[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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