior to October 18, 1998.

k:\generic\fsarplcy.doc

1800 M Street, N.W.

Washington, D.C. 20036-5869 202-467-7000 Fa~: 202-467-7176 Steven P. Frantz 202-467-7460 November 20, 1996 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 DOCKE ED US R

'96 NOV 21 P 3 : l 7 Morgan, Lewis

& Bockius 11P COUNSELORS AT LAW DOCKET NUMBER PROPOSED RULE PR 15 c A

(61 f (< 5L/'16,j ATTN: Docketing and Service Branch RE:

Revision of Policy and Procedure on Enforcement Actions~ Departures from FS~ 61 Fed. Reg. 54461 (October 18, 1996)

Dear Sir:

On October 18, 1996, NRC published a revision to its enforcement policy related to departures from Final Safety Analysis Reports (FSARs). Arizona Public Service Company (APS) endorses the attached comments submitted by Morgan, Lewis & Bockius LLP on November 18, 1996 on the revised enforcement policy. On behalf of APS, we also request that the NRC consider the following additional comment.

Under the revised enforcement policy, NRC will not apply its normal escalation and mitigation factors for FSAR nonconformances identified more than two years after October 18, 1996.

NRC's stated purpose in establishing this two-year limitation is to encourage licensees to establish and implement such initiatives within the next two years. However, two years may not be sufficient to complete an FSAR review, especially for newer plants that have extensive FSARs.

Therefore, we believe that the enforcement policy should be revised to continue to allow for mitigation ofFSAR nonconformances identified after the end of the two-year period if the licensee has not been dilatory in implementing its FSAR review program.

The revised enforcement policy appears to be predicated upon the assumption that licensees have already had sufficient time to conduct FSAR reviews. The revised enforcement policy states that the previous mitigation policy was established in the early 1990s "to encourage voluntary initiatives to establish design reconstitution programs." (Emphasis added). However, as recognized by NRC in its October 9, 1996 letters under Section 50.54(t), the design basis is a subset of the licensing basis in the FSAR. As a result, previous design reconstitution programs (e.g., pursuant to NUMARC 90-12) would have a smaller scope than an FSAR review.

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JAN O 7 1997

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Therefore, even if a licensee previously conducted a design reconstitution program in the early 1990s, it may still desire to conduct an FSAR review now. Because an FSAR review may take longer than two years to implement, we believe that mitigation should be allowed as long as the FSAR review is progressing at a reasonable pace.

Thank you for the opportunity to submit these additional comments on the revised enforcement policy.

7/l~f~f Steven P. Frantz cc:

Angela Krainik (APS)

'.BCC M Stree!. " N Was~,ngtcn. JC ~0036-5869 202-467-7CCO Fax. 202-467-7 176 Steven P. Frantz 202-467-7460 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 November 18, 1996 ATTN: Docketing and Service Branch Morgan, Lewis

& Bockius LLP C OU~SELORS AT LAW RE:

Revision of Policy and Procedure on Enforcement Actions; Departures from FSAR; 61 Fed. Reg. 54461 (October 18, 1996)

Dear Sir:

On October 18, 1996, NRC published a revision to its enforcement policy related to departures from Final Safety Analysis Reports (FSARs). Although the revision was immediately effective, the NRC requested comments on it. On behalf of Texas Utilities Electric Company, Houston Lighting & Power Company, IES Utilities, Inc, and Illinois Power Company, we are submitting the following comments on the revised enforcement policy.

Two-Year Period Under the revised enforcement policy, NRC will not apply its nonnal escalation and mitigation factors for FSAR nonconfonnances identified more than two years after October 18, 1996, and "intends to use its discretion to increase the fine" for such violations. Additionally, the revised enforcement policy states that NRC will allow mitigation for FSAR nonconfonnances identified by NRC, only if they would likely be identified as a result of a voluntary licensee initiative during the next two years. NRC's stated purpose in establishing this two-year limitation is to encourage licensees to establish and implement such initiatives within the next two years.

NRC's revised policy will have the effect of penalizing licensees who find problems as a result of routine efforts after the end of this two year period. The revised policy will also have the effect of penalizing licensees who establish voluntary initiatives after the two year period, because FSAR nonconfonnances identified by NRC while inspecting those initiatives could result in civil penalties even if the initiative would have likely identified the nonconfonnance. We believe that such penalties are inappropriate. NRC should not discourage efforts which could contribute to safety. We appreciate NRC's desire to encourage licensees to complete voluntary initiatives within the next two years; however, this goal can be accomplished without the punitive features of the revised policy. In particular, we believe that:

Philadelphia Washington New York Los Angeles Miami Harrisburg Princeton London Brussels Frankfurt Tokyo

The previous policy should remain in effect for those licensees that have provided reasonable assurance of conformance with the FSAR, either be means of a voluntary initiative prior to the end of the two year period or through previously completed programs or initiatives. NRC's policy should have the effect of encouraging licensees to identify their own problems. Instead, the revised enforcement policy would have the effect of penalizing licensees who self-identify FSAR nonconformances after the end of the two-year period, even in cases where a licensee had previously taken appropriate actions to assure conformance with the FSAR.

Under 10 CFR § 50.7l(e), licensees are required to update their FSARs periodically.

During the updating process, licensee personnel should be encouraged to identify FSAR nonconf ormances. Instead, the revised enforcement policy will penalize licensees who identify such nonconformances. We believe that such a penalty is inappropriate and sends the wrong message to licensees and their personnel.

As stated in the Introduction and Purpose ofNRC's enforcement policy, one of the primary purposes ofNRC enforcement action is "to encourage prompt identification and prompt, comprehensive correction of violations." We believe that some of the revisions to the enforcement policy are inconsistent with this purpose and will have the effect of penalizing licensee who identify FSAR nonconformances. Accordingly, we recommend that the enforcement policy be revised to eliminate such punitive features.

Requirement for Initiative to be in Writina and Publicly Available The revised policy states that mitigation will be allowed only if the voluntary initiative is described in writing, incorporated in a publicly available document, and followed by NRC as an inspection report open item. This may inadvertently penalize those licensees who find problems through other, less formal, initiatives. For example, a problem identified by an alert employee outside the formal initiative would not qualify for mitigation under the revised policy, even in cases where the licensee established special training or incentives to promote identification of problems. Such behavior should be encouraged even if it is not part of a written, publicly available initiative.

Accordingly, NRC should revise its policy to allow mitigation when a problem is found as a result of any voluntary initiative and is promptly corrected.

Multiple Violations The revised policy states that NRC will issue a Severity Level II citation for multiple violations involving several unreviewed safety questions or conflicts with the technical specifications, if there is an impact on operability. Additionally, the revised policy states that NRC will consider assessing separate civil penalties for each violation that is aggregated into the Severity Level II citation -- in other words, NRC may "double count" violations by aggregating violations to establish a higher severity level and then treating the violations separately for purposes of determining the amount of the civil penalty. We do not believe this is appropriate. If several 2

Severity III violations exist, NRC should determine the amount of the civil penalty either by aggregating the violations and assessing the base civil penalty for one Severity Level II citation or by assessing multiple penalties for Severity Level III violations, but not both.

Duration of the Violation The revised policy implies that NRC may assess a civil penalty for each day that an FSAR nonconformance existed. This represents a radical departure from NRC's past practice, in which NRC typically has treated FSAR nonconformances as one-time occurrences rather than continuous violations. Since FSAR nonconformances generally occur months if not years before being found, it is apparent that the revised policy may result in extraordinary civil penalties.

We believe that, absent unusual circumstances, NRC should continue to treat FSAR nonconformances as one-time occurrences. For example, Section VIIA.3 of the enforcement policy states that a civil penalty will be issued for each day a violation existed "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." Typical FSAR nonconformances satisfy neither of these criteria and therefore do not warrant a separate civil penalty for each day the nonconformance existed. A contrary approach may result in civil penalties that are wholly disproportionate to the underlying safety significance of the violation and may lead to contentious and adversarial enforcement proceedings.

Not All FSAR Nonconfonnances Are Violations Although the revised enforcement policy states that an FSAR nonconformance may be subject to a Notice of Deviation, it appears to emphasize treatment ofFSAR nonconformances as violations of 10 CFR § 50.59, 10 CFR § 50.9, or an underlying regulation. Given the massive amount of detail in FSARs (especially FSARs for recently licensed plants}, many if not most FSAR nonconformances only rise to the level of a Deviation. Accordingly, we believe that the enforcement policy should be revised to provide for a more balanced discussion of the likely enforcement ramifications of an FSAR nonconformance - - the discussion should not be tilted in favor of issuance of violations. Furthermore, although implicit in the revised policy, it should explicitly state that a notice of violation cannot be issued against the FSAR itself but only against a regulation, order, or license requirement.

Thank you for allowing this opportunity for comment Sincerely,

/i1 41-~f Steven P. Frantz 3

cc:

Roger Walker (Texas Utilities Electric Company)

Kenneth Peveler (IES Utilities, Inc.)

Mark McBurnett (Houston Lighting & Power Company)

Paul Telthorst (Illinois Power Company) 4

1800 M Street, N.W.

Washington, D.C. 20036-5869 202-467-7000 OOCKE ED U"'NR1.J 0M0r00ln, Lewis 1c 'f- ~.a.ki

• t:, Boe us LLP Fax: 202-467-7176

• 96 NO 19 P :58 L AW Steven P. Frantz 202-467-7460 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch DOCKET NUMBER t-.....1

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RE:

Revision of Policy and Procedure on Enforcement Actions; Departures from FSAR; 61 Fed. Reg. 54461 (October 18, 1996)

Dear Sir:

On October 18, 1996, NRC published a revision to its enforcement policy related to departures from Final Safety Analysis Reports (FSARs). Although the revision was immediately effective, the NRC requested comments on it. On behalf of Texas Utilities Electric Company, Houston Lighting & Power Company, IES Utilities, Inc, and Illinois Power Company, we are submitting the following comments on the revised enforcement policy.

Two-Year Period Under the revised enforcement policy, NRC will not apply its normal escalation and mitigati.on factors for FSAR nonconformances identified more than two years after October 18, 1996, and "intends to use its discretion to increase the fine" for such violations. Additionally, the revised enforcement policy states that NRC will allow mitigation for FSAR nonconformances identified by NRC, only if they would likely be identified as a result of a voluntary licensee initiative during the next two years. NRC's stated purpose in establishing this two-year limitation is to encourage licensees to establish and implement such initiatives within the next two years.

NRC's revised policy will have the effect of penalizing licensees who find problems as a result of routine efforts after the end of this two year period. The revised policy will also have the effect of penalizing licensees who establish voluntary initiatives after the two year period, because FSAR nonconformances identified by NRC while inspecting those initiatives could result in civil penalties even if the initiative would have likely identified the nonconformance. We believe that such penalties are inappropriate. NRC should not discourage efforts which could contribute to safety. We appreciate NRC's desire to encourage licensees to complete voluntary initiatives within the next two years; however, this goal can be accomplished without the punitive features of the revised policy. In particular, we believe that:

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The previous policy should remain in effect for those licensees that have provided reasonable assurance of conformance with the FSAR, either be means of a voluntary initiative prior to the end of the two year period or through previously completed programs or initiatives. NRC's policy should have the effect of encouraging licensees to identify their own problems. Instead, the revised enforcement policy would have the effect of penalizing licensees who self-identify FSAR nonconformances after the end of the two-year period, even in cases where a licensee had previously taken appropriate actions to assure conformance with the FSAR.

Under 10 CFR § 50.71(e), licensees are required to update their FSARs periodically.

During the updating process, licensee personnel should be encouraged to identify FSAR nonconformances. Instead, the revised enforcement policy will penalize licensees who identify such nonconformances. We believe that such a penalty is inappropriate and sends the wrong message to licensees and their personnel.

As stated in the Introduction and Purpose ofNRC's enforcement policy, one of the primary purposes of NRC enforcement action is "to encourage prompt identification and prompt, comprehensive correction of violations." We believe that some of the revisions to the enforcement policy are inconsistent with this purpose and will have the effect of penalizing licensee who identify FSAR nonconformances. Accordingly, we recommend that the enforcement policy be revised to eliminate such punitive features.

Requirement for Initiative to be in Writing and Publicly Available The revised policy states that mitigation will be allowed only if the voluntary initiative is described in writing, incorporated in a publicly available document, and followed by NRC as an inspection report open item. This may inadvertently penalize those licensees who find problems through other, less formal, initiatives. For example, a problem identified by an alert employee outside the formal initiative would not qualify for mitigation under the revised policy, even in cases where the licensee established special training or incentives to promote identification of problems. Such behavior should be encouraged even if it is not part of a written, publicly available initiative.

Accordingly, NRC should revise its policy to allow mitigation when a problem is found as a result of any voluntary initiative and is promptly corrected.

Multiple Violations The revised policy states that NRC will issue a Severity Level II citation for multiple violations involving several unreviewed safety questions or conflicts with the technical specifications, if there is an impact on operability. Additionally, the revised policy states that NRC will consider assessing separate civil penalties for each violation that is aggregated into the Severity Level II citation -- in other words, NRC may "double count" violations by aggregating violations to establish a higher severity level and then treating the violations separately for purposes of determining the amount of the civil penalty. We do not believe this is appropriate. If several 2

Severity III violations exist, NRC should determine the amount of the civil penalty either by aggregating the violations and assessing the base civil penalty for one Severity Level II citation or by assessing multiple penalties for Severity Level III violations, but not both.

Duration of the Violation The revised policy implies that NRC may assess a civil penalty for each day that an FSAR nonconformance existed. This represents a radical departure from NRC's past practice, in which NRC typically has treated FSAR nonconformances as one-time occurrences rather than continuous violations. Since FSAR nonconformances generally occur months if not years before being found, it is apparent that the revised policy may result in extraordinary civil penalties.

We believe that, absent unusual circumstances, NRC should continue to treat FSAR nonconformances as one-time occurrences. For example, Section VIIA.3 of the enforcement policy states that a civil penalty will be issued for each day a violation existed "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." Typical FSAR nonconformances satisfy neither of these criteria and therefore do not warrant a separate civil penalty for each day the nonconformance existed. A contrary approach may result in civil penalties that are wholly disproportionate to the underlying safety significance of the violation and may lead to contentious and adversarial enforcement proceedings.

Not All FSAR Nonconformances Are Violations Although the revised enforcement policy states that an FSAR nonconformance may be subject to a Notice of Deviation, it appears to emphasize treatment ofFSAR nonconformances as violations of 10 CFR § 50.59, 10 CFR § 50.9, or an underlying regulation. Given the massive amount of detail in FSARs (especially FSARs for recently licensed plants), many if not most FSAR nonconformances only rise to the level of a Deviation. Accordingly, we believe that the enforcement policy should be revised to provide for a more balanced discussion of the likely enforcement ramifications of an FSAR nonconformance - - the discussion should not be tilted in favor of issuance of violations. Furthermore, although implicit in the revised policy, it should explicitly state that a notice of violation cannot be issued against the FSAR itself but only against a regulation, order, or license requirement.

Thank you for allowing this opportunity for comment 3

I J

cc:

Roger Walker (Texas Utilities Electric Company)

Kenneth Peveler (IES Utilities, Inc.)

Mark McBurnett (Houston Lighting & Power Company)

Paul Telthorst (Illinois Power Company) 4

DOCKET NUMBER PROPOSED RULE PR t1 I *g V

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[NUREG - 1600]

Policy and Procedure for Enforcement Actions; Departures from FSAR AGENCY:

Nuclear Regulatory Commission.

ACTION:

Policy statement:

Revision.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its General Statement of Policy and Procedure for Enforcement Actions (Enforcement Policy) to address issues associated with departures from the Final Safety Analysis Report.

DATES:

Register].

This revision is effective on Comments are due on or before Federal Register).

1 o J, rl er 6

[Date of Publication in the Federal 11/1k'.l°!h (30 days after publication in the ADDRESSEES: Send written comments to:

The Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555, ATTN:

Docketing and Service Branch.

Deliver comments to:

11555 Rockville Pike, Rockville,

Maryland 20852, between 7:45 am and 4:15 pm, on Federal workdays.

Copies of comments 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:

As a result of increased regulatory attention to Part 50 licensees' adherence to the Final Safety Analysis Report and the Updated Final Safety Analysis Report (FSAR), both licensees and NRC have identified numerous failures to conform to these documents.

Given these findings, the Commission has reviewed the current Enforcement Policy to determine if additional guidance is needed to treat compliance issues associated with departures from the FSAR.

The Commission has concluded that the guidance in the current Enforcement Policy, NUREG-1600, published in the Federal Register (60 FR 34381; June 30, 1995) should be revised.

Many operating licenses contain a finding which states that the licensed facility is as described in the FSAR, as amended and revised.

In accordance with 10 CFR 50.59, the Commission allows licensees to make changes to the facility or procedures described in the FSAR and to perform certain tests or experiments not described in the FSAR without prior NRC approval provided evaluations are performed to demonstrate that the change does not involve an 2

unreviewed safety question and the change does not conflict with a technical specification. Specifically, 10 CFR 50.59(a) provides:

The holder of a license authorizing operation of a production or utilization facility may (i) make changes in the facility as described in the safety analysis report, (ii) make changes in the procedures as described in the safety analysis report, and (iii) conduct tests or experiments not described in the safety analysis report, without prior Commission approval, unless the proposed change, test, or experiment involves a change in the technical specifications incorporated in the license or an unreviewed safety question.

If an unreviewed safety question or a change to a technical specifications is involved, 10 CFR 50.59(c) requires that the licensee submit an application for a license amendment pursuant to 10 CFR 50.90, before making the change or departing from the FSAR.

Section 50.59(b) requires that the evaluation be documented in writing and maintained and reports of the changes be submitted to the Commission.

Periodic updates to the FSAR are required by 10 CFR 50.7l(e) to reflect changes made under 10 CFR 50.59.

The regulatory process is predicated on the assumption that when the license is issued, the facility, procedures, tests, and experiments will be as described in the FSAR.

Thus, 10 CFR 50.59 is primarily a prospective requirement.

Section 50.59 requires a process to be followed in evaluating 3

proposed changes from the description of the facility and its procedures described in the FSAR.

However, 10 CFR 50.59 is also used to form the basis for citations when the facility or procedures never met the description in the FSAR.

These cases represent de facto changes from the FSAR.

A failure of the facility to conform to the FSAR may also mean that the FSAR may contain inaccurate or incomplete information, subjecting the licensee to enforcement action for a violation of 10 CFR 50.9.

In addition, failure to meet a specific commitment in the FSAR which describes how the licensee was to meet a regulatory requirement, may be a violation of that regulatory requirement.

In some cases, the departure from the FSAR, if it does not involve a change to the facility, procedures, or tests or experiments described in the FSAR, may not cause the licensee to be in violation of any legal requirement.

In such cases, the departure from the FSAR would not be a violation, and only a Notice of Deviation may be warranted.

Thus, there are a variety of requirements that can be used to form the basis for enforcement action to address departures from the FSAR.

Each potential enforcement case is reviewed on its merits to determine which requirement, or set of requirements, is appropriate to base the enforcement action on.

Given a violation of NRC requirements, the next step in the process is to determine the severity level of the violation based on the safety and regulatory significance of the violation. The Enforcement Policy provides definitions of severity levels (Section IV. Severity of Violations) and examples (Supplements I - VIII) which are used in categorizing the 4

severity levels nf violations.

Revisions to the NRC Enforcement Policy Given the variety of discrepancies from the FSARs that have been recently found, additional guidance has been developed to address severity levels to categorize violations of 10 CFR 50.59 and 50.7l(e) and reporting requirements, application of the corrective action factor in Section VI.B.2.c.

of the Enforcement Policy, use of Section VII.B.3 of the Enforcement Policy, Enforcement Discretion for Violations Involving Old Design Issues, and applying enforcement discretion to increase sanctions in this area under Section VII.A.2 of the Enforcement Policy.

In developing this guidance, the Commission considered the following two principles: (1) the importance of licensees performing appropriate evaluations to ensure that there are not unreviewed safety questions or conflicts with technical specifications, and (2) the importance of maintaining and controlling changes to the FSAR so that both the licensee and the NRC understand the regulatory envelope that has been established for the facility.

The changes to the Enforcement Policy described below should make it clear to licensees that the Commission believes that failures in either area can be significant and can justify substantial regulatory action.

The Commission recognizes that not every unreviewed safety question is a significant safety issue.

However, until the question is reviewed and 5

understood, there is an uncertainty in the basis for the Commission's safety decision in licensing the plant. Therefore, the failure to follow the regulatory process established by 10 CFR 50.59, regardless of the actual safety significance of the change, when there is an unreviewed safety question or a conflict with a technical specification, is a significant regulatory concern.

Licensees must ensure that they are in conformance with the FSAR as it was a key element for the basis for the Commission's decision in licensing the plant and continues to be an important consideration in current licensing actions.

The enforcement process is a tool that the Commission intends to use to emphasize the importance of achieving this conformance and deter violations from continuing in this area.

1.

Severity Levels The definitions and examples of severity levels in the current Enforcement Policy provide sufficient guidance to cover most potential violations. Additional guidance is needed to address violations of 10 CFR 50.59 and 50.7l(e) which are the requirements that likely will most often be used to address departures from the FSAR.

Currently, two specific examples are provided to categorize violations of 10 CFR 50.59 in Supplement I, Reactor Operations and no examples specifically address violations of 10 CFR S0.7l{e).

6

The first example, I.C.5, provides that a Severity Level III violation would involve:

A significant failure to meet the requirements of 10 CFR 50.59, including a failure such that a required license amendment was not sought.

This example includes changes involving unreviewed safety questions and conflicts with technical specifications. It also includes situations not involving an unreviewed safety question where the licensee would need to perform a detailed evaluation before it would have had a reasonable expectation that an unreviewed safety question was not involved without the performance of a detailed evaluation. This is significant because of the importance of licensees using the required process for maintaining and operating the facilities in accordance with the design and procedures described in the FSAR when there is uncertainty as to whether an unreviewed safety question is present.

An after-the-fact evaluation that demonstrates that an unreviewed safety question was not involved would, in general, not mitigate the regulatory significance of failing to perform an appropriate evaluation prior to implementation of the change.

The second example, I.D.2, provides that a Severity Level IV violation would be a failure to meet the requirements of 10 CFR 50.59 that does not result in a Severity Level I, II, or III violation.

Revised Examples of Severity Levels 7

Consistent with the above two principles, the changes to the Enforcement Policy provide additional examples to categorize severity levels for violations associated with failures to meet the FSAR.

The current two examples described above are deleted and the following ten examples are being added to the policy:

Severity Level II One example of a Severity Level II problem (the term "problem" is used here since more than one violation is involved) is proposed.

Example I.B.4 1 addresses inspection findings involving a number of failures to meet 10 CFR 50.59 including several unreviewed safety questions, and/or conflicts with a technical specification, involving a broad spectrum of problems affecting multiple areas, some of which impact the operability of required equipment.

This situation is a very significant concern, the definition of a Severity Level II problem, because of the breadth of the process failures and the impact on equipment operability as well as the licensing envelope.

As to Severity Level II violations or problems, the Enforcement Policy provides that the base civil penalty for a Severity Level II violation or problem is $88,000.

However,Section VII.A.I.a of the Policy provides that discretion should be considered for Severity Level II cases.

In assessing civil penalties for cases meeting the above example, discretion will be considered, consistent with the Policy, based on the number and nature of the 1 The examples are numbered in accordance with the numbering used in the changes to the Enforcement Policy.

8

violations and the breadth of the problem that warranted the Severity Level II categorization in determining whether civil penalties substantially in excess of the base amount are warranted. This will include consideration of assessing separate civil penalties for each violation that is aggregated into the Severity Level II problem.

Severity Level III Four examples of Severity Level III violations are added that demonstrate a significant regulatory concern, the definition of a Severity Level III violation:

Example I.C.10 involves an unreviewed safety question, and/or conflict with a technical specification.

Example I.C.11. addresses the failure to perform the required evaluation under section 50.59 prior to implementation of the change in those situations in which an extensive evaluation would be needed before a licensee would have had a reasonable expectation that an unreviewed safety question did not exist. The fact that a post-implementation evaluation demonstrated that no unreviewed safety question existed would not mitigate the regulatory significance of the failure to perform the required evaluation prior to implementation of the change.

These two examples encompass the prior example I.C.5.

Example I.C.11 is set out as a separate example to give clearer notice.

Example l.C.12 addresses programmatic failures (i.e., multiple or recurring failures) to meet the requirements of 10 CFR 50.59 and/or 50.71(e) 9

which show a significant lack of attention to detail resulting in a current safety or regulatory concern about the accuracy of the FSAR or a concern that 10 CFR 50.59 requirements are not being met.

This example addresses a current programmatic failure or past programmatic failure of current concern to meet 10 CFR 50.59 or 50.71(e). Application of this example requires weighing factors such as: a) the time period over which the violations occurred and existed, b) the number of failures, c) whether one or more systems, functions, or pieces of equipment were involved and the importance of such equipment, functions, or systems, and d) the potential significance of the failures.

Example I.C.13. addresses the failure to update the FSAR as required by 10 CFR 50.71(e) where the failure to update the FSAR resulted in an inadequate decision that demonstrates a significant regulatory concern.

This example addresses a significant failure associated with 10 CFR 50.7l(e) where the violation adversely impacted other decisions such as whether or not a license amendment is needed or whether or not an NRC licensing action should be taken.

An example of such a violation would be the failure to update the FSAR to delete a reference to equipment that had been properly removed from the facility.

As a result an inadequate decision was made that an unreviewed safety question was not present for a subsequent change to the facility based on the presumed presence of equipment that the FSAR erroneously indicated was still present in the plant.

10

Severity Level rv Four examples of Severity Level IV violations are added that demonstrate violations of more than minor concern which left uncorrected, could become a more significant concern, the definition of a Severity Level IV violation.

Example I.D.5 addresses relatively isolated violations2 of 10 CFR 50.59 not involving severity level II or III violations that do not suggest a e

programmatic failure to meet 10 CFR 50.59.

Example I.D.6 addresses a relatively isolated failure to document an evaluation where there is evidence that an adequate evaluation was performed prior to the change in the facility or procedures, or the conduct of an experiment or test.

Example I.D.7 addresses a failure to update the FSAR as required by 10 CFR 50.7l(e) where an adequate evaluation under 10 CFR 50.59 had been performed and documented.

These three examples are, by their nature, less significant than a Severity Level III violation.

Example I.D.8 addresses a past programmatic failure to meet 10 CFR 50.59 and/or 10 CFR 50.7l(e) requirements not involving Severity Level II or III violations that does not reflect a current safety or regulatory concern about the accuracy of the FSAR or a current concern that 10 CFR 50.59 requirements are not being met.

This example is similar to example I.C.12.

However, it is less significant because it does not involve a current performance issue nor 2 Relatively isolated violations or failures would include a number of recently discovered violations that occurred over a period of years and are not indicative of a programmatic safety concern with meeting the requirements of 10 CFR 50.59 or 50.7l(e).

11

does it have a current impact.

This would address past programmatic issues where both the cause and the impacts have been corrected.

The determination of whether a violation or grouping of violations should be considered a severity level III or IV matter will require exercise of judgement to determine if the failures are sufficiently broad and programmatic to warrant a finding of significant regulatory concern.

To maintain consistency and fairness, the regions will coordinate with the Office of Enforcement on severity level IV cases where there is a potential to categorize the violations at a severity level III.

Minor Violations An example is added to address minor violations which are not subject to formal enforcement action under the Enforcement Policy and are not normally addressed in inspection reports.

Example I.E addresses a failure to meet 10 CFR 50.59 requirements that involves a change to the FSAR description or procedure, or involves a test or experiment not described in the FSAR, where there was not a reasonable likelihood that the change to the facility or procedure or the conduct of the test or experiment would ever be an unreviewed safety question.

The example also addresses a failure to meet a 10 CFR 50.7l(e) violation, where a failure to update the FSAR would not have a material impact on safety or licensed activities.

This example is provided because 10 CFR 50.59 covers the complete FSAR.

However, there are some descriptions in the FSAR of the facility or procedures 12

that have very little or no relevance to safety and are of little or no regulatory concern.

Nevertheless, by the specific terms of the regulation, changes to the facility as described in the FSAR must be evaluated.

Violations in these areas are by definition minor and if included in an inspection report would be non-cited pursuant to section IV of the Enforcement Policy such as a change to the location of sanitary sewer lines {in contrast to natural gas pipelines) in owner controlled areas.

The focus of this example is on plant equipment, procedures, tests, or experiments described in the FSAR that would not reasonably have any impact on safety regardless of the change.

If the change involves equipment, procedures and tests that have some safety purpose the violation should normally be considered to be of more than a minor concern.

2.

Corrective Action Corrective action is a key element in considering the appropriate sanction.

The discussion of corrective action in Section VI.B.2.c. of the Enforcement Policy has been expanded to provide that in response to violations of 10 CFR 50.59, corrective action should normally be considered prompt and comprehensive only if the licensee (1) makes a prompt decision on operability, and either (2) makes a prompt evaluation under 10 CFR 50.59 if the licensee intends to maintain the facility or procedure in the as found condition, or (3) promptly initiates corrective action consistent with Criterion XVI of 10 CFR 50, Appendix B if it intends to restore the facility or procedure to the FSAR description.

It is important for licensees to recognize the need for these actions because until such actions are taken the violation continues 13

unabated.

3.

Reporting Section IV.D. of the Enforcement Policy provides that 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 be reported.

The Policy has been clarified to make it clear that failure to make a required report under 10 CFR 50.72 and 50.73, if the matter not reported involves (i) an unreviewed safety question (ii) a conflict with a technical specification or (iii) any Severity Level III violation, is a significant regulatory concern.

The NRC needs such information concerning significant issues to carry out its regulatory responsibilities.

4.

Old Design IssuesSection VII.B.3, Violations Involving Old Design Issues, of the Enforcement Policy addresses enforcement discretion for old design issues and may be applicable to some 10 CFR 50.59 violations to the extent that voluntary action by a licensee identifies a past problem, such as in engineering, design, or installation. This discretion addresses violations that would not likely be identified by routine licensee efforts such as normal surveillance or quality assurance activities. Identification of past violations through required efforts would be treated using the normal policy.

14

This provision was originally adopted to encourage voluntary initiatives to establish design reconstitution programs such as licensee initiated safety systems functional inspections to identify and correct past design errors.

This section places a premium on licensees identifying issues before degraded equipment is called upon to work.

Similarly, application of this provision in the policy to past FSAR issues could encourage licensees to establish programs with goals to ensure full compliance with the FSAR licensing basis and determine if there are unknown unreviewed safety questions that have not been identified and addressed.

To justify the exercise of Section VII.B.3 discretion, licensees must take comprehensive corrective action.

The policy provides that licensees should expand their reviews, as necessary, to identify other failures from similar root causes. Thus, in applying this discretion, as with any significant violation associated with 10 CFR 50.59 and 50.71(e),

the licensee should be taking broad corrective action to ensure that the licensee is meeting its licensing basis.

The corrective action should have a defined scope and schedule.

The Commission intends to utilize Section VII.B.3 of the Enforcement Policy to provide incentives to encourage licensees to identify and correct violations which are not normally identified through current surveillance and quality assurance activities. Enforcement action would normally not be taken against a licensee if the licensee identifies violations up to and including Severity Level II associated with the FSAR by a voluntary initiative (including either a formal program or informal effort where issues are identified through a questioning attitude of an employee), provided the licensee takes comprehensive corrective action and appropriately expands the 15

scope of the voluntary initiative to identify other failures with similar root causes.

If this enforcement discretion is utilized, the licensee's voluntary initiative must be described in writing and be publicly available.

The staff.

will reference and summarize the licensee's voluntary initiative, including the scope and schedule for corrective action, in an inspection report and will follow the licensee's corrective action until complete as an inspection report open item.

Section VII.B.3 discretion would not normally be applied to departures from the FSAR if:

a)

The NRC identifies the violation unless it was likely in the staff's view that the licensee would have identified the violation in light of the defined scope, thoroughness, and schedule of the licensee's initiative

{provided the schedule provides for completion of the licensee's initiative within two years of this policy change);

b)

The licensee identifies the violation as a result of an event or surveillance or other required testing where required corrective action identifies the FSAR issue; c)

The licensee identifies the violation but had prior opportunities to do so (was aware of the departure from the FSAR) and failed to correct it earlier; d)

There is willfulness associated with the violation; e)

The licensee fails to make a report required by the identification of the departure from the FSAR; or f)

The licensee either fails to take comprehensive corrective action or fails to appropriately expand the corrective action program. The corrective 16

action should be broad with a defined scope and schedule.

Applying this discretion should further the objectives of the Enforcement Policy to encourage identification and correction of violations as well as provide deterrence for future violations.

The Commission recognizes the importance to provide licensees with incentives to embark on voluntary initiatives to identify and correct FSAR discrepancies.

However, licensees should be designing and implementing their programs with goals to have these discrepancies identified in the near term.

Therefore, it is not appropriate to continue indefinitely the granting of enforcement discretion in cases where the NRC identifies the violations.

As provided above in item a, for NRC identified violations use of Section VI1.B.3 enforcement discretion for FSAR discrepancies will consider the schedule for the licensee's voluntary initiative and when NRC identified the violation.

The two year period will provide a reasonable time period and incentive for licensees to plan and conduct appropriate reviews to ensure that their facilities meet the descriptions in the FSAR and take necessary corrective action.

The staff will continue to document in inspection reports the results of its inspections against the FSAR and other than the exception noted in item a, above, will continue enforcement for NRC-identified violations.

Following this two year period, if a Severity Level II ($88,000) or III

($55,000) violation is identified, the Commission intends to use its discretion to increase the fine and could assess civil penalties for each violation or problem of $110,000 which may be further escalated after 17

considering the number and nature of the violations, the severity of the violations, whether the violations were continuing, and who identified the violations (and if the licensee identified the violation, whether exercise of Section VII.B.3 enforcement discretion is warranted), rather than the normal assessment factors.

This approach is intended to increase the incentive for licensees to take timely action to ensure that their facilities match the FSAR.

For example, if a single Severity Level III violation is identified by the NRC and it lasted for more than one day, a civil penalty of $220,000 could be assessed.

If the licensee identified the same violation and application of enforcement discretion under Section VII.B.3 was not warranted, a civil penalty of $110,000 ($55,000 X 2 days) could be assessed for the example cited above which will provide some recognition of the licensee's efforts.Section VII.A.I of the Enforcement Policy is being amended consistent with this approach.

In summary, to encourage licensees promptly to undertake voluntary initiatives to identify and correct FSAR noncompliances, the NRC is modifying Section VII.B.3 of the Enforcement Policy to provide for:

(1) the exercise of discretion to refrain from issuing civil penalties and, in some instances, citations for a two year period where a licensee undertakes voluntary initiative to identify and correct FSAR noncompliances that will be completed within that two year period, and (2) the exercise of discretion to escalate the amount of the civil penalties for FSAR/50.59 noncompliances identified by the NRC subsequent to the two year voluntary initiative period.

18

Amounts of Penalties The amounts of penalties reflected in this Notice and the accompanying Policy Statement are based on the current Policy Statement that was revised on October 4, 1996 and published in the Federal Register on October 11, 1996 (61 FR 53557).

The revised penalty amounts apply to violations occurring or continuing after November 12, 1996.

Otherwise the amounts in the Policy Statement at the time of the violation will be used in assessing any civil penalty.

Paperwork Statement This policy statement does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Existing requiremen ts 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.

Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid 0MB control number.

Small Business Regulatory Enforcement Fairness Act 19

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of 0MB.

Accordingly, the NRC Enforcement Policy is amended as follows:

GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS

1.

In Section VI., add the following language at the end of paragraph B.2.c.

VI.

Enforcement Actions B.

Civil Penalty.

2.

Civil Penalty assessment.

c.

Credit for prompt and comprehensive corrective action*

• In response to violations of 10 CFR 50.59, corrective action should normally be considered prompt and comprehensive only if the licensee (i) Makes a prompt decision on operability; and either (ii) Makes a prompt evaluation under 10 CFR 50.59 if the licensee 20

intends to maintain the facility or procedure in the as found condition; or (iii) Promptly initiates corrective action consistent with Criterion XVI of 10 CFR 50, Appendix B if it intends to restore the facility or procedure to the FSAR description.

2.

In Section VII., add the following language as paragraph h. at the end of paragraph A.1.g.:

VII Exercise of Discretion A.

Escalation of Enforcement Sanctions.*

h.

Severity Level II or III violations associated with departures from the Final Safety Analysis Report identified after two years from [date of this Federal Register Notice].

Such a violation or problem would consider the number and nature of the violations, the severity of the violations, whether the violations were continuing, and who identified the violations (and if the licensee identified the violation, whether exercise of Section VII.B.3 enforcement discretion is warranted).

3.

In Section VII. add at the end of paragraph B.3:

B.

Mitigation of Enforcement Sanctions.*

3.

Violations Involving Old Design Issues.*

21

Section VII.B.3 discretion would not normally be applied to departures from the FSAR if:

a)

The NRC identifies the violation unless it was likely in the staff's view that the licensee would have identified the violation in light of the defined scope, thoroughness, and schedule of the licensee's initiative (provided the schedule provides for completion of the licensee's initiative within two years after [date of this Federal Register Notice];

b)

The licensee identifies the violation as a result of an event or surveillance or other required testing where required corrective action identifies the FSAR issue; c)

The licensee identifies the violation but had prior opportunities to do so (was aware of the departure from the FSAR) and failed to correct it earlier; d)

There is willfulness associated with the violation; e)

The licensee fails to make a report required by the identification of the departure from the FSAR; or f)

The licensee either fails to take comprehensive corrective action or fails to appropriately expand the corrective action program. The corrective action should be broad with a defined scope and schedule.

4.

In Supplement I, paragraphs C(S) and 0(2); are removed and paragraphs 8(4), C(lO), C(ll), C(l2}, C(13), C(14}, 0(5), 0(6), 0(7), 0(8) and E are added to read as follows:

Supplement I - Reactor Operations 22

B.

Severity Level II - Violations involving for example:

4.

Failures to meet 10 CFR 50.59 including several unreviewed safety questions, or conflicts with technical specifications, involving a broad spectrum of problems affecting multiple areas, some of which impact the operability of required equipment.

C.

Severity Level III - Violations involving for example:

5.

[Reserved]

10.

The failure to meet 10 CFR 50.59 where an unreviewed safety question is involved, or a conflict with a technical specification, such that a license amendment is required;

11.

The failure to perform the required evaluation under 10 CFR 50.59 prior to implementation of the change in those situations in which no unreviewed safety question existed, but an extensive evaluation would be needed before a licensee would have had a reasonable expectation that an unreviewed safety question did not exist; 23

12.

Programmatic failures (i.e., multiple or recurring failures) to meet the requirements of 10 CFR 50.59 and/or 50.71(e) that show a significant lack of attention to detail, whether or not such failures involve an unreviewed safety question, resulting in a current safety or regulatory concern about the accuracy of the FSAR or a concern that 10 CFR 50.59 requirements are not being met.

Application of this example requires weighing factors such as: a) the time period over which the violations occurred and existed, b) the number of failures, c) whether one or more systems, functions, or pieces of equipment were involved and the importance of such equipment, functions, or systems, and d) the potential significance of the failures;

13.

The failure to update the FSAR as required by 10 CFR 50.71(e) where the unupdated FSAR was used in performing a 10 CFR 50.59 evaluation and as a result, an inadequate decision was made demonstrating a significant regulatory concern; or

14.

The failure to make a report required by 10 CFR 50.72 or 50.73 associated with (a) an unreviewed safety question, (b) a conflict with a technical specification, or (c) any other Severity level III violation.

D.

Severity level IV - Violations involving for example:

2.

[Reserved]

24

5.

Relatively isolated violations of 10 CFR 50.59 not involving severity level II or III violations that do not suggest a programmatic failure to meet 10 CFR 50.59.

Relatively isolated violations or failures would include a number of recently discovered violations that occurred over a period of years and are not indicative of a programmatic safety concern with meeting 10 CFR 50.59 or 50.7l{e);

6.

A relatively isolated failure to document an evaluation where there is evidence that an adequate evaluation was performed prior to the change in the facility or procedures, or the conduct of an experiment or test;

7.

A failure to update the FSAR as required by 10 CFR 50.7l{e) where an adequate evaluation under 10 CFR 50.59 had been performed and documented; or

8.

A past programmatic failure to meet 10 CFR 50.59 and/or 10 CFR 50.7l{e) requirements not involving Severity Level II or III violations that does not reflect a current safety or regulatory concern about the accuracy of the FSAR or a concern that 10 CFR 50.59 requirements are not being met.

E. Minor Violations A failure to meet 10 CFR 50.59 requirements that involves a change to the FSAR description or procedure, or involves a test or experiment not 25

described in the FSAR, where there was not a reasonable likelihood that the change to the facility or procedure or the conduct of the test or experiment would ever be an unreviewed safety question. In the case of a 10 CFR 50.7l{e}

violation, where a failure to update the FSAR would not have a material impact on safety or licensed activities. The focus of the minor violation is not on the actual change, test, or experiment, but on the potential safety role of the system, equipment, etc that is being changed, tested, or experimented on.

v-i-Dated at Rockville, MD, thi~ay of @db,,._

, 1996.

FOR THE NUCLEAR REGULATORY COMMISSION 26