[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Notices]
[Pages 48919-48923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20112]


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NUCLEAR REGULATORY COMMISSION

[NRC-2011-0176]


NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission.

ACTION: Solicitation of comments on proposed revisions.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is soliciting 
written comments from interested parties, including public interest 
groups, States, members of the public, and the regulated industry 
(i.e., reactor and materials licensees, vendors, and contractors), on 
construction-related topics addressed in this notice that the NRC staff 
is evaluating for discussion in an upcoming Commission paper that will 
include recommended revisions to the NRC Enforcement Policy. As such, 
this request for comments is intended to assist the NRC in revising its 
Enforcement Policy and adequately responding to the Commission's 
request,

[[Page 48920]]

described below. The NRC will also host a public meeting to solicit 
public comments on these construction related proposed revisions to the 
Enforcement Policy. The topics discussed in this notice are not 
intended to represent all the potential changes in the next revision of 
the Enforcement Policy. Before submitting the next Enforcement Policy 
revision to the Commission for approval, the staff intends to solicit 
comments on other topics.

DATES: Submit comments on or before September 8, 2011. Comments 
received after this date will be considered if it is practical to do 
so, but the Commission is able to assure consideration only for 
comments received on or before the specified date.

ADDRESSES: Please include Docket ID NRC-2011-0176 in the subject line 
of your comments. Comments submitted in writing or in electronic form 
will be posted on the NRC Web site and on the Federal rulemaking Web 
site, http://www.regulations.gov. Because your comments will not be 
edited to remove any identifying or contact information, the NRC 
cautions you against including any information in your submission that 
you do not want to be publicly disclosed.
    The NRC requests that any party soliciting or aggregating comments 
received from other persons for submission to the NRC inform those 
persons that the NRC will not edit their comments to remove any 
identifying or contact information, and therefore, they should not 
include any information in their comments that they do not want 
publicly disclosed. You may submit comments by any one of the following 
methods:
    <bullet> Federal Rulemaking Web site: Go to http://www.regulations.gov and search for documents filed under Docket ID NRC-
2011-0176. Address questions about NRC dockets to Carol Gallagher, 
telephone: 301-492-3668; e-mail: <a href="/cdn-cgi/l/email-protection#703311021f1c5e37111c1c1117181502301e02135e171f06"><span class="__cf_email__" data-cfemail="115270637e7d3f56707d7d7076797463517f63723f767e67">[email protected]</span></a>.
    <bullet> Mail comments to: Cindy Bladey, Chief, Rules, 
Announcements, and Directives Branch (RADB), Office of Administration, 
Mail Stop: TWB-05-B01M, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001.
    <bullet> Fax comments to: RADB at 301-492-3446.
    You can access publicly available documents related to this 
document using the following methods:
    <bullet> NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland 20852.
    <bullet> NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, 
which provides text and image files of the NRC's public documents. If 
you do not have access to ADAMS or if there are problems in accessing 
the documents located in ADAMS, contact the NRC's PDR reference staff 
at 1-800-397-4209, 301-415-4737, or by e-mail to <a href="/cdn-cgi/l/email-protection#ef9f8b9dc19d8a9c809a9d8c8aaf819d8cc1888099"><span class="__cf_email__" data-cfemail="b7c7d3c599c5d2c4d8c2c5d4d2f7d9c5d499d0d8c1">[email protected]</span></a>. 
The Enforcement Policy is available electronically under ADAMS 
Accession Number ML093480037.
    <bullet> Federal Rulemaking Web site: Public comments and 
supporting materials related to this notice can be found at http://www.regulations.gov by searching on Docket ID NRC-2011-0176.

FOR FURTHER INFORMATION CONTACT: Carolyn Far[iacute]a, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001; telephone: 301-415-4050, e-mail to <a href="/cdn-cgi/l/email-protection#b8dbd9cad7d4c1d696ded9cad1d995d7dbd9cbd1d7f8d6cadb96dfd7ce"><span class="__cf_email__" data-cfemail="197a786b76756077377f786b707834767a786a707659776b7a377e766f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    The Commission, in SRM-SECY-09-0190, dated August 27, 2010 (ADAMS 
accession number ML102390327), approved a major revision to its 
Enforcement Policy. The NRC published a notice (75 FR 60485) announcing 
an effective date of September 30, 2010, for that revision to the 
Policy. The Commission, in SRM-SECY-09-0190, also directed the NRC 
staff (the staff) to reevaluate the portions of the Enforcement Policy 
associated with construction activities (e.g., reactor or uranium 
enrichment plants), including under what conditions enforcement 
discretion could be applied to cases involving the holder of a Limited 
Work Authorization (LWA) or Combined License (COL). In addressing those 
topics identified by the Commission, the staff developed a number of 
approaches that the staff believes appropriate to present collectively 
to the Commission for its consideration for possible inclusion in the 
next Enforcement Policy revision. What follows in bold italics is the 
proposed wording for proposed changes to the Enforcement Policy along 
with background on those topics evaluated by the staff. When 
appropriate and necessary, the staff also discusses potential 
regulatory issues associated with a particular topic.

Item 1: Revise Policy Sections for Clarity

(A) Section 1.2, Applicability:

    As new last paragraphs in the section, add the following:
    It is NRC policy to hold licensees, certificate holders, and 
applicants responsible for the acts of their employees, contractors, or 
vendors and their employees, and the NRC may cite the licensee, 
certificate holder, or applicant for violations committed by its 
employees, contractors, or vendors and their employees.

    The NRC may use the term ``licensee'' in this Policy when referring 
to enforcement; however, in most situations the term is applied broadly 
for any of the above entities. In some situations, the NRC intends that 
the information applies narrowly, only to license holders. The context 
of the information described in the Policy will determine the usage of 
the term ``licensee.''
    The foregoing language was developed by staff to clarify the 
identity of responsible entities within the context of the Policy. 
However, the staff does not intend with this proposed language to 
change or alter any enforcement practice as currently implemented. The 
staff will ensure that the final policy revision reflects the scope of 
the term ``licensee'' in the glossary.

(B) Section 2.2, Assessment Of Violations:

    In the first sentence of Section 2.2.1.a, revise the sentence to 
read: `` * * *, onsite or offsite radiation exposures, onsite or 
offsite chemical hazard exposures resulting from licensed or certified 
activities * * *.''
    Add a new section, as follows:

Section 2.2.6 Construction

    In accordance with 10 CFR 50.10, no person may begin the 
construction of a production or utilization facility on a site on which 
the facility is to be operated until that person has been issued either 
a construction permit under 10 CFR part 50, a combined license under 10 
CFR part 52, an early site permit authorizing the activities under 10 
CFR 50.10(d), or a limited work authorization under 10 CFR 50.10(d). 
Further, any activities undertaken under the Changes

[[Page 48921]]

during Construction (CdC) Preliminary Acceptance Review (PAR) Process, 
as developed in Interim Staff Guidance (ISG)-025, are at the risk of 
the licensee, and the licensee is obligated to return to the current 
licensing basis (CLB) if the related license amendment request (LAR) is 
subsequently not approved by the NRC.
    Also, in accordance with 10 CFR 70.23(a)(7) and 10 CFR 40.32(e), 
commencement of construction before the NRC finishes its environmental 
review and issues a license for processing and fuel fabrication, 
conversion of uranium hexafluoride, or uranium enrichment facility 
construction and operation is grounds for denial to possess and use 
special nuclear material in the plant or facility. Additionally, in 
accordance with 10 CFR 70.23(b), failure to obtain Commission approval 
for the construction of the principal structures, systems, and 
components of a plutonium processing and fuel fabrication plant before 
the commencement of construction may also be grounds for denial of a 
license to possess and use special nuclear material.
    The revision to Section 2.2.1.a is to ensure consistency with the 
staff's current process to disposition violations related to chemical 
hazards exposures. The staff believes that the addition of Section 
2.2.6 is necessary to broadly address when and how the assessment of 
violations during construction occur. The staff is currently developing 
the CdC PAR process, an elective precursor to the license amendment 
review, established via license condition. Comments on the CdC PAR 
process will be solicited under a separate FRN and will not be 
addressed under this FRN.

(C) Section 6.0, Violation Examples:

    Add a second paragraph to the introduction of the section:
    Many examples are written to reflect the risks associated with the 
use of radioactive or special nuclear materials. However, violations 
during construction generally occur before the nuclear material and its 
associated risk are present. Therefore, the NRC will consider the lower 
risk significance of violations that occur during construction in the 
areas of emergency preparedness, reactor operator licensing, and 
security and may reduce the severity level for those violations from 
that indicated by the examples in those areas. The staff must 
coordinate with the Office of Enforcement before applying this lower 
risk significance concept for violations that occur during 
construction.
    The staff developed this paragraph to recognize that although 
certain rules (i.e., requirements for emergency preparedness, reactor 
operator licensing, and security) apply generally during construction 
activities, flexibility is needed to factor in the lower risk 
associated with certain violations that occur during construction. The 
staff believes that any applicable violation examples in the remaining 
sections would not likely warrant mitigation during construction solely 
because there is not nuclear material on site.

Item 2: Revise the Current Section 2.3, Dispostion of Violations

    Section 2.3.2 provides the Policy on use of non-cited violations as 
a method of dispositioning Severity Level IV violations. The staff 
proposes to revise this section as follows:

Section 2.3.2, Non-cited Violation

    If certain criteria (described below) are met, Severity Level IV 
(SL IV) violations and violations associated with green ROP findings 
(for operating reactors) are normally dispositioned as non-cited 
violations (NCVs). Inspection reports or inspection records document 
NCVs and briefly describe the corrective action the licensee has taken 
or plans to take, if known. Licensees are not required to provide 
written responses to NCVs; however, they may provide a written response 
if they disagree with the NRC's description of the NCV and/or dispute 
the validity of the NCV. Typically all of the criteria described in 
either 2.3.2.a. or b. must be met for the disposition of a violation as 
an NCV. For all SL IV violations identified by the NRC at fuel cycle 
facilities (under construction or in operation) in accordance with 10 
CFR part 70 or 10 CFR part 40 and reactors under construction in 
accordance with 10 CFR part 50 or 10 CFR part 52, before the NRC 
determines that an adequate corrective action program has been 
implemented, the NRC normally issues a Notice of Violation. Until the 
determination that an adequate corrective action program has been 
implemented, NCVs may be issued for licensee/applicant-identified SL IV 
violations if the NRC has determined that the applicable criteria in 
2.3.2.b. below are met:
a. Power Reactor Licensees
    1. The licensee must place the violation into a corrective action 
program to restore compliance and address recurrence.
    (Delete current footnote--``For reactor facilities under 
construction in accordance with 10 CFR part 52, the corrective action 
program must have been demonstrated to be adequate.'')
    2. (Unchanged)
    3. The violation must either not be repetitive as a result of 
inadequate corrective action, or, if repetitive, the violation must not 
be NRC identified. This criterion does not apply to violations 
associated with green ROP findings. Delete the rest of the criteria: 
``and violations associated with facility construction under 10 CFR 
part 50, `Domestic Licensing of Production and Utilization Facilities,' 
and 10 CFR part 52, `Licenses, Certifications, and Approvals for 
Nuclear Power Plants.' ''
    4. (Unchanged)
b. All Other Licensees (Unchanged)
    Of note regarding this topic, on June 3, 2011, the NRC issued EGM-
11-002, ``Enforcement Discretion for Licensee-Identified Violations at 
Power Reactor Construction Sites Pursuant to Title 10 of the Code of 
Federal Regulations [10 CFR] part 52'' (ADAMS Accession No. 
ML11152A065). The purpose of this enforcement guidance memorandum is to 
clarify the guidance for exercising enforcement discretion when the 
staff dispositions as NCVs those SL IV violations identified by 
licensees/applicants at power reactors that are under construction. To 
encourage prompt identification and prompt comprehensive correction of 
violations at reactor construction sites, the staff is authorized to 
disposition licensee/applicant-identified SL IV violations as NCVs 
before the agency determines that the licensee's/applicant's corrective 
action program (CAP) has been demonstrated to be adequate. For 
reactors, a method that NRC has found acceptable to determine adequacy 
of the CAP is for the licensee to commit to and comply with the 
requirements established by Appendix B, ``Quality Assurance Criteria 
for Nuclear Power Plants and Fuel Reprocessing Plants,'' to 10 CFR part 
50, ``Domestic Licensing of Production and Utilization Facilities.'' 
For fuel cycle facilities, the NRC is considering criteria for 
determining the adequacy of a fuel cycle licensee's CAP. In addition, 
the remaining criteria of Section 2.3.2.a of the NRC Enforcement Policy 
must be met, and the licensee must correct, or document its intent to 
take specific actions to correct, the violation within a reasonable 
time by the end of the NRC inspection activity,

[[Page 48922]]

including both immediate corrective action and any necessary action(s) 
to reasonably prevent recurrence. EGM-11-002 will be superseded with 
implementation of this portion of the Policy revision.
    SRM-09-0190, Item 1.f requires staff to ``propose revisions to 
provide fuel cycle licensees with credit for effective corrective 
actions programs''. The staff acknowledges that further work being done 
to address Item 1.f of SRM-09-0190 has the potential to generate 
additional changes to this section of the Policy. The staff will ensure 
that the final policy revision is coordinated to reflect both 
initiatives.

Item 3: Revise Policy Sections on Enforcement Discretion

A) Section 3.8, Notices of Enforcement Discretion for Operation Power 
Reactors and Gaseous Diffusion Plants:

    Add a footnote to the section title that states: ``NOEDs will not 
be used at reactors during construction before the Commission's 10 CFR 
52.103(g) or 10 CFR 50.57 finding, as applicable.''
    The staff considered development of an NOED process for use (1) 
After a COL is issued but prior to the 10 CFR 52.103(g) finding (after 
which point, the licensee's Technical Specifications are in effect), 
(2) after the issuance of a construction permit pursuant to 10 CFR 
50.50 but prior to the 10 CFR 50.57 operations finding, and (3) after 
the issuance of an LWA but prior to the issuance of a COL. The 
Enforcement Policy states, in part, that:

    The NRC may choose not to enforce the applicable technical 
specification (TS) limiting condition for operation (LCO) or other 
license conditions, in circumstances where compliance would involve 
an unnecessary plant transient or the performance of a test, 
inspection, or system realignment that may not be the most prudent 
action to take under the specific plant conditions, or unnecessary 
delays in plant startup, without a corresponding health and safety 
benefit * * *.
    The NRC will issue a notice of enforcement discretion (NOED) 
only if the staff is clearly satisfied that the action is consistent 
with protecting the public health and safety or security. 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 * * 
*

    Consequently, the NOED policy in its current form is predicated 
upon the expectation that public health and safety will be enhanced by 
the granting of an NOED. In considering the time periods associated 
with the three situations under consideration, the staff has not 
identified any plausible scenarios where the risk to public health and 
safety (or security) would be exacerbated by the failure of the NRC to 
grant such a licensee or permit holder a NOED.
    Moreover, the NOED process, as applied to operating reactors, 
involves, in essence, a preemptive request by a licensee and an 
associated preemptive determination by the NRC to permit the licensee 
to exceed technical specifications limiting conditions for operations. 
However, technical specifications limiting conditions for operation are 
not applicable to new reactors under construction until issuance of the 
operating license under 10 CFR part 50 or the 10 CFR 52.103(g) 
Commission determination under 10 CFR part 52, ``Licenses, 
Certifications, and Approvals for Nuclear Power Plants.'' As such, 
under the current NOED policy paradigm, the staff does not believe it 
appropriate to use the NOED process for any of the situations under 
consideration.
    With that said, the staff could consider a new paradigm for the 
granting of NOEDs to COL holders during construction, one premised upon 
a finding that no adverse impact, or risk increase, to public health 
and safety, security, or the environment would occur over the period of 
time enforcement discretion was applied.
    However, the staff believes the CdC process, described in more 
detail in Item 3.B, will provide an appropriate licensing-based change 
process that will address the vast majority of issues identified during 
construction, by allowing licensees to effect changes in parallel with 
staff's review of the acceptability of the change.
    In addition, the staff considered the development of a NOED-like 
process during construction under a Limited Work Authorization (LWA). 
However, given the limited use of LWAs and their narrow scope, the 
staff believes that development of an NOED process at this time would 
require expenditure of resources that would not be commensurate with 
the benefit.

B) Add a New Section for Enforcement Discretion

    Add a new Section 3.9 that states the following:

Section 3.9, Violations Involving Certain Construction Issues
    a. Fuel Cycle Facilities
    The NRC may choose to exercise discretion for fuel cycle facilities 
under construction (construction is defined in 10 CFR 40.4 for source 
material licensees and in 10 CFR 70.4 for special nuclear material 
licensees) based on the general enforcement discretion guidance 
contained in Section 3 of this Enforcement Policy.
    b. LWA holders
    The NRC may exercise discretion for LWA holders during construction 
using the general enforcement discretion guidance in Section 3 of the 
Enforcement Policy.
    c. COL Holders (Reactor Facilities)
    The NRC may reduce or refrain from issuing an NOV/NCV for a 
violation associated with an unplanned change that deviates from the 
licensing basis that is implemented during construction \1\ without 
prior NRC approval (in the form of a license amendment) when all of the 
following criteria are met:
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    \1\ The NRC may issue enforcement action for the cause of these 
unplanned changes, such as a failure to implement appropriate work 
controls or quality control measures, or a failure to adhere to 
procedures, processes, instructions, or standards that implement NRC 
requirements. This enforcement may be appropriate for the actions 
that led to the CdC issue.
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    <bullet> The licensee identifies changes implemented during 
construction not previously approved by the NRC that the staff would 
otherwise disposition as a Severity Level IV violation of NRC 
requirements \2\,
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    \2\ NRC-identified violations that result in a ``use as built'' 
determination or a resultant unplanned change or both will normally 
be dispositioned as a cited or non-cited violation, whether or not 
the unplanned change issue is resolved by a subsequently approved 
license amendment.
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    <bullet> The licensee submits the necessary information to the NRC 
so that it can conduct a timely evaluation of the change as part of the 
license amendment review process, and
    <bullet> Either (1) the cause of the deviation was not within the 
licensee's control, such that the change was not avoidable by 
reasonable licensee quality assurance measures or management controls, 
or (2) the licensee placed the cause of the change in its corrective 
action program to ensure comprehensive corrective actions to address 
recurrence.
    For similar issues not identified by the licensee, the NRC may 
refrain from issuing an NOV/NCV on a case-by-case basis depending upon 
the circumstances of the issue, such as whether the requirements were 
clearly understood or should have

[[Page 48923]]

been understood at the time, the cause of the issue, and why the 
licensee did not identify the issue.
    In all such cases when a licensee determines that an unplanned 
change during construction associated with a violation of requirements 
meets the above-outlined criteria and timely submits the necessary 
information for NRC evaluation, the licensee's continued failure to 
meet the current licensing basis will not be treated as a willful or 
continuing violation while NRC reviews the submittal. (Note: If NRC 
subsequently denies a requested license amendment change, or if the NRC 
requires additional measures to be taken for the change to be 
considered acceptable, then a separate NOV or order may be issued to 
ensure appropriate corrective actions, including restoring the 
configuration to the current licensing basis are taken).
    The staff is currently developing the CdC PAR process including the 
development of interim staff guidance and the endorsement of industry 
guidance. The purpose of the CdC PAR process is, as an elective 
precursor to the license amendment review established by a condition of 
license, to determine if the NRC has any objection to the licensee 
proceeding with construction activities different from the licensing 
basis while the NRC is evaluating the related license amendment 
request. The NRC will not issue violations for licensee-planned changes 
properly entered into the CdC PAR process. Comments on CdC are being 
solicited under a separate FRN and will not be addressed under this 
FRN.

Procedural Requirements

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.

Public Protection Notification

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

Congressional Review Act

    In accordance with the Congressional Review Act of 1996, the NRC 
has determined that this action is not a major rule and has verified 
this determination with the Office of Information and Regulatory 
Affairs.

    For the Nuclear Regulatory Commission.
    Dated at Rockville, MD, this 27th day of July 2011.
Roy Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2011-20112 Filed 8-8-11; 8:45 am]
BILLING CODE 7590-01-P


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