ML20147F965

Staff Requirements Memo Re 880224 Affirmation/Discussion & Vote on SECY-88-33 Reconsideration of Enforcement Policy Provision Involving Reopening Closed Cases.Commission Approved Revs to Enforcement Policy by 5-0 Vote

ML20147F965
Person / Time
Issue date:	03/02/1988
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
References
REF-10CFR9.7 M880224, NUDOCS 8803080086
Download: ML20147F965 (7)

Text

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g IN RESPONSE, PLEASE o n, REFER TO: M880224B g 49 o UNITED 5TATES

! 3 NUCLEAR REGULATORY COMMISSION 5 i w As HIN GT ON, D.C. 20556

'g , , , , , sh March 2, 1988 OFFICE OF THE SECRETARY MEMORANDUM FOR: Victor Stello, Jr.

Executive Director for Operations FROM: 6 pf'_ Samuel J. Chilk, Secretary

SUBJECT:

STAFF REQUIREMENTS - AFFIRMATIOM/ DISCUSSION AND VOTE, 3:30 P.M., WEDNESDAY, FEBRUARY 24, 1988, COMMISSIONERS' CONFERENCE ROOM, D.C.

OFFICE (OLEN TO PUBLIC ATTENDANCE)

I. SECY-88 Reconsideration of Enforcemer t Policy Provision Involving Reopening Closed Cases The Commission, by a 5-0* vote, approved the proposed revisions to the Commission's enforcement policy as modified on the attached pages.

The Federal Register Notice should be revised as noted on the attached pages and returned for signature and publication in the Federal Register.

(EDO) (SECY Suspense 3/25/88)

Attachment:

As stated cc: Chairman Zech Commissioner Roberts Commissioner Bernthal Commissioner Carr Commissioner Rogers OGC (H Street)

GPA K R - Advance VDCS - 016 Phillips

• Section 201 of the Energy Reorganization Act, 42 U.S.C.

S5841, provides that action of the Commission shall be deter-mined by a "majority vote of the members present." Commissioner Carr was not present when this item was affirmed. Accordingly the formal vote of the Commission was 4-0 in favor of the decision. Commissioner Carr, however, had previously indicated that he would approve this paper and had he been present he would have affirmed his prior vote.

8803080086 880302 PDR 10CFR PT9.7 PDR

r Enclosure 2 NUCLEAR REGULATCRY COMMISSION 10 CFR PART 2 GENERAL STATEMENT OF POLICY AND PROCEDURE FOR ENFORCEMENT ACTIONS AGENCY: Nuclear Regulatory Comission ACTION: Modification to policy statement

SUMMARY

The NRC is publishing a minor modification to its Enforcement K Policy to ts policy on reopening closed enforcement actions. ' M plicy

. tet- rt d:::rik : the nnlicy 'hich t': Cw.niuion intens te :;;!y ia "ki% -

c.f:r::m rt acti:r:. This policy is codified as Appencix C to 10 CFR Part 2.

L ^' ' i 1td < A m c. M&$f  ; nej*HW ptohet k refVtredW, M,f DATES: JThismodificationtotheEnforcementPolir.yiseffectiveupon l

publication. Ccments may be submitted on or before .

1 ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Connission, Washington, D.C. 20555. ATTN: Docketing and Service Branch. Hand deliver comments to: Room 1121, 1717 H Street, NW., Washington, DC between 7:30 a.m.

to 4: 15 p.m.

l Copies of coments may be examined at the NRC Public Document, 1717 H Street, N.W., Washingten DC.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of Enforcement,  !

U.S. Nuclear Regulatory Commission, Washington, DC 20555 (301-492-0741).

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F SUPPLEMENTARY INFOR W ' W: ._--

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The Connir etember 23, 1987 issued a revised Enforcement Policy  : . .. " ?e.._(C ,; .,

m (52 FR h .. eptember 28,1987) in which Section V.F. addressed reopening ~

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,M ] i t,y I closed enforcement actions.Section V.F. provided that if significant new *[ fW. O E. n *

• e information is received which indicates that a previous enforcement sanction M:)h-i '3-M.4 i ? '"

was incorrectly applied, the action could be reopened. heva policy 22/40 Y [

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, miid that (1) recpening should occur only if remeoial action is necessary $:=}h M y f ".: g y G gb..; y ? '.

r to abate a continued ham or if the new information shows that the violation g]f

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' was less serious than originally believed or that the violation did not SD Q f ;-l:? ._M:

occur, and (2) nomally actions would not be reopened where the only change . . .p ;g/-g i.. . py ,

+.wg to the prior action would be to increase the severity level of a violation g .

or to impose or increase a civil penalty. ( < < ) ..". '

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- While coments submitted in response to the September 28, 1987 Federal Reaister k 'i Notice were generally favorable to the , wording of saction V.F. the Ccmission

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has reconsidered this policy because it implies that an enforcement action would f W.-

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not nomally be reopened to increase a sanction even if such action was warranted. ,;

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4 For example, reopening may be warranted to increase a sanction such as a civil .p.- (v.j ,.3< 3 .4.

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i 7 penalty on the basis of new infomation if the reason NRC did not have the .y },[.'. h ,

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n infomation initially was because the licensee misled the NRC by providing k.j . .

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false information or withholair.g the information from the NRC. In such a case, /,

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any prejudice to the licensee is the result of its own action. Reopening v:culd . _<-i, ..

fyorG bo justifiedato -Fc.W the appropriate sarction. Not to oo so would reward -

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a licensee's failure to cooperate with the NRC, which of course cannot be.acc: pud ..

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

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

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

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Recognizing that this is an issue which.c d . m infrequently and that there i

are many considerations relevant to a reopening decision on the basis of new l infomation, the Comission has detemineof fse t d'odi

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4-7f - :: th: ;' - rr:-- rs when the Canni s_sion ha14 r! : i; .a apprvpriate se-re e... ; =::. 7 ;..~,,,,Section V.F. of the Enforcement Policy tvute9Wg e - % z. , x

_ii'ird to m h i.it c!!!- that the decision to reopen a case is to be made on a case-by-case basis.

List of Subjects in 10 CFR Part 2 .

Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination Source material, Special nuclear material, Waste treitment and disposal.

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

Part 2 - Rules of Practice for Domestic Licensing Proceedings

1. The authority citation for Part 2 centinues to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, i 2231); sec. 191, as amended, Pub. L.87-615, 75 Stat. 409 (42 U.S.C.

2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

. 5-Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332; sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103,104,105,183,189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued 1

under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200- l 2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat.1246 (42 U.S.C. 5846).

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

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

Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 s

U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under  ;

5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29,  :

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Pub. L.85-256, 71 Stat. 579, at amended (42 U.S.C. 2039). Subpart K also i issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134 Pub. L. l 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also  !

I issued under sec. 10 Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b etseq.). ,

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! 2.Section V.F. of Appendix C - General Statement of Policy ana Procedure l i

I for NRC Enforcement Actions is revised as follows: i i

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l V. Enforcement Actions

F. Reopenirg Closed Enforcement Actions l If significant new infortnation is received or obtained by NRC which i

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indicates that an enforcement sanction was incorrectly spplied, consideration may be given, dependent on the circumstances, to re-i 4

opeiiing a closed enforcement action to increase or decrease the j 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, ano require the specific approval of the Deputy Executive Director

! for Regic trations, j Dated at Washington, o , this day of 1988.

For the Nuclear Regulatory Comission 1

i Samuel J. Chilk i Secretary of the Comi:sion d

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