More About Notices of Enforcement Discretion
What Is a NOED?
Occasionally, a power reactor licensee might foresee that compliance with an NRC requirement would involve an unnecessary plant transient or startup delay or performance of testing, inspection, or system realignment is inappropriate with the specific plant conditions. Similarly, for a gaseous diffusion plant (GDP), compliance with NRC requirements might 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 cases, the NRC staff may choose not to enforce the applicable technical specification, technical safety requirement, or other license or certificate condition. This type of enforcement discretion is called a NOED. The staff may also issue NOEDs 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 compromised by exercising this discretion.
NOEDs require justification from a licensee or certificate holder that documents the safety basis for the request and provides whatever other information the NRC staff deems necessary to issue a NOED.
NOEDs may be issued where the noncompliance is temporary and nonrecurring when an amendment is not practical or if the expected noncompliance will occur during the brief period 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 decision to issue a NOED 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 NRC does not expect to issue NOEDs frequently. When the NRC does issue a NOED, it will only do so if it is clearly satisfied that the action protects public health and safety.
To learn more about the guidelines that help the NRC determine whether a NOED is warranted, go to the implementing procedures in the NRC's Inspection Manual Chapter 9900: Technical Guidance - Operations - Notices of Enforcement Discretion or Chapter 9900: Operations - Notices of Enforcement Discretion for Gaseous Diffusion Plants.