[Federal Register Volume 63, Number 92 (Wednesday, May 13, 1998)]
[Notices]
[Pages 26630-26652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12534]
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NUCLEAR REGULATORY COMMISSION
[NUREG-1600, Rev. 1]
Revision of NRC Enforcement Policy
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is publishing a
complete revision of the agency's Enforcement Policy (NUREG-1600,
``General Statement of Policy and Procedure for NRC Enforcement
Actions'') based on (1) a 2-year review of the revised Enforcement
Policy, that was effective June 30, 1995, and (2) a consolidation of
changes to the Enforcement Policy since June 30, 1995.
DATES: This action is effective May 13, 1998, while comments are being
received. Submit comments on or before June 29, 1998.
ADDRESSES: Submit written comments to: David L. Meyer, Chief, Rules and
Directives Branch, Division of Administrative Services, Office of
Administration, Mail Stop: T6D59, U.S. Nuclear Regulatory Commission,
Washington, DC 20555. Hand deliver comments to: 11555 Rockville Pike,
Rockville, Maryland, between 7:30 am and 4:15 pm, Federal workdays.
Copies of comments received may be examined at the NRC Public Document
Room, 2120 L Street, NW, (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
(301) 415-2741.
SUPPLEMENTARY INFORMATION: On June 30, 1995, the Commission published a
complete revision of the NRC's Enforcement Policy (60 FR 34381). The
changes to the Enforcement Policy resulted from the efforts of a review
team established in 1994 to assess the NRC's enforcement program. The
review team published its recommendations in NUREG-1525, ``Assessment
of the NRC Enforcement Program,'' and the Commission made revisions to
the Enforcement Policy after considering those recommendations. The
revisions to the Enforcement Policy were intended to, among other
things:
Emphasize the importance of identifying problems before
events occur, and of taking prompt, comprehensive corrective action
when problems are identified;
Direct agency attention at licensees with multiple
enforcement actions in a relatively short period; and
Focus on current performance of licensees.
The revisions to the Enforcement Policy were also intended to
better focus the inspection and enforcement process on safety, provide
greater incentives for strong self-monitoring and corrective action
programs in the civil penalty assessment process, provide more
predictability and consistency in the civil penalty assessment process,
and to better convey clear regulatory messages.
When the Commission published the revised Enforcement Policy in the
Federal Register on June 30, 1995, it stated that it would provide the
public an opportunity to comment on the revised Enforcement Policy
after it had been in effect for about 18 months. On February 5, 1997
(62 FR 5495), the Commission published an opportunity for the public to
comment on the revised Enforcement Policy.
The NRC has reviewed approximately 2 years of experience under the
revised Enforcement Policy and considered public comments. The NRC
staff prepared a report (NUREG-1622,\1\ ``NRC Enforcement Policy
Review: July 1995--July 1997,'' November 1997) that concluded that the
changes made to the Enforcement Policy in 1995 (especially in the civil
penalty assessment process) have helped to improve the predictability
and consistency of enforcement actions, while maintaining the agency's
desire to use enforcement sanctions for providing appropriate emphasis
and deterrence in a way that helps to support the agency's overall
safety mission. This conclusion is
[[Page 26631]]
reflected in several aspects of the Enforcement Policy:
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\1\ Copies of NUREG-1622 may be purchased from the
Superintendent of Documents, U.S. Government Printing Office, Mail
Stop SSOP, Washington, DC 20402-9328. Copies are also available from
the National Technical Information Service, 5285 Port Royal Road,
Springfield, Virginia 22161. A copy is also available for inspection
and copying for a fee in the NRC Public Document Room, 2120 L
Street, NW. (Lower Level), Washington, DC 20555-0001. The report is
also included on the NRC's Office of Enforcement's homepage on the
Internet at www.nrc.gov/OE/.
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The current Enforcement Policy is appropriately geared
toward creating deterrence (i.e., taking action in a manner that
provides incentives to identify and correct violations that have
occurred and discourage future violations) and is properly structured
for nuclear regulation.
The Enforcement Policy recognizes that violations have
varying degrees of safety significance, and that in considering the
significance of a violation, it is appropriate to consider the
technical significance (i.e., actual and potential consequences) and
the regulatory significance. In addition, risk is an appropriate
consideration in evaluating the technical significance of a violation.
The Enforcement Policy is appropriately structured to
maintain a focus on safety.
The current civil penalty assessment process is
appropriately structured to reflect issues the agency believes are
appropriate to consider in assessing whether a civil penalty should be
proposed, i.e., past performance, identification, corrective action,
and those warranting discretion.
The use of discretion and judgment throughout the
deliberative process recognizes that enforcement of NRC requirements
does not lend itself to mechanistic treatment.
Notwithstanding the general satisfaction with the Enforcement
Policy, the review included a number of recommendations to the
Commission for revisions to the Enforcement Policy and for development
of additional enforcement guidance. The Commission is issuing this
policy statement after considering those recommendations and the bases
for them in NUREG-1622.
The more significant changes to the Enforcement Policy (in the
order that they appear in the Policy) are described below:
I. Introduction and Purpose
This section has been modified to include a brief discussion on the
meaning of ``safety'' and ``compliance'' as they are used in the
context of this policy statement. This section also references a new
appendix (Appendix A) that describes the nexus between safety and
compliance.
III. Responsibilities
This section has been modified to reflect that the Chief Financial
Officer (CFO) is delegated the authority to issue orders where
licensees violate Commission regulations by nonpayment of license and
inspection fees. The Office of the Chief Financial Officer (OCFO) was
created as part of the NRC's January 5, 1997, reorganization. The
Office of the Controller has now been incorporated into the OCFO and
the position of the Director, Office of the Controller (previously
identified in the policy as having the issuing authority), has been
subsumed by the CFO.
This section has also been modified to emphasize that the technical
and regulatory significance of violations are considered in conjunction
with the principles of the policy statement and the surrounding
circumstances when the agency determines the appropriate enforcement
strategy.
This section has also been revised to indicate that the Commission
is to be provided notification (where appropriate, based on the
uniqueness or significance of the issue) for a plant meeting the
criteria of Section VII.B.6 (mitigation for violations involving
special circumstances). This is consistent with the policy revision to
Section VII issued on December 26, 1996 (61 FR 68070).
IV. Severity of Violations
This section has been modified such that minor violations will no
longer be noted as Non-Cited Violations (NCVs) when they are documented
in inspection reports. Instead, if a minor violation warrants
documentation, it will be noted as a violation of minor significance
that is not subject to formal enforcement action. The definition of an
NCV included in footnote 6 has also been deleted. The purpose of these
changes is to avoid confusion between minor violations dispositioned as
NCVs in accordance with Section IV and Severity Level IV violations
dispositioned as NCVs in accordance with Section VII.B.1, ``Licensee-
Identified Severity Level IV Violations.'' Use of the term ``NCV'' will
now be reserved for those Severity Level IV violations that meet the
criteria for discretion in Section VII.B.1.
V. Predecisional Enforcement Conferences
This section has been modified to indicate that a predecisional
enforcement conference is not required if the NRC has sufficient
information to make an informed enforcement decision. If a conference
is not held, the licensee may be requested to provide a written
response to an inspection report as to the licensee's views on the
apparent violations and their root causes and a description of planned
or implemented corrective actions. (The previous discussion indicated
that the licensee will normally be requested to provide a written
response.) It is the NRC's intent that this approach will normally be
taken in the event a civil penalty is under consideration. This section
has also been modified to include an additional option when a
conference is not held, such that the NRC may proceed to issue an
enforcement action without first obtaining the licensee's response to
the inspection report, if the NRC has sufficient information to
conclude that a civil penalty is not warranted. This approach would
still: (1) Provide licensees an opportunity to request a conference to
dispute the action, (2) provide licensees an opportunity to dispute the
action in writing through the provisions of 10 CFR 2.201 (as with any
Notice of Violation), (3) allow the NRC to conduct a conference where
matters are disputed or where the licensee's documented corrective
actions are not sufficiently prompt and comprehensive, and (4) provide
for modification or recision of the NOV, if appropriate.
It should be noted that these modifications are not meant to be
construed as exclusive enforcement options. In other words, it does not
change the existing practice whereby the NRC may choose to issue an
enforcement action (including civil penalties and orders) without
conducting a conference. These changes are being made in an effort to
make the enforcement process more efficient (by reducing the number of
conferences and reducing the workload of both the NRC and licensees and
improving the timeliness of enforcement actions).
VI. Enforcement Actions
This general discussion of the NRC's philosophy and approach to
taking enforcement has been modified by including the recognition that
circumstances regarding a violation may warrant discretion such that
the NRC may refrain from issuing a Notice of Violation or other
enforcement action. This discussion was previously included in Section
VI.A, ``Notice of Violation,'' and has been more appropriately
relocated to this section.
A. Notice of Violation
The NRC has had a long-standing policy that licensees are not
ordinarily cited for violations resulting from matters not within their
control, such as equipment failures that are not avoidable by
reasonable licensee quality assurance measures or management controls.
This discussion has been deleted from this section and more
appropriately included in the discussion on mitigation of sanctions in
[[Page 26632]]
Section VII.B.6, ``Violations Involving Special Circumstances.''
B. Civil Penalty
1. Base Civil Penalty
Table 1A has been revised to correct the inadvertent omission of a
footnote that indicates that large firms engaged in manufacturing or
distribution of byproduct, source, or special nuclear material be
considered as industrial processors. Table 1A had included this
footnote prior to the 1995 policy revision and this footnote was
included in the table in the draft Federal Register notice that the
Commission approved for publication and in the table in Section
II.D.7.c of NUREG-1525. Table 1A has also been revised to include
additional guidance in determining which category material users should
be considered under by including ``other large material users'' in
category ``c'' and ``other small materials users'' in category ``d.''
VII. Exercise of Discretion
B. Mitigation of Enforcement Sanctions
Section VII.B.1, ``Licensee-Identified Severity Level IV
Violations,'' is being modified to address licensee-identified
violations that are identified as a result of an event. On December 10,
1996 (61 FR 65088), the Commission issued a revision to the Enforcement
Policy that included a modification to the criterion in Section
VII.B.1.a. Specifically, the phrase ``including identification through
an event'' was deleted from the criterion. The modification was
intended to make it clear that use of discretion is not automatic if
the violation is identified through an event. A footnote is being
included to the criterion to address how the NRC will normally consider
violations that are identified as a result of an event.
The Commission recognizes that there may be particular
circumstances in a case where discretion is warranted and the NRC
should refrain from issuing enforcement action. Sections VII.B.3,
VII.B.4, and VII.B.6 of the Enforcement Policy provide that discretion
may be warranted for certain Severity Level II and III violations. If
the circumstances of a particular case may warrant discretion at
Severity Level II or III, then discretion may also be appropriate at
Severity Level IV. Therefore, changes have been made to the examples to
reflect that the NRC may choose to refrain from issuing a Notice of
Violation for a Severity Level IV violation.
Section VII.B.6 was also modified to include additional factors for
consideration, including whether the regulatory requirement that was
violated was clear, or given the NRC's current information,
appropriate. As previously addressed, this section also includes that
the NRC may refrain from issuing enforcement action for violations
resulting from matters beyond a licensee's control. However, licensees
are generally responsible for the actions of its employees. The revised
text, consistent with long-standing NRC interpretation, makes it clear
that licensees are also responsible for the actions of their
contractors.
Appendix A: Safety and Compliance
This appendix has been added to address the NRC's philosophy on the
nexus between safety and compliance.
Appendix B: Supplements--Violation Examples
This appendix was administratively created as a result of the
addition of Appendix A and includes the previous guidance included in
the Supplements section of the policy.
Supplement VII--Miscellaneous Matters
Examples B.4 and C.4 have been revised to reflect NRC practice in
applying Severity Level II and III categorization for violations
involving discrimination. In particular, Severity Level II
categorization is appropriate for discriminatory acts by middle to
upper management, not simply any level above first-line supervision.
Severity Level III categorization is appropriate for low-level
supervision and management, even if they are above a first-line
supervisor.
Paperwork Reduction Act
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 requirements were approved by the
Office of Management and Budget, approval number 3150-0136. The
approved information collection requirements contained in this policy
statement appear in Section VII.C.
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 OMB control number.
Small Business Regulatory Enforcement Fairness Act
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 OMB.
Accordingly, the NRC Enforcement Policy is revised to read as
follows:
GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS
Table of Contents
Preface
I. Introduction and Purpose
II. Statutory Authority
A. Statutory Authority
B. Procedural Framework
III. Responsibilities
IV. Severity of Violations
A. Aggregation of Violations
B. Repetitive Violations
C. Willful Violations
D. Violations of Reporting Requirements
V. Predecisional Enforcement Conferences
VI. Enforcement Actions
A. Notice of Violation
B. Civil Penalty
1. Base Civil Penalty
2. Civil Penalty Assessment
a. Initial Escalated Action
b. Credit for Actions Related to Identification
c. Credit for Prompt and Comprehensive Corrective Action
d. Exercise of Discretion
C. Orders
D. Related Administrative Actions
VII. Exercise of Discretion
A. Escalation of Enforcement Sanctions
1. Civil Penalties
2. Orders
3. Daily Civil Penalties
B. Mitigation of Enforcement Sanctions
1. Licensee-Identified Severity Level IV Violations
2. Violations Identified During Extended Shutdowns or Work
Stoppages
3. Violations Involving Old Design Issues
4. Violations Identified Due to Previous Enforcement Action
5. Violations Involving Discrimination
6. Violations Involving Special Circumstances
C. Exercise of Discretion for an Operating Facility
VIII. Enforcement Actions Involving Individuals
IX. Inaccurate and Incomplete Information
X. Enforcement Action Against Non-Licensees
XI. Referrals to the Department of Justice
XII. Public Disclosure of Enforcement Actions
XIII. Reopening Closed Enforcement Actions
Appendix A: Safety and Compliance
Appendix B: Supplements--Violation Examples
Preface
The following statement of general policy and procedure explains
the enforcement policy and procedures of the U.S. Nuclear Regulatory
Commission (NRC or Commission) and
[[Page 26633]]
the NRC staff (staff) in initiating enforcement actions, and of the
presiding officers and the Commission in reviewing these actions. This
statement is applicable to enforcement in matters involving the
radiological health and safety of the public, including employees'
health and safety, the common defense and security, and the
environment.\1\ This statement of general policy and procedure will be
published as NUREG-1600 to provide widespread dissemination of the
Commission's Enforcement Policy. However, this is a policy statement
and not a regulation. The Commission may deviate from this statement of
policy and procedure as appropriate under the circumstances of a
particular case.
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\1\ Antitrust enforcement matters will be dealt with on a case-
by-case basis.
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I. Introduction and Purpose
The purpose of the NRC enforcement program is to support the NRC's
overall safety mission in protecting the public and the environment.
Consistent with that purpose, enforcement action should be used:
As a deterrent to emphasize the importance of compliance
with requirements, and
To encourage prompt identification and prompt,
comprehensive correction of violations.
Consistent with the purpose of this program, prompt and vigorous
enforcement action will be taken when dealing with licensees,
contractors,\2\ and their employees, who do not achieve the necessary
meticulous attention to detail and the high standard of compliance
which the NRC expects.\3\ Each enforcement action is dependent on the
circumstances of the case and requires the exercise of discretion after
consideration of this enforcement policy. In no case, however, will
licensees who cannot achieve and maintain adequate levels of safety be
permitted to conduct licensed activities.
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\2\ The term ``contractor'' as used in this policy inlcudes
vendors who supply products or services to be used in an NRC-
licensed facility or activity.
\3\ This policy primarily addresses the activities of NRC
licensees and applicants for NRC linceses. Therefore, the term
``licensee'' is used throughout the policy. However, in those cases
where the NRC determines that it is appropriate to take enforcement
action against a non-licensee or individual, the guidance in this
policy will be used, as applicable. These non-licensees include
contractors and subcontractors, holders of, or applicants for, NRC
approvals, e.g, certificates of compliance, early site permits, or
standard design certiciates and the employees of these non-
licensees. Specific guidance regarding enforcement action against
individuals and non-licensees is addressed in Sections VIII and X.
respectively.
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For purposes of this policy statement, safety means avoiding undue
risk, i.e., providing reasonable assurance of adequate protection for
the public in connection with the use of source, byproduct and special
nuclear materials. Compliance means meeting regulatory requirements.
Appendix A to this policy statement describes the nexus between safety
and compliance.
II. Statutory Authority and Procedural Framework
A. Statutory Authority
The NRC's enforcement jurisdiction is drawn from the Atomic Energy
Act of 1954, as amended, and the Energy Reorganization Act (ERA) of
1974, as amended.
Section 161 of the Atomic Energy Act authorizes the NRC to conduct
inspections and investigations and to issue orders as may be necessary
or desirable to promote the common defense and security or to protect
health or to minimize danger to life or property. Section 186
authorizes the NRC to revoke licenses under certain circumstances
(e.g., for material false statements, in response to conditions that
would have warranted refusal of a license on an original application,
for a licensee's failure to build or operate a facility in accordance
with the terms of the permit or license, and for violation of an NRC
regulation). Section 234 authorizes the NRC to impose civil penalties
not to exceed $100,000 per violation per day for the violation of
certain specified licensing provisions of the Act, rules, orders, and
license terms implementing these provisions, and for violations for
which licenses can be revoked. In addition to the enumerated provisions
in section 234, sections 84 and 147 authorize the imposition of civil
penalties for violations of regulations implementing those provisions.
Section 232 authorizes the NRC to seek injunctive or other equitable
relief for violation of regulatory requirements.
Section 206 of the Energy Reorganization Act authorizes the NRC to
impose civil penalties for knowing and conscious failures to provide
certain safety information to the NRC.
Notwithstanding the $100,000 limit stated in the Atomic Energy Act,
the Commission may impose higher civil penalties as provided by the
Debt Collection Improvement Act of 1996. Under the Act, the Commission
is required to modify civil monetary penalties to reflect inflation.
The adjusted maximum civil penalty amount is reflected in 10 CFR 2.205
and this Policy Statement.
Chapter 18 of the Atomic Energy Act provides for varying levels of
criminal penalties (i.e., monetary fines and imprisonment) for willful
violations of the Act and regulations or orders issued under sections
65, 161(b), 161(i), or 161(o) of the Act. Section 223 provides that
criminal penalties may be imposed on certain individuals employed by
firms constructing or supplying basic components of any utilization
facility if the individual knowingly and willfully violates NRC
requirements such that a basic component could be significantly
impaired. Section 235 provides that criminal penalties may be imposed
on persons who interfere with inspectors. Section 236 provides that
criminal penalties may be imposed on persons who attempt to or cause
sabotage at a nuclear facility or to nuclear fuel. Alleged or suspected
criminal violations of the Atomic Energy Act are referred to the
Department of Justice for appropriate action.
B. Procedural Framework
Subpart B of 10 CFR Part 2 of NRC's regulations sets forth the
procedures the NRC uses in exercising its enforcement authority. 10 CFR
2.201 sets forth the procedures for issuing notices of violation.
The procedure to be used in assessing civil penalties is set forth
in 10 CFR 2.205. This regulation provides that the civil penalty
process is initiated by issuing a Notice of Violation and Proposed
Imposition of a Civil Penalty. The licensee or other person is provided
an opportunity to contest in writing the proposed imposition of a civil
penalty. After evaluation of the response, the civil penalty may be
mitigated, remitted, or imposed. An opportunity is provided for a
hearing if a civil penalty is imposed. If a civil penalty is not paid
following a hearing or if a hearing is not requested, the matter may be
referred to the U.S. Department of Justice to institute a civil action
in District Court.
The procedure for issuing an order to institute a proceeding to
modify, suspend, or revoke a license or to take other action against a
licensee or other person subject to the jurisdiction of the Commission
is set forth in 10 CFR 2.202. The licensee or any other person
adversely affected by the order may request a hearing. The NRC is
authorized to make orders immediately effective if required to protect
the public health, safety, or interest, or if the violation is willful.
Section 2.204 sets out the procedures for issuing a Demand for
Information (Demand) to a licensee or other person subject to the
Commission's jurisdiction for the purpose of determining whether an
order or other enforcement action should be issued. The Demand does not
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provide hearing rights, as only information is being sought. A licensee
must answer a Demand. An unlicensed person may answer a Demand by
either providing the requested information or explaining why the Demand
should not have been issued.
III. Responsibilities
The Executive Director for Operations (EDO) and the principal
enforcement officer of the NRC, the Deputy Executive Director for
Regulatory Effectiveness, hereafter referred to as the Deputy Executive
Director, has been delegated the authority to approve or issue all
escalated enforcement actions.\4\ The Deputy Executive Director is
responsible to the EDO for the NRC enforcement program. The Office of
Enforcement (OE) exercises oversight of and implements the NRC
enforcement program. The Director, OE, acts for the Deputy Executive
Director in enforcement matters in his absence or as delegated.
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\4\ The term ``escalated enforcement action'' as used in this
policy means a Notice of Violation or civil penalty for any Severity
Level I, II, or III violation (or problem) or any order based upon a
violation.
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Subject to the oversight and direction of OE, and with the approval
of the Deputy Executive Director, where necessary, the regional offices
normally issue Notices of Violation and proposed civil penalties.
However, subject to the same oversight as the regional offices, the
Office of Nuclear Reactor Regulation (NRR) and the Office of Nuclear
Material Safety and Safeguards (NMSS) may also issue Notices of
Violation and proposed civil penalties for certain activities.
Enforcement orders are normally issued by the Deputy Executive Director
or the Director, OE. However, orders may also be issued by the EDO,
especially those involving the more significant matters. The Directors
of NRR and NMSS have also been delegated authority to issue orders, but
it is expected that normal use of this authority by NRR and NMSS will
be confined to actions not associated with compliance issues. The Chief
Financial Officer has been delegated the authority to issue orders
where licensees violate Commission regulations by nonpayment of license
and inspection fees.
In recognition that the regulation of nuclear activities in many
cases does not lend itself to a mechanistic treatment, judgment and
discretion must be exercised in determining the severity levels of the
violations and the appropriate enforcement sanctions, including the
decision to issue a Notice of Violation, or to propose or impose a
civil penalty and the amount of this penalty, after considering the
general principles of this statement of policy and the technical and
regulatory significance of the violations and the surrounding
circumstances.
Unless Commission consultation or notification is required by this
policy, the NRC staff may depart, where warranted in the public's
interest, from this policy as provided in Section VII, ``Exercise of
Enforcement Discretion.'' The Commission will be provided written
notification of all enforcement actions involving civil penalties or
orders. The Commission will also be provided notice the first time that
discretion is exercised for a plant meeting the criteria of Section
VII.B.2. The Commission is also to be provided notification (where
appropriate, based on the uniqueness or significance of the issue) for
a plant meeting the criteria of Section VII.B.6. In addition, the
Commission will be consulted prior to taking action in the following
situations (unless the urgency of the situation dictates immediate
action):
(1) An action affecting a licensee's operation that requires
balancing the public health and safety or common defense and security
implications of not operating with the potential radiological or other
hazards associated with continued operation;
(2) Proposals to impose a civil penalty for a single violation or
problem that is greater than 3 times the Severity Level I value shown
in Table 1A for that class of licensee;
(3) Any proposed enforcement action that involves a Severity Level
I violation;
(4) Any action the EDO believes warrants Commission involvement;
(5) Any proposed enforcement case involving an Office of
Investigations (OI) report where the NRC staff (other than the OI
staff) does not arrive at the same conclusions as those in the OI
report concerning issues of intent if the Director of OI concludes that
Commission consultation is warranted; and
(6) Any proposed enforcement action on which the Commission asks to
be consulted.
IV. Severity of Violations
Regulatory requirements 5 have varying degrees of
safety, safeguards, or environmental significance. Therefore, the
relative importance of each violation, including both the technical
significance and the regulatory significance, is evaluated as the first
step in the enforcement process. In considering the significance of a
violation, the staff considers the technical significance, i.e., actual
and potential consequences, and the regulatory significance. In
evaluating the technical significance, risk is an appropriate
consideration.
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\5\ The term ``requirement'' as used in this policy means a
legally binding requirement such as a statute, regulation, license
condition, technical specification, or order.
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Consequently, for purposes of formal enforcement action, violations
are normally categorized in terms of four levels of severity to show
their relative importance within each of the following eight activity
areas:
I. Reactor Operations;
II. Facility Construction;
III. Safeguards;
IV. Health Physics;
V. Transportation;
VI. Fuel Cycle and Materials Operations;
VII. Miscellaneous Matters; and
VIII. Emergency Preparedness.
Licensed activities will be placed in the activity area most
suitable in light of the particular violation involved including
activities not directly covered by one of the above listed areas, e.g.,
export license activities. Within each activity area, Severity Level I
has been assigned to violations that are the most significant and
Severity Level IV violations are the least significant. Severity Level
I and II violations are of very significant regulatory concern. In
general, violations that are included in these severity categories
involve actual or high potential impact on the public. Severity Level
III violations are cause for significant regulatory concern. Severity
Level IV violations are less serious but are of more than minor
concern; i.e., if left uncorrected, they could lead to a more serious
concern.
The Commission recognizes that there are other violations of minor
safety or environmental concern which are below the level of
significance of Severity Level IV violations. These minor violations
are not the subject of formal enforcement action and are not usually
described in inspection reports. To the extent such violations are
described, they will be noted as violations of minor significance that
are not subject to formal enforcement action.
Comparisons of significance between activity areas are
inappropriate. For example, the immediacy of any hazard to the public
associated with Severity Level I violations in Reactor Operations is
not directly comparable to that associated with Severity Level I
violations in Facility Construction.
Supplements I through VIII provide examples and serve as guidance
in determining the appropriate severity level for violations in each of
the eight activity areas. However, the examples
[[Page 26635]]
are neither exhaustive nor controlling. In addition, these examples do
not create new requirements. Each is designed to illustrate the
significance that the NRC places on a particular type of violation of
NRC requirements. Each of the examples in the supplements is predicated
on a violation of a regulatory requirement.
The NRC reviews each case being considered for enforcement action
on its own merits to ensure that the severity of a violation is
characterized at the level best suited to the significance of the
particular violation. In some cases, special circumstances may warrant
an adjustment to the severity level categorization.
A. Aggregation of Violations
A group of Severity Level IV violations may be evaluated in the
aggregate and assigned a single, increased severity level, thereby
resulting in a Severity Level III problem, if the violations have the
same underlying cause or programmatic deficiencies, or the violations
contributed to or were unavoidable consequences of the underlying
problem. Normally, Severity Level II and III violations are not
aggregated into a higher severity level.
The purpose of aggregating violations is to focus the licensee's
attention on the fundamental underlying causes for which enforcement
action appears warranted and to reflect the fact that several
violations with a common cause may be more significant collectively
than individually and may, therefore, warrant a more substantial
enforcement action.
B. Repetitive Violations
The severity level of a Severity Level IV violation may be
increased to Severity Level III, if the violation can be considered a
repetitive violation. 6 The purpose of escalating the
severity level of a repetitive violation is to acknowledge the added
significance of the situation based on the licensee's failure to
implement effective corrective action for the previous violation. The
decision to escalate the severity level of a repetitive violation will
depend on the circumstances, such as, but not limited to, the number of
times the violation has occurred, the similarity of the violations and
their root causes, the adequacy of previous corrective actions, the
period of time between the violations, and the significance of the
violations.
---------------------------------------------------------------------------
\6\ The term ``repetitive violation'' or ``similar violation''
as used in this policy statement means a violation that reasonably
could have been prevented by a licensee's corrective action for a
previous violation normally occurring (1) within the past 2 years of
the inspection at issue, or (2) the period within the last two
inspections, whichever is longer.
---------------------------------------------------------------------------
C. Willful Violations
Willful violations are by definition of particular concern to the
Commission because its regulatory program is based on licensees and
their contractors, employees, and agents acting with integrity and
communicating with candor. Willful violations cannot be tolerated by
either the Commission or a licensee. Licensees are expected to take
significant remedial action in responding to willful violations
commensurate with the circumstances such that it demonstrates the
seriousness of the violation thereby creating a deterrent effect within
the licensee's organization. Although removal of the person is not
necessarily required, substantial disciplinary action is expected.
Therefore, the severity level of a violation may be increased if
the circumstances surrounding the matter involve careless disregard of
requirements, deception, or other indications of willfulness. The term
``willfulness'' as used in this policy embraces a spectrum of
violations ranging from deliberate intent to violate or falsify to and
including careless disregard for requirements. Willfulness does not
include acts which do not rise to the level of careless disregard,
e.g., inadvertent clerical errors in a document submitted to the NRC.
In determining the specific severity level of a violation involving
willfulness, consideration will be given to such factors as the
position and responsibilities of the person involved in the violation
(e.g., licensee official 7 or non-supervisory employee), the
significance of any underlying violation, the intent of the violator
(i.e., careless disregard or deliberateness), and the economic or other
advantage, if any, gained as a result of the violation. The relative
weight given to each of these factors in arriving at the appropriate
severity level will be dependent on the circumstances of the violation.
However, if a licensee refuses to correct a minor violation within a
reasonable time such that it willfully continues, the violation should
be categorized at least at a Severity Level IV.
---------------------------------------------------------------------------
\7\ The term ``licensee official'' as used in this policy
statement means a first-line supervisor or above, a licensed
individual, a radiation safety officer, or an authorized user of
licensed material whether or not listed on a license.
Notwithstanding an individual's job title, severity level
categorization for willful acts involving individuals who can be
considered licensee officials will consider several factors,
including the position of the individual relative to the licensee's
organizational structure and the individual's responsibilities
relative to the oversight of licensed activities and to the use of
licensed material.
---------------------------------------------------------------------------
D. Violations of Reporting Requirements
The NRC expects licensees to provide complete, accurate, and timely
information and reports. Accordingly, unless otherwise categorized in
the Supplements, the severity level of a violation involving the
failure to make a required report to the NRC will be based upon the
significance of and the circumstances surrounding the matter that
should have been reported. However, the severity level of an untimely
report, in contrast to no report, may be reduced depending on the
circumstances surrounding the matter. A licensee will not normally be
cited for a failure to report a condition or event unless the licensee
was actually aware of the condition or event that it failed to report.
A licensee will, on the other hand, normally be cited for a failure to
report a condition or event if the licensee knew of the information to
be reported, but did not recognize that it was required to make a
report.
V. Predecisional Enforcement Conferences
Whenever the NRC has learned of the existence of a potential
violation for which escalated enforcement action appears to be
warranted, or recurring nonconformance on the part of a contractor, the
NRC may provide an opportunity for a predecisional enforcement
conference with the licensee, contractor, or other person before taking
enforcement action. The purpose of the conference is to obtain
information that will assist the NRC in determining the appropriate
enforcement action, such as: (1) A common understanding of facts, root
causes and missed opportunities associated with the apparent
violations, (2) a common understanding of corrective actions taken or
planned, and (3) a common understanding of the significance of issues
and the need for lasting comprehensive corrective action.
If the NRC concludes that it has sufficient information to make an
informed enforcement decision, a conference will not normally be held.
However, an opportunity for a conference will normally be provided
before issuing an order based on a violation of the rule on Deliberate
Misconduct or a civil penalty to an unlicensed person. If a conference
is not held, the licensee may be requested to provide a written
response to an inspection report, if issued, as to the licensee's views
on the apparent violations and their root causes and a
[[Page 26636]]
description of planned or implemented corrective actions. However, if
the NRC has sufficient information to conclude that a civil penalty is
not warranted, it may proceed to issue an enforcement action without
first obtaining the licensee's response to the inspection report.
During the predecisional enforcement conference, the licensee,
contractor, or other persons will be given an opportunity to provide
information consistent with the purpose of the conference, including an
explanation to the NRC of the immediate corrective actions (if any)
that were taken following identification of the potential violation or
nonconformance and the long-term comprehensive actions that were taken
or will be taken to prevent recurrence. Licensees, contractors, or
other persons will be told when a meeting is a predecisional
enforcement conference.
A predecisional enforcement conference is a meeting between the NRC
and the licensee. Conferences are normally held in the regional offices
and are normally open to public observation. Conferences will not
normally be open to the public if the enforcement action being
contemplated:
(1) Would be taken against an individual, or if the action, though
not taken against an individual, turns on whether an individual has
committed wrongdoing;
(2) Involves significant personnel failures where the NRC has
requested that the individual(s) involved be present at the conference;
(3) Is based on the findings of an NRC Office of Investigations
report that has not been publicly disclosed; or
(4) Involves safeguards information, Privacy Act information, or
information which could be considered proprietary;
In addition, conferences will not normally be open to the public
if:
(5) The conference involves medical misadministrations or
overexposures and the conference cannot be conducted without disclosing
the exposed individual's name; or
(6) The conference will be conducted by telephone or the conference
will be conducted at a relatively small licensee's facility.
Notwithstanding meeting any of these criteria, a conference may
still be open if the conference involves issues related to an ongoing
adjudicatory proceeding with one or more intervenors or where the
evidentiary basis for the conference is a matter of public record, such
as an adjudicatory decision by the Department of Labor. In addition,
notwithstanding the above normal criteria for opening or closing
conferences, with the approval of the Executive Director for
Operations, conferences may either be open or closed to the public
after balancing the benefit of the public's observation against the
potential impact on the agency's decision-making process in a
particular case.
The NRC will notify the licensee that the conference will be open
to public observation. Consistent with the agency's policy on open
meetings, ``Staff Meetings Open to Public,'' published September 20,
1994 (59 FR 48340), the NRC intends to announce open conferences
normally at least 10 working days in advance of conferences through (1)
notices posted in the Public Document Room, (2) a toll-free telephone
recording at 800-952-9674, (3) a toll-free electronic bulletin board at
800-952-9676, and on the World Wide Web at the NRC Office of
Enforcement homepage (www.nrc.gov/OE). In addition, the NRC will also
issue a press release and notify appropriate State liaison officers
that a predecisional enforcement conference has been scheduled and that
it is open to public observation.
The public attending open conferences may observe but may not
participate in the conference. It is noted that the purpose of
conducting open conferences is not to maximize public attendance, but
rather to provide the public with opportunities to be informed of NRC
activities consistent with the NRC's ability to exercise its regulatory
and safety responsibilities. Therefore, members of the public will be
allowed access to the NRC regional offices to attend open enforcement
conferences in accordance with the ``Standard Operating Procedures For
Providing Security Support For NRC Hearings and Meetings,'' published
November 1, 1991 (56 FR 56251). These procedures provide that visitors
may be subject to personnel screening, that signs, banners, posters,
etc., not larger than 18'' be permitted, and that disruptive persons
may be removed. The open conference will be terminated if disruption
interferes with a successful conference. NRC's Predecisional
Enforcement Conferences (whether open or closed) normally will be held
at the NRC's regional offices or in NRC Headquarters Offices and not in
the vicinity of the licensee's facility.
For a case in which an NRC Office of Investigations (OI) report
finds that discrimination as defined under 10 CFR 50.7 (or similar
provisions in Parts 30, 40, 60, 70, or 72) has occurred, the OI report
may be made public, subject to withholding certain information (i.e.,
after appropriate redaction), in which case the associated
predecisional enforcement conference will normally be open to public
observation. In a conference where a particular individual is being
considered potentially responsible for the discrimination, the
conference will remain closed. In either case (i.e., whether the
conference is open or closed), the employee or former employee who was
the subject of the alleged discrimination (hereafter referred to as
``complainant'') will normally be provided an opportunity to
participate in the predecisional enforcement conference with the
licensee/employer. This participation will normally be in the form of a
complainant statement and comment on the licensee's presentation,
followed in turn by an opportunity for the licensee to respond to the
complainant's presentation. In cases where the complainant is unable to
attend in person, arrangements will be made for the complainant's
participation by telephone or an opportunity given for the complainant
to submit a written response to the licensee's presentation. If the
licensee chooses to forego an enforcement conference and, instead,
responds to the NRC's findings in writing, the complainant will be
provided the opportunity to submit written comments on the licensee's
response. For cases involving potential discrimination by a contractor,
any associated predecisional enforcement conference with the contractor
would be handled similarly. These arrangements for complainant
participation in the predecisional enforcement conference are not to be
conducted or viewed in any respect as an adjudicatory hearing. The
purpose of the complainant's participation is to provide information to
the NRC to assist it in its enforcement deliberations.
A predecisional enforcement conference may not need to be held in
cases where there is a full adjudicatory record before the Department
of Labor. If a conference is held in such cases, generally the
conference will focus on the licensee's corrective action. As with
discrimination cases based on OI investigations, the complainant may be
allowed to participate.
Members of the public attending open conferences will be reminded
that (1) the apparent violations discussed at predecisional enforcement
conferences are subject to further review and may be subject to change
prior to any resulting enforcement action and (2) the statements of
views or expressions of opinion made by NRC employees at predecisional
enforcement conferences,
[[Page 26637]]
or the lack thereof, are not intended to represent final determinations
or beliefs.
When needed to protect the public health and safety or common
defense and security, escalated enforcement action, such as the
issuance of an immediately effective order, will be taken before the
conference. In these cases, a conference may be held after the
escalated enforcement action is taken.
VI. Enforcement Actions
This section describes the enforcement sanctions available to the
NRC and specifies the conditions under which each may be used. The
basic enforcement sanctions are Notices of Violation, civil penalties,
and orders of various types. As discussed further in Section VI.D,
related administrative actions such as Notices of Nonconformance,
Notices of Deviation, Confirmatory Action Letters, Letters of
Reprimand, and Demands for Information are used to supplement the
enforcement program. In selecting the enforcement sanctions or
administrative actions, the NRC will consider enforcement actions taken
by other Federal or State regulatory bodies having concurrent
jurisdiction, such as in transportation matters.
Usually, whenever a violation of NRC requirements of more than a
minor concern is identified, enforcement action is taken. The nature
and extent of the enforcement action is intended to reflect the
seriousness of the violation involved. For the vast majority of
violations, a Notice of Violation or a Notice of Nonconformance is the
normal action.
However, circumstances regarding the violation findings may warrant
discretion being exercised such that the NRC refrains from issuing a
Notice of Violation or other enforcement action. (See Section VII.B,
``Mitigation of Enforcement Sanctions.'')
A. Notice of Violation
A Notice of Violation is a written notice setting forth one or more
violations of a legally binding requirement. The Notice of Violation
normally requires the recipient to provide a written statement
describing (1) the reasons for the violation or, if contested, the
basis for disputing the violation; (2) corrective steps that have been
taken and the results achieved; (3) corrective steps that will be taken
to prevent recurrence; and (4) the date when full compliance will be
achieved. The NRC may waive all or portions of a written response to
the extent relevant information has already been provided to the NRC in
writing or documented in an NRC inspection report. The NRC may require
responses to Notices of Violation to be under oath. Normally, responses
under oath will be required only in connection with Severity Level I,
II, or III violations or orders.
The NRC uses the Notice of Violation as the usual method for
formalizing the existence of a violation. Issuance of a Notice of
Violation is normally the only enforcement action taken, except in
cases where the criteria for issuance of civil penalties and orders, as
set forth in Sections VI.B and VI.C, respectively, are met.
B. Civil Penalty
A civil penalty is a monetary penalty that may be imposed for
violation of (1) certain specified licensing provisions of the Atomic
Energy Act or supplementary NRC rules or orders; (2) any requirement
for which a license may be revoked; or (3) reporting requirements under
section 206 of the Energy Reorganization Act. Civil penalties are
designed to deter future violations both by the involved licensee as
well as by other licensees conducting similar activities and to
emphasize the need for licensees to identify violations and take prompt
comprehensive corrective action.
Civil penalties are considered for Severity Level III violations.
In addition, civil penalties will normally be assessed for Severity
Level I and II violations and knowing and conscious violations of the
reporting requirements of section 206 of the Energy Reorganization Act.
Civil penalties are used to encourage prompt identification and
prompt and comprehensive correction of violations, to emphasize
compliance in a manner that deters future violations, and to serve to
focus licensees' attention on violations of significant regulatory
concern.
Although management involvement, direct or indirect, in a violation
may lead to an increase in the civil penalty, the lack of management
involvement may not be used to mitigate a civil penalty. Allowing
mitigation in the latter case could encourage the lack of management
involvement in licensed activities and a decrease in protection of the
public health and safety.
1. Base Civil Penalty
The NRC imposes different levels of penalties for different
severity level violations and different classes of licensees,
contractors, and other persons. Tables 1A and 1B show the base civil
penalties for various reactor, fuel cycle, and materials programs.
(Civil penalties issued to individuals are determined on a case-by-case
basis.) The structure of these tables generally takes into account the
gravity of the violation as a primary consideration and the ability to
pay as a secondary consideration. Generally, operations involving
greater nuclear material inventories and greater potential consequences
to the public and licensee employees receive higher civil penalties.
Regarding the secondary factor of ability of various classes of
licensees to pay the civil penalties, it is not the NRC's intention
that the economic impact of a civil penalty be so severe that it puts a
licensee out of business (orders, rather than civil penalties, are used
when the intent is to suspend or terminate licensed activities) or
adversely affects a licensee's ability to safely conduct licensed
activities. The deterrent effect of civil penalties is best served when
the amounts of the penalties take into account a licensee's ability to
pay. In determining the amount of civil penalties for licensees for
whom the tables do not reflect the ability to pay or the gravity of the
violation, the NRC will consider as necessary an increase or decrease
on a case-by-case basis. Normally, if a licensee can demonstrate
financial hardship, the NRC will consider payments over time, including
interest, rather than reducing the amount of the civil penalty.
However, where a licensee claims financial hardship, the licensee will
normally be required to address why it has sufficient resources to
safely conduct licensed activities and pay license and inspection fees.
2. Civil Penalty Assessment
In an effort to (1) emphasize the importance of adherence to
requirements and (2) reinforce prompt self-identification of problems
and root causes and prompt and comprehensive correction of violations,
the NRC reviews each proposed civil penalty on its own merits and,
after considering all relevant circumstances, may adjust the base civil
penalties shown in Table 1A and 1B for Severity Level I, II, and III
violations as described below.
The civil penalty assessment process considers four decisional
points: (a) Whether the licensee has had any previous escalated
enforcement action (regardless of the activity area) during the past 2
years or past 2 inspections, whichever is longer; (b) whether the
licensee should be given credit for actions related to identification;
(c) whether the licensee's corrective actions are prompt and
comprehensive; and (d) whether, in view of all the circumstances, the
matter in question requires the exercise of discretion. Although each
of these decisional points may have several associated
[[Page 26638]]
considerations for any given case, the outcome of the assessment
process for each violation or problem, absent the exercise of
discretion, is limited to one of the following three results: no civil
penalty, a base civil penalty, or a base civil penalty escalated by
100%. The flow chart presented below is a graphic representation of the
civil penalty assessment process.
BILLING CODE 7590-01-P
[GRAPHIC] [TIFF OMITTED] TN13MY98.000
BILLING CODE 7590-01-C
a. Initial Escalated Action. When the NRC determines that a non-
willful Severity Level III violation or problem has occurred, and the
licensee has not had any previous escalated actions (regardless of the
activity area) during the past 2 years or 2 inspections, whichever is
longer, the NRC will consider whether the licensee's corrective action
for the present violation or problem is reasonably prompt and
comprehensive (see the discussion under Section VI.B.2.c, below). Using
2 years as the basis for assessment is expected to cover most
situations, but considering a slightly longer or shorter period might
be warranted based on the circumstances of a particular case. The
starting point of this period should be considered the date when the
licensee was put on notice of the need to take corrective action. For a
licensee-identified violation or an event, this would be when the
licensee is aware that a problem or violation exists requiring
corrective action. For an NRC-identified violation, the starting point
would be when the NRC puts the licensee on notice, which could be
during the inspection, at the inspection exit meeting, or as part of
post-inspection communication.
If the corrective action is judged to be prompt and comprehensive,
a Notice of Violation normally should be issued with no associated
civil penalty. If the corrective action is judged to be less than
prompt and comprehensive, the Notice of Violation normally should be
issued with a base civil penalty.
b. Credit for Actions Related to Identification. (1) If a Severity
Level I or II violation or a willful Severity Level III violation has
occurred--or if, during the past 2 years or 2 inspections, whichever is
longer, the licensee has been issued at least one other escalated
action--the civil penalty assessment should normally consider the
factor of identification in addition to corrective action (see the
discussion under Section VI.B.2.c, below). As to identification, the
NRC should consider whether the licensee should be given credit for
actions related to identification.
In each case, the decision should be focused on identification of
the problem requiring corrective action. In other words, although
giving credit for Identification and Corrective Action should be
separate decisions, the concept of Identification presumes that the
identifier recognizes the existence of a problem, and understands that
corrective action is needed. The decision on Identification requires
considering all the circumstances of identification including:
(i) Whether the problem requiring corrective action was NRC-
identified, licensee-identified, or revealed through an event
8;
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\8\ An ``event,'' as used here, means (1) an event characterized
by an active adverse impact on equipment or personnel, readily
obvious by human observation or instrumentation, or (2) a
radiological impact on personnel or the environment in excess of
regulatory limits, such as an overexposure, a release of radioactive
material above NRC limits, or a loss of radioactive material. For
example, an equipment failure discovered through a spill of liquid,
a loud noise, the failure to have a system respond properly, or an
annunciator alarm would be considered an event; a system discovered
to be inoperable through a document review would not. Similarly, if
a licensee discovered, through quarterly dosimetry readings, that
employees had been inadequately monitored for radiation, the issue
would normally be considered licensee-identified; however, if the
same dosimetry readings disclosed an overexposure, the issue would
be considered an event.
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[[Page 26639]]
(ii) Whether prior opportunities existed to identify the problem
requiring corrective action, and if so, the age and number of those
opportunities;
(iii) Whether the problem was revealed as the result of a licensee
self-monitoring effort, such as conducting an audit, a test, a
surveillance, a design review, or troubleshooting;
(iv) For a problem revealed through an event, the ease of
discovery, and the degree of licensee initiative in identifying the
root cause of the problem and any associated violations;
(v) For NRC-identified issues, whether the licensee would likely
have identified the issue in the same time-period if the NRC had not
been involved;
(vi) For NRC-identified issues, whether the licensee should have
identified the issue (and taken action) earlier; and
(vii) For cases in which the NRC identifies the overall problem
requiring corrective action (e.g., a programmatic issue), the degree of
licensee initiative or lack of initiative in identifying the problem or
problems requiring corrective action.
(2) Although some cases may consider all of the above factors, the
importance of each factor will vary based on the type of case as
discussed in the following general guidance:
(i) Licensee-Identified. When a problem requiring corrective action
is licensee-identified (i.e., identified before the problem has
resulted in an event), the NRC should normally give the licensee credit
for actions related to identification, regardless of whether prior
opportunities existed to identify the problem.
(ii) Identified Through an Event. When a problem requiring
corrective action is identified through an event, the decision on
whether to give the licensee credit for actions related to
identification normally should consider the ease of discovery, whether
the event occurred as the result of a licensee self-monitoring effort
(i.e., whether the licensee was ``looking for the problem''), the
degree of licensee initiative in identifying the problem or problems
requiring corrective action, and whether prior opportunities existed to
identify the problem.
Any of these considerations may be overriding if particularly
noteworthy or particularly egregious. For example, if the event
occurred as the result of conducting a surveillance or similar self-
monitoring effort (i.e., the licensee was looking for the problem), the
licensee should normally be given credit for identification. As a
second instance, even if the problem was easily discovered (e.g.,
revealed by a large spill of liquid), the NRC may choose to give credit
because noteworthy licensee effort was exerted in ferreting out the
root cause and associated violations, or simply because no prior
opportunities (e.g., procedural cautions, post-maintenance testing,
quality control failures, readily observable parameter trends, or
repeated or locked-in annunciator warnings) existed to identify the
problem.
(iii) NRC-Identified. When a problem requiring corrective action is
NRC-identified, the decision on whether to give the licensee credit for
actions related to Identification should normally be based on an
additional question: should the licensee have reasonably identified the
problem (and taken action) earlier?
In most cases, this reasoning may be based simply on the ease of
the NRC inspector's discovery (e.g., conducting a walkdown, observing
in the control room, performing a confirmatory NRC radiation survey,
hearing a cavitating pump, or finding a valve obviously out of
position). In some cases, the licensee's missed opportunities to
identify the problem might include a similar previous violation, NRC or
industry notices, internal audits, or readily observable trends.
If the NRC identifies the violation but concludes that, under the
circumstances, the licensee's actions related to Identification were
not unreasonable, the matter would be treated as licensee-identified
for purposes of assessing the civil penalty. In such cases, the
question of Identification credit shifts to whether the licensee should
be penalized for NRC's identification of the problem.
(iv) Mixed Identification. For ``mixed'' identification situations
(i.e., where multiple violations exist, some NRC-identified, some
licensee-identified, or where the NRC prompted the licensee to take
action that resulted in the identification of the violation), the NRC's
evaluation should normally determine whether the licensee could
reasonably have been expected to identify the violation in the NRC's
absence. This determination should consider, among other things, the
timing of the NRC's discovery, the information available to the
licensee that caused the NRC concern, the specificity of the NRC's
concern, the scope of the licensee's efforts, the level of licensee
resources given to the investigation, and whether the NRC's path of
analysis had been dismissed or was being pursued in parallel by the
licensee.
In some cases, the licensee may have addressed the isolated
symptoms of each violation (and may have identified the violations),
but failed to recognize the common root cause and taken the necessary
comprehensive action. Where this is true, the decision on whether to
give licensee credit for actions related to Identification should focus
on identification of the problem requiring corrective action (e.g., the
programmatic breakdown). As such, depending on the chronology of the
various violations, the earliest of the individual violations might be
considered missed opportunities for the licensee to have identified the
larger problem.
(v) Missed Opportunities to Identify. Missed opportunities include
prior notifications or missed opportunities to identify or prevent
violations such as (1) through normal surveillances, audits, or quality
assurance (QA) activities; (2) through prior notice, i.e., specific NRC
or industry notification; or (3) through other reasonable indication of
a potential problem or violation, such as observations of employees and
contractors, and failure to take effective corrective steps. It may
include findings of the NRC, the licensee, or industry made at other
facilities operated by the licensee where it is reasonable to expect
the licensee to take action to identify or prevent similar problems at
the facility subject to the enforcement action at issue. In assessing
this factor, consideration will be given to, among other things, the
opportunities available to discover the violation, the ease of
discovery, the similarity between the violation and the notification,
the period of time between when the violation occurred and when the
notification was issued, the action taken (or planned) by the licensee
in response to the notification, and the level of management review
that the notification received (or should have received).
The evaluation of missed opportunities should normally depend on
whether the information available to the licensee should reasonably
have caused action that would have prevented the violation. Missed
opportunities is normally not applied where the licensee appropriately
reviewed the opportunity for application to its activities and
reasonable action was either taken or
[[Page 26640]]
planned to be taken within a reasonable time.
In some situations the missed opportunity is a violation in itself.
In these cases, unless the missed opportunity is a Severity Level III
violation in itself, the missed opportunity violation may be grouped
with the other violations into a single Severity Level III ``problem.''
However, if the missed opportunity is the only violation, then it
should not normally be counted twice (i.e., both as the violation and
as a missed opportunity--''double counting'') unless the number of
opportunities missed was particularly significant.
The timing of the missed opportunity should also be considered.
While a rigid time-frame is unnecessary, a 2-year period should
generally be considered for consistency in implementation, as the
period reflecting relatively current performance.
(3) When the NRC determines that the licensee should receive credit
for actions related to Identification the civil penalty assessment
should normally result in either no civil penalty or a base civil
penalty, based on whether Corrective Action is judged to be reasonably
prompt and comprehensive. When the licensee is not given credit for
actions related to Identification the civil penalty assessment should
normally result in a Notice of Violation with either a base civil
penalty or a base civil penalty escalated by 100%, depending on the
quality of Corrective Action, because the licensee's performance is
clearly not acceptable.
c. Credit for Prompt and Comprehensive Corrective Action. The
purpose of the Corrective Action factor is to encourage licensees to
(1) take the immediate actions necessary upon discovery of a violation
that will restore safety and compliance with the license,
regulation(s), or other requirement(s); and (2) develop and implement
(in a timely manner) the lasting actions that will not only prevent
recurrence of the violation at issue, but will be appropriately
comprehensive, given the significance and complexity of the violation,
to prevent occurrence of violations with similar root causes.
Regardless of other circumstances (e.g., past enforcement history,
identification), the licensee's corrective actions should always be
evaluated as part of the civil penalty assessment process. As a
reflection of the importance given to this factor, an NRC judgment that
the licensee's corrective action has not been prompt and comprehensive
will always result in issuing at least a base civil penalty.
In assessing this factor, consideration will be given to the
timeliness of the corrective action (including the promptness in
developing the schedule for long term corrective action), the adequacy
of the licensee's root cause analysis for the violation, and, given the
significance and complexity of the issue, the comprehensiveness of the
corrective action (i.e., whether the action is focused narrowly to the
specific violation or broadly to the general area of concern). Even in
cases when the NRC, at the time of the enforcement conference,
identifies additional peripheral or minor corrective action still to be
taken, the licensee may be given credit in this area, as long as the
licensee's actions addressed the underlying root cause and are
considered sufficient to prevent recurrence of the violation and
similar violations.
Normally, the judgment of the adequacy of corrective actions will
hinge on whether the NRC had to take action to focus the licensee's
evaluative and corrective process in order to obtain comprehensive
corrective action. This will normally be judged at the time of the
predecisional enforcement conference (e.g., by outlining substantive
additional areas where corrective action is needed). Earlier informal
discussions between the licensee and NRC inspectors or management may
result in improved corrective action, but should not normally be a
basis to deny credit for Corrective Action. For cases in which the
licensee does not get credit for actions related to Identification
because the NRC identified the problem, the assessment of the
licensee's corrective action should begin from the time when the NRC
put the licensee on notice of the problem. Notwithstanding eventual
good comprehensive corrective action, if immediate corrective action
was not taken to restore safety and compliance once the violation was
identified, corrective action would not be considered prompt and
comprehensive.
Corrective action for violations involving discrimination should
normally only be considered comprehensive if the licensee takes prompt,
comprehensive corrective action that (1) addresses the broader
environment for raising safety concerns in the workplace, and (2)
provides a remedy for the particular discrimination at issue.
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
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.
d. Exercise of Discretion. As provided in Section VII, ``Exercise
of Discretion,'' discretion may be exercised by either escalating or
mitigating the amount of the civil penalty determined after applying
the civil penalty adjustment factors to ensure that the proposed civil
penalty reflects the NRC's concern regarding the violation at issue and
that it conveys the appropriate message to the licensee. However, in no
instance will a civil penalty for any one violation exceed $110,000 per
day.
Table 1A--Base Civil Penalties
------------------------------------------------------------------------
------------------------------------------------------------------------
a. Power reactors and gaseous diffusion plants............... $110,000
b. Fuel fabricators, industrial processors,\1\ and
independent spent fuel and monitored retrievable storage
installations............................................... 27,500
c. Test reactors, mills and uranium conversion facilities,
contractors, waste disposal licensees, industrial
radiographers, and other large material
users....................................................... 11,000
d. Research reactors, academic, medical, or other small
material users\2\........................................... 5,500
------------------------------------------------------------------------
\1\ Large firms engaged in manufacturing or distribution of byproduct,
source, or special nuclear material.
\2\ This applies to nonprofit institutions not otherwise categorized in
this table, mobile nuclear services, nuclear pharmacies, and physician
offices.
Table 1B--Base Civil Penalties
[In percent]
------------------------------------------------------------------------
Base
civil
Severity level penalty
amount
------------------------------------------------------------------\1\---
I ........................................................... 100
II .......................................................... 80
III ......................................................... 50
------------------------------------------------------------------------
\1\ Percent of amount listed in Table 1A.
C. Orders
An order is a written NRC directive to modify, suspend, or revoke a
license; to cease and desist from a given practice or activity; or to
take such other action as may be proper (see 10 CFR 2.202). Orders may
also be issued in lieu of, or in addition to, civil penalties, as
appropriate for Severity Level I, II, or III
[[Page 26641]]
violations. Orders may be issued as follows:
1. License Modification orders are issued when some change in
licensee equipment, procedures, personnel, or management controls is
necessary.
2. Suspension Orders may be used:
(a) To remove a threat to the public health and safety, common
defense and security, or the environment;
(b) To stop facility construction when,
(i) Further work could preclude or significantly hinder the
identification or correction of an improperly constructed safety-
related system or component; or
(ii) The licensee's quality assurance program implementation is not
adequate to provide confidence that construction activities are being
properly carried out;
(c) When the licensee has not responded adequately to other
enforcement action;
(d) When the licensee interferes with the conduct of an inspection
or investigation; or
(e) For any reason not mentioned above for which license revocation
is legally authorized.
Suspensions may apply to all or part of the licensed activity.
Ordinarily, a licensed activity is not suspended (nor is a suspension
prolonged) for failure to comply with requirements where such failure
is not willful and adequate corrective action has been taken.
3. Revocation Orders may be used:
(a) When a licensee is unable or unwilling to comply with NRC
requirements;
(b) When a licensee refuses to correct a violation;
(c) When licensee does not respond to a Notice of Violation where a
response was required;
(d) When a licensee refuses to pay an applicable fee under the
Commission's regulations; or
(e) For any other reason for which revocation is authorized under
section 186 of the Atomic Energy Act (e.g., any condition which would
warrant refusal of a license on an original application).
4. Cease and Desist Orders may be used to stop an unauthorized
activity that has continued after notification by the NRC that the
activity is unauthorized.
5. Orders to non-licensees, including contractors and
subcontractors, holders of NRC approvals, e.g., certificates of
compliance, early site permits, standard design certificates, or
applicants for any of them, and to employees of any of the foregoing,
are used when the NRC has identified deliberate misconduct that may
cause a licensee to be in violation of an NRC requirement or where
incomplete or inaccurate information is deliberately submitted or where
the NRC loses its reasonable assurance that the licensee will meet NRC
requirements with that person involved in licensed activities.
Unless a separate response is warranted pursuant to 10 CFR 2.201, a
Notice of Violation need not be issued where an order is based on
violations described in the order. The violations described in an order
need not be categorized by severity level.
Orders are made effective immediately, without prior opportunity
for hearing, whenever it is determined that the public health,
interest, or safety so requires, or when the order is responding to a
violation involving willfulness. Otherwise, a prior opportunity for a
hearing on the order is afforded. For cases in which the NRC believes a
basis could reasonably exist for not taking the action as proposed, the
licensee will ordinarily be afforded an opportunity to show why the
order should not be issued in the proposed manner by way of a Demand
for Information. (See 10 CFR 2.204)
D. Related Administrative Actions. In addition to the formal
enforcement actions, Notices of Violation, civil penalties, and orders,
the NRC also uses administrative actions, such as Notices of Deviation,
Notices of Nonconformance, Confirmatory Action Letters, Letters of
Reprimand, and Demands for Information to supplement its enforcement
program. The NRC expects licensees and contractors to adhere to any
obligations and commitments resulting from these actions and will not
hesitate to issue appropriate orders to ensure that these obligations
and commitments are met.
1. Notices of Deviation are written notices describing a licensee's
failure to satisfy a commitment where the commitment involved has not
been made a legally binding requirement. A Notice of Deviation requests
a licensee to provide a written explanation or statement describing
corrective steps taken (or planned), the results achieved, and the date
when corrective action will be completed.
2. Notices of Nonconformance are written notices describing
contractors' failures to meet commitments which have not been made
legally binding requirements by NRC. An example is a commitment made in
a procurement contract with a licensee as required by 10 CFR Part 50,
Appendix B. Notices of Nonconformances request non-licensees to provide
written explanations or statements describing corrective steps (taken
or planned), the results achieved, the dates when corrective actions
will be completed, and measures taken to preclude recurrence.
3. Confirmatory Action Letters are letters confirming a licensee's
or contractor's agreement to take certain actions to remove significant
concerns about health and safety, safeguards, or the environment.
4. Letters of Reprimand are letters addressed to individuals
subject to Commission jurisdiction identifying a significant deficiency
in their performance of licensed activities.
5. Demands for Information are demands for information from
licensees or other persons for the purpose of enabling the NRC to
determine whether an order or other enforcement action should be
issued.
VII. Exercise of Discretion
Notwithstanding the normal guidance contained in this policy, as
provided in Section III, ``Responsibilities,'' the NRC may choose to
exercise discretion and either escalate or mitigate enforcement
sanctions within the Commission's statutory authority to ensure that
the resulting enforcement action appropriately reflects the level of
NRC concern regarding the violation at issue and conveys the
appropriate message to the licensee.
A. Escalation of Enforcement Sanctions
The NRC considers violations categorized at Severity Level I, II,
or III to be of significant regulatory concern. If the application of
the normal guidance in this policy does not result in an appropriate
sanction, with the approval of the Deputy Executive Director and
consultation with the EDO and Commission, as warranted, the NRC may
apply its full enforcement authority where the action is warranted. NRC
action may include (1) escalating civil penalties, (2) issuing
appropriate orders, and (3) assessing civil penalties for continuing
violations on a per day basis, up to the statutory limit of $110,000
per violation, per day.
1. Civil penalties. Notwithstanding the outcome of the normal civil
penalty assessment process addressed in Section VI.B, the NRC may
exercise discretion by either proposing a civil penalty where
application of the factors would otherwise result in zero penalty or by
escalating the amount of the resulting civil penalty (i.e., base or
twice the base civil penalty) to ensure that the proposed civil penalty
reflects the significance of the circumstances and conveys the
appropriate regulatory message to the licensee. The Commission will be
notified if the deviation in the amount of the civil penalty proposed
under this discretion from the amount of the civil penalty assessed
under the normal process is
[[Page 26642]]
more than two times the base civil penalty shown in Tables 1A and 1B.
Examples when this discretion should be considered include, but are not
limited to the following:
(a) Problems categorized at Severity Level I or II;
(b) Overexposures, or releases of radiological material in excess
of NRC requirements;
(c) Situations involving particularly poor licensee performance, or
involving willfulness;
(d) Situations when the licensee's previous enforcement history has
been particularly poor, or when the current violation is directly
repetitive of an earlier violation;
(e) Situations when the violation results in a substantial increase
in risk, including cases in which the duration of the violation has
contributed to the substantial increase;
(f) Situations when the licensee made a conscious decision to be in
noncompliance in order to obtain an economic benefit;
(g) Cases involving the loss of a source. In addition, unless the
licensee self-identifies and reports the loss to the NRC, these cases
should normally result in a civil penalty in an amount at least in the
order of the cost of an authorized disposal of the material or of the
transfer of the material to an authorized recipient; or
(h) Severity Level II or III violations associated with departures
from the Final Safety Analysis Report identified after two years from
October 18, 1996. 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).
2. Orders. The NRC may, where necessary or desirable, issues orders
in conjunction with or in lieu of civil penalties to achieve or
formalize corrective actions and to deter further recurrence of serious
violations.
3. Daily civil penalties. In order to recognize the added technical
safety significance or regulatory significance for those cases where a
very strong message is warranted for a significant violation that
continues for more than one day, the NRC may exercise discretion and
assess a separate violation and attendant civil penalty up to the
statutory limit of $110,000 for each day the violation continues. The
NRC may exercise this discretion if a licensee was aware or clearly
should have been aware of a violation, or if the licensee had an
opportunity to identify and correct the violation but failed to do so.
B. Mitigation of Enforcement Sanctions
The NRC may exercise discretion and refrain from issuing a civil
penalty and/or a Notice of Violation, if the outcome of the normal
process described in Sections VI.A and VI.B does not result in a
sanction consistent with an appropriate regulatory message. In
addition, even if the NRC exercises this discretion, when the licensee
failed to make a required report to the NRC, a separate enforcement
action will normally be issued for the licensee's failure to make a
required report. The approval of the Director, Office of Enforcement,
with consultation with the Deputy Executive Director as warranted, is
required for exercising discretion of the type described in Section
VII.B.1.b where a willful violation is involved, and of the types
described in Sections VII.B.2 through VII.B.6. Commission notification
is required for exercising discretion of the type described in: (1)
Section VII.B.2 the first time discretion is exercised during that
plant shutdown, and (2) Section VII.B.6 where appropriate based on the
uniqueness or significance of the issue. Examples when discretion
should be considered for departing from the normal approach in Sections
VI.A and VI.B include, but are not limited to the following:
1. Licensee-Identified Severity Level IV Violations. The NRC, with
the approval of the Regional Administrator or his or her designee, may
refrain from issuing a Notice of Violation for a Severity Level IV
violation that is documented in an inspection report (or official field
notes for some material cases) and described therein as a Non-Cited
Violation (NCV) provided that the inspection report includes a brief
description of the corrective action and that the violation meets all
of the following criteria:
(a) It was identified by the licensee; \9\
---------------------------------------------------------------------------
\9\ Discretion is not warranted when a licensee identifies a
violation as a result of an event where the root cause of the event
is obvious or the licensee had prior opportunity to identify the
problem but failed to take action that would have prevented the
event. Discretion may be warranted if the licensee demonstrated
initiative in identifying the violation's root cause.
---------------------------------------------------------------------------
(b) It was not a violation that could reasonably be expected to
have been prevented by the licensee's corrective action for a previous
violation or a previous licensee finding that occurred within the past
2 years of the inspection at issue, or the period within the last two
inspections, whichever is longer;
(c) It was or will be corrected within a reasonable time, by
specific corrective action committed to by the licensee by the end of
the inspection, including immediate corrective action and comprehensive
corrective action to prevent recurrence;
(d) It was not a willful violation or if it was a willful
violation;
(i) The information concerning the violation, if not required to be
reported, was promptly provided to appropriate NRC personnel, such as a
resident inspector or regional section or branch chief;
(ii) The violation involved the acts of a low-level individual (and
not a licensee official as defined in Section IV.C);
(iii) The violation appears to be the isolated action of the
employee without management involvement and the violation was not
caused by lack of management oversight as evidenced by either a history
of isolated willful violations or a lack of adequate audits or
supervision of employees; and
(iv) Significant remedial action commensurate with the
circumstances was taken by the licensee such that it demonstrated the
seriousness of the violation to other employees and contractors,
thereby creating a deterrent effect within the licensee's organization.
Although removal of the employee from licensed activities is not
necessarily required, substantial disciplinary action is expected.
2. Violations Identified During Extended Shutdowns or Work
Stoppages. The NRC may refrain from issuing a Notice of Violation or a
proposed civil penalty for a violation that is identified after (i) the
NRC has taken significant enforcement action based upon a major safety
event contributing to an extended shutdown of an operating reactor or a
material licensee (or a work stoppage at a construction site), or (ii)
the licensee enters an extended shutdown or work stoppage related to
generally poor performance over a long period of time, provided that
the violation is documented in an inspection report (or official field
notes for some material cases) and that it meets all of the following
criteria:
(a) It was either licensee-identified as a result of a
comprehensive program for problem identification and correction that
was developed in response to the shutdown or identified as a result of
an employee allegation to the licensee; (If the NRC identifies the
violation and all of the other criteria are met, the NRC should
determine whether enforcement action is necessary to achieve remedial
action, or if discretion may still be appropriate.)
[[Page 26643]]
(b) It is based upon activities of the licensee prior to the events
leading to the shutdown;
(c) It would not be categorized at Severity Level I;
(d) It was not willful; and
(e) The licensee's decision to restart the plant requires NRC
concurrence.
3. Violations Involving Old Design Issues. The NRC may refrain from
proposing a civil penalty for a Severity Level II or III violation
involving a past problem, such as in engineering, design, or
installation, provided that the violation is documented in an
inspection report (or official field notes for some material cases)
that includes a description of the corrective action and that it meets
all of the following criteria:
(a) It was a licensee-identified as a result of its voluntary
initiative;
(b) It was or will be corrected, including immediate corrective
action and long term comprehensive corrective action to prevent
recurrence, within a reasonable time following identification (this
action should involve expanding the initiative, as necessary, to
identify other failures caused by similar root causes); and
(c) It was not likely to be identified (after the violation
occurred) by routine licensee efforts such as normal surveillance or
quality assurance (QA) activities.
In addition, the NRC may refrain from issuing a Notice of Violation
for a Severity Level II, III, or IV violation that meets the above
criteria provided the violation was caused by conduct that is not
reasonably linked to present performance (normally, violations that are
at least 3 years old or violations occurring during plant construction)
and there had not been prior notice so that the licensee should have
reasonably identified the violation earlier. This exercise of
discretion is to place a premium on licensees initiating efforts to
identify and correct subtle violations that are not likely to be
identified by routine efforts before degraded safety systems are called
upon to work.
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 October 18, 1996;
(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. Violations Identified Due to Previous Enforcement Action. The
NRC may refrain from issuing a Notice of Violation or a proposed civil
penalty for a violation that is identified after the NRC has taken
enforcement action, provided that the violation is documented in an
inspection report (or official field notes for some material cases)
that includes a description of the corrective action and that it meets
all of the following criteria:
(a) It was licensee-identified as part of the corrective action for
the previous enforcement action;
(b) It has the same or similar root cause as the violation for
which enforcement action was issued;
(c) It does not substantially change the safety significance or the
character of the regulatory concern arising out of the initial
violation; and
(d) It was or will be corrected, including immediate corrective
action and long term comprehensive corrective action to prevent
recurrence, within a reasonable time following identification.
(e) It would not be categorized at Severity Level I;
5. Violations Involving Certain Discrimination Issues. Enforcement
discretion may be exercised for discrimination cases when a licensee
who, without the need for government intervention, identifies an issue
of discrimination and takes prompt, comprehensive, and effective
corrective action to address both the particular situation and the
overall work environment for raising safety concerns. Similarly,
enforcement may not be warranted where a complaint is filed with the
Department of Labor (DOL) under Section 211 of the Energy
Reorganization Act of 1974, as amended, but the licensee settles the
matter before the DOL makes an initial finding of discrimination and
addresses the overall work environment. Alternatively, if a finding of
discrimination is made, the licensee may choose to settle the case
before the evidentiary hearing begins. In such cases, the NRC may
exercise its discretion not to take enforcement action when the
licensee has addressed the overall work environment for raising safety
concerns and has publicized that a complaint of discrimination for
engaging in protected activity was made to the DOL, that the matter was
settled to the satisfaction of the employee (the terms of the specific
settlement agreement need not be posted), and that, if the DOL Area
Office found discrimination, the licensee has taken action to
positively reemphasize that discrimination will not be tolerated.
Similarly, the NRC may refrain from taking enforcement action if a
licensee settles a matter promptly after a person comes to the NRC
without going to the DOL. Such discretion would normally not be
exercised in cases in which the licensee does not appropriately address
the overall work environment (e.g., by using training, postings,
revised policies or procedures, any necessary disciplinary action,
etc., to communicate its policy against discrimination) or in cases
that involve: allegations of discrimination as a result of providing
information directly to the NRC, allegations of discrimination caused
by a manager above first-line supervisor (consistent with current
Enforcement Policy classification of Severity Level I or II
violations), allegations of discrimination where a history of findings
of discrimination (by the DOL or the NRC) or settlements suggests a
programmatic rather than an isolated discrimination problem, or
allegations of discrimination which appear particularly blatant or
egregious.
6. Violations Involving Special Circumstances. Notwithstanding the
outcome of the normal enforcement process addressed in Section VI.A or
the normal civil penalty assessment process addressed in Section VI.B,
the NRC may reduce or refrain from issuing a civil penalty or a Notice
of Violation for a Severity Level II, III, or IV violation based on the
merits of the case after considering the guidance in this statement of
policy and such factors as the age of the violation, the technical and
regulatory significance of the violation, the clarity of the
requirement, the appropriateness of the requirement, the overall
sustained performance of the licensee has been particularly good, and
other relevant circumstances, including any that may have changed since
the violation. This discretion is expected to be exercised only where
application of the normal guidance in the policy is unwarranted. In
addition, the NRC may refrain from issuing enforcement action
[[Page 26644]]
for violations resulting from matters not within a licensee's control,
such as equipment failures that were not avoidable by reasonable
licensee quality assurance measures or management controls. Generally,
however, licensees are held responsible for the acts of their employees
and contractors. Accordingly, this policy should not be construed to
excuse personnel or contractor errors.
C. Exercise of Discretion for an Operating Facility
On occasion, circumstances may arise where a licensee's compliance
with a Technical Specification (TS) Limiting Condition for Operation or
with other license conditions would involve an unnecessary plant
transient or performance of testing, inspection, or system realignment
that is inappropriate with the specific plant conditions, or
unnecessary delays in plant startup without a corresponding health and
safety benefit. In these circumstances, the NRC staff may choose not to
enforce the applicable TS or other license condition. This enforcement
discretion, designated as a Notice of Enforcement Discretion (NOED),
will only be exercised if the NRC staff is clearly satisfied that the
action is consistent with protecting the public health and safety. A
licensee seeking the issuance of a NOED must provide a written
justification, or in circumstances where good cause is shown, oral
justification followed as soon as possible by written justification,
which documents the safety basis for the request and provides whatever
other information the NRC staff deems necessary in making a decision on
whether or not to issue a NOED.
The appropriate Regional Administrator, or his or her designee, may
issue a NOED where the noncompliance is temporary and nonrecurring when
an amendment is not practical. The Director, Office of Nuclear Reactor
Regulation, or his or her designee, may issue a NOED if the expected
noncompliance will occur during the brief period of time it requires
the NRC staff to process an emergency or exigent license amendment
under the provisions of 10 CFR 50.91(a)(5) or (6). The person
exercising enforcement discretion will document the decision.
For an operating plant, this exercise of enforcement discretion is
intended to minimize the potential safety consequences of unnecessary
plant transients with the accompanying operational risks and impacts or
to eliminate testing, inspection, or system realignment which is
inappropriate for the particular plant conditions. For plants in a
shutdown condition, exercising enforcement discretion is intended to
reduce shutdown risk by, again, avoiding testing, inspection or system
realignment which is inappropriate for the particular plant conditions,
in that, it does not provide a safety benefit or may, in fact, be
detrimental to safety in the particular plant condition. Exercising
enforcement discretion for plants attempting to startup is less likely
than exercising it for an operating plant, as simply delaying startup
does not usually leave the plant in a condition in which it could
experience undesirable transients. In such cases, the Commission would
expect that discretion would be exercised with respect to equipment or
systems only when it has at least concluded that, notwithstanding the
conditions of the license: (1) The equipment or system does not perform
a safety function in the mode in which operation is to occur; (2) the
safety function performed by the equipment or system is of only
marginal safety benefit, provided remaining in the current mode
increases the likelihood of an unnecessary plant transient; or (3) the
TS or other license condition requires a test, inspection or system
realignment that is inappropriate for the particular plant conditions,
in that it does not provide a safety benefit, or may, in fact, be
detrimental to safety in the particular plant condition.
The decision to exercise enforcement discretion does not change the
fact that a violation will occur nor does it imply that enforcement
discretion is being exercised for any violation that may have led to
the violation at issue. In each case where the NRC staff has chosen to
issue a NOED, enforcement action will normally be taken for the root
causes, to the extent violations were involved, that led to the
noncompliance for which enforcement discretion was used. The
enforcement action is intended to emphasize that licensees should not
rely on the NRC's authority to exercise enforcement discretion as a
routine substitute for compliance or for requesting a license
amendment.
Finally, it is expected that the NRC staff will exercise
enforcement discretion in this area infrequently. Although a plant must
shut down, refueling activities may be suspended, or plant startup may
be delayed, absent the exercise of enforcement discretion, the NRC
staff is under no obligation to take such a step merely because it has
been requested. The decision to forego enforcement is discretionary.
When enforcement discretion is to be exercised, it is to be exercised
only if the NRC staff is clearly satisfied that such action is
warranted from a health and safety perspective.
VIII. Enforcement Actions Involving Individuals
Enforcement actions involving individuals, including licensed
operators, are significant personnel actions, which will be closely
controlled and judiciously applied. An enforcement action involving an
individual will normally be taken only when the NRC is satisfied that
the individual fully understood, or should have understood, his or her
responsibility; knew, or should have known, the required actions; and
knowingly, or with careless disregard (i.e., with more than mere
negligence) failed to take required actions which have actual or
potential safety significance. Most transgressions of individuals at
the level of Severity Level III or IV violations will be handled by
citing only the facility licensee.
More serious violations, including those involving the integrity of
an individual (e.g., lying to the NRC) concerning matters within the
scope of the individual's responsibilities, will be considered for
enforcement action against the individual as well as against the
facility licensee. Action against the individual, however, will not be
taken if the improper action by the individual was caused by management
failures. The following examples of situations illustrate this concept:
Inadvertent individual mistakes resulting from inadequate
training or guidance provided by the facility licensee.
Inadvertently missing an insignificant procedural
requirement when the action is routine, fairly uncomplicated, and there
is no unusual circumstance indicating that the procedures should be
referred to and followed step-by-step.
Compliance with an express direction of management, such
as the Shift Supervisor or Plant Manager, resulted in a violation
unless the individual did not express his or her concern or objection
to the direction.
Individual error directly resulting from following the
technical advice of an expert unless the advise was clearly
unreasonable and the licensed individual should have recognized it as
such.
Violations resulting from inadequate procedures unless the
individual used a faulty procedure knowing it was faulty and had not
attempted to get the procedure corrected.
[[Page 26645]]
Listed below are examples of situations which could result in
enforcement actions involving individuals, licensed or unlicensed. If
the actions described in these examples are taken by a licensed
operator or taken deliberately by an unlicensed individual, enforcement
action may be taken directly against the individual. However,
violations involving willful conduct not amounting to deliberate action
by an unlicensed individual in these situations may result in
enforcement action against a licensee that may impact an individual.
The situations include, but are not limited to, violations that
involve:
Willfully causing a licensee to be in violation of NRC
requirements.
Willfully taking action that would have caused a licensee
to be in violation of NRC requirements but the action did not do so
because it was detected and corrective action was taken.
Recognizing a violation of procedural requirements and
willfully not taking corrective action.
Willfully defeating alarms which have safety significance.
Unauthorized abandoning of reactor controls.
Dereliction of duty.
Falsifying records required by NRC regulations or by the
facility license.
Willfully providing, or causing a licensee to provide, an
NRC inspector or investigator with inaccurate or incomplete information
on a matter material to the NRC.
Willfully withholding safety significant information
rather than making such information known to appropriate supervisory or
technical personnel in the licensee's organization.
Submitting false information and as a result gaining
unescorted access to a nuclear power plant.
Willfully providing false data to a licensee by a
contractor or other person who provides test or other services, when
the data affects the licensee's compliance with 10 CFR Part 50,
Appendix B, or other regulatory requirement.
Willfully providing false certification that components
meet the requirements of their intended use, such as ASME Code.
Willfully supplying, by contractors of equipment for
transportation of radioactive material, casks that do not comply with
their certificates of compliance.
Willfully performing unauthorized bypassing of required
reactor or other facility safety systems.
Willfully taking actions that violate Technical
Specification Limiting Conditions for Operation or other license
conditions (enforcement action for a willful violation will not be
taken if that violation is the result of action taken following the
NRC's decision to forego enforcement of the Technical Specification or
other license condition or if the operator meets the requirements of 10
CFR 50.54 (x), (i.e., unless the operator acted unreasonably
considering all the relevant circumstances surrounding the emergency).
Normally, some enforcement action is taken against a licensee for
violations caused by significant acts of wrongdoing by its employees,
contractors, or contractors' employees. In deciding whether to issue an
enforcement action to an unlicensed person as well as to the licensee,
the NRC recognizes that judgments will have to be made on a case by
case basis. In making these decisions, the NRC will consider factors
such as the following:
1. The level of the individual within the organization.
2. The individual's training and experience as well as knowledge of
the potential consequences of the wrongdoing.
3. The safety consequences of the misconduct.
4. The benefit to the wrongdoer, e.g., personal or corporate gain.
5. The degree of supervision of the individual, i.e., how closely
is the individual monitored or audited, and the likelihood of detection
(such as a radiographer working independently in the field as
contrasted with a team activity at a power plant).
6. The employer's response, e.g., disciplinary action taken.
7. The attitude of the wrongdoer, e.g., admission of wrongdoing,
acceptance of responsibility.
8. The degree of management responsibility or culpability.
9. Who identified the misconduct.
Any proposed enforcement action involving individuals must be
issued with the concurrence of the Deputy Executive Director. The
particular sanction to be used should be determined on a case-by-case
basis.10 Notices of Violation and Orders are examples of
enforcement actions that may be appropriate against individuals. The
administrative action of a Letter of Reprimand may also be considered.
In addition, the NRC may issue Demands for Information to gather
information to enable it to determine whether an order or other
enforcement action should be issued.
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\10\ Except for individuals subject to civil penalties under
section 206 of the Energy Reorganization Act of 1974, as amended,
NRC will not normally impose a civil penalty against an individual.
However, section 234 of the Atomic Energy Act (AEA) gives the
Commission authority to impose civil penalties on ``any person.''
``Person'' is broadly defined in Section 11s of the AEA to include
individuals, a variety of organizations, and any representatives or
agents. This gives the Commission authority to impose civil
penalties on employees of licensees or on separate entities when a
violation of a requirement directly imposed on them is committed.
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Orders to NRC-licensed reactor operators may involve suspension for
a specified period, modification, or revocation of their individual
licenses. Orders to unlicensed individuals might include provisions
that would:
Prohibit involvement in NRC licensed activities for a
specified period of time (normally the period of suspension would not
exceed 5 years) or until certain conditions are satisfied, e.g.,
completing specified training or meeting certain qualifications.
Require notification to the NRC before resuming work in
licensed activities.
Require the person to tell a prospective employer or
customer engaged in licensed activities that the person has been
subject to an NRC order.
In the case of a licensed operator's failure to meet applicable
fitness-for-duty requirements (10 CFR 55.53(j)), the NRC may issue a
Notice of Violation or a civil penalty to the Part 55 licensee, or an
order to suspend, modify, or revoke the Part 55 license. These actions
may be taken the first time a licensed operator fails a drug or alcohol
test, that is, receives a confirmed positive test that exceeds the
cutoff levels of 10 CFR Part 26 or the facility licensee's cutoff
levels, if lower. However, normally only a Notice of Violation will be
issued for the first confirmed positive test in the absence of
aggravating circumstances such as errors in the performance of licensed
duties or evidence of prolonged use. In addition, the NRC intends to
issue an order to suspend the Part 55 license for up to 3 years the
second time a licensed operator exceeds those cutoff levels. In the
event there are less than 3 years remaining in the term of the
individual's license, the NRC may consider not renewing the
individual's license or not issuing a new license after the three year
period is completed. The NRC intends to issue an order to revoke the
Part 55 license the third time a licensed operator exceeds those cutoff
levels. A licensed operator or applicant who refuses to participate in
the drug and alcohol testing programs established by the facility
licensee or who is involved in the sale, use, or possession of an
illegal drug is also subject to license suspension, revocation, or
denial.
[[Page 26646]]
In addition, the NRC may take enforcement action against a licensee
that may impact an individual, where the conduct of the individual
places in question the NRC's reasonable assurance that licensed
activities will be properly conducted. The NRC may take enforcement
action for reasons that would warrant refusal to issue a license on an
original application. Accordingly, appropriate enforcement actions may
be taken regarding matters that raise issues of integrity, competence,
fitness-for-duty, or other matters that may not necessarily be a
violation of specific Commission requirements.
In the case of an unlicensed person, whether a firm or an
individual, an order modifying the facility license may be issued to
require (1) the removal of the person from all licensed activities for
a specified period of time or indefinitely, (2) prior notice to the NRC
before utilizing the person in licensed activities, or (3) the licensee
to provide notice of the issuance of such an order to other persons
involved in licensed activities making reference inquiries. In
addition, orders to employers might require retraining, additional
oversight, or independent verification of activities performed by the
person, if the person is to be involved in licensed activities.
IX. Inaccurate and Incomplete Information
A violation of the regulations involving submittal of incomplete
and/or inaccurate information, whether or not considered a material
false statement, can result in the full range of enforcement sanctions.
The labeling of a communication failure as a material false statement
will be made on a case-by-case basis and will be reserved for egregious
violations. Violations involving inaccurate or incomplete information
or the failure to provide significant information identified by a
licensee normally will be categorized based on the guidance herein, in
Section IV, ``Severity of Violations,'' and in Supplement VII.
The Commission recognizes that oral information may in some
situations be inherently less reliable than written submittals because
of the absence of an opportunity for reflection and management review.
However, the Commission must be able to rely on oral communications
from licensee officials concerning significant information. Therefore,
in determining whether to take enforcement action for an oral
statement, consideration may be given to factors such as (1) the degree
of knowledge that the communicator should have had, regarding the
matter, in view of his or her position, training, and experience; (2)
the opportunity and time available prior to the communication to assure
the accuracy or completeness of the information; (3) the degree of
intent or negligence, if any, involved; (4) the formality of the
communication; (5) the reasonableness of NRC reliance on the
information; (6) the importance of the information which was wrong or
not provided; and (7) the reasonableness of the explanation for not
providing complete and accurate information.
Absent at least careless disregard, an incomplete or inaccurate
unsworn oral statement normally will not be subject to enforcement
action unless it involves significant information provided by a
licensee official. However, enforcement action may be taken for an
unintentionally incomplete or inaccurate oral statement provided to the
NRC by a licensee official or others on behalf of a licensee, if a
record was made of the oral information and provided to the licensee
thereby permitting an opportunity to correct the oral information, such
as if a transcript of the communication or meeting summary containing
the error was made available to the licensee and was not subsequently
corrected in a timely manner.
When a licensee has corrected inaccurate or incomplete information,
the decision to issue a Notice of Violation for the initial inaccurate
or incomplete information normally will be dependent on the
circumstances, including the ease of detection of the error, the
timeliness of the correction, whether the NRC or the licensee
identified the problem with the communication, and whether the NRC
relied on the information prior to the correction. Generally, if the
matter was promptly identified and corrected by the licensee prior to
reliance by the NRC, or before the NRC raised a question about the
information, no enforcement action will be taken for the initial
inaccurate or incomplete information. On the other hand, if the
misinformation is identified after the NRC relies on it, or after some
question is raised regarding the accuracy of the information, then some
enforcement action normally will be taken even if it is in fact
corrected. However, if the initial submittal was accurate when made but
later turns out to be erroneous because of newly discovered information
or advance in technology, a citation normally would not be appropriate
if, when the new information became available or the advancement in
technology was made, the initial submittal was corrected.
The failure to correct inaccurate or incomplete information which
the licensee does not identify as significant normally will not
constitute a separate violation. However, the circumstances surrounding
the failure to correct may be considered relevant to the determination
of enforcement action for the initial inaccurate or incomplete
statement. For example, an unintentionally inaccurate or incomplete
submission may be treated as a more severe matter if the licensee later
determines that the initial submittal was in error and does not correct
it or if there were clear opportunities to identify the error. If
information not corrected was recognized by a licensee as significant,
a separate citation may be made for the failure to provide significant
information. In any event, in serious cases where the licensee's
actions in not correcting or providing information raise questions
about its commitment to safety or its fundamental trustworthiness, the
Commission may exercise its authority to issue orders modifying,
suspending, or revoking the license. The Commission recognizes that
enforcement determinations must be made on a case-by-case basis, taking
into consideration the issues described in this section.
X. Enforcement Action Against Non-Licensees
The Commission's enforcement policy is also applicable to non-
licensees, including contractors and subcontractors, holders of NRC
approvals, e.g., certificates of compliance, early site permits,
standard design certificates, quality assurance program approvals, or
applicants for any of them, and to employees of any of the foregoing,
who knowingly provide components, equipment, or other goods or services
that relate to a licensee's activities subject to NRC regulation. The
prohibitions and sanctions for any of these persons who engage in
deliberate misconduct or knowing submission of incomplete or inaccurate
information are provided in the rule on deliberate misconduct, e.g., 10
CFR 30.10 and 50.5.
Contractors who supply products or services provided for use in
nuclear activities are subject to certain requirements designed to
ensure that the products or services supplied that could affect safety
are of high quality. Through procurement contracts with licensees,
suppliers may be required to have quality assurance programs that meet
applicable requirements, e.g., 10 CFR Part 50, Appendix B, and 10 CFR
Part 71, Subpart H. Contractors supplying certain products or services
[[Page 26647]]
to licensees are subject to the requirements of 10 CFR Part 21
regarding reporting of defects in basic components.
When inspections determine that violations of NRC requirements have
occurred, or that contractors have failed to fulfill contractual
commitments (e.g., 10 CFR Part 50, Appendix B) that could adversely
affect the quality of a safety significant product or service,
enforcement action will be taken. Notices of Violation and civil
penalties will be used, as appropriate, for licensee failures to ensure
that their contractors have programs that meet applicable requirements.
Notices of Violation will be issued for contractors who violate 10 CFR
Part 21. Civil penalties will be imposed against individual directors
or responsible officers of a contractor organization who knowingly and
consciously fail to provide the notice required by 10 CFR 21.21(b)(1).
Notices of Nonconformance will be used for contractors who fail to meet
commitments related to NRC activities.
XI. Referrals to the Department of Justice
Alleged or suspected criminal violations of the Atomic Energy Act
(and of other relevant Federal laws) are referred to the Department of
Justice (DOJ) for investigation. Referral to the DOJ does not preclude
the NRC from taking other enforcement action under this policy.
However, enforcement actions will be coordinated with the DOJ in
accordance with the Memorandum of Understanding between the NRC and the
DOJ, 53 FR 50317 (December 14, 1988).
XII. Public Disclosure of Enforcement Actions
Enforcement actions and licensees' responses, in accordance with 10
CFR 2.790, are publicly available for inspection. In addition, press
releases are generally issued for orders and civil penalties and are
issued at the same time the order or proposed imposition of the civil
penalty is issued. In addition, press releases are usually issued when
a proposed civil penalty is withdrawn or substantially mitigated by
some amount. Press releases are not normally issued for Notices of
Violation that are not accompanied by orders or proposed civil
penalties.
XIII. Reopening Closed Enforcement Actions
If significant new information is received or obtained by NRC which
indicates that an enforcement sanction was incorrectly applied,
consideration may be given, dependent on the circumstances, to
reopening a closed enforcement action to increase or decrease the
severity of a sanction or to correct the record. Reopening decisions
will be made on a case-by-case basis, are expected to occur rarely, and
require the specific approval of the Deputy Executive Director.
Appendix A: Safety and Compliance
As commonly understood, safety means freedom from exposure to
danger, or protection from harm. In a practical sense, an activity
is deemed to be safe if the perceived risks are judged to be
acceptable. The Atomic Energy Act of 1954, as amended, establishes
``adequate protection'' as the standard of safety on which NRC
regulation is based. In the context of NRC regulation, safety means
avoiding undue risk or, stated another way, providing reasonable
assurance of adequate protection for the public in connection with
the use of source, byproduct and special nuclear materials.
The definition of compliance is much simpler. Compliance simply
means meeting applicable regulatory requirements. The relationship
between compliance and safety is discussed below.
Safety is the fundamental regulatory objective, and
compliance with NRC requirements plays a fundamental role in giving
the NRC confidence that safety is being maintained. NRC
requirements, including technical specifications, other license
conditions, orders, and regulations, have been designed to ensure
adequate protection--which corresponds to ``no undue risk to public
health and safety''--through acceptable design, construction,
operation, maintenance, modification, and quality assurance
measures. In the context of risk-informed regulation, compliance
plays a very important role in ensuring that key assumptions used in
underlying risk and engineering analyses remain valid.
Adequate protection is presumptively assured by
compliance with NRC requirements. Circumstances may arise, however,
where new information reveals, for example, that an unforeseen
hazard exists or that there is a substantially greater potential for
a known hazard to occur. In such situations, the NRC has the
statutory authority to require licensee action above and beyond
existing regulations to maintain the level of protection necessary
to avoid undue risk to public health and safety.
The NRC has the authority to exercise discretion to
permit continued operations--despite the existence of a
noncompliance--where the noncompliance is not significant from a
risk perspective and does not, in the particular circumstances, pose
an undue risk to public health and safety. When non-compliances
occur, the NRC must evaluate the degree of risk posed by that non-
compliance to determine if specific immediate action is required.
Where needed to ensure adequate protection of public health and
safety, the NRC may demand immediate licensee action, up to and
including a shutdown or cessation of licensed activities. In
addition, in determining the appropriate action to be taken, the NRC
must evaluate the non-compliance both in terms of its direct safety
and regulatory significance and by assessing whether it is part of a
pattern of non-compliance (i.e., the degree of pervasiveness) that
can lead to the determination that licensee control processes are no
longer adequate to ensure protection of the public health and
safety. Based on the NRC's evaluation, the appropriate action could
include refraining from taking any action, taking specific
enforcement action, issuing orders, or providing input to other
regulatory actions or assessments, such as increased oversight
(e.g., increased inspection).
Since some requirements are more important to safety than
others, the Commission should use a risk-informed approach when
applying NRC resources to the oversight of licensed activities (this
includes enforcement).
Appendix B: Supplements--Enforcement Examples
This appendix provides examples of violations in each of four
severity levels as guidance in determining the appropriate severity
level for violations in each of eight activity areas (reactor
operations, Part 50 facility construction, safeguards, health
physics, transportation, fuel cycle and materials operations,
miscellaneous matters, and emergency preparedness).
Supplement I--Reactor Operations
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations in the area of reactor operations.
A. Severity Level I--Violations involving for example:
1. A Safety Limit, as defined in 10 CFR 50.36 and the Technical
Specifications being exceeded;
2. A system 11 designed to prevent or mitigate a
serious safety event not being able to perform its intended safety
function 12 when actually called upon to work;
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\11\ The term ``system'' as used in these supplements, includes
administrative and managerial control systems, as well as physical
systems.
\12\ ``Intended safety function'' means the total safety
function, and is not directed toward a loss of redundancy. A loss of
one subsystem does not defeat the intended safety function as long
as the other subsystem is operable.
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3. An accidental criticality; or
4. A licensed operator at the controls of a nuclear reactor, or
a senior operator directing licensed activities, involved in
procedural errors which result in, or exacerbate the consequences
of, an alert or higher level emergency and who, as a result of
subsequent testing, receives a confirmed positive test result for
drugs or alcohol.
B. Severity Level II--Violations involving for example:
1. A system designed to prevent or mitigate serious safety
events not being able to perform its intended safety function;
2. A licensed operator involved in the use, sale, or possession
of illegal drugs or the consumption of alcoholic beverages, within
the protected area;
[[Page 26648]]
3. A licensed operator at the control of a nuclear reactor, or a
senior operator directing licensed activities, involved in
procedural errors and who, as a result of subsequent testing,
receives a confirmed positive test result for drugs or alcohol; or
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:
1. A significant failure to comply with the Action Statement for
a Technical Specification Limiting Condition for Operation where the
appropriate action was not taken within the required time, such as:
(a) In a pressurized water reactor, in the applicable modes,
having one high-pressure safety injection pump inoperable for a
period in excess of that allowed by the action statement; or
(b) In a boiling water reactor, one primary containment
isolation valve inoperable for a period in excess of that allowed by
the action statement.
2. A system designed to prevent or mitigate a serious safety
event:
(a) Not being able to perform its intended function under
certain conditions (e.g., safety system not operable unless offsite
power is available; materials or components not environmentally
qualified); or
(b) Being degraded to the extent that a detailed evaluation
would be required to determine its operability (e.g., component
parameters outside approved limits such as pump flow rates, heat
exchanger transfer characteristics, safety valve lift setpoints, or
valve stroke times);
3. Inattentiveness to duty on the part of licensed personnel;
4. Changes in reactor parameters that cause unanticipated
reductions in margins of safety;
5. [Reserved]
6. A licensee failure to conduct adequate oversight of
contractors resulting in the use of products or services that are of
defective or indeterminate quality and that have safety
significance;
7. A breakdown in the control of licensed activities involving a
number of violations that are related (or, if isolated, that are
recurring violations) that collectively represent a potentially
significant lack of attention or carelessness toward licensed
responsibilities;
8. A licensed operator's confirmed positive test for drugs or
alcohol that does not result in a Severity Level I or II violation;
9. Equipment failures caused by inadequate or improper
maintenance that substantially complicates recovery from a plant
transient;
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;
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:
1. A less significant failure to comply with the Action
Statement for a Technical Specification Limiting Condition for
Operation where the appropriate action was not taken within the
required time, such as:
(a) In a pressurized water reactor, a 5% deficiency in the
required volume of the condensate storage tank; or
(b) In a boiling water reactor, one subsystem of the two
independent MSIV leakage control subsystems inoperable;
2. [Reserved]
3. A failure to meet regulatory requirements that have more than
minor safety or environmental significance;
4. A failure to make a required Licensee Event Report;
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 50.71(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 50.71(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 50.71(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 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 50.71(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.
Supplement II--Part 50 Facility Construction
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations in the area of Part 50 facility
construction.
A. Severity Level I--Violations involving structures or systems
that are completed 13 in such a manner that they would
not have satisfied their intended safety related purpose.
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\13\ The term ``completed'' as used in this supplement means
completion of construction including review and acceptance by the
construction QA organization.
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B. Severity Level II--Violations involving for example:
1. A breakdown in the Quality Assurance (QA) program as
exemplified by deficiencies in construction QA related to more than
one work activity (e.g., structural, piping, electrical,
foundations). These deficiencies normally involve the licensee's
failure to conduct adequate audits or to take prompt corrective
action on the basis of such audits and normally involve multiple
examples of deficient construction or construction of unknown
quality due to inadequate program implementation; or
2. A structure or system that is completed in such a manner that
it could have an adverse effect on the safety of operations.
C. Severity Level III--Violations involving for example:
1. A deficiency in a licensee QA program for construction
related to a single work activity (e.g., structural, piping,
electrical or foundations). This significant deficiency normally
involves the licensee's failure to conduct adequate audits or to
take prompt corrective action on the basis of such audits, and
normally involves multiple examples of deficient construction or
construction of unknown quality due to inadequate program
implementation;
2. A failure to confirm the design safety requirements of a
structure or system as a result of inadequate preoperational test
program implementation; or
3. A failure to make a required 10 CFR 50.55(e) report.
D. Severity Level IV--Violations involving failure to meet
regulatory requirements including one or more Quality Assurance
Criterion not amounting to Severity Level I,
[[Page 26649]]
II, or III violations that have more than minor safety or
environmental significance.
Supplement III--Safeguards
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations in the area of safeguards.
A. Severity Level I--Violations involving for example:
1. An act of radiological sabotage in which the security system
did not function as required and, as a result of the failure, there
was a significant event, such as:
(a) A Safety Limit, as defined in 10 CFR 50.36 and the Technical
Specifications, was exceeded;
(b) A system designed to prevent or mitigate a serious safety
event was not able to perform its intended safety function when
actually called upon to work; or
(c) An accidental criticality occurred;
2. The theft, loss, or diversion of a formula quantity
14 of special nuclear material (SNM); or
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\14\ See 10 CFR 73.2 for the definition of ``formula quantity.''
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3. Actual unauthorized production of a formula quantity of SNM
B. Severity Level II--Violations involving for example:
1. The entry of an unauthorized individual 15 who
represents a threat into a vital area 16 from outside the
protected area;
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\15\ The term ``unauthorized individual'' as used in this
supplement means someone who was not authorized for entrance into
the area in question, or not authorized to enter in the manner
entered.
\16\ The phrase ``vital area'' as used in this supplement
includes vital areas and material access areas.
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2. The theft, loss or diversion of SNM of moderate strategic
significance 17 in which the security system did not
function as required; or
---------------------------------------------------------------------------
\17\ See 10 CFR 73.2 for the definition of ``special nuclear
material of moderate strategic significance.''
---------------------------------------------------------------------------
3. Actual unauthorized production of SNM.
C. Severity Level III--Violations involving for
example:
1. A failure or inability to control access through established
systems or procedures, such that an unauthorized individual (i.e.,
not authorized unescorted access to protected area) could easily
gain undetected access 18 into a vital area from outside
the protected area;
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\18\ In determining whether access can be easily gained, factors
such as predictability, identifiability, and ease of passage should
be considered.
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2. A failure to conduct any search at the access control point
or conducting an inadequate search that resulted in the introduction
to the protected area of firearms, explosives, or incendiary devices
and reasonable facsimiles thereof that could significantly assist
radiological sabotage or theft of strategic SNM;
3. A failure, degradation, or other deficiency of the protected
area intrusion detection or alarm assessment systems such that an
unauthorized individual who represents a threat could predictably
circumvent the system or defeat a specific zone with a high degree
of confidence without insider knowledge, or other significant
degradation of overall system capability;
4. A significant failure of the safeguards systems designed or
used to prevent or detect the theft, loss, or diversion of strategic
SNM;
5. A failure to protect or control classified or safeguards
information considered to be significant while the information is
outside the protected area and accessible to those not authorized
access to the protected area;
6. A significant failure to respond to an event either in
sufficient time to provide protection to vital equipment or
strategic SNM, or with an adequate response force;
7. A failure to perform an appropriate evaluation or background
investigation so that information relevant to the access
determination was not obtained or considered and as a result a
person, who would likely not have been granted access by the
licensee, if the required investigation or evaluation had been
performed, was granted access; or
8. A breakdown in the security program involving a number of
violations that are related (or, if isolated, that are recurring
violations) that collectively reflect a potentially significant lack
of attention or carelessness toward licensed responsibilities.
D. Severity Level IV--Violations involving for example:
1. A failure or inability to control access such that an
unauthorized individual (i.e., authorized to protected area but not
to vital area) could easily gain undetected access into a vital area
from inside the protected area or into a controlled access area;
2. A failure to respond to a suspected event in either a timely
manner or with an adequate response force;
3. A failure to implement 10 CFR Parts 25 and 95 with respect to
the information addressed under Section 142 of the Act, and the NRC
approved security plan relevant to those parts;
4. A failure to make, maintain, or provide log entries in
accordance with 10 CFR 73.71 (c) and (d), where the omitted
information (i) is not otherwise available in easily retrievable
records, and (ii) significantly contributes to the ability of either
the NRC or the licensee to identify a programmatic breakdown;
5. A failure to conduct a proper search at the access control
point;
6. A failure to properly secure or protect classified or
safeguards information inside the protected area which could assist
an individual in an act of radiological sabotage or theft of
strategic SNM where the information was not removed from the
protected area;
7. A failure to control access such that an opportunity exists
that could allow unauthorized and undetected access into the
protected area but which was neither easily nor likely to be
exploitable;
8. A failure to conduct an adequate search at the exit from a
material access area;
9. A theft or loss of SNM of low strategic significance that was
not detected within the time period specified in the security plan,
other relevant document, or regulation; or
10. Other violations that have more than minor safeguards
significance.
Supplement IV--Health Physics (10 CFR Part 20)
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations in the area of health physics, 10 CFR
Part 20.19
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\19\ Personnel overexposures and associated violations incurred
during a life-saving or other emergency response effort will be
treated on a case-by-case basis.
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A. Severity Level I--Violations involving for example:
1. A radiation exposure during any year of a worker in excess of
25 rems total effective dose equivalent, 75 rems to the lens of the
eye, or 250 rads to the skin of the whole body, or to the feet,
ankles, hands or forearms, or to any other organ or tissue;
2. A radiation exposure over the gestation period of the embryo/
fetus of a declared pregnant woman in excess of 2.5 rems total
effective dose equivalent;
3. A radiation exposure during any year of a minor in excess of
2.5 rems total effective dose equivalent, 7.5 rems to the lens of
the eye, or 25 rems to the skin of the whole body, or to the feet,
ankles, hands or forearms, or to any other organ or tissue;
4. An annual exposure of a member of the public in excess of 1.0
rem total effective dose equivalent;
5. A release of radioactive material to an unrestricted area at
concentrations in excess of 50 times the limits for members of the
public as described in 10 CFR 20.1302(b)(2)(i); or
6. Disposal of licensed material in quantities or concentrations
in excess of 10 times the limits of 10 CFR 20.2003.
B. Severity Level II--Violations involving for example:
1. A radiation exposure during any year of a worker in excess of
10 rems total effective dose equivalent, 30 rems to the lens of the
eye, or 100 rems to the skin of the whole body, or to the feet,
ankles, hands or forearms, or to any other organ or tissue;
2. A radiation exposure over the gestation period of the embryo/
fetus of a declared pregnant woman in excess of 1.0 rem total
effective dose equivalent;
3. A radiation exposure during any year of a minor in excess of
1 rem total effective dose equivalent; 3.0 rems to the lens of the
eye, or 10 rems to the skin of the whole body, or to the feet,
ankles, hands or forearms, or to any other organ or tissue;
4. An annual exposure of a member of the public in excess of 0.5
rem total effective dose equivalent;
5. A release of radioactive material to an unrestricted area at
concentrations in excess of 10 times the limits for members of the
public as described in 10 CFR 20.1302(b)(2)(i) (except when
operation up to 0.5 rem a year has been approved by the Commission
under Section 20.1301(c));
6. Disposal of licensed material in quantities or concentrations
in excess of five times the limits of 10 CFR 20.2003; or
7. A failure to make an immediate notification as required by 10
CFR 20.2202 (a)(1) or (a)(2).
C. Severity Level III--Violations involving for example:
[[Page 26650]]
1. A radiation exposure during any year of a worker in excess of
5 rems total effective dose equivalent, 15 rems to the lens of the
eye, or 50 rems to the skin of the whole body or to the feet,
ankles, hands or forearms, or to any other organ or tissue;
2. A radiation exposure over the gestation period of the embryo/
fetus of a declared pregnant woman in excess of 0.5 rem total
effective dose equivalent (except when doses are in accordance with
the provisions of Section 20.1208(d));
3. A radiation exposure during any year of a minor in excess of
0.5 rem total effective dose equivalent; 1.5 rems to the lens of the
eye, or 5 rems to the skin of the whole body, or to the feet,
ankles, hands or forearms, or to any other organ or tissue;
4. A worker exposure above regulatory limits when such exposure
reflects a programmatic (rather than an isolated) weakness in the
radiation control program;
5. An annual exposure of a member of the public in excess of 0.1
rem total effective dose equivalent (except when operation up to 0.5
rem a year has been approved by the Commission under Section
20.1301(c));
6. A release of radioactive material to an unrestricted area at
concentrations in excess of two times the effluent concentration
limits referenced in 10 CFR 20.1302(b)(2)(i) (except when operation
up to 0.5 rem a year has been approved by the Commission under
Section 20.1301(c));
7. A failure to make a 24-hour notification required by 10 CFR
20.2202(b) or an immediate notification required by 10 CFR
20.2201(a)(1)(i);
8. A substantial potential for exposures or releases in excess
of the applicable limits in 10 CFR Part 20 Sections 20.1001-20.2401
whether or not an exposure or release occurs;
9. Disposal of licensed material not covered in Severity Levels
I or II;
10. A release for unrestricted use of contaminated or
radioactive material or equipment that poses a realistic potential
for exposure of the public to levels or doses exceeding the annual
dose limits for members of the public, or that reflects a
programmatic (rather than an isolated) weakness in the radiation
control program;
11. Conduct of licensee activities by a technically unqualified
person;
12. A significant failure to control licensed material; or
13. A breakdown in the radiation safety program involving a
number of violations that are related (or, if isolated, that are
recurring) that collectively represent a potentially significant
lack of attention or carelessness toward licensed responsibilities.
D. Severity Level IV--Violations involving for example:
1. Exposures in excess of the limits of 10 CFR 20.1201, 20.1207,
or 20.1208 not constituting Severity Level I, II, or III violations;
2. A release of radioactive material to an unrestricted area at
concentrations in excess of the limits for members of the public as
referenced in 10 CFR 20.1302(b)(2)(i) (except when operation up to
0.5 rem a year has been approved by the Commission under Section
20.1301(c));
3. A radiation dose rate in an unrestricted or controlled area
in excess of 0.002 rem in any 1 hour (2 millirem/hour) or 50
millirems in a year;
4. Failure to maintain and implement radiation programs to keep
radiation exposures as low as is reasonably achievable;
5. Doses to a member of the public in excess of any EPA
generally applicable environmental radiation standards, such as 40
CFR Part 190;
6. A failure to make the 30-day notification required by 10 CFR
20.2201(a)(1)(ii) or 20.2203(a);
7. A failure to make a timely written report as required by 10
CFR 20.2201(b), 20.2204, or 20.2206;
8. A failure to report an exceedance of the dose constraint
established in 10 CFR 20.1101(d) or a failure to take corrective
action for an exceedance, as required by 10 CFR 20.1101(d); or
9. Any other matter that has more than a minor safety, health,
or environmental significance.
Supplement V--Transportation
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations in the area of NRC transportation
requirements 20.
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\20\ Some transportation requirements are applied to more than
one licensee involved in the same activity such as a shipper and a
carrier. When a violation of such a requirement occurs, enforcement
action will be directed against the responsible licensee which,
under the circumstances of the case, may be one or more of the
licensees involved.
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A. Severity Level I--Violations involving for example:
1. Failure to meet transportation requirements that resulted in
loss of control of radioactive material with a breach in package
integrity such that the material caused a radiation exposure to a
member of the public and there was clear potential for the public to
receive more than .1 rem to the whole body;
2. Surface contamination in excess of 50 times the NRC limit; or
3. External radiation levels in excess of 10 times the NRC
limit.
B. Severity Level II--Violations involving for example:
1. Failure to meet transportation requirements that resulted in
loss of control of radioactive material with a breach in package
integrity such that there was a clear potential for the member of
the public to receive more than .1 rem to the whole body;
2. Surface contamination in excess of 10, but not more than 50
times the NRC limit;
3. External radiation levels in excess of five, but not more
than 10 times the NRC limit; or
4. A failure to make required initial notifications associated
with Severity Level I or II violations.
C. Severity Level III--Violations involving for example:
1. Surface contamination in excess of five but not more than 10
times the NRC limit;
2. External radiation in excess of one but not more than five
times the NRC limit;
3. Any noncompliance with labeling, placarding, shipping paper,
packaging, loading, or other requirements that could reasonably
result in the following:
(a) A significant failure to identify the type, quantity, or
form of material;
(b) A failure of the carrier or recipient to exercise adequate
controls; or
(c) A substantial potential for either personnel exposure or
contamination above regulatory limits or improper transfer of
material;
4. A failure to make required initial notification associated
with Severity Level III violations; or
5. A breakdown in the licensee's program for the transportation
of licensed material involving a number of violations that are
related (or, if isolated, that are recurring violations) that
collectively reflect a potentially significant lack of attention or
carelessness toward licensed responsibilities.
D. Severity Level IV--Violations involving for example:
1. A breach of package integrity without external radiation
levels exceeding the NRC limit or without contamination levels
exceeding five times the NRC limits;
2. Surface contamination in excess of but not more than five
times the NRC limit;
3. A failure to register as an authorized user of an NRC-
Certified Transport package;
4. A noncompliance with shipping papers, marking, labeling,
placarding, packaging or loading not amounting to a Severity Level
I, II, or III violation;
5. A failure to demonstrate that packages for special form
radioactive material meets applicable regulatory requirements;
6. A failure to demonstrate that packages meet DOT
Specifications for 7A Type A packages; or
7. Other violations that have more than minor safety or
environmental significance.
Supplement VI--Fuel Cycle and Materials Operations
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations in the area of fuel cycle and
materials operations.
A. Severity Level I--Violations involving for example:
1. Radiation levels, contamination levels, or releases that
exceed 10 times the limits specified in the license;
2. A system designed to prevent or mitigate a serious safety
event not being operable when actually required to perform its
design function;
3. A nuclear criticality accident;
4. A failure to follow the procedures of the quality management
program, required by 10 CFR 35.32, that results in a death or
serious injury (e.g., substantial organ impairment) to a patient;
5. A safety limit, as defined in 10 CFR 76.4, the Technical
Safety Requirements, or the application being exceeded; or
6. Significant injury or loss of life due to a loss of control
over licensed or certified activities, including chemical processes
that are integral to the licensed or certified activity, whether
radioactive material is released or not.
B. Severity Level II--Violations involving for example:
[[Page 26651]]
1. Radiation levels, contamination levels, or releases that
exceed five times the limits specified in the license;
2. A system designed to prevent or mitigate a serious safety
event being inoperable;
3. A substantial programmatic failure in the implementation of
the quality management program required by 10 CFR 35.32 that results
in a misadministration;
4. A failure to establish, implement, or maintain all
criticality controls (or control systems) for a single nuclear
criticality scenario when a critical mass of fissile material was
present or reasonably available, such that a nuclear criticality
accident was possible; or
5. The potential for a significant injury or loss of life due to
a loss of control over licensed or certified activities, including
chemical processes that are integral to the licensed or certified
activity, whether radioactive material is released or not (e.g.,
movement of liquid UF6 cylinder by unapproved methods).
C. Severity Level III--Violations involving for example:
1. A failure to control access to licensed materials for
radiation protection purposes as specified by NRC requirements;
2. Possession or use of unauthorized equipment or materials in
the conduct of licensee activities which degrades safety;
3. Use of radioactive material on humans where such use is not
authorized;
4. Conduct of licensed activities by a technically unqualified
or uncertified person;
5. A substantial potential for exposures, radiation levels,
contamination levels, or releases, including releases of toxic
material caused by a failure to comply with NRC regulations, from
licensed or certified activities in excess of regulatory limits;
6. Substantial failure to implement the quality management
program as required by 10 CFR 35.32 that does not result in a
misadministration; failure to report a misadministration; or
programmatic weakness in the implementation of the quality
management program that results in a misadministration;
7. A breakdown in the control of licensed activities involving a
number of violations that are related (or, if isolated, that are
recurring violations) that collectively represent a potentially
significant lack of attention or carelessness toward licensed
responsibilities;
8. A failure, during radiographic operations, to have present at
least two qualified individuals or to use radiographic equipment,
radiation survey instruments, and/or personnel monitoring devices as
required by 10 CFR Part 34;
9. A failure to submit an NRC Form 241 as required by 10 CFR
150.20;
10. A failure to receive required NRC approval prior to the
implementation of a change in licensed activities that has
radiological or programmatic significance, such as, a change in
ownership; lack of an RSO or replacement of an RSO with an
unqualified individual; a change in the location where licensed
activities are being conducted, or where licensed material is being
stored where the new facilities do not meet the safety guidelines;
or a change in the quantity or type of radioactive material being
processed or used that has radiological significance;
11. A significant failure to meet decommissioning requirements
including a failure to notify the NRC as required by regulation or
license condition, substantial failure to meet decommissioning
standards, failure to conduct and/or complete decommissioning
activities in accordance with regulation or license condition, or
failure to meet required schedules without adequate justification;
12. A significant failure to comply with the action statement
for a Technical Safety Requirement Limiting Condition for Operation
where the appropriate action was not taken within the required time,
such as:
(a) In an autoclave, where a containment isolation valve is
inoperable for a period in excess of that allowed by the action
statement; or
(b) Cranes or other lifting devices engaged in the movement of
cylinders having inoperable safety components, such as redundant
braking systems, or other safety devices for a period in excess of
that allowed by the action statement;
13. A system designed to prevent or mitigate a serious safety
event:
(a) Not being able to perform its intended function under
certain conditions (e.g., safety system not operable unless
utilities available, materials or components not according to
specifications); or
(b) Being degraded to the extent that a detailed evaluation
would be required to determine its operability;
14. Changes in parameters that cause unanticipated reductions in
margins of safety;
15. A significant failure to meet the requirements of 10 CFR
76.68, including a failure such that a required certificate
amendment was not sought;
16. A failure of the certificate holder to conduct adequate
oversight of contractors resulting in the use of products or
services that are of defective or indeterminate quality and that
have safety significance;
17. Equipment failures caused by inadequate or improper
maintenance that substantially complicates recovery from a plant
transient;
18. A failure to establish, maintain, or implement all but one
criticality control (or control systems) for a single nuclear
criticality scenario when a critical mass of fissile material was
present or reasonably available, such that a nuclear criticality
accident was possible; or
19. A failure, during radiographic operations, to stop work
after a pocket dosimeter is found to have gone off-scale, or after
an electronic dosimeter reads greater than 200 mrem, and before a
determination is made of the individual's actual radiation exposure.
D. Severity Level IV--Violations involving for example:
1. A failure to maintain patients hospitalized who have cobalt-
60, cesium-137, or iridium-192 implants or to conduct required
leakage or contamination tests, or to use properly calibrated
equipment;
2. Other violations that have more than minor safety or
environmental significance;
3. Failure to follow the quality management (QM) program,
including procedures, whether or not a misadministration occurs,
provided the failures are isolated, do not demonstrate a
programmatic weakness in the implementation of the QM program, and
have limited consequences if a misadministration is involved;
failure to conduct the required program review; or failure to take
corrective actions as required by 10 CFR 35.32;
4. A failure to keep the records required by 10 CFR 35.32 or
35.33;
5. A less significant failure to comply with the Action
Statement for a Technical Safety Requirement Limiting Condition for
Operation when the appropriate action was not taken within the
required time;
6. A failure to meet the requirements of 10 CFR 76.68 that does
not result in a Severity Level I, II, or III violation;
7. A failure to make a required written event report, as
required by 10 CFR 76.120(d)(2); or
8. A failure to establish, implement, or maintain a criticality
control (or control system) for a single nuclear criticality
scenario when the amount of fissile material available was not, but
could have been sufficient to result in a nuclear criticality.
Supplement VII--Miscellaneous Matters
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations involving miscellaneous matters.
A. Severity Level I--Violations involving for example:
1. Inaccurate or incomplete information 21 that is
provided to the NRC (a) deliberately with the knowledge of a
licensee official that the information is incomplete or inaccurate,
or (b) if the information, had it been complete and accurate at the
time provided, likely would have resulted in regulatory action such
as an immediate order required by the public health and safety;
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\21\ In applying the examples in this supplement regarding
inaccurate or incomplete information and records, reference should
also be made to the buidance in Section IX, ``Inaccurate and
Incomplete Information,'' and to the definition of ``licensee
official'' contianed in Section IV.C.
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2. Incomplete or inaccurate information that the NRC requires be
kept by a licensee that is (a) incomplete or inaccurate because of
falsification by or with the knowledge of a licensee official, or
(b) if the information, had it been complete and accurate when
reviewed by the NRC, likely would have resulted in regulatory action
such as an immediate order required by public health and safety
considerations;
3. Information that the licensee has identified as having
significant implications for public health and safety or the common
defense and security (``significant information identified by a
licensee'') and is deliberately withheld from the Commission;
4. Action by senior corporate management in violation of 10 CFR
50.7 or similar regulations against an employee;
5. A knowing and intentional failure to provide the notice
required by 10 CFR Part 21; or
[[Page 26652]]
6. A failure to substantially implement the required fitness-
for-duty program. 22
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\22\ The example for violations for fitness-for-duty relate to
violations of 10 CFR Part 26.
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B. Severity Level II--Violations involving for example:
1. Inaccurate or incomplete information that is provided to the
NRC (a) by a licensee official because of careless disregard for the
completeness or accuracy of the information, or (b) if the
information, had it been complete and accurate at the time provided,
likely would have resulted in regulatory action such as a show cause
order or a different regulatory position;
2. Incomplete or inaccurate information that the NRC requires be
kept by a licensee which is (a) incomplete or inaccurate because of
careless disregard for the accuracy of the information on the part
of a licensee official, or (b) if the information, had it been
complete and accurate when reviewed by the NRC, likely would have
resulted in regulatory action such as a show cause order or a
different regulatory position;
3. ``Significant information identified by a licensee'' and not
provided to the Commission because of careless disregard on the part
of a licensee official;
4. An action by plant management or mid-level management in
violation of 10 CFR 50.7 or similar regulations against an employee;
5. A failure to provide the notice required by 10 CFR Part 21;
6. A failure to remove an individual from unescorted access who
has been involved in the sale, use, or possession of illegal drugs
within the protected area or take action for on duty misuse of
alcohol, prescription drugs, or over-the-counter drugs;
7. A failure to take reasonable action when observed behavior
within the protected area or credible information concerning
activities within the protected area indicates possible unfitness
for duty based on drug or alcohol use;
8. A deliberate failure of the licensee's Employee Assistance
Program (EAP) to notify licensee's management when EAP's staff is
aware that an individual's condition may adversely affect safety
related activities; or
9. The failure of licensee management to take effective action
in correcting a hostile work environment.
C. Severity Level III--Violations involving for example:
1. Incomplete or inaccurate information that is provided to the
NRC (a) because of inadequate actions on the part of licensee
officials but not amounting to a Severity Level I or II violation,
or (b) if the information, had it been complete and accurate at the
time provided, likely would have resulted in a reconsideration of a
regulatory position or substantial further inquiry such as an
additional inspection or a formal request for information;
2. Incomplete or inaccurate information that the NRC requires be
kept by a licensee that is (a) incomplete or inaccurate because of
inadequate actions on the part of licensee officials but not
amounting to a Severity Level I or II violation, or (b) if the
information, had it been complete and accurate when reviewed by the
NRC, likely would have resulted in a reconsideration of a regulatory
position or substantial further inquiry such as an additional
inspection or a formal request for information;
3. A failure to provide ``significant information identified by
a licensee'' to the Commission and not amounting to a Severity Level
I or II violation;
4. An action by first-line supervision or other low-level
management in violation of 10 CFR 50.7 or similar regulations
against an employee;
5. An inadequate review or failure to review such that, if an
appropriate review had been made as required, a 10 CFR Part 21
report would have been made;
6. A failure to complete a suitable inquiry on the basis of 10
CFR Part 26, keep records concerning the denial of access, or
respond to inquiries concerning denials of access so that, as a
result of the failure, a person previously denied access for
fitness-for-duty reasons was improperly granted access;
7. A failure to take the required action for a person confirmed
to have been tested positive for illegal drug use or take action for
onsite alcohol use; not amounting to a Severity Level II violation;
8. A failure to assure, as required, that contractors have an
effective fitness-for-duty program;
9. A breakdown in the fitness-for-duty program involving a
number of violations of the basic elements of the fitness-for-duty
program that collectively reflect a significant lack of attention or
carelessness towards meeting the objectives of 10 CFR 26.10; or
10. Threats of discrimination or restrictive agreements which
are violations under NRC regulations such as 10 CFR 50.7(f).
D. Severity Level IV--Violations involving for example:
1. Incomplete or inaccurate information of more than minor
significance that is provided to the NRC but not amounting to a
Severity Level I, II, or III violation;
2. Information that the NRC requires be kept by a licensee and
that is incomplete or inaccurate and of more than minor significance
but not amounting to a Severity Level I, II, or III violation;
3. An inadequate review or failure to review under 10 CFR Part
21 or other procedural violations associated with 10 CFR Part 21
with more than minor safety significance;
4. Violations of the requirements of Part 26 of more than minor
significance;
5. A failure to report acts of licensed operators or supervisors
pursuant to 10 CFR 26.73; or
6. Discrimination cases which, in themselves, do not warrant a
Severity Level III categorization.
Supplement VIII--Emergency Preparedness
This supplement provides examples of violations in each of the
four severity levels as guidance in determining the appropriate
severity level for violations in the area of emergency preparedness.
It should be noted that citations are not normally made for
violations involving emergency preparedness occurring during
emergency exercises. However, where exercises reveal (i) training,
procedural, or repetitive failures for which corrective actions have
not been taken, (ii) an overall concern regarding the licensee's
ability to implement its plan in a manner that adequately protects
public health and safety, or (iii) poor self critiques of the
licensee's exercises, enforcement action may be appropriate.
A. Severity Level I--Violations involving for example:
In a general emergency, licensee failure to promptly (1)
correctly classify the event, (2) make required notifications to
responsible Federal, State, and local agencies, or (3) respond to
the event (e.g., assess actual or potential offsite consequences,
activate emergency response facilities, and augment shift staff.)
B. Severity Level II--Violations involving for example:
1. In a site emergency, licensee failure to promptly (1)
correctly classify the event, (2) make required notifications to
responsible Federal, State, and local agencies, or (3) respond to
the event (e.g., assess actual or potential offsite consequences,
activate emergency response facilities, and augment shift staff); or
2. A licensee failure to meet or implement more than one
emergency planning standard involving assessment or notification.
C. Severity Level III--Violations involving for example:
1. In an alert, licensee failure to promptly (1) correctly
classify the event, (2) make required notifications to responsible
Federal, State, and local agencies, or (3) respond to the event
(e.g., assess actual or potential offsite consequences, activate
emergency response facilities, and augment shift staff);
2. A licensee failure to meet or implement one emergency
planning standard involving assessment or notification; or
3. A breakdown in the control of licensed activities involving a
number of violations that are related (or, if isolated, that are
recurring violations) that collectively represent a potentially
significant lack of attention or carelessness toward licensed
responsibilities.
D. Severity Level IV--Violations involving for example:
A licensee failure to meet or implement any emergency planning
standard or requirement not directly related to assessment and
notification.
Dated at Rockville, Maryland, this 6th day of May, 1998.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-12534 Filed 5-12-98; 8:45 am]
BILLING CODE 7590-01-P
