Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65657

STATUS: Open to the public for 

observation, but not for participation.

MATTERS TO BE CONSIDERED: The 

Commission will consider the Louisiana 

Coastal Area Ecosystem Restoration 

Study, Final Report and Environmental 

Impact Statement.

CONTACT PERSON FOR MORE INFORMATION:

Mr. Stephen Gambrell, telephone (601) 

634–5766.

Brenda S. Bowen, 

Army Federal Register Liaison Officer.

[FR Doc. 04–25391 Filed 11–10–04; 11:22 am] 

BILLING CODE 3710–GX–M

NUCLEAR REGULATORY 

COMMISSION 

[NUREG–1600] 

NRC Enforcement Policy

AGENCY: Nuclear Regulatory 

Commission.

ACTION: Policy statement: revision.

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is revising its 

General Statement of Policy and 

Procedure for NRC Enforcement Actions 

(NUREG–1600) (Enforcement Policy or 

Policy) to include an administrative 

change that provides that the 

appropriate Regional Administrator will 

issue all Notices of Enforcement 

Discretion (NOEDs) for power reactors.

DATES: This revision is effective 

November 15, 2004. Comments on this 

revision to the Enforcement Policy may 

be submitted on or before December 15, 

2004.

ADDRESSES: Submit written comments 

to: Michael T. Lesar, Chief, Rules and 

Directives Branch, Division of 

Administrative Services, Office of 

Administration, Mail Stop: T6D59, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001. Hand 

deliver comments to: 11555 Rockville 

Pike, Rockville, Maryland, between 7:30 

a.m. and 4:15 p.m., Federal workdays. 

Copies of comments received may be 

examined at the NRC Public Document 

Room, Room O1F21, 11555 Rockville 

Pike, Rockville, MD. You may also

e-mail comments to nrcrep@nrc.gov. 

The NRC maintains the current 

Enforcement Policy on its Web site at 

http://www.nrc.gov, select What We Do, 

Enforcement, then Enforcement Policy.

FOR FURTHER INFORMATION CONTACT:

Herbert N. Berkow, Office of Nuclear 

Reactor Regulation, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, (301) 415–1395, e-mail 

(HNB@nrc.gov) or Rene ́e Pedersen, 

Office of Enforcement, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, (301) 415–2742, e-mail 

(RMP@nrc.gov).

SUPPLEMENTARY INFORMATION: Section 

VII.C of the Enforcement Policy 

describes the circumstances when the 

staff may exercise enforcement 

discretion in the form of a NOED for 

power reactors. 

On occasion, circumstances may arise 

where a licensee’s compliance with a 

Technical Specification (TS) Limiting 

Condition for Operation (LCO) or other 

license condition would involve: (1) An 

unnecessary plant transient; (2) 

performance of testing, inspection, or 

system realignment that is inappropriate 

with the specific plant conditions; or, 

(3) unnecessary delays in plant startup 

without a corresponding health and 

safety benefit. The staff may also grant 

enforcement discretion in cases 

involving severe weather or other 

natural phenomena. This decision is 

based upon balancing the public health 

and safety or common defense and 

security of not operating against the 

potential radiological or other hazards 

associated with continued operation, 

resulting in a determination that safety 

will not be impacted unacceptably by 

exercising this discretion. The 

Commission is to be informed 

expeditiously following the granting of 

a NOED in such situations. 

In these circumstances, the NRC staff 

may choose to not enforce the 

applicable TS or other license 

condition. This enforcement discretion, 

designated as a NOED, is only exercised 

if the NRC staff is clearly satisfied that 

the action is consistent with protecting 

the public health and safety. NRC 

guidance for implementing the NOED 

policy for power reactors is provided in 

the NRC Inspection Manual Part 9900 

guidance. 

The Enforcement Policy and 

implementing guidance have 

historically recognized the distinction 

between: (1) Those instances where a 

noncompliance is temporary and 

nonrecurring when an amendment is 

not practical, and (2) those instances 

where a noncompliance will occur 

during the brief period of time required 

for the NRC staff to process an 

emergency or exigent license 

amendment under the provisions of 10 

CFR 50.91(a)(5) or (6). In the first 

situation, the Regional Administrator 

has issued the NOED and subsequently 

documented the decision for granting 

the NOED. In the second situation, the 

Director, Office of Nuclear Reactor 

Regulation (NRR) has issued the NOED 

and subsequently documented the 

decision for granting the NOED. In other 

words, the current distinction between 

region-issued and NRR-issued NOEDs 

for power reactors is based on the 

duration of the NOED and whether or 

not a follow-up license amendment is 

appropriate. 

This revision of the Enforcement 

Policy eliminates the distinction 

between region-issued and NRR-issued 

NOEDs for power reactors. Although 

historically most NOEDs have been 

issued and documented by the 

cognizant regions without follow-up 

license amendments, all NOED requests 

have been evaluated and decisions 

made jointly by the regional and NRR 

staffs. Thus, the distinction is 

unnecessary. 

The Enforcement Policy revision 

specifies that the associated regional 

and headquarters staff will together 

determine the appropriateness of 

granting a requested NOED. If the NOED 

is determined to be appropriate, 

regional staff will complete the 

documentation process associated with 

granting the NOED. 

The revision provides that, for all 

power reactor NOED determinations, 

the Regional Administrator, or his or her 

designee, may issue a NOED after 

consultation with headquarters and 

therefore eliminates the need to 

categorize NOEDs as regional- or 

headquarters-lead. This clarification 

will provide a more predictable, clear, 

and consistent process for licensees 

when requesting NRC to consider 

granting a NOED. 

This policy revision, as well as other 

NOED process improvements, was 

discussed with representatives of the 

Nuclear Energy Institute (NEI) and other 

stakeholders at a public meeting with 

the NRC staff on July 14, 2004. The NRC 

plans on completely revising and 

reissuing its Part 9900 guidance later in 

the year. In addition to the Enforcement 

Policy revision, other process 

improvements include emphasizing that 

the license amendment process should 

be used in preference to NOEDs 

whenever possible and developing 

improved guidance to address the 

NOED request requirement to 

demonstrate no net increase in 

radiological risk. In addition, other 

concurrent improvements to the NOED 

process will result in most NOEDs 

having follow-up license amendments 

regardless of the NOED duration.

The revision to the Enforcement 

Policy is strictly administrative in 

nature and will support simplification 

of the NOED process by providing a 

clear understanding of the roles and 

responsibilities of NRC regional and 

headquarters staff associated with 

issuance of NOEDs.

65658 Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 

It is anticipated that the Enforcement 

Policy revision will have minimal, if 

any, impact on external stakeholders. 

Paperwork Reduction Act 

This policy statement does not 

contain new or amended information 

collection requirements 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 

(OMB), 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 in not required to respond 

to, 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 had 

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 proposed revision to 

the NRC Enforcement Policy reads as 

follows: 

General Statement of Policy and 

Procedure for NRC Enforcement 

Actions

* * * * *

VII. Exercise of Discretion

* * * * *

C. Notice of Enforcement Discretion for 

Power Reactors and Gaseous Diffusion 

Plants 

On occasion, circumstances may arise 

where a power reactor’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. Similarly, for a gaseous 

diffusion plant (GDP), circumstances 

may arise where compliance with a 

Technical Safety Requirement (TSR) or 

technical specification or other 

certificate condition would 

unnecessarily call for a total plant 

shutdown or, notwithstanding that a 

safety, safeguards, or security feature 

was degraded or inoperable, compliance 

would unnecessarily place the plant in 

a transient or condition where those 

features could be required.

In these circumstances, the NRC staff 

may choose not to enforce the 

applicable TS, TSR, or other license or 

certificate 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. The NRC staff may 

also grant enforcement discretion in 

cases involving severe weather or other 

natural phenomena, based upon 

balancing the public health and safety 

or common defense and security of not 

operating against the potential 

radiological or other hazards associated 

with continued operation, and a 

determination that safety will not be 

impacted unacceptably by exercising 

this discretion. The Commission is to be 

informed expeditiously following the 

granting of a NOED in these situations. 

A licensee or certificate holder 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, that 

documents the safety basis for the 

request and provides whatever other 

information necessary for the NRC staff 

to make a decision on whether to issue 

a NOED. 

For power reactors, the appropriate 

Regional Administrator, or his or her 

designee, may issue a NOED after 

consultation with the Director, Office of 

Nuclear Reactor Regulation, or his or 

her designee, to determine the 

appropriateness of granting a NOED 

where (1) the noncompliance is 

temporary and nonrecurring when an 

amendment is not practical or (2) 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). For gaseous 

diffusion plants, the appropriate 

Regional Administrator, or his or her 

designee, may issue and document a 

NOED where the noncompliance is 

temporary and nonrecurring and when 

an amendment is not practical. The 

Director, Office of Nuclear Materials 

Safety and Safeguards, 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 a 

certificate amendment under 10 CFR 

76.45. The person exercising 

enforcement discretion will document 

the decision. 

For an operating reactor, 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. 

For GDPs, the exercise of enforcement 

discretion would be used where 

compliance with a certificate condition 

would involve an unnecessary plant 

shutdown or, notwithstanding that a 

safety, safeguards, or security feature 

was degraded or inoperable, compliance 

would unnecessarily place the plant in 

a transient or condition where those 

features could be required. Such 

regulatory flexibility is needed because 

a total plant shutdown is not necessarily 

the best response to a plant condition. 

GDPs are designed to operate 

continuously and have never been shut 

down. Although portions can be shut 

down for maintenance, the NRC staff 

has been informed by the certificate 

holder that restart from a total plant 

shutdown may not be practical and the 

staff agrees that the design of a GDP

Federal Register / Vol. 69, No. 219 / Monday, November 15, 2004 / Notices 65659

does not make restart practical. Hence, 

the decision to place either GDP in 

plant-wide shutdown condition would 

be made only after determining that 

there is inadequate safety, safeguards, or 

security and considering the total 

impact of the shutdown on safety, the 

environment, safeguards, and security. 

A NOED would not be used for 

noncompliances with other than 

certificate requirements, or for 

situations where the certificate holder 

cannot demonstrate adequate safety, 

safeguards, or security. 

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 and certificate holders should 

not rely on the NRC’s authority to 

exercise enforcement discretion as a 

routine substitute for compliance or for 

requesting a license or certificate 

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 the 

action is warranted from a health and 

safety perspective.

* * * * *

Dated at Rockville, MD, this 8th day of 

November, 2004.

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission.

[FR Doc. 04–25260 Filed 11–12–04; 8:45 am] 

BILLING CODE 7590–01–P

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 030–34325] 

Notice of Availability of Environmental 

Assessment and Finding of No 

Significant Impact for License 

Amendment for Release of Facility for 

Unrestricted Use for the Department of 

Veterans Affairs Chicago Health Care 

System Lakeside Campus—Medical 

Sciences Building, Chicago, IL

AGENCY: Nuclear Regulatory 

Commission.

ACTION: Notice of availability.

FOR FURTHER INFORMATION CONTACT:

William Snell, Senior Health Physicist, 

Decommissioning Branch, Division of 

Nuclear Material Safety, Region III, U.S. 

Nuclear Regulatory Commission, 2443 

Warrenville Road, Lisle, Illinois 60532; 

telephone: (630) 829–9871; fax number: 

(630) 515–1259; e-mail: wgs@nrc.gov.

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The Nuclear Regulatory Commission 

(NRC) is issuing a license amendment to 

Material License No. 03–23853–01VA 

issued to the Department of Veterans 

Affairs (DVA) (the licensee), to 

authorize release of its Chicago Health 

Care System, Lakeside Campus—

Medical Sciences Building in Chicago, 

Illinois for unrestricted use, and has 

prepared an Environmental Assessment 

(EA) in support of this amendment in 

accordance with the requirements of 10 

CFR part 51. Based on the EA, the NRC 

has concluded that a Finding of No 

Significant Impact (FONSI) is 

appropriate. The amendment will be 

issued following the publication of this 

notice. 

II. EA Summary 

The purpose of the proposed 

amendment is to allow for the release of 

the licensee’s Chicago, Illinois facility 

for unrestricted use. The DVA has 

occupied the Chicago Health Care 

System, Lakeside Campus—Medical 

Sciences Building since 1978, and 

during that period was authorized to use 

byproduct, source, and special nuclear 

material for medical diagnosis, therapy, 

and research. The Chicago, Illinois 

facility is a permittee under the DVA 

NRC Master Material License (MML) 

Number 03–23853–01VA, and on 

October 1, 2004, requested the NRC 

release the facility for unrestricted use. 

The approval is consistent with a March 

17, 2003, Letter of Understanding (LOU) 

between the NRC and DVA for DVA 

permittees. The LOU requires the DVA 

to submit for NRC review, permittee 

requests for the release of buildings for 

unrestricted use where radioactive 

materials with a half-life greater than 

120 days were used. The DVA identified 

four isotopes with half-lives greater than 

120 days that it used in the Medical 

Sciences Building: hydrogen-3, carbon14, sodium-22, and chlorine-36. The 

DVA has conducted surveys of the 

facility and provided information to the 

NRC to demonstrate that the site meets 

the licensee termination criteria in 

subpart E of 10 CFR part 20 for 

unrestricted release. 

The staff has prepared an EA in 

support of the proposed license 

amendment. Based on its review, the 

staff determined there were no 

radiological or non-radiological 

environmental impacts associated with 

the action since no radiological 

remediation activities were required to 

complete the proposed action. The staff 

has determined that the proposed action 

is administrative and/or procedural in 

nature and will not affect listed species 

or critical habitat. Likewise, NRC staff 

has determined that the proposed action 

is not the type of activity that has the 

potential to cause effects on historic 

properties because it is an 

administrative and/or procedural action.

III. Finding of No Significant Impact 

The staff has prepared an EA in 

support of the proposed license 

amendment to release the site for 

unrestricted use. The staff has found 

that the radiological environmental 

impacts from the proposed amendment 

are bounded by the impacts evaluated 

by NUREG–1496, Volumes 1–3, 

‘‘Generic Environmental Impact 

Statement in Support of Rulemaking on 

Radiological Criteria for License 

Termination of NRC-Licensed 

Facilities’’ (ML042310492, 

ML042320379, and ML042330385). The 

staff has also found that the nonradiological impacts are not significant. 

On the basis of the EA, NRC has 

concluded that there are no significant 

environmental impacts from the 

proposed amendment and has 

determined not to prepare an 

environmental impact statement. 

IV. Further Information 

Documents related to this action, 

including the application for 

amendment and supporting 

documentation, are available 

electronically at the NRC’s Electronic 

Reading Room at http://www.nrc.gov/

reading-rm/adams.html. From this site, 

you can access the NRC’s Agencywide 

Document Access and Management 

System (ADAMS), which provides text