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The NRC’s Office of Enforcement (OE) recently issued an enforcement guidance memorandum (EGM) to reinforce the NRC’s Enforcement Policy (Policy) and earlier guidance on identifying and documenting findings and associated violations in inspection reports. The need for this EGM arose after OE became “aware that some inspection staff may be misinterpreting and misapplying” the Policy and guidance by documenting all issues of concern, regardless of significance.

The EGM rejects that inspection staff misinterpretation and makes it clear that the inspection program is not meant to document all findings (and associated violations). Instead, inspection findings and associated violations are to be identified and documented as specified in the Inspection Manual, which follows the Policy and earlier OE guidance. OE reinforcement of this violation documentation policy provides licensees with a basis for challenging inspector inclusion of low-level, non-safety-significant findings or violations in an inspection report.

The EGM reinforces the Policy and the earlier guidance by clarifying that Staff need not document every identified non-compliance. According to the EGM, “the inspection program cannot, nor was it ever intended to, document all the non-compliances that may occur at a licensee’s facility.” Instead, the Staff should assess instances of non-compliance for their safety significance and document only those with a greater-than-green significance. And if questions arise on what to document, the Staff should follow the inspection manual and inspection program guidance.

For context, the NRC developed and began implementing the risk-based Reactor Oversight Process (ROP) in the late 1990s. The EGM adds that it does not represent a change in position and links back to a memorandum issued almost two decades ago as its basis. More specifically, in December 2000, then OE director William Borchardt issued a memorandum Dispositioning of Enforcement Issues in a Risk Informed Framework (the Borchardt Memorandum) to guide the proper disposition of documented violations under the ROP. The Borchardt Memorandum emphasizes the need for the appropriate disposition of documented violations (i.e., that are more than minor) and states that “if an issue warrants documentation in an inspection report it also warrants a determination as to whether or not a violation exists.” But the Borchardt Memorandum never states that every instance of non-compliance must be documented.

The guidance in the Borchardt Memorandum accords with Section 2.2.3 of the current Policy, which states that “[i]nspection findings identified through the ROP are assessed for significance using the [Significace Determination Process (SDP)]” and that “[i]nspection findings processed through the SDP, including associated violations, are documented in inspection reports and are assigned one of the following colors, depending on their significance.”

Please contact us if you have questions or wish to discuss findings from a recent inspection that may be challenged as contrary to the Policy and the EGM.