Resolution of Generic Safety Issues: Issue 180: Notice of Enforcement Discretion (Rev. 1) ( NUREG-0933, Main Report with Supplements 1–34 )
The NRC requires that a licensee operate its facility in compliance with the NRC's regulations and the specific facility's license. When a licensee fails to comply with the conditions of its license or the NRC's regulations, the staff will take enforcement action in accordance with its Enforcement Policy, NUREG-1600,1661 (previously 10 CFR 2, Appendix C).
The NRC recognizes that it is not always possible to anticipate every contingency that might arise during the lifetime of a facility that might result in non-compliance with specific license conditions. In such instances, enforcement action may not be appropriate, even though, technically, a non-compliance situation may exist. For such circumstances, the Enforcement Policy provides for a specific type of enforcement discretion that is known as a Notice of Enforcement Discretion (NOED). The NOED policy indicates when the staff, under certain limited circumstances, may choose not to enforce compliance with a license condition when specific safety criteria are met. Staff guidance for implementing the NOED policy is contained in the NRC Inspection Manual Part 9900: Technical Guidance.
In May 1994, the NRC discovered some inconsistencies in the staff's implementation of the NOED policy and established a team to review the NOED policy, implementation process, and staff practices, and develop appropriate recommendations. At the same time, the Office of the Inspector General (OIG) conducted an independent assessment of NRC's compliance with the NOED policy and procedures. Both the NOED Review Team and the OIG audit team reviewed certain aspects of the NOED policy and related guidance contained in Inspection Manual Part 9900.
The reviews showed that, in general, the staff complied with its procedures and requirements for review and determinations relating to NOEDs 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. These areas involved changes to the NOED policy, staff's guidance and procedures for implementing the NOED policy, and other support/administrative aspects. 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. An action plan was initiated to address the recommendations and to implement those that were adopted. This issue was identified in an NRR memorandum1601 to RES in February 1996.
After reviewing the results of the evaluations and associated recommendations, the staff concluded that the existing NOED policy is technically sound and, therefore, need not be revised; the staff's conclusions were documented in SECY-95-078.1660 The staff, however, determined that several aspects of the NOED guidance and procedures needed clarification to ensure proper implementation of the policy. In addition to these recommendations, the staff subsequently identified other areas for improving the NOED guidance.
On November 2, 1995, the staff issued a revised NRC Inspection Manual Part 9900, Technical Guidance, which contains improved staff guidance for implementing the NOED policy. Also, on November 7, 1995, the NRC issued Administrative Letter, 95-05, "Revisions to Staff Guidance for Implementing NRC Policy on Notices of Enforcement Discretion," to inform the nuclear industry of this improved guidance.
This issue addressed the staff's efforts in clarifying existing requirements and guidance and, therefore, was considered a Licensing Issue1731; it was resolved with the issuance of the revised staff guidance.