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Notice

NRC Enforcement Policy Revision

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ACTION:

Policy revision; issuance.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC or Commission) is publishing revisions to its Enforcement Policy (Enforcement Policy or Policy) to address construction-related topics, including enforcement discretion.

DATES:

This revision of the NRC Enforcement Policy is effective on June 7, 2012.

ADDRESSES:

Please refer to Docket ID NRC-2011-0176 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and are publicly available, using any of the following methods:

  • Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2011-0176. Address questions about NRC dockets to Carol Gallagher; telephone: 301-492-3668; email: Carol.Gallagher@nrc.gov.
  • NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number for each document referenced in this notice (if that document is available in ADAMS) is provided the first time that a document is referenced.
  • NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Carolyn Faría, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-4050, email: Carolyn.Faria-Ocasio@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

In a Staff Requirements Memorandum, SECY-09-0190, “Staff Requirements—SECY-09-0190—Major Revision to NRC Enforcement Policy,” dated August 27, 2010 (ADAMS Accession No. ML102390327), the Commission approved a revision to its Enforcement Policy. The NRC published a notice in the Federal Register on September 30, 2010 (75 FR 60485), announcing a revision to the Policy. The Commission also directed the NRC staff to reevaluate the portions of the Policy associated with construction activities (e.g., reactor or uranium enrichment plants), including under what conditions enforcement discretion could be applied to cases involving the holder of a limited work authorization (LWA) or combined license (COL). In a Federal Register notice (FRN) published on August 9, 2011 (76 FR 48919), the NRC solicited written comments from interested parties, including public interest groups, States, members of the public, and the regulated industry (i.e., reactor and materials licensees, vendors, and contractors) on construction-related topics that the NRC staff was evaluating for discussion in a Commission paper that would include recommended revisions to the NRC Enforcement Policy. On August 30, 2011, the NRC conducted a public meeting to discuss the proposed changes to the Policy. The meeting consisted of a detailed presentation of the changes as published in the FRN, and members of the public who attended the meeting received the opportunity to have an open discussion with the NRC staff.

In response to the FRN dated August 9, 2011 (76 FR 48919), and the public meeting on August 30, 2011, the staff received written comments on the proposed Policy revisions. Several stakeholders offered changes to the language in the Enforcement Policy to assist the NRC staff in clarifying the intent of the proposed revisions. The NRC also received comments from regulated industry stakeholders about the agency's policy on the use of enforcement discretion during construction. Based in part on the comments received from external stakeholders, the NRC staff has made changes to the Policy language where it deemed it appropriate to do so. A summary of the public comments on the proposed Policy and the NRC staff's responses to those comments is available in ADAMS under Accession No. ML11286A123.

Summary of Revisions to the Enforcement Policy

The following sections describe the changes to the Enforcement Policy. These sections also provide background information on those topics evaluated by the NRC staff.

1. Revision to Section 1.0, “Introduction”

The phrase “construct and” was added to Item b to recognize that the NRC's regulatory authority includes applications for, and the actual construction of, facilities that will eventually operate under NRC regulations.

2. Revision to Section 1.2, “Applicability”

The following two paragraphs were added to clarify that the Enforcement Policy applies to license holders, applicants, holders of construction authorizations, and certificate holders:

It is NRC policy to hold licensees, certificate holders, and applicants responsible for the acts of their employees, contractors, or vendors and their employees, and the NRC may cite the licensee, certificate holder, or applicant for violations committed by its employees, contractors, or vendors and their employees.

The NRC may use the term “licensee” in this Policy to generally refer not only to licensees, but also to certificate holders and applicants.

3. Revision to Section 2.2.1.a, “Factors Affecting Assessment of Violations”

The phrase “onsite or offsite chemical hazard exposures resulting from licensed or certified activities” was added as the third criterion when evaluating actual consequences for uniformity. The inclusion of “onsite and offsite chemical hazard exposures” is consistent with the current Policy, including the examples provided in Section 6.2, “Fuel Cycle Operations.” The first example in Section 6.2 involves a high-consequence event, as defined in Title 10 of the Code of Federal Regulations (10 CFR) Part 70, “Domestic Licensing of Special Nuclear Material.” In particular, 10 CFR 70.61, “Performance Requirements,” defines “high consequence” to include, among other things, acute chemical exposure.

4. New Section 2.2.6, “Construction”

New Section 2.2.6 was added as follows:

Section 2.2.6 Construction

In accordance with 10 CFR 50.10, no person may begin the construction of a production or utilization facility on a site on which the facility is to be operated until that person has been issued either a construction permit under 10 CFR Part 50, a combined license under 10 CFR Part 52, an early site permit authorizing the activities under 10 CFR 50.10(d), or a limited work authorization under 10 CFR 50.10(d). In an effort to preclude unnecessary regulatory burden, while maintaining safety, the Changes during Construction (CdC) Process, as developed in Interim Staff Guidance (ISG)-025, permits the licensee to proceed with the installation and testing of structures, systems or components different from the current licensing basis while the license amendment request (LAR) is under NRC review. Any activities undertaken under the CdC process are at the risk of the licensee, and the licensee is obligated to return to the current licensing basis (CLB) if the related LAR is subsequently not approved by the NRC. Failure to timely restore the CLB may be subject to separate enforcement, such as an order, a civil penalty, or both.

In accordance with 10 CFR 70.23(a)(7) and 10 CFR 40.32(e), commencement of construction before the NRC finishes its environmental review and issues a license for processing and fuel fabrication, conversion of uranium hexafluoride, or uranium enrichment facility construction and operation is grounds for denial to possess and use licensed material in the plant or facility. Additionally, in accordance with 10 CFR 70.23(b), failure to obtain Commission approval for the construction of the principal structures, systems, and components of a plutonium processing and fuel fabrication plant before the commencement of construction may also be grounds for denial of a license to possess and use special nuclear material.

This language addresses when and how the assessment of violations during construction occurs; it parallels the information provided for the assessment of violations for operating reactors.

5. Revisions to Section 2.3.2, “Noncited Violation”

The words “(for operating reactors)” were added to the first sentence of the first paragraph to clarify the use of the Reactor Oversight Process. The last sentence of the first paragraph was modified to read: “Typically, all of the criteria in either 2.3.2.a. or b. must be met for the disposition of a violation as an NCV.”

The following new second paragraph was added to be consistent with Enforcement Guidance Memorandum (EGM)-11-002, “Enforcement Discretion for Licensee-Identified Violations at Power Reactor Construction Sites Pursuant to Title 10 of the Code of Federal Regulations Part 52,” dated June 3, 2011 (ADAMS Accession No. ML11152A065):

For all SL IV violations identified by the NRC at fuel cycle facilities (under construction or in operation) in accordance with 10 CFR Part 70 or 10 CFR Part 40 and reactors under construction in accordance with 10 CFR Part 50 or 10 CFR Part 52, before the NRC determines that an adequate corrective action program has been implemented, the NRC normally issues a Notice of Violation. Until the determination that an adequate corrective action program has been implemented, NCVs may be issued for SL IV violations if the NRC has determined that the applicable criteria in 2.3.2.b. below are met. For reactor licensees, after the NRC determines that an adequate corrective action program has been implemented, the NRC will normally issue an NCV in lieu of an SL IV violation, whether that violation is identified by the licensee or the NRC.

The purpose of this EGM is to clarify the guidance for exercising enforcement discretion when the staff dispositions, as noncited violations (NCVs), Severity Level (SL) IV violations identified by licensees or applicants at power reactors that are under construction. The addition of this language also reflects current practices for dispositioning NCVs at fuel facilities (under construction or in operation).

6. Revisions to Section 2.3.2.a, “Power Reactor Licensees”

The phrase “restore compliance and” was added to criterion 1 to more accurately reflect the NRC's expectations.

The current footnote, “For reactor facilities under construction in accordance with 10 CFR Part 52, the corrective action program must have been demonstrated to be adequate,” was deleted from criterion 1 to reflect the NRC's goal of promoting early identification of deficient conditions by licensees, even at the early stage when the licensees' corrective action programs have not been demonstrated to be adequate.

The phrase “and violations associated with facility construction under 10 CFR Part 50, `Domestic Licensing of Production and Utilization Facilities,' and 10 CFR Part 52, `Licenses, Certifications, and Approvals for Nuclear Power Plants' ” was deleted from criterion 3 to reflect the NRC's expectation of crediting corrective action programs at power reactors to address both immediate corrective actions and any actions to preclude recurrence.

7. Revisions to Section 3.8, “Notices of Enforcement Discretion for Operating Power Reactors and Gaseous Diffusion Plants”

The following footnote was added to clarify that the notice of enforcement discretion (NOED) process is not applicable while reactor facilities are under construction:

NOEDs will not be used at reactors during construction before the Commission's 10 CFR 52.103(g) or 10 CFR 50.57 finding, as applicable. However, the NRC may choose to exercise discretion and either escalate or mitigate enforcement sanctions or otherwise refrain from taking enforcement action within the Commission's statutory authority, as identified in Section 3.0 of this Enforcement Policy.

The NRC has not identified any plausible scenarios where risk to public health and safety (or security) would be exacerbated by the failure of the NRC to grant such a licensee, or permit holder, an NOED.

8. New Section 3.9, “Violations Involving Certain Construction Issues”

A new section was added to incorporate new construction activities with traditional enforcement discretion. The new section also acknowledges that the NRC staff is developing a CdC process that will work in conjunction with the license amendment review process for COL holders only. The new process is intended to permit combined licensees (i.e. COL Holders) to proceed at risk with certain construction activities that differ from the licensing basis while the NRC is evaluating the related license amendment request.

3.9 Violations Involving Certain Construction Issues

a. Fuel Cycle Facilities

The NRC may choose to exercise discretion for fuel cycle facilities under construction (construction is defined in 10 CFR 40.4 for source material licensees and in 10 CFR 70.4 for special nuclear material licensees) based on the general enforcement discretion guidance contained in Section 3 of this Enforcement Policy.

b. Part 50 Construction Permit and LWA Holders

The NRC may exercise discretion for Construction Permit and LWA holders during construction using the general enforcement discretion guidance in Section 3 of the Enforcement Policy.

c. COL Holders (Reactor Facilities)

The NRC may exercise discretion for COL holders during construction using the general enforcement discretion guidance in Section 3 of the Enforcement Policy, as applicable. Additionally, the NRC may reduce or refrain from issuing an NOV/NCV for a violation associated with an unplanned change that deviates from the licensing basis that is implemented during construction and that would otherwise require prior NRC approval (in the form of a license amendment) when all of the following criteria are met:

  • The licensee identifies the unplanned change implemented, which the staff would normally disposition as a Severity Level IV violation of NRC requirements.
  • The licensee submits the necessary information without delay to the NRC so that it can conduct a timely evaluation of the change as part of the license amendment review process, or submits information to the NRC stating that it will restore the current licensing basis (CLB).
  • Either (1) the cause of the deviation was not within the licensee's control, such that the change was not avoidable by reasonable licensee quality assurance measures or management controls, or (2) the licensee placed the cause of the unplanned change in its corrective action program to ensure comprehensive corrective actions to address the cause of the change to preclude recurrence.

For similar issues not identified by the licensee, the NRC may refrain from issuing an NOV/NCV on a case-by-case basis depending upon the circumstances of the issue, such as whether the requirements were clearly understood or should have been understood at the time, the cause of the issue, and why the licensee did not identify the issue.

When the NRC determines that an unplanned change during construction associated with a violation of requirements meets the criteria outlined above and the licensee without delay submits the necessary information for NRC evaluation, the licensee's continued failure to meet the current licensing basis will not be treated as a willful or continuing violation only while the licensee prepares the license amendment request and the NRC reviews the submittal. (Note: If the NRC subsequently denies a requested license amendment change, or if the NRC requires additional measures to be taken for the change to be considered acceptable, then a separate NOV or order may be issued to ensure appropriate corrective actions are taken, including restoring the configuration to the CLB).

The following two footnotes relating to the new Section 3.9 were added:

The NRC may issue an enforcement action, including consideration of willfulness, for the cause of these unplanned changes, such as a failure to implement appropriate work controls or quality control measures, or a failure to adhere to procedures, processes, instructions, or standards that implement NRC requirements. This enforcement may be appropriate for the actions that led to the CdC issue.

and

NRC-identified violations that result in a “use as built” determination or that result in an unplanned change (or both) will normally be dispositioned as a cited, noncited, or minor violation, whether or not the unplanned change issue is resolved by a subsequently approved license amendment.

9. Revisions to Section 6.0, “Violation Examples”

The following second paragraph was added to the introduction of the section:

Many examples are written to reflect the risks associated with the use of nuclear materials. However, violations during construction generally occur before the nuclear material and its associated risk are present. Therefore, the NRC will consider the lower risk significance of violations that occur during construction in the areas of emergency preparedness, reactor operator licensing, and security and may reduce the severity level for those violations from that indicated by the examples in those areas. In order to maintain consistent application, the staff must coordinate with the Office of Enforcement before applying this lower risk significance concept for violations that occur during construction.

The NRC staff recognizes that, although certain requirements (i.e., those for emergency preparedness, reactor operator licensing, and security) apply generally during construction activities, flexibility is needed to factor in the lower risk associated with certain violations that occur during construction.

10. Revisions to Section 7.0, “Glossary”

The glossary definition of “licensee” was revised to reflect the addition of language to Section 1.2, “Applicability:”

“Licensee” means a person or entity authorized to conduct activities under a license issued by the Commission. However, in most cases in the Policy, the term is applied broadly to refer to any or all of entities listed in Section 1.2, “Applicability.”

Procedural Requirements

Paperwork Reduction Act Statement

This policy statement contains and references new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These information collections were approved by the Office of Management and Budget, approval number 3150-0136.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting documents displays a currently valid OMB control number.

Congressional Review Act

In accordance with the Congressional Review 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 OMB.

Dated at Rockville, Maryland, this 1st day of June, 2012.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.

[FR Doc. 2012-13808 Filed 6-6-12; 8:45 am]

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