[Federal Register Volume 63, Number 247 (Thursday, December 24, 1998)]
[Notices]
[Pages 71314-71316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34118]
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NUCLEAR REGULATORY COMMISSION
[NUREG--1600]
Policy and Procedure for Enforcement Actions; Fuel Cycle
Facilities Civil Penalties and Notices of Enforcement Discretion
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement: Amendment.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
``General Statement of Policy and Procedure for NRC Enforcement
Actions'' (NUREG-1600) to increase the base civil penalties for fuel
cycle facilities authorized to possess certain quantities of special
nuclear material and to authorize issuance of Notices of Enforcement
Discretion to Gaseous Diffusion Plants.
EFFECTIVE DATE: This action is effective December 24, 1998. Comments
are due on or before January 25, 1999.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, (301) 415-2741.
SUPPLEMENTARY INFORMATION:
The Commission's ``General Statement of Policy and Procedure for
NRC Enforcement Actions'' (Enforcement Policy or Policy) was first
issued on September 4, 1980. Since that time, the Enforcement Policy
has been revised on a number of occasions. On May 13, 1998 (63 FR
26630), the Enforcement Policy was revised and was re-published as
NUREG-1600, Rev. 1. The Policy primarily addresses violations by
licensees and certain non-licensed persons, including certificate
holders, as discussed further in footnote 3 to Section I, Introduction
and Purpose, and in Section X: Enforcement Action Against Non-
licensees.
Fuel Cycle Facility Base Penalties
Base civil penalties are established for fuel facility licensees
commensurate with the relative safety and safeguards risks among the
different types of licensees. The base civil penalties, as currently
defined in Table 1A of the General Statement of Policy and Procedure
for Enforcement Actions (Enforcement Policy) (NUREG-1600, Rev. 1), are,
in part: $11,000 for uranium conversion facilities which handle only
source material; $27,500 for all fuel fabricators regardless of the
specific safety and safeguards risks involved with the possession and
processing of different enrichments of SNM; and $110,000 for the
Gaseous Diffusion Plants due to their greater nuclear material
inventories and greater potential consequences to the public and
workers. The civil penalty structure generally takes into account the
gravity of the violation as a primary consideration and the ability to
pay as a secondary consideration.
Generally, the safety risk is greater at the Category I and II
facilities than at Category III facilities 1 because the
enrichment levels normally handled at the Category I and II facilities
require only minor changes in form and composition to achieve an
inadvertent criticality. Thus, workers at Category I and II facilities
are potentially exposed to a greater risk from radiological
[[Page 71315]]
hazards than workers at Category III facilities. The safeguards risk is
also considered to be significantly higher because of concerns about
diversion or theft of formula quantities of strategic special nuclear
material. Such potential diversion or theft represents a significant
national security risk and hazard to the public. Therefore, the
Commission believes that it is appropriate to reflect the relatively
more significant safety and safeguards risks with operating a Category
I or II facility in the civil penalty structure. The Commission is
increasing the base civil penalty for facilities authorized to possess
Category I or II quantities of SNM from $27,500 to $55,000 by adding a
new category to Table 1A of the Enforcement Policy. As is the current
policy, the amount for safeguards violations will be the same as for
other violations at these facilities. There are two Category I
facilities that would be affected by this change: BWX Technologies,
Inc. and Nuclear Fuel Services, Inc. There are no Category II fuel
facilities in operation at this time.
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\1\ The category of a facility refers to the quantity and
enrichment of special nuclear material that a licensee is authorized
to possess. See 10 CFR 70.4.
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Notices of Enforcement Discretion at Gaseous Diffusion Plants
(GDPs)
Section VII.C. of the Enforcement Policy authorizes the staff to
exercise discretion and not enforce an applicable Technical
Specification (TS) Limiting Condition of Operation or other license
condition for an operating reactor facility when it would involve an
unnecessary plant transient or performance of testing, inspection, or
system realignment that is inappropriate for the specific plant
conditions. This enforcement discretion is designated as a Notice of
Enforcement Discretion (NOED) and is to be exercised only if the staff
is satisfied that the action is consistent with protecting the public
health and safety.
The Commission believes that this enforcement option is also
warranted for GDPs because GDPs, unlike other fuel cycle facilities,
have Technical Safety Requirements (TSRs) with Limiting Conditions for
Operation (LCOs) that impose time limits for performing required
actions under specified conditions. A Notice of Enforcement Discretion
would be used in cases where compliance with a 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. This
regulatory flexibility is needed because a plant-wide shutdown is not
necessarily the best response to a plant condition. Further, the NRC
has been informed by the certificate holder that restart from a total
plant shutdown may not be practical, as GDPs are designed to operate 24
hours a day, 7 days a week, and have never been shut down. Although
portions can be shut down for maintenance or other reasons, the
operators have indicated that if an entire plant were shut down, it
probably could not be restarted. 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 public health and
safety, and security, and the environment. Therefore, the Commission is
adding language to its Enforcement Policy that would expressly permit
exercise of enforcement discretion and issuance of NOEDs for GDPs.
In practice, a NOED could be issued for the period of time required
for staff to process, and make effective, an expedited certificate
amendment, but not to exceed 120 days, or when a noncompliance is
nonrecurring and a certificate amendment would not be practical because
the plant would be returned to compliance with the existing certificate
condition in so short a period of time that an amendment could not be
processed and issued before compliance is restored. Use of the NOED
would be at the staff's option for infrequent, unanticipated cases
where there are adequate safety, safeguards, and security, and
involving: (1) An unwarranted plant transient or condition; or (2) an
omission or performance of testing, inspection, or system realignment
that is inappropriate for the specific plant condition. A NOED would
not be used for noncompliances with statutes or regulations, or for
situations where the certificate holder cannot demonstrate adequate
safety, safeguards or security.
Paperwork Reduction Act
This final policy statement amends information collection
requirements that are subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). These requirements were approved by the
Office of Management and Budget, approval number 3150-0136.
The public reporting burden for this information collection is
estimated to average 60 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
information collection. Send comments on any aspect of this information
collection, including suggestions for reducing the burden, to the
Records Management Branch (T-6 F33), U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, or by Internet electronic mail
at [email protected]; and to the Desk Officer, Office of Information and
Regulatory Affairs, NEOB-10202, (3150-0136), Office of Management and
Budget, Washington, DC 20503.
Public Protection Notification
If an information collection does not display a currently valid OMB
control number, the NRC may not conduct or sponsor, and a person is not
required to respond to, the information collection.
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.
Accordingly, the NRC Enforcement Policy is amended by revising
Table 1A of Section VI and Section VII.C. to read as follows:
General Statement of Policy and Procedure for NRC Enforcement Actions
* * * * *
VI. Enforcement Actions
* * * * *
Table 1A.--Base Civil Penalties
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a. Power reactors and gaseous diffusion plants............... $110,000
b. Fuel fabricators authorized to possess Category I or II
quantities of SNM........................................... 55,000
c. Fuel fabricators authorized to possess Category III
quantities of SNM, industrial processors,\1\ and independent
spent fuel and monitored retrievable storage installations.. 27,500
d. Test reactors, mills and uranium conversion facilities,
contractors, waste disposal licensees, industrial
radiographers, and other large material users............... 11,000
[[Page 71316]]
e. Research reactors, academic, medical, or other small
material users \2\.......................................... 5,500
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\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.
* * * * *
VII. Exercise of Discretion
* * * * *
C. Exercise of Discretion for an Operating Facility or a Gaseous
Diffusion Plant
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. 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. 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, which documents the
safety basis for the request and provides whatever other information
the NRC staff deems necessary in making a decision on whether 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 Office of Nuclear Materials Safety and Safeguards, as
appropriate, 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) or 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 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 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 such action is warranted from a health and safety
perspective.
* * * * *
Dated at Rockville, Maryland, this 18th day of December, 1998.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-34118 Filed 12-23-98; 8:45 am]
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