[Federal Register Volume 73, Number 179 (Monday, September 15, 2008)]
[Notices]
[Pages 53286-53291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21433]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[NRC-2008-0497]


NRC Enforcement Policy Revision

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of availability of draft and request for comments.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is revising its 
Enforcement Policy (Enforcement Policy or Policy) to more appropriately 
address the various areas that the NRC regulates, providing a framework 
that supports consistent implementation of the Enforcement Policy. A 
notice was published on January 25, 2007, announcing that the NRC was 
undertaking a major revision of the Enforcement Policy to clarify the 
use of terms and update the Policy, removing outdated information and 
adding information addressing enforcement issues in areas that are not 
currently directly addressed in the Policy. The NRC is now 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 the 
proposed revised Policy. This request is intended to assist the NRC in 
revising the Enforcement Policy; NRC does not intend to modify its 
emphasis on compliance with NRC requirements.

DATES: Submit comments on or before November 14, 2008. This time period 
allows for the public to respond to this notice as well as the 
opportunity to provide general comments on the revision of the Policy. 
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 this date.

ADDRESSES: Comments will be made available to the public in their 
entirety; personal information, such as your name, address, telephone 
number, e-mail address, etc. will not be removed from your submission. 
You may submit comments by any one of the following methods:
    Federal e-Rulemaking Portal: http://www.regulations.gov; search on 
docket ID: NRC-2008-0497.
    Mail comments to: Michael T. Lesar, Chief, Rulemaking, Directives, 
and Editing Branch, Office of Administration, Mail Stop: T-6D59, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001.
    Hand-deliver comments to: 11555 Rockville Pike, Rockville, MD 
20852, between the hours of 7:45 a.m. and 4:15 p.m., Federal workdays.
    You can access publicly available documents related to this notice 
using the following methods:
    Federal e-Rulemaking Portal: Documents related to this notice, 
including public comments, are accessible at http://www.regulations.gov, by searching on docket ID: NRC-2008-0497.
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee, publicly available documents at the NRC's PDR, Public 
File Area O-1F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Document Access and Management System (ADAMS): The 
draft Enforcement Policy is available electronically at the NRC's 
Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html 
under ADAMS Accession Number ML082520457. From this site, the public 
can gain entry into ADAMS, which provides text and image files of the 
NRC's public documents. In addition, the draft Enforcement Policy will 
be available at http://www.nrc.gov/about-nrc/regulatory/enforcement/enforce-pol.html. If you do not have Internet access or if there are 
problems in accessing the documents located in ADAMS, contact the PDR 
Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to 
<a href="/cdn-cgi/l/email-protection#f1819583df8394829e84839294b19f8392df969e87"><span class="__cf_email__" data-cfemail="275743550955425448525544426749554409404851">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Doug Starkey, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555; 
<a href="/cdn-cgi/l/email-protection#e5a18a9082cbb69184978e809ca58b9786cb828a93"><span class="__cf_email__" data-cfemail="efab809a88c1bc9b8e9d848a96af819d8cc1888099">[email protected]</span></a>, (301) 415-3456.

SUPPLEMENTARY INFORMATION: 

I. Background

    The NRC Enforcement Policy contains the enforcement policy and 
procedures that the U.S. Nuclear Regulatory Commission (NRC) uses to 
consider potential enforcement actions in response to apparent 
violations of NRC requirements. The primary purpose of the Enforcement 
Policy is to support the NRC's overall safety mission, i.e., to ensure 
adequate protection of public health and safety, promote the common 
defense and security, and protect the environment. Because it is a 
policy statement and not a regulation, the Commission may deviate from 
this statement of policy as appropriate under the circumstances of a 
particular case.
    The Enforcement Policy was first published in the Federal Register 
on October 7, 1980 (46 FR 66754), as an interim policy. The Commission 
published a final version of the Policy on March 9, 1982 (47 FR 9987). 
The Enforcement Policy has been modified on a number of occasions to 
address changing requirements and additional experience and on June 30, 
1995 (60 FR 34381), a major revision of the Policy was published. The 
NRC maintains the Enforcement Policy on its Web site at http://www.nrc.gov; select Public Meetings and Involvement, Enforcement, and 
then Enforcement Policy.
    The goal of the Policy is to support the NRC's safety and security 
mission by emphasizing the importance of compliance with regulatory 
requirements, and encouraging prompt identification, and prompt, 
comprehensive correction of violations. Revisions to the Policy have 
consistently reflected this commitment: for example, in 1998, the NRC 
changed its inspection procedures to address the Reactor Oversight 
Process (ROP) initiative. This has been reflected in the Policy's use 
of risk insights to assess the significance of violations whenever 
possible. While this may result in fewer Notices of Violation being 
issued (because of a greater emphasis on the use of non-cited 
violations), it has not reduced the agency's emphasis on the importance 
of compliance with NRC requirements. Another example involves the NRC's 
development of a pilot program in 2005 which focuses on the use of 
Alternative Dispute Resolution (ADR) for certain kinds of enforcement 
cases. The NRC enforcement staff has used ADR to resolve reactor, fuel 
facility, and materials enforcement cases. While the use of ADR in 
enforcement raises unique issues, it emphasizes creative,

[[Page 53287]]

cooperative approaches to handling conflicts in lieu of adversarial 
procedures.
    The NRC is again proceeding with making a major revision to its 
Enforcement Policy. As discussed above, since it was first published in 
1980, sections of the Policy have been updated and additional sections 
have been included. Terms used under conventional enforcement are now 
associated with the significance determination process (SDP) performed 
under the ROP as well; therefore, the use of these terms must be 
clarified. In addition, there are areas that are not directly addressed 
in the Supplements of the Enforcement Policy, such as the enforcement 
issues associated with combined licenses for the proposed new reactors 
and the construction phase of proposed fuel facilities as well as 
recently promulgated requirements in the safeguards and security area. 
These areas must be addressed either by adding them to the text of the 
existing Policy and Supplements or by revising the Policy and 
developing new Supplements. Finally, the format of the Enforcement 
Policy is being reorganized to reflect the changes that have been made 
to it.

II. Proposed Plan

    The NRC envisions revising the Enforcement Policy so that the 
policy statement follows the actual enforcement process. The NRC's 
enforcement process has three basic steps: first, violations must be 
identified; next, the NRC must assess the significance or severity of 
the violation; and finally, the NRC must disposition the violation. 
Throughout the process, an organization or individual subject to an NRC 
enforcement action has multiple opportunities to provide input.
    In order for the policy to follow the actual enforcement process 
some of the material in the current Enforcement Policy has been either 
removed entirely from the revised Policy or relocated to the NRC 
Enforcement Manual. The intent is that this revised Policy more closely 
reflects the Commission's statement of policy and that it not be a 
guidance document or procedure which discusses every specific 
implementation aspect of enforcement. Therefore, some of the 
information in the current policy, which more closely resembles 
procedural guidance rather than Commission policy, has been either 
reworded, deleted, or moved to a guidance document, e.g., the NRC 
Enforcement Manual. One example of such a deletion is found in Section 
III, Responsibilities, of the current Policy. Specifically, information 
regarding delegation of authority was removed because delegation of 
authority is actually addressed in internal NRC memorandums. Another 
example is found in Section V, Predecisional Enforcement Conferences 
(PECs), of the current policy. In particular, the implementation 
guidance in the current policy regarding conduct of PECs is being 
relocated to the Enforcement Manual. As a final example, most of the 
discussion regarding how the civil penalty assessment process is 
implemented will be relocated to the Enforcement Manual.
    The revised Enforcement Policy also includes a proposed revision to 
a previous Federal Register notice, ``Base Civil Penalties for Loss, 
Abandonment, or Improper Transfer or Disposal of Sources; Policy 
Statement,'' published December 18, 2000 (65 FR 79139).
    The Commission is aware that enforcement actions deliver regulatory 
messages. Based on this tenet, the goals of this revision are to ensure 
that the Enforcement Policy: (1) Continues to reflect the Commission's 
focus on safety, e.g., the need for licensees to identify and correct 
violations, to address root causes, and to be responsive to initial 
opportunities to identify and prevent violations; (2) appropriately 
addresses the various subject areas that the NRC regulates; and (3) 
provides a framework that supports consistent implementation, 
recognizing that each enforcement action is dependent on the specific 
circumstances of the case.
    The following draft Table of Contents is consistent with the 
approach described above:

PREFACE
1.0 INTRODUCTION
    1.1 Purpose of the Enforcement Policy
    1.2 Applicability of the Enforcement Policy
    1.3 Statutory Authority
    1.4 Regulatory Framework
    1.5 Adequate Protection Standard
2.0 NRC ENFORCEMENT PROCESS
    2.1 Identification of Violations
    2.2 Assessment of Violations
    2.2.1 Factors Affecting Assessment of Violations
    2.2.2 Severity Levels
    2.2.3 Significance Determination Process
    2.2.3.1 Exceptions to the Use of the SDP
    2.3 Disposition of Violations
    2.3.1 Minor Violations
    2.3.2 More than Minor Violations
    2.3.3 Reopening Closed Enforcement Actions
    2.3.4 Enforcement Guidance Memorandum
    2.3.5 Commission Notification and Consultation
    2.4 Participation in the Enforcement Process
    2.4.1 Predecisional Enforcement Conference
    2.4.2 Regulatory Conference
    2.4.3 Alternative Dispute Resolution
3.0 USE OF ENFORCEMENT DISCRETION
    3.1 Violations Identified During Extended Shutdowns or Work 
Stoppages
    3.2 Violations Involving Old Design Issues
    3.3 Violations Indentified Due to Previous Enforcement Actions
    3.4 Violations Involving Certain Discrimination Issues
    3.5 Violations Involving Special Circumstances
    3.6 Use of Discretion in Determining the Amount of a Civil 
Penalty
    3.7 Exercise of Discretion to Issue Orders
    3.8 Notices of Enforcement Discretion (NOED) for Reactor 
Licensees
    3.9 Enforcement Discretion for Certain Fire Protection Issues 
(10 CFR 50.48)
4.0 ENFORCEMENT ACTIONS AGAINST INDIVIDUALS
    4.1 Circumstances When Enforcement Action Against an Individual 
May Be Taken
    4.2 NOVs and Orders to Individuals
    4.2.1 Licensed Individuals
    4.2.2 Non-Licensed Individuals
    4.3 Civil Penalties to Individuals
    4.4 Confirmatory Orders to Individuals
5.0 PUBLIC AVAILABILITY OF INFORMATION REGARDING ENFORCEMENT ACTIONS
6.0 SUPPLEMENTS--VIOLATION EXAMPLES
    6.1 Reactor Operations
    6.2 Facility Construction
    6.3 Information Security
    6.4 Health Physics
    6.5 Transportation
    6.6 Materials Operations
    6.7 Inaccurate and Incomplete Information and Reporting
    6.8 Emergency Preparedness
    6.9 Fuel Cycle Operations
    6.10 Licensed Operator
    6.11 Reactor and Fuel Facility Security
    6.12 Discrimination
    6.13 Materials Security
7.0 GLOSSARY OF TERMS
8.0 TABLE OF BASE CIVIL PENALTIES

III. Proposed Revisions to Table of Base Civil Penalties

Yucca Mountain High Level Waste Repository

    Congress enacted the Nuclear Waste Policy Act of 1987 (NWPA) for 
the purpose of establishing a comprehensive national program for the 
safe, permanent disposal of high level waste (HLW). The NWPA directed 
the Department of Energy (DOE) to study suitable sites for a deep, 
underground repository. In 1987, Congress amended the NWPA and directed 
the DOE to study only one site, Yucca Mountain, as a potential 
repository.
    The Atomic Energy Act of 1954, as amended (AEA), the Energy 
Reorganization Act of 1974, as amended (ERA), and NWPA, as amended,

[[Page 53288]]

authorize the NRC to regulate the siting, development, construction, 
and operation of the Yucca Mountain repository.
    The NRC's authority to regulate the DOE's receipt and possession of 
source, special nuclear, and byproduct material at Yucca Mountain has 
been implemented through 10 CFR Part 63, Disposal of High-Level 
Radioactive Wastes in a Proposed Geologic Repository at Yucca Mountain, 
Nevada.
    The NRC's enforcement authority is set forth in the AEA and the 
ERA. This statutory authority is implemented through Subpart B of 10 
CFR Part 2, which contains the procedures the NRC uses in exercising 
its enforcement authority, primarily Notices of Violation (NOVs), Civil 
Penalties, and Orders. Violations are subject to civil enforcement 
action and may also be subject to criminal prosecution.
    Regulatory requirements have varying degrees of safety, security, 
or environmental significance. For that reason, the NRC imposes various 
base civil penalties depending on the specific circumstances. The base 
civil penalties for various reactor, fuel cycle, materials, and vendor 
programs are set forth in this revised Enforcement Policy, Section 8, 
Tables A and B.
    The NRC uses a graded approach in assessing civil penalties based 
on the severity level of the violation and the class of licensee, 
vendor, or other person. Base civil penalties generally take into 
account the significance of a violation as the primary consideration, 
while the licensee's ability to pay is a secondary consideration. The 
NRC reviews each proposed civil penalty on its own merits and, after 
considering all relevant circumstances, may adjust the base civil 
penalties in Table A for Severity Level I, II, and III violations as 
reflected in Table B of the Enforcement Policy, i.e., 100 percent for 
Severity Level I violations, 80% for Severity Level II violations, and 
50 percent for Severity Level III violations. However, in no instance 
would a civil penalty for any one violation exceed the current 
statutory limit of $130,000 per day per violation.
    The most viable enforcement option available to the NRC, in 
addition to NOVs and orders, is the imposition of civil penalties. 
Currently there are no provisions in Table A of the Enforcement Policy 
that address DOE as a licensee. Therefore, the NRC is revising Table A 
of the Policy to ensure that, if the need arises, the NRC has the 
appropriate tools to take enforcement actions as prescribed in Subpart 
J, Violations, of 10 CFR Part 63, during the application phase. DOE 
submitted its construction license application for Yucca Mountain for 
review on June 3, 2008. The NRC acknowledged receipt of the application 
on June 10, 2008, at which time DOE became an NRC license applicant.
    Based on the potential nuclear material inventory involved, i.e., 
at least 70 million metric tons of HLW, the corresponding safety 
consequences that could arise at the site, specifically to occupational 
employees, and the DOE's ability to pay, the staff recommends the 
statutorily allowed maximum base civil penalty of $130,000 per day for 
a Severity Level I violation. In determining the base civil penalty 
that should be applied to the Yucca Mountain repository, the staff also 
considered the fact that when 10 CFR Part 63 was developed, the 
licensing criteria used in that part was comparable to the criteria 
applied to reactors and spent fuel facilities. The staff also 
recommends that this information be included in Table A under a generic 
heading, i.e., ``Yucca Mountain High Level Waste Repository,'' to 
address the possibility of any future engineered underground disposal 
facilities used for the storage of HLW.
    Because the DOE's activities during the construction application 
would, most likely, lack direct safety consequences to the public 
health and safety (i.e., waste will not have been transferred to the 
site during the first phase), it is likely that many of the violations 
during this phase could be either cited or non-cited Severity Level IV 
violations. In addition, the staff expects that escalated enforcement 
actions during the application review would seldom exceed a Severity 
Level III. While the staff has the option to mitigate or escalate a 
violation and/or monetary sanctions based on the circumstances 
surrounding a violation, the staff believes that few, if any, of these 
violations would escalate to a Severity Level I or II.

Gas Centrifuge Uranium Enrichment Facilities

    The current Enforcement Policy does not provide a base civil 
penalty for enforcement actions at gas centrifuge uranium enrichment 
facilities. For that reason, if a violation of NRC requirements were to 
occur with a proposed civil penalty at this type of facility, the staff 
would assess the civil penalty utilizing the agency's philosophy as 
articulated in the Enforcement Policy, i.e., the civil penalty would be 
based on the circumstances of the case, the type of licensee involved, 
and the ability of the licensee to pay the civil penalty.
    Currently, NRC staff is performing licensing reviews of two gas 
centrifuge uranium enrichment facilities with enrichment levels of 5 
weight percent uranium-235 (U<INF>235</INF>) in one case and 10 weight 
percent U<INF>235</INF> in the other. Therefore, it is appropriate to 
provide enforcement guidance for this type of facility at this time.
    In developing a base civil penalty for gas centrifuge uranium 
enrichment facilities, NRC compared the radiological, chemical, and 
security hazards with both the Gaseous Diffusion Plants (GDPs) and 
Category III fuel fabricators and, through an overall comparison, 
provide an appropriate base civil penalty.
    To determine the appropriate base civil penalty for gas centrifuge 
uranium enrichment facilities, the staff first compared the potential 
impact of noncompliance on public health and safety and the common 
defense and security with GDPs because both are enrichment facilities 
utilizing the same kinds of materials and, in addition, both have 
security implications associated with their operation. This comparison 
indicates that the radiological and chemical hazards at gas centrifuge 
uranium enrichment facilities are substantially less than these hazards 
at GDPs based on the significantly lower quantities of liquid and 
gaseous uranium hexafluoride (UF<INF>6</INF>) in the process systems 
and the significantly lower potential for releases of large quantities 
of UF<INF>6</INF>.
    Gaseous diffusion cascades operate at pressures that are sub-
atmospheric to just above atmospheric pressure. In addition, the 
current GDP utilizes feed, product withdrawal, and tails withdrawal 
systems that handle large quantities of pressurized liquid 
UF<INF>6</INF>. This results in the potential for releases of large 
quantities of UF<INF>6</INF>. Since the GDP withdrawal stations involve 
the handling and lifting of up to 14-ton cylinders of liquid 
UF<INF>6</INF>, there is a significant potential for severe 
consequences in the event that proper plant procedures are not 
followed. GDPs have high criticality hazards due to the large size 
(unsafe geometry) of cascade system piping and components, the large 
UF<INF>6</INF> inventories processed, and the potential for 
accumulation of critical masses of UF<INF>6</INF> within these system 
piping and components. GDPs also handle large amounts of flammable 
material such as lubricating oil and chemically hazardous material 
other than UF<INF>6</INF> such as chorine triflouride 
(CIF<INF>3</INF>), fluorine (F<INF>2</INF>), and chorine 
(CI<INF>2</INF>).

[[Page 53289]]

    The radiological and chemical hazards at gas centrifuge uranium 
enrichment facilities are, by comparison to the GDPs, substantially 
reduced. Individual centrifuges and cascades contain much smaller 
quantities of gaseous UF<INF>6</INF>. Although UF<INF>6</INF> is 
liquefied in the sampling and transfer systems, the cylinders 
containing liquid UF<INF>6</INF> are not moved. Centrifuge enrichment 
cascades operate at near-vacuum conditions, minimizing the potential 
for UF<INF>6</INF> releases. These plant designs substantially reduce 
the radiological and chemical hazards associated with releases of 
radioactive and hazardous chemicals in comparison to gaseous diffusion 
plants. Because of the small quantities of UF<INF>6</INF> in the 
cascades, a gas centrifuge uranium enrichment facility, limiting its 
enrichments to less than 20 percent of U<INF>235</INF> (special nuclear 
material of low strategic significance, therefore, a Category III fuel 
fabricator), will also have substantially reduced criticality hazards 
relative to a GDP.
    The staff also considered the security implications associated with 
the operation of gas centrifuge uranium enrichment facilities as 
compared to the operation of GDPs and to Category III fuel fabricators. 
That comparison indicates that the security measures necessary to 
handle information at a gas centrifuge facility is more similar to the 
GDPs as both types of facilities handle classified information up to 
Secret Restricted Data and utilize classified components. Both types of 
facilities are also required to have comparable materials control and 
accounting programs and physical security programs, and both types of 
facilities are expected to have programs for protection against 
potential terrorist activities.
    However, as the following comparison indicates, the overall 
radiological, criticality, and chemical security implications for gas 
centrifuge uranium enrichment facilities are more comparable to that of 
Category III fuel fabricators. First, both gas centrifuge uranium 
enrichment plants and Category III fuel fabricators have Category III 
Special Nuclear Material, that is, these facilities are limited to 
enrichments of less than 20 percent of U<INF>235</INF> (special nuclear 
material of low strategic significance). In addition, the radiological 
and chemical risks of gas centrifuge uranium enrichment facilities are 
more similar to, and in fact even lower than, Category III fuel 
fabricators due to the fact that fuel fabricators operate with the 
greater quantities of licensed material in process components and at 
higher pressures than gas centrifuge plants. Therefore, the necessary 
physical protection requirements (based on the category of facility) 
for a gas centrifuge facility are similar to those required for 
Category III fuel fabricators.
    The comparison of the security implications at gas centrifuge 
uranium enrichment and Category III fuel fabrication facilities 
indicates that:
    1. Security of classified information and components: The security 
of classified information and components at gas centrifuge facilities 
will require higher levels of protection than Category III fuel 
fabricators because classified information and components are not used 
at Category III fuel fabricators. However, Category III fuel 
fabricators have and are required to yprotect Safeguards Information.
    2. Prevention of unauthorized production or diversion of special 
nuclear material: The prevention of unauthorized production or 
diversion of special nuclear material would require gas centrifuge 
enrichment facilities to have materials accounting and control programs 
similar to those at the GDPs or Category I fuel fabrication facilities. 
Category III fuel fabricators also have materials accounting and 
control programs, although the implications of unauthorized production 
and diversion of special nuclear material would be less significant 
than a gas centrifuge uranium enrichment plant.
    3. Protection of special nuclear material: Due to the possession of 
special nuclear material of low strategic significance at both types of 
facilities, gas centrifuge enrichment facility physical protection 
requirements for special nuclear material and protection requirements 
against terrorists are similar to Category III fuel fabricators.
    4. Protection against potential terrorist activities: Due to the 
possession of special nuclear material of low strategic significance at 
both types of facilities, gas centrifuge enrichment facility physical 
protection requirements against terrorists are expected to be similar 
to Category III fuel fabricators.
    In conclusion, the comparison of the radiological, criticality, and 
chemical risks of gas centrifuge uranium enrichment facilities to GDPs 
and Category III fuel fabricators indicates that these risks are lower 
than the same risks at GDPs and are lower than the risks at Category 
III fuel fabricators. In addition, two of the four security risk areas 
at gas centrifuge uranium enrichment facilities are more comparable to 
Category III fuel fabricators. Finally, the physical protection and 
terrorist security risks are substantially less significant for gas 
centrifuge uranium enrichment facilities than at GDPs, when examined in 
the context of the radiological and chemical risks at gas centrifuge 
uranium enrichment facilities. Therefore, after considering both safety 
and security at gas centrifuge uranium enrichment facilities in terms 
of their nuclear material inventories and potential for consequences to 
the public and workers, the staff has concluded that gas centrifuge 
uranium enrichment facilities are more similar to Category III fuel 
fabricators than to GDPs. For that reason the staff believes that the 
base civil penalty for Severity Level I violations at gas centrifuge 
uranium enrichment facilities in Table A should be established at 
$32,500, the amount already established for Category III fuel 
fabricators.
    The Enforcement Policy is also being modified to clarify that the 
fuel fabricators in ``c'' of Table A refer to Category III fuel 
fabricators.

Uranium Conversion Facilities

    The staff proposes to raise the base penalty for enforcement 
activities associated with uranium conversion facilities to a base 
civil penalty of $32,500 from the current base civil penalty of 
$13,000.
    Currently, the only operating conversion plant in the United States 
is the Honeywell facility located in Metropolis, IL. Honeywell 
chemically processes the uranium source materials from triuranium 
octoxide (U<INF>3</INF>O<INF>8</INF>) to UF<INF>6</INF> prior to 
shipping the product to enrichment plants. The three main bulk 
chemicals used at Honeywell are ammonia (NH<INF>3</INF>, the source of 
hydrogen), anhydrous hydrofluoric acid (HF), and flourine 
(F<INF>2</INF>). Each is a highly hazardous chemical. Release of bulk 
quantities of UF<INF>6</INF>, NH<INF>3</INF>, HF, or F<INF>2</INF> 
could have off-site consequences due the hazardous nature of the 
chemicals. NH<INF>3</INF>, HF, and F<INF>2</INF> are regulated under 
the Occupational Safety and Health Administration (OSHA) Process Safety 
Management Rule, 19 CFR 1910.119. The NRC only regulates those 
chemicals when they come in contact with licensed material, evolve from 
licensed material, as in HF from the UF<INF>6</INF>/water reaction, or 
adversely impact the safe handling of licensed material.
    Uranium conversion facilities such as Honeywell are licensed under 
the requirements of 10 CFR Part 40, Domestic Licensing of Source 
Material. Uranium source material is shipped from uranium mills as 
``yellow cake'' in plastic-lined drums. In addition to 
U<INF>3</INF>O<INF>8</INF>, yellowcake contains contaminants, including 
radioactive decay daughter products and various rare earth and other 
metals. The

[[Page 53290]]

yellowcake contains natural uranium, which has only 0.711 percent 
(U<INF>235</INF>). Hence, a criticality accident is not possible at a 
conversion facility. The greatest radiation exposure rates come from 
processes that concentrate the radioactive decay daughter products in 
waste streams. Soluble forms of uranium present the greatest health 
risk from source material at conversion facilities. The health risk is 
due to the toxic nature of uranium, which is similar to other heavy 
metals. The radioactive risk is small.
    Specifically, the chemical and radiological hazards associated with 
uranium conversion facilities are as follows:
    Chemical Hazards--Uranium is handled in many different chemical 
forms in UF<INF>6</INF> conversion plants, but UF<INF>6</INF> is the 
only chemical form of uranium that can be readily dispersed off-site. 
UF<INF>6</INF> will react with water to form HF and uranium 
difluorodioxo (UO<INF>2</INF>F<INF>2</INF>). Because airborne moisture 
is generally available, the reaction can be expected to occur if 
UF<INF>6</INF> is released to the atmosphere. Both the HF and the 
UO<INF>2</INF>F<INF>2</INF> produced at a uranium conversion plant are 
hazardous chemicals. HF is a corrosive acid vapor that can severely 
harm the lungs and exposed portions of the body. 
UO<INF>2</INF>F<INF>2</INF>, formed as particulate material, produces 
radioactive and chemical effects when taken into the body, and its 
chemical effect is the most important because much of the uranium is 
present in soluble form. UF<INF>6</INF> in the liquid form is the most 
hazardous.
    The Honeywell facility produces UF<INF>6</INF> by fluorination of 
UF4. The UF<INF>6</INF>, which is produced in a gaseous state, is 
collected in cold traps, where it is solidified by refrigerant cooling. 
Subsequent heating of the cold traps liquefies the UF<INF>6</INF> for 
transfer to cylinders, where the UF<INF>6</INF> cools to ambient 
temperature and again solidifies. The cold traps and the cylinders 
represent the largest accumulation of heated UF<INF>6</INF> and 
therefore pose the greatest risk of a significant release of 
UF<INF>6</INF>. The filled cylinders represent the greater risk because 
of their temporary use in the process, the large numbers of individual 
cylinders utilized, their typically larger inventories of 
UF<INF>6</INF>, and their routine movement within the facilities before 
solidification. While the filled cylinders are considered to be the 
greater risk, these risks are also applicable to filled cold traps.
    Radiological Hazards--Chemical conversion processes tend to 
concentrate uranium decay products in the waste streams. Alpha 
particles resulting from the primary disintegration of uranium present 
no external radiation problem because they do not penetrate the skin. 
However, the uranium decay products include isotopes that emit mildly 
penetrating beta rays and highly penetrating gamma rays. Beta radiation 
levels as high as 200 mrad/hr may be found at the surface of 
UF<INF>6</INF>. When UF<INF>6</INF> is vaporized from a cylinder, the 
decay products usually remain behind. Thus, the internal surface of an 
empty cylinder may have beta radiation levels up to several rad/hr. 
Similarly, the gamma radiation from an empty cylinder will be much 
higher than from a filled cylinder and may range up to 200 mrad/hr.
    The chemical characteristics of these contaminants will cause 
significant exposure levels of beta and gamma radiation from the 
uranium decay product activity in certain sections of the process. The 
risk of radiation exposure increases during maintenance of process 
equipment, transfer of product, and handling of UF<INF>6</INF> 
cylinders.
    In raising the base civil penalty for uranium conversion 
facilities, the staff has analyzed the associated radiological, 
chemical, and security hazards with that of Gaseous Diffusion Plants 
(GDPs), Category III fuel fabricators, and test reactors and industrial 
radiographers. Currently, uranium conversion facilities are in the same 
base civil penalty category as test reactors and industrial 
radiographers with the base penalty amount of $13,000.
    To determine the appropriate base civil penalty for uranium 
conversion facilities, the staff first compared the potential impact of 
noncompliance on public health and safety and the common defense and 
security with Gaseous Diffusion Plants (GDPs). Gaseous diffusion 
cascades operate at pressures that are sub-atmospheric to just above 
atmospheric pressure. In addition, the current GDP utilizes feed, 
product withdrawal, and tails withdrawal systems that handle large 
quantities of pressurized liquid UF<INF>6</INF>. This results in the 
potential for releases of large quantities of UF<INF>6</INF>. Since the 
GDP withdrawal stations involve the handling and lifting of up to 14-
ton cylinders of liquid UF<INF>6</INF>, there is a significant 
potential for severe consequences in the event that proper plant 
procedures are not followed. GDPs have high criticality hazards due to 
the large size (unsafe geometry) of cascade system piping and 
components, the large UF<INF>6</INF> inventories processed, and the 
potential for accumulation of critical masses of UF<INF>6</INF> within 
these system piping and components. GDPs also handle large amounts of 
flammable material such as lubricating oil and chemically hazardous 
material other than UF<INF>6</INF> such as CIF<INF>3</INF>, 
F<INF>2</INF>, and CI<INF>2</INF>.
    The radiological and chemical hazards at uranium conversion 
facilities are similar in comparison to the GDPs. At a uranium 
conversion facility such as Honeywell, all UF<INF>6</INF> filled 
cylinders when initially filled must be allowed to cool for 5 days to 
ensure that all UF<INF>6</INF> has solidified. The UF<INF>6</INF> 
solidifies and volume drops from about 95 percent to about 60 percent 
full. Only ``solid'' cylinders are allowed to be shipped off-site. 
UF<INF>6</INF> is in solid form under ambient temperature and pressure 
conditions. Any cylinder breach with UF<INF>6</INF> in the solid form 
will have a limited release. Uranium conversion facilities are designed 
to process natural uranium, thus, there is no criticality concerns like 
there are at GDPs. However, the only major risk factor that a 
conversion facility does not have that is present at a GDP is the 
criticality risk.
    The staff also considered the security implications associated with 
the operation of uranium conversion facilities as compared to the 
operation of GDPs and to Category III fuel fabricators. That comparison 
indicates that the security measures necessary at a uranium conversion 
facility are similar to that of a Category III fuel fabricators and 
GDPs. However, because of the large number of potential chemical 
hazards and certain radiological hazards, protection against potential 
terrorist activities is required to protect worker and public health 
and safety.
    In comparison, the overall radiological and chemical hazards 
implications for uranium conversion facilities are much more 
significant than those of test reactors and industrial radiographer, 
but just somewhat less than that of GDPs. As delineated in the NRC 
Enforcement Policy, operations involving greater nuclear material 
inventories and greater potential consequences to the public and 
licensee employees receive higher civil penalties. For the reasons 
stated above the staff believes that the base civil penalty for 
violations at uranium conversion facilities in Table A should be 
established at $32,500, the same amount established for Category III 
fuel fabricators.

IV. Deletion of Interim Enforcement Policies

    The following interim enforcement policies located in the current 
Enforcement Policy have either been deleted from the revised Policy, 
for the reasons stated below, or relocated into the revised Enforcement 
Policy.

[[Page 53291]]

Interim Enforcement Policy for Generally Licensed Devices Containing 
Byproduct Material (10 CFR 31.5)

    This interim policy addressed violations that persons licensed 
pursuant to 10 CFR 31.5 discovered and reported before, as well as 
during, the initial cycle of a notice and response program related to 
the revision of 10 CFR 31.5. This interim policy was expected to remain 
in effect through completion of one cycle of the licensee notice and 
response program. Since one cycle is complete, this interim policy is 
no longer in effect.

Interim Enforcement Policy Regarding Enforcement Discretion for Certain 
Fitness-for-Duty Issues (10 CFR Part 26)

    10 CFR Part 26, Fitness for Duty Programs, has been amended. The 
final rule became effective on April 30, 2008 (73 FR 16966). The 
amended rule addressed the issues covered by the interim enforcement 
discretion policy. Therefore, this interim policy has been deleted from 
the revised Enforcement Policy.

Interim Enforcement Policy Regarding the Use of Alternative Dispute 
Resolution

    This interim policy addressed the use of a pilot program for 
testing the use of Alternative Dispute Resolution (ADR) in the 
enforcement program. On May 5, 2006, in SECY-06-0102, ``Evaluation of 
the Pilot Program on the Use of Alternative Dispute Resolution in the 
Allegation and Enforcement Program'', the staff provided the Commission 
with the results of the evaluation of the ADR pilot program. The Office 
of Enforcement concluded that the program was successful and the staff 
intends to continue using the ADR program for discrimination and other 
wrongdoing cases. The ADR program has been incorporated into the 
revised Enforcement Policy.

Interim Enforcement Policy Regarding Enforcement Discretion for Certain 
Fire Protection Issues (10 CFR 50.48)

    This interim policy was moved in its entirety into section 3.9 of 
the revised Enforcement Policy.

V. 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.

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, Office of Management and Budget.

    Dated at Rockville, MD, this 9th day of September 2008.

    For the Nuclear Regulatory Commission.
Cynthia A. Carpenter,
Director, Office of Enforcement.
[FR Doc. E8-21433 Filed 9-12-08; 8:45 am]
BILLING CODE 7590-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>