The updates involve a change in the way the NRC implements its enforcement mandate.
The US Nuclear Regulatory Commission (NRC) announced on November 7 a number of changes to the NRC Enforcement Policy (Policy). This Policy update involves a significant change in the way the NRC implements its enforcement mandate. The most significant aspect of the changes involves making the Policy more efficient by bringing construction activities into the context of power reactor discussions. This merging of different types of licensees also is reflected by the addition of enforcement situation examples, which are referred to by NRC staff when determining the appropriate severity level of a traditional enforcement action. Of course, as always, licensees should stay alert for any unanticipated or unintended consequences from this issuance.
The NRC modified Section 2.2 to include the construction Reactor Oversight Process (cROP) and remove the specificity that may have been viewed as being restrictive regarding the use of the significance determination process (SDP). The NRC included in its discussion facilities under construction and independent spent fuel storage installations.
Quick Assessment:
The changes appear to formalize the NRC’s ongoing perspectives and do not appear to involve a significant change in regulatory policy.
The NRC is revising these sections to add the implementation of the cROP and will reference the NRC’s Inspection Manual Chapter (IMC) 2505, “Periodic Assessment of Construction Inspection Program Results,” where appropriate.
Quick Assessment:
Changes to these sections appear to address editorial “housekeeping” matters and now more clearly includes facilities under construction. The NRC also provides new examples of violations later in the Policy.
The NRC is revising Section 2.2.4 by moving content to different parts of the Policy and has now included in this section a subpart “d” that states that violations with no ROP or cROP findings may be dispositioned by using traditional enforcement.
Quick Assessment:
This clarification does not appear to involve an actual change in policy.
This section clarifies the NRC’s position regarding enforcement and the “Changes During Construction” Preliminary Amendment Request (PAR) process. The NRC has formalized that it will not take enforcement actions on plants under construction that have a PAR or No-Objection Letter, issued by the NRC, when the licensee deviates from the current licensing basis while a corresponding license amendment request is under review.
Quick Assessment:
This formalization of practices acknowledges that a licensee may proceed at its own risk in changing the facility and, if doing so, will not be charged with a violation since its license would not yet allow the change being implemented while NRC consideration is ongoing. Of course, if the NRC were to disagree with the at-risk change, the licensee must reverse the change and bring the facility back into conformance.
This revision will remove redundant language from previously identified Inspection Manual Chapters (IMCs) and will add references to examples of minor violation issues found in IMCs 0613 and 0617.
Quick Assessment:
This section modification appears to involve clarifying editorial changes.
Quick Assessment:
These text modifications represent editorial changes that appear to formalize past NRC practices and clarify associated language.
Recent cases involving the willful failure to file for reciprocity or to obtain an NRC specific license have led to discussions about the agency’s ability to deter future noncompliance in these areas and lessen the perceived potential economic benefit of working in NRC jurisdiction without the required notification or license.
Quick Assessment:
This formalization of NRC practices focuses in great part on materials licensees that have not sought and/or received reciprocity consistent with NRC regulations. The NRC has been seeking to disincentivize this practice, which it considers to be a willful violation with monetary motives. This Policy change seeks to clarify the NRC’s approach in assessing a civil penalty when it has identified this practice.
Quick Assessment:
The NRC is adding situation-specific examples of various violation categories to reflect its trends for violation severity level decision-making.
Quick Assessment:
No significant changes noted.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact Morgan Lewis.