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Revisions to Staff Guidance for Implementing NRC Policy on Notices of Enforcement Discretion
UNITED STATES NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION WASHINGTON, D.C. 20555 November 07, 1995 NRC ADMINISTRATIVE LETTER 95-05: REVISIONS TO STAFF GUIDANCE FOR IMPLEMENTING NRC POLICY ON NOTICES OF ENFORCEMENT DISCRETION Addressees All holders of operating licenses or construction permits for nuclear reactors. Purpose The U.S. Nuclear Regulatory Commission (NRC) is issuing this administrative letter to inform addressees of revisions to staff guidance for implementing NRC policy on Notices of Enforcement Discretion (NOED). No specific action or written response is required. Background NUREG-1600, "General Statement of Policy and Procedures for NRC Enforcement Actions," Enforcement Policy, (previously Appendix C to Part 2 of Title 10 of the Code of Federal Regulations) indicates when the staff, under certain limited circumstances, may choose not to enforce the applicable power reactor technical specifications (TS) or other license conditions. The policy is intended to address situations where compliance with TS or other license conditions would involve unnecessary plant transients; performance of testing, inspection, or system realignment that is inappropriate for the specific plant conditions; or unnecessary delays in plant startup without a corresponding health and safety benefit. This type of discretion, designated as an NOED, is addressed in Section VII. C. of the Enforcement Policy and is expected to be exercised infrequently. An NOED is appropriate only when it is temporary, nonrecurring, and the NRC is clearly satisfied that the exercise of discretion is consistent with protecting the public health and safety. In May 1994, the NRC discovered some inconsistencies in the staff's implementation of the NOED policy. The NRC established a team to review the NOED policy, implementation process, and staff practices and develop appropriate recommendations. Concurrently, the NRC Office of the Inspector General (OIG) reviewed NRC compliance with nontechnical aspects of the NOED policy and procedures. These evaluations found that, in general, the staff complied with its procedures and requirements for review and determinations relating to NOEDs 9511070162. AL 95-05 November 7, 1995 Page 2 of 2 and that staff actions reflected adequate consideration of radiological health and safety of the public and sound technical and safety bases. However, a number of areas were identified where improvements could be made to the NOED policy and its implementation. In addition to these recommendations, the staff subsequently identified other areas for improving the NOED guidance. Also, as part of its overall enforcement policy review, the NRC asked for, and received, public comments on the NOED policy as published in the Federal Register, 59 FR 49215, September 27, 1994. Discussion After reviewing the results of these evaluations and associated recommendations, the staff concluded that the present NOED policy is technically sound and, therefore, need not be revised. The staff documented its conclusions in a Commission paper (SECY 95-078) dated March 29, 1995. The staff, however, determined that several aspects of the NOED guidance and procedures needed clarification to ensure proper implementation of the policy. Accordingly, on November 2, 1995, the staff issued a revised NRC Inspection Manual Part 9900 (Part 9900), Technical Guidance, which contains new staff guidelines for implementing the NOED policy (Attachment 1). Attachment 1, shows those sections changed with a vertical bar on the right side of each page. This administrative letter requires no specific action or written response. If you have any questions about this letter, please contact one of the persons listed below or your appropriate NRR Project Manager. [Signed by] Dennis M. Crutchfield, Director Division of Reactor Program Management Office of Nuclear Reactor Regulation Contacts: L. Raghavan, NRR (301) 415-1471 Vern Hodge, NRR (301) 415-1861 Attachments: 1. Part 9900: Technical Guidance 2. List of Recently Issued NRC Administrative Letters . UNITED STATES Attachment 1 NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 NRC INSPECTION MANUAL PD II-1 PART 9900: TECHNICAL GUIDANCE NOED.TG OPERATIONS - NOTICES OF ENFORCEMENT DISCRETION (PREVIOUSLY 10 CFR PART 2 APPENDIX C - ENFORCEMENT DISCRETION) A. PURPOSE This document provides guidance to staff in the Regional Offices and the Office of Nuclear Reactor Regulation (NRR) on the process for the NRC to exercise enforcement discretion with regard to limiting conditions for operation (LCO) in power reactor Technical Specifications (TS) or other license conditions. This type of discretion is addressed in Section VII.C of the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy, NUREG- 1600) and is designated as a Notice of Enforcement Discretion (NOED). This guidance is not applicable to non-power or permanently shutdown reactors. For these cases, TS changes can be processed within a very short time on an emergency basis and the need for NOEDs is not anticipated. NOEDs may be warranted for operating reactors if compliance with a TS LCO or with other license conditions would involve: (1) an unnecessary plant transient; or (2) performance of testing, inspection, or system realignment that is inappropriate for the specific plant conditions, or (3) unnecessary delays in plant startup without a corresponding health and safety benefit. An NOED can be issued for a power reactor at power, in startup, or in shutdown, provided the specific applicable criteria set forth below are met. NOEDs are also appropriate when severe weather and other external events could have a potential impact on the radiological health and safety of the public. In each case, the exercise of enforcement discretion is appropriate only for TS or other license conditions when it is temporary and nonrecurring and the NRC staff is clearly satisfied that the exercise of discretion is consistent with protecting the public health and safety. NOEDS are not appropriate for noncompliance with regulations, codes, or other regulatory requirements. It should also be noted that NOEDs for situations involving unreviewed safety questions are not allowed. These cases should be addressed within the current rules (e.g.,exemptions or TS amendments). In emergency situations, where natural events affect the overall public safety (rather than the radiological safety), NOEDs are not appropriate; but enforcement discretion, as provided for in Section III of the Enforcement Policy, may be exercised, after Commission consultation if possible. In all cases, appropriate enforcement actions consistent with the NRC's Enforcement Policy should be taken. In cases where the need for an exercise of enforcement discretion is nonrecurring and of such short duration that a license amendment could not be issued before the need no longer exists, making it impractical to amend the license, the regions have the lead to exercise enforcement discretion. Any such exercise of discretion involving situations that affect several plants in different regions simultaneously, and for which regions have the responsibility, should be coordinated closely between the regions and NRR, to avoid potential duplication of effort and/or inconsistent approaches and to obtain any special assistance or expertise needed from NRR. These will be issued by the regions as plant-specific NOEDs to individual licensees. Where a license amendment is required, enforcement discretion may be issued by NRR for the period of time required to process and issue an emergency or exigent license amendment consistent with the provisions of 10 CFR 50.91(a)(5) or (6). Where possible, emergency situations should be addressed by license amendments and issuance of NOEDs should be minimized. When NOEDs are issued, it is recognized that the operating license will be violated, but the NRC is exercising its discretion not to enforce compliance with the operating license for a specified time period. B. CRITERIA A licensee may depart from its TS in an emergency, pursuant to the provisions of 10 CFR 50.54(x), without prior NRC approval, when it must act immediately to protect the public health and safety. However, situations occur occasionally which are not addressed by the provisions of 10 CFR 50.54(x), and for which the NRC's exercise of enforcement discretion may be appropriate. Provided that the licensee has not abused the emergency provisions of 10 CFR 50.91 by failing to apply for an amendment in a timely manner, it is appropriate that the NRC have the NOED procedure for expeditious notice to a licensee of NRC's intention to exercise enforcement discretion under limited circumstances. Actions taken by licensee employees pursuant to such an exercise of discretion will not result in enforcement against the individuals involved. The following are NOED criteria applicable for various plant conditions: 1. For an operating plant, the NOED is intended to (a) avoid undesirable transients as a result of forcing compliance with the license condition and, thus, minimize potential safety consequences and operational risks or (b) eliminate testing, inspection, or system realignment that is inappropriate for the particular plant conditions. 2. For plants in a shutdown condition, the NOED is intended to reduce shutdown risk by avoiding testing, inspection, or system realignment that is inappropriate for the particular plant conditions, in that it does not provide an overall safety benefit, or may, in fact, be detrimental to safety in the particular plant condition. 3. For plants attempting to start up, the need for exercising enforcement discretion is expected to occur less often than for operating plants, because delaying startup does not usually leave a plant in a condition in which it could experience undesirable transients. Thus, the issuance of NOEDs for plants attempting to start up must meet a higher threshold, as described below. Enforcement discretion for plants attempting to start up is to be exercised only when the licensee considers and the NRC staff has concluded that, notwithstanding the conditions of the license: a. The equipment or system does not perform a safety function in the mode in which operation is to occur (e.g., a TS which requires the equipment to be operable in a mode not required by the FSAR); or, b. The safety function performed by the equipment or system is of only marginal safety benefit, and remaining in the current mode increases the likelihood of an unnecessary plant transient (e.g., allowing a PWR with an inoperable piece of TS-required equipment, for which there is sufficient redundancy or compensatory action, to proceed from Mode 2 to Mode 1 in order to minimize the time feedwater control is required to be operated in manual) or, c. The TS or other license conditions require 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. The letter issuing an NOED allowing for the continuation of a startup must specifically address which of the above three criteria were satisfied. If the startup criteria, as described above, are not satisfied, the licensee must comply with the license requirements until a license amendment is submitted and issued. In other unusual situations, natural events may result in a government entity or regional power distribution system declaring an emergency on the basis of need for power for overall public safety. In such circumstances, the Commission may balance the overall public health and safety implications of not operating with the potential radiological or other hazards associated with continued operation of the facility while in nonconformance with the particular requirement. Where such a balancing determination is required, enforcement discretion, consistent with Section III of the Enforcement Policy, may be exercised following consultation with the Commission or, if the urgency of the situation requires immediate action, with the approval of the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and Research (DEDR). Attachment A provides implementation guidance for these situations. This process is different from the provisions of 10 CFR 50.54(x) which permit the licensee to depart from TS in an emergency without prior NRC approval when it must act immediately to protect the public health and safety. Also, exercise of discretion in such cases must be distinguished from an NOED issued for severe weather conditions or seismic events which may have a potential impact on the radiological health and safety of the public, e.g., an extreme heat wave resulting in increased lake water temperature affecting ultimate heat sink capability may require a plant shutdown under applicable TS. In such weather-related conditions an NOED may be issued by the staff, if appropriate. The NOED process is designed to address temporary nonconformances from the license conditions and TS only, and is not appropriate for nonconformances with regulations or codes. Exemptions from regulations and reliefs from codes should be processed in accordance with the provisions of 10 CFR 50.12 and 10 CFR 50.55a, respectively. At present, some rules and code requirements are still duplicated in the TS (although NRR is actively pursuing initiatives to eliminate such duplication). In these situations, an NOED would address only the nonconformances to the TS. Unlike TS, regulations do not specify action statements which require shutdown if certain conditions are not met. Thus it should be noted that when a licensee finds itself in noncompliance with a regulation, immediate action such as shutting down the plant is not explicitly required, unless otherwise specified by NRC requirements. However, it is important that the licensee performs prompt safety assessments of the noncompliance with regulations and make a determination of what should be the safe operational status of the plant. The licensee should further determine what other NRC requirements apply to the situation, e.g., 10 CFR Part 50, Appendix B, Criterion XVI, 10 CFR 50.12, etc. and take required actions. Generic Letter (GL) 91-18, "Information to Licensees Regarding Two NRC Inspection Manual Sections on Resolution of Degraded and Nonconforming Conditions and on Operability," and its associated staff guidance in NRC Inspection Manual Chapter Part 9900 provide guidance for addressing certain nonconformances to the regulations. The NRC staff is expected to issue NOEDs infrequently. Although requirements may dictate that a plant must be shut down, refueling activities suspended, or plant startup delayed absent the exercise of enforcement discretion, the NRC staff is under no obligation to issue an NOED merely because the licensee has requested it. The decision to forego enforcement action is discretionary. An NOED is to be issued only if the NRC staff is clearly satisfied that such action is warranted from a public radiological health and safety standpoint. Enforcement discretion must be exercised on a case-by-case basis, considering the individual plant circumstances. If the NRC decides not to issue an NOED, the licensee must take the action required by the TS (except as stated in 10 CFR 50.54(x)). In addition, if a Licensee Event Report (LER) is required by 10 CFR 50.73 as a result of the non-conformance, the licensee must submit that LER, notwithstanding the staff's issuance of an NOED. Careful regulatory scrutiny must be given to any deviation from the required actions of the TS or other license conditions for circumstances involving violations (e.g., missing a required surveillance, inadequate procedures, or lack of testing), poor planning (e.g., not adopting available TS improvements, a necessary repair part not available), misinterpretation of a TS, repeated NOED requests for the same reasons or some similarly avoidable situation. To prevent the potential for such abuse, and the lack of up-front public notice and participation in the NOED process, the staff will apply criteria similar to those in 10 CFR 50.91 to verify that the emergency condition is unavoidable. In addition, licensees are encouraged to avail themselves of prior opportunities to enhance their TS by implementing approved Line Item Improvements (GL 87-09 and other initiatives), and have either adopted or committed to adopt the Improved Standard TS. Recognizing that nuclear safety in all plants would benefit from improved and standardized TS, the staff, with industry and public participation, developed these programs to focus licensees' and plant operators' attention on those plant conditions most important to safety, to add clarity, and to delete unnecessary operational restrictions and resulting plant shutdowns. Implementation of these TS improvements results in fewer TS requirements and, thus, should reduce the need for NOEDs. If a NOED request is as a result of a licensee not adopting the opportunities to implement these TS improvements in a timely fashion, thus creating the need for the NOED request, the NOED request may not be justifiable (for the reasons stated in the above paragraph) and may be denied. As stated before, in all cases, appropriate enforcement action, in accordance with the Enforcement Policy, will normally be taken for the root causes, to the extent violations were involved, that led to the reason for the NOED request. C. REGIONAL ENFORCEMENT DISCRETION A region-issued NOED is used to notify the licensee of the NRC decision to exercise discretion not to enforce compliance with specific TS LCOs or other license conditions in the limited circumstances described in Section B above, when the noncompliance is nonrecurring and a license amendment would not be practical because the plant will return to compliance with the existing license in so short a period of time that a license amendment could not be issued before compliance is restored. Matters that a region-issued NOED may address include: 1. A noncompliance of short duration from the limits of a function specified in an LCO. 2. A noncompliance with an action statement time limit. 3. A noncompliance with a surveillance interval or a one-time deviation from a surveillance requirement. In each of these situations, it must also be evident that a TS change is impractical because the licensee will return to compliance with the existing license requirements in so short a period of time that a license amendment could not be issued before compliance is restored. There may be occasions when several plants in different regions may request NOEDs simultaneously to address common conditions, e.g, a vendor advisory letter. In such cases, the regions and NRR, should coordinate closely with each other in the exercise of discretion to avoid potential duplication of effort and/or inconsistent approaches and to obtain any special assistance or expertise needed from NRR. Such plant-specific NOEDs will be issued by the regions to individual licensees. To assure consistency in staff determinations relating to the NOED request and its approval, and root cause violation determination and enforcement action, the regions should ensure that the cognizant NRR technical branch chief is included in all discussions and decisions. The authority to issue an NOED is assigned to the Regional Administrator, who may delegate the authority to the Regional Division Director of Reactor Projects. The NOED shall be based on a written request (the region may act on an oral request, to be promptly followed by a written request) from a licensee. Before issuing an NOED, the region should obtain the concurrence of the appropriate regional technical division director and NRR Project Director. The NRR Project Director, in turn, should consult with the cognizant NRR technical division director or branch chief(s) concerning the acceptability of issuing the NOED. Whenever regional enforcement discretion is exercised, the circumstances (including a description of any compensatory measure(s) and the staff's evaluation of the licensee's request) must be documented in a letter to the licensee from the Regional Administrator or his/her designated official. The letter must specify and discuss the maximum period of time for which the NOED is in effect (not to exceed 14 days, except in unusual circumstances). However, resolution of the condition that led to the request for enforcement discretion should terminate the NOED. The letter should follow the format and content of Attachment B to this guidance, and should normally be issued within 2 working days of receipt of the licensee's written request. The NRC's intention to exercise discretion not to enforce compliance may also be communicated orally, but it must be followed by written documentation. D. NRR ENFORCEMENT DISCRETION An NRR-issued NOED is used to notify the licensee of the NRC decision to exercise discretion not to enforce compliance with specific TS LCOs or other license conditions in the limited circumstances described in Section B above. Matters that an NRR-issued NOED may address include: 1. A noncompliance with an element specified in a limiting condition for operation until such time as the element can be revised by a license amendment. 2. A noncompliance with an action statement time limit for which a license amendment will be processed to make the extension either a temporary or a permanent change to the TS. 3. A noncompliance with a surveillance interval or change to a surveillance requirement that will be incorporated by an amendment. The authority to issue an NOED is delegated to the appropriate NRR Project Director. The NOED must be based on a written request (or in some cases, an oral request followed by a written request) from a licensee. Before issuing an NOED, the NRR Project Director should obtain concurrence from the responsible Regional Division Director of Reactor Projects. In addition, the Project Director should consult with and obtain written concurrence from the appropriate NRR ADT Division Director. Whenever NRR enforcement discretion is exercised, the circumstances (including a description of any compensatory measure(s) and staff's evaluation of the licensee's request) must be documented in a letter to the licensee from the appropriate NRR Project Director. The letter should specify and discuss the maximum period of time for which the NOED is in effect (resolution of the condition that led to the request or issuance of the follow-up license amendment would return the licensee to a condition of compliance with the license), should follow the format and content of Attachment B to this guidance, and should normally be issued within 2 working days of the receipt of the licensee's written request. The NRC's intention to exercise discretion not to enforce compliance may also be communicated orally, followed by written documentation. Follow-up license amendments for NRR-issued NOEDs should be processed on an emergency or exigent basis, as appropriate. If an exigent amendment is issued, it should be noticed in the Federal Register. The follow-up TS amendment should be issued within 4 weeks of the issuance of the NOED unless otherwise justified by any special circumstances. If necessary, an NOED-related issue that is part of a larger license amendment request should be handled as a separate amendment if that will expedite issuance. When amendments involving NOEDs are issued, the transmittal letter should identify the NOED which the amendment supersedes. E. REQUEST FOR ENFORCEMENT DISCRETION The NRC should verify that the licensee's request for enforcement discretion includes the following: 1. The TS or other license conditions that will be violated. 2. The circumstances surrounding the situation, including root causes, the need for prompt action and identification of any relevant historical events. 3. The safety basis for the request, including an evaluation of the safety significance and potential consequences of the proposed course of action. This evaluation should include at least a qualitative risk assessment derived from the licensee's PRA. 4. The basis for the licensee's conclusion that the noncompliance will not be of potential detriment to the public health and safety and that neither an unreviewed safety question nor a significant hazard consideration is involved. 5. The basis for the licensee's conclusion that the noncompliance will not involve adverse consequences to the environment. 6. Any proposed compensatory measure(s). 7. The justification for the duration of the noncompliance. 8. A statement that the request has been approved by the facility organization that normally reviews safety issues (Plant Onsite Review Committee, or its equivalent). 9. The request must specifically address how one of the NOED criteria for appropriate plant conditions specified in Section B is satisfied. 10. If a follow-up license amendment is required, the NOED request must include marked-up TS pages showing the proposed TS changes. The actual license amendment request must follow within 48 hours. 11. A statement that prior adoption of approved line-item improvements to the TS or the ITS would not have obviated the need for the NOED request. 12. Any other information the NRC staff deems necessary before making a decision to exercise enforcement discretion. The request from the licensee should normally be sent by facsimile to the NRR Project Director and the Regional Administrator. The signed original should be sent to the Document Control Desk. However, if circumstances do not permit time for the written request to be prepared and sent to the NRC, the licensee may make the request orally, describing to the best of its ability the information required by the staff. The licensee's oral request needs to be followed promptly by written documentation (usually within 24 hours) addressing the items listed above. In cases where a license amendment is appropriate, the written request for the NOED should be followed within 48 hours by the licensee's request for a license amendment for NRC staff consideration under the provisions of 10 CFR 50.91. Such a license amendment request should discuss the bases for the licensee's conclusions that the amendment does not involve a significant hazards consideration, unreviewed safety question, or irreversible environmental consequences. If the request is made orally (to be followed with a written request), the NRC must have sufficient information to reach the same conclusions as if it had received a written submittal. The follow-up written request must confirm the information that the staff relied upon in arriving at its conclusion to issue the NOED. If a licensee orally requests an NOED, but subsequently determines that no violation of the license will occur and the NOED is not needed, the licensee and staff must still followup with appropriate documentation. It sometimes happens that a licensee is considering requesting an NOED or has made an oral request and, in the course of discussing the request with the staff, it is determined that an NOED is not the appropriate action. In such cases there are no formal requests, rejections, or documentation. To enable tracking of such occurrences, the cognizant NRR Project Manager should prepare a brief note to the Technical Assistant, Division of Reactor Projects I/II, describing the situation that gave rise to the consideration of an NOED request, the discussions that took place, the reason it was deemed not appropriate, and dates. The Technical Assistant, Division of Reactor Projects I/II, will include this information in the NOED database. F. STAFF EVALUATION AND DOCUMENTATION Prior to issuance of the NOED, the regional Project Branch Chief and/or the NRR Project Manager should verify the licensee's oral assertions and compensatory measures and that the NOED request is consistent with the policy and guidance. Any assertions made or compensatory actions committed to but not verified prior to issuance of the NOED should be verified subsequently, as soon as time permits. Documentation of the results of the verification activities are to appear in a subsequent inspection report. The staff's letter documenting the NOED must be self-standing, and demonstrate that issuance of the NOED is consistent with the policy and guidance. The NOED letter should also clearly specify which of the licensee's arguments the staff accepted in reaching its decision and the criteria that is satisfied. Frequently, licensees make arguments that are not directly relevant to the criteria the staff is to consider. If the staff simply states in the letter that the licensee's arguments were reviewed then it appears all arguments, valid and invalid, were accepted. For instance, while the saving of a few hundred millirem of radiation exposure might be a benefit of a requested NOED, the fact that the exposure savings occurs should not appear to enter into a reactor safety decision. If factors beyond reactor safety are required to be considered, they should be explicitly stated and appropriately addressed in accordance with this section. The sequence of events in the staff's letter should be clear and include: how and when the licensee first requested the discretion, what the length of the AOT/surveillance interval involved was, when the allowed time would end, when (if applicable) verbal discretion was issued, the date of the licensee's follow-up written request (if the original was made verbally), the specific period of discretion starting at the end of the AOT and, if the NOED was terminated before the staff's letter is issued, the letter should contain the time the NOED was actually terminated. It is not acceptable for the staff to permit the licensee not to follow a TS or license condition while the staff considers a request for discretion. If the licensee is unable to provide the staff an adequate basis before the LCO time ends, the licensee must take the required actions to comply with the TS while endeavoring to supply the staff an adequate basis for issuing the NOED. It is recognized that in cases involving short LCO times or complex issues, the staff may have to act before all the information is available. In such cases, if the information presented provides a clear basis that public health and safety is assured and that the criteria of the NOED policy are satisfied, enforcement discretion may be exercised. If subsequent information fails to support the initial issuance of the NOED, it should be terminated, as discussed in Section G. In summary, the time it takes for the staff to evaluate the request for an NOED will not relieve the licensee from taking appropriate actions to comply with the TS. G. ENFORCEMENT Early Termination of Enforcement Discretion If the NRC decides to terminate the exercise of enforcement discretion for any reason before the time specified in the NOED, the staff should verify that the licensee takes steps to achieve the appropriate plant status and implement the existing TS-required actions upon oral notification of the termination by the appropriate NRR Project Director or Regional Division Director. The time required to bring the facility into compliance with the TS or license conditions will be determined by the appropriate NRR Project Director or Regional Division Director. Upon notification of termination of the NOED, the licensee should inform the NRC of the proposed course of action to restore the plant to a condition of compliance with the license. The termination of the NOED by the NRC should be documented in a letter to the licensee and should address the actions taken or planned by the licensee, including the time necessary for the licensee to achieve the required plant conditions, including an orderly shutdown, in the most prudent manner considering safety. In all these cases, the NRC will not normally take enforcement action for the TS or license condition violations during the period the NOED was in effect, except for the root causes leading to the noncompliance, as discussed below. Consideration of Enforcement The decision to exercise enforcement discretion by issuing an 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 exercise enforcement discretion, enforcement action will normally be taken for any violations that were part of the root causes leading to the noncompliance. Such enforcement action (i.e., associated with the root causes) is intended to emphasize that licensees should not rely on the NRC's exercise of enforcement discretion as a routine substitute for compliance or for requesting a license amendment. NRR-issued NOEDs should be closely coordinated with the appropriate region to ensure that the region considers the need for enforcement action for any root cause violations that led to the NOED issued by NRR. For any NOED issued where the root cause of the need to request an NOED was a violation (regardless of the severity level), an enforcement action (EA) number is to be obtained from the Office of Enforcement (OE). The staff should follow the guidance in the NRC Enforcement Manual, NUREG\BR-0195, to determine and process the appropriate enforcement action. OE approval is required for not issuing an enforcement action, if a violation is involved (a Non-Cited Violation (NCV) should not normally be used where a shutdown would have been required but for the issuance of the NOED). The enforcement action should reference the NOED number. All staff determinations regarding enforcement action associated with the issuance of an NOED must be documented in the next appropriate inspection report. If the root cause underlying an NOED request results in an escalated action, the time during which the NOED is effective will not be counted in considering the impact of the violation. H. DISTRIBUTION Copies of the letter to the licensee shall be distributed according to established regional and NRR procedures. Further, as a minimum, distribution shall include the following: 1. DEDR 2. Regional Administrator 3. Associate Director for Projects, NRR 4. Associate Director for Technical Review, NRR 5. Division Director, Division of Reactor Projects ( I/II or III/IV), NRR 6. Director, Office of Enforcement 7. Public Document Room and Local Public Document Room 8. Technical Assistant, Division of Reactor Projects - I/II, NRR 9. Electronic copy (WordPerfect file) to E-mail address: NOED 10. Electronic copy (WordPerfect file) to BBS Operator, E-mail address: TGD Further, the issuing office must ensure that the licensee's request is also placed in the Public Document Room and the electronic copies of NOEDs are prepared in accordance with Attachment D. NRR will post the staff's NOED approval or denial letter on the electronic bulletin board system (BBS), NRC at FedWorld, under the Enforcement Program subsystem. The NOED will remain on the bulletin board for 6 months for easy public access. The Technical Assistant, Division of Reactor Projects - I/II, NRR, will maintain a file of all NOEDs and e-mail a copy of the database summary of the NOED to the BBS Operator. I. TRACKING OF NOTICES OF ENFORCEMENT DISCRETION The NRR Project Manager must open a Technical Assignment Control (TAC) number under Licensing Action Code LD for any NOED action involving NRR resources. Each NOED will be assigned a number to permit tracking. The issuing office will assign a number consisting of six digits. The first two digits indicate the year, the third digit indicates the number of the region (or 6 for NRR), and the last three digits are the sequential number of the NOED for the issuing office. For example, NOED 93-3-017 is the 17th NOED issued by Region III in 1993. This number shall be included in parenthesis at the end of the subject line for the NOED, for example: (NOED 93-3-017). The Technical Assistant, Division of Reactor Projects I/II, NRR, will assign numbers for all NRR Notices of Enforcement Discretion and regional assignments will be made in accordance with regional procedures. Each office is responsible for tracking the NOEDs it issues and for entering the required data into a LAN-based tracking system. Attachment C of this procedure provides the sample data pages that should be used in the tracking system. Additionally, each region will be responsible for inspection, follow-up, and enforcement for all NOEDs issued, including those issued by NRR, for plants in that region. J. SUMMARY The regions may exercise enforcement discretion in certain circumstances when a power reactor licensee will not be in compliance with TS or other license conditions for those cases in which a license amendment is not practical, because of the nonrecurring nature of the situation and because the plant will be returned to a condition of compliance with the existing license in so short a period of time that a license amendment could not be issued before compliance is restored. NRR may exercise enforcement discretion in certain circumstances when a power reactor licensee will not be in compliance with the TS or other license conditions and a license amendment is appropriate. If a TS will be violated before a decision can be made to exercise enforcement discretion, or if the NRC decides not to exercise enforcement discretion, the licensee must take the action required by the TS (except as stated in 10 CFR 50.54(x)). The exercise of enforcement discretion is an option available to the NRC staff that must not be used unless the staff is clearly satisfied that such action is consistent with the public health and safety. Notwithstanding the issuance of an NOED, enforcement action will normally be taken in accordance with the Enforcement Policy, NUREG-1600 for violations that led to the situation that warranted the NOED. NOEDs are not appropriate for noncompliance with regulations, codes, or other regulatory requirements nor for situations involving unreviewed safety questions. On rare occasions of severe external conditions, enforcement discretion (other than an NOED), can be exercised by the DEDR in the overall public health and safety interest after consultation with the Commission, if time permits. END Attachments: A. Evaluation of Requests for Enforcement Discretion as a Result of Natural Events B. Sample Letter for NOED Issuance C. Notice of Enforcement Discretion - Data Screen 1 D. File Format for Electronic Copy (WordPerfect file) of NOED Approval/ Disapproval Letters. Attachment A Evaluation of Requests for Enforcement Discretion as a Result of Natural Events The following guidance should be used for evaluating and processing a licensee request for enforcement discretion under the provisions of Section III of the Enforcement Policy, NUREG-1600 "General Statement of Policy and Procedures for NRC Enforcement Actions" (previously 10 CFR Part 2, Appendix C, Section III), as a consequence of a natural event. The request for exercise of enforcement discretion should come from a licensee. The licensee should also provide the name, organization, and telephone number of the official declaring the emergency. The request must provide details of the basis and nature of the emergency; its potential consequences such as plant trip, controlled shutdown, delayed startup; the condition and operational status of the plant (equipment out of service or otherwise inoperable); status, and potential challenges to offsite and onsite power sources, and the impact of the emergency on plant safety. The licensee must demonstrate actions that it took to avert and/or alleviate the emergency situation, including steps taken to avoid being in the noncompliance, as well as efforts to minimize grid instabilities (e.g., coordinating with other utilities and the load dispatcher organization for buying additional power or for cycling load, shedding interruptible industrial or non emergency loads). In addition, the licensee's request must be sufficiently detailed for the staff to evaluate the likelihood that the event could affect the plant, the capability of the ultimate heat sink, on-site and off-site emergency preparedness status, access to and from the plant, acceptability of any increased radiological risk to the public and the overall public benefit. Staff reaction time may be very short. A decision will likely have to be made based on a verbal information and on-line telecon evaluations, to be followed by documentation. NRR has the lead in elevating the issue to the DEDR with a staff determination of the validity of the emergency and a consensus recommendation. The DEDR will determine appropriateness of the emergency and whether to exercise discretion with or without prior Commission consultation, depending on the urgency of the circumstances, and accessibility of the Commissioners. The Project Manager (PM) or Chief, Emergency Preparedness and Radiation Protection Branch (TERB), should make reasonable efforts to get a good assessment of the nature of the emergency. If appropriate and feasible, the staff should obtain a qualitative probabilistic risk analysis (PRA) from the Probabilistic Safety Assessment Branch as an input to its decision process. A teleconference should be held as soon as possible among senior licensee management, NRR and regional staffs. Participating staff personnel should include: NRR - PM, Project Director (PD), cognizant technical branch chief, and TERB chief (if applicable); Regional Projects Division Director, Resident Inspector, and cognizant technical branch chief. Following the teleconference with the licensee, the PM should contact the official declaring the emergency to independently confirm the nature of the emergency and expected duration for the emergency. To the extent possible, verbal concurrence in the staff's recommendation to the DEDR should be obtained from the Regional Administrator, the NRR Associate Directors and the NRR Director. The DEDR will consult with the Commission, if feasible, and will verbally notify the appropriate licensee executive of the staff's determination regarding the licensee's request for enforcement discretion. Regardless of the staff's determination, the licensee must immediately submit (within a few hours) a followup written request documenting all the bases, justifications, commitments and other considerations and conditions discussed and agreed upon in the teleconference. The staff will prepare a letter to the cognizant licensee executive for signature by the DEDR, confirming the its determination on whether discretion should be exercised, within approximately 72 hours. Distribution should be the same as for NOEDs. A sample letter is attached. Followup inspections, closeout documentation and tracking system entries are as required for NOEDs. . SAMPLE LETTER FOR EXERCISING ENFORCEMENT DISCRETION Addressee SUBJECT: EXERCISE OF ENFORCEMENT DISCRETION FOR [LICENSEE NAME] REGARDING [PLANT NAME(S)] This is to confirm our verbal conversation on [date and time] informing you of our determination that exercise of enforcement discretion not to enforce compliance with actions required in [TS or license condition citations] is warranted [not warranted]. Our basis for determination relating to your request is documented herein. By letter dated [date of letter], you requested the NRC to exercise enforcement discretion in accordance with the Enforcement Policy, NUREG-1600. Your letter documented information previously discussed with the NRC in a telephone conversation on [date] at [time]. You stated that an emergency situation exists due to [state the cause for the emergency, e.g.,extreme weather] and [state whether an emergency has been declared by a government authority - state the authority, or by a regional power distribution system, date and time]. As a result, [briefly restate the licensee's description of the events leading up to the request including the specific noncompliance, and a summary of their safety rationale, and the public interest that is being served. Include any compensatory measures, actions taken to avoid being in the noncompliance, and to avert and or alleviate the emergency and commitments that the licensee has proposed]. You requested that the NRC exercise its discretion for a period of [state licensee's requested period]. Section III of the Enforcement Policy, NUREG-1600, "General Statement of Policy and Procedure for NRC Enforcement Actions", permits the exercise of discretion in actions affecting a licensee's operation that requires balancing the public health and safety or common defense and security implications of not operating with the potential radiological or other hazards associated with continued operation, with the approval of the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and Research (DEDR) and with prior consultation with the Commission, unless the urgency of the situation dictates immediate action without prior Commission consultation. Pursuant to our Enforcement Policy, we evaluated your request in light of the existing circumstances, your commitments, and preventive and compensatory measures. After consultation with the Commission, we have concluded that the exercise of discretion is warranted [in case of denial: On the basis of our evaluation, we concluded that the exercise of discretion is not warranted and therefore, your request is denied]. [In those cases where the Commission has not been consulted, modify the second sentence of the paragraph to read: Although we have not been able to consult with the Commission in this case in light of the existing circumstances, we have concluded that the urgent nature of your request requires immediate action, and have concluded that exercise of discretion is warranted.] Therefore, it is our intention to exercise discretion not to take enforcement action for noncompliance with [TS/license condition] for the period from [date and time] until [state period and why]. signature Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and Research Docket No(s).: 50-xxx. Attachment B SAMPLE LETTER FOR NOED ISSUANCE Addressee SUBJECT: NOTICE OF ENFORCEMENT DISCRETION FOR [LICENSEE NAME] REGARDING [PLANT NAME(S)] [TAC NO. XXXXXX (if applicable), NOED NO.XXXX] By letter dated [date of letter], you requested that the NRC exercise discretion not to enforce compliance with the actions required in [TS or license condition citation]. That letter documented information previously discussed with the NRC in a telephone conversation on [date] at [time]. You stated that on [date and time] the plant(s) would not be in compliance with [TS/license condition] which would require [statement of the requirement including the AOT and the date and time when the action statement was entered]. You requested that a Notice of Enforcement Discretion (NOED) be issued pursuant to the NRC's policy regarding exercise of discretion for an operating facility, set out in Section VII.c, of the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, and be effective for the period [state licensee's requested period for the NOED]. [Briefly restate the licensee's description of the events leading up to the request for the NOED and a summary of their safety rationale for issuing the NOED. Include any compensatory measures that the licensee has proposed.] [Summarize the staff's evaluation of the licensee's safety rationale, and which of the licensee's arguments is accepted, and cite the explicit criteria in the NOED policy that the licensee satisfied.] On the basis of the staff's evaluation of your request, [including the compensatory measures described above], the staff has concluded that an NOED is warranted because we are clearly satisfied that this action involves minimal or no safety impact [in the case of NOEDs for startup: specify which of the three criteria in Section B of this guidance is satisfied] and has no adverse radiological impact on public health and safety. Therefore, it is our intention to exercise discretion not to enforce compliance with [TS/license condition] for the period from [date and time] until [if region issued: date and time; if NRR issued: specific date and time or until issuance of a license amendment. State if the approved NOED effective duration differs from the requested time and why]. [If follow-up license amendment will not be issued within 4 weeks: We understand that you will submit a license amendment by: specify date, and justify circumstances]. This letter documents our telephone conversation on [date and time] when we orally issued this notice of enforcement discretion. [If appropriate: We understand that the condition causing the need for this NOED was corrected by you causing you to exit from the [TS/license condition] and from this NOED on [date and time]. However, as stated in the Enforcement Policy, action will normally be taken, to the extent that violations were involved, for the root cause that led to the noncompliance for which this NOED was necessary. signature Project Director, NRR or Regional Administrator or designee Docket No(s).: 50-xxx . Attachment C NOTICE OF ENFORCEMENT DISCRETION - DATA SCREEN 1 PLANT(S): REGION: PD: NOED TITLE: UNIT MODE: / / TS SECTION: TS LCO AOT: STATUS: TRACKING #: ISSUED BY NRR: OR BY REGION: NOED APPROPRIATE: (IF FALSE, SPECIFY WHY HERE: ) MODIFIED BY NRC: (IF TRUE, SPECIFY HOW HERE: ) LIC VERBAL REQ: @ LIC LETTER DATE: LTR ON FILE: ACC NUMBER: NRC VERBAL APPR: @ NRC LETTER DATE: LTR ON FILE: ACC NUMBER: ISSUED NOED PERIOD: FROM @ TO @ OR FOR DAYS: OR FOR HOURS: NOTICE OF ENFORCEMENT DISCRETION - DATA SCREEN 2 ROOT CAUSE: EQUIP FAILURE MISSED SURVEILLANCE NATURAL EVENTS POORLY WORDED TS/TS ERROR TIME TO COMP REPAIRS INAPP SYSTEM TEST, REALIGNMENT, ETC. POOR DESIGN INAD TIME FOR AMEND SUBMISSION OTHER (IF TRUE, SPECIFY CAUSE HERE: ) NOED INFO: PERMITS PLANT STARTUP TS REQUIRES IMMEDIATE BUT INAPPROPRIATE ACTION EXTENSION OF ACTION STATEMENT TIME LIMIT EXTENSION OF SURVEILLANCE INTERVAL ONE-TIME DEVIATION FROM SURVEILLANCE REQUIREMENT PROBLEM APPLICABLE TO OTHER PLANTS NOED EFFECTIVE UNTIL AMENDMENT ISSUED NOED ON TEMPORARY, NONRECURRING BASIS, NO TIME FOR AMENDMENT CLOSEOUT DATA: ROOT CAUSE VIOL: VIOL ISSUED: VIOL COMMENTS: IR #: DATE: EA #: DATE: AMEND TYPE: DATE: AMEND #: TERMINATED BY NRC: ACTUAL END DATE: @ GENERAL COMMENTS: . Attachment D FILE FORMAT FOR ELECTRONIC COPY (WORDPERFECT FILE) OF NOED APPROVAL/DISAPPROVAL LETTER 1. Replace the WordPerfect Letterhead Paper Size with Standard Paper Size and include typed letter heading, and letter issue date, as follows: UNITED STATES NUCLEAR REGULATORY COMMISSION Washington, D.C. 20555-0001 January 5, 1995 or for a Region UNITED STATES NUCLEAR REGULATORY COMMISSION REGION II 101 Marietta Street, N.W., Suite 2900 Atlanta, Georgia 30323-0199 January 5, 1995 Note: A WordPerfect Macro is available for this purpose. For a copy, contact Tom Dunning via e-mail (TGD). 2. Remove the concurrence page and any attached internal distribution list. 3. Include the following above the letter author's name: /original signed by (identify person who signed letter)/ 4. Save the WordPerfect file with the following filename: NEyyrser.WP5 where the number of the NOED is yy-r-ser, for example, NOED 95-1-001 for the first NOED issued by Region 1 in 1995. (WP5 just tells BBS users that it is a WordPerfect 5 document.) 5. E-mail WordPerfect file to TGD and NOED.
Page Last Reviewed/Updated Thursday, March 29, 2012