ML032461464
| ML032461464 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 07/25/2003 |
| From: | Dambly D NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-98-234, LBP-03-10, RAS 6656 | |
| Download: ML032461464 (5) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 6656 DOCKETED 07/25/03 BEFORE THE COMMISSION In the Matter of )
) Docket Nos. 50-390-CivP; 50-327-CivP TENNESSEE VALLEY AUTHORITY ) 50-328-CivP; 50-259-CivP (Watts Bar Nuclear Plant, Unit 1 ) 50-260-CivP; 50-296-CivP Sequoyah Nuclear Plant, Units 1 & 2 ) 50-260-CivP; 50-296-CivP Browns Ferry Nuclear Plant, Units 1,2 &3) )
) ASLBP No. 01-791-01-CivP
)
) EA 99-234 NRC STAFFS RESPONSE TO TENNESSEE VALLEY AUTHORITYS PETITION FOR REVIEW OF INITIAL DECISION IN LBP-03-10 Dennis C. Dambly Counsel for NRC Staff July 25, 2003
July 25, 2003 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
) Docket Nos. 50-390-CivP; 50-327-CivP TENNESSEE VALLEY AUTHORITY ) 50-328-CivP; 50-259-CivP (Watts Bar Nuclear Plant, Unit 1 ) 50-260-CivP; 50-296-CivP Sequoyah Nuclear Plant, Units 1 & 2 ) 50-260-CivP; 50-296-CivP Browns Ferry Nuclear Plant, Units 1,2 &3) )
) ASLBP No. 01-791-01-CivP
)
) EA 99-234 NRC STAFFS RESPONSE TO TENNESSEE VALLEY AUTHORITYS PETITION FOR REVIEW OF INITIAL DECISION IN LBP-03-10 INTRODUCTION Pursuant to the 10 C.F.R. 2.786(b)(3) of the Commissions regulations, the Staff now responds to Tennessee Valley Authoritys Petition for Review of Initial Decision in LBP-03-10" filed July 16, 2003 (hereinafter TVA Petition). As more fully explained below, the Staff does not object to Commission review of the Atomic Safety and Licensing Boards (ASLB) decision in LBP-03-10.
BACKGROUND On February 7, 2000, the NRC Staff (Staff) issued to the Tennessee Valley Authority (TVA) a Notice of Violation and Proposed Imposition of Civil Penalty (NOV) in the amount of
$110,000. The NOV was premised upon TVAs non-selection of Mr. Gary Fiser, a former TVA employee, to a competitive position due, in part, to Mr. Fisers having engaged in protected activity, as proscribed by 10 C.F.R. § 50.7. Following TVAs continued denial of the violation, on May 4, 2001, the Staff issued an Order Imposing Civil Monetary Penalty. 66 Fed. Reg. 27,166 (May 16, 2001). On June 1, 2001, TVA requested a hearing on the enforcement order and on June 28, 2001, the Board granted TVAs hearing request. Evidentiary hearing sessions were held in
Chattanooga, Tennessee on April 23-26 and 30, 2002; May 1-3, and 6-9, 2002; June 11-14, and 17-20, 2002; and in Rockville, Maryland on September 9-13, 2002. The evidentiary record was closed on October 24, 2002. On June 26, 2003, in the Boards Initial Decision, the majority of the Board found in favor of the Staff that a violation of 10 C.F.R. § 50.7 occurred and sustained the penalty, in part. See Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 1; Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2 & 3), LBP-03-10, 57 NRC ,
slip op. at 2. On July 16, 2003, TVA petitioned for Commission review of the Boards Initial Decision in LBP-03-10 pursuant to 10 C.F.R. § 2.786(b), to which the Staff now responds.
ARGUMENT TVAs Petition alleges that the Boards Initial Decision, makes findings of material fact that are clearly erroneous; makes necessary legal conclusions which are without governing precedent and which are contrary to established law; and raises substantial and important questions of law, policy, and discretion. TVAs Petition at 1. The Staff does not support TVAs characterization of the initial decision as factually erroneous or without governing precedent, nor its attempts to rewrite the record. Rather, the Staff believes that the Boards findings are clearly supported by the evidence and precedents before it.
In taking the underlying enforcement action, the NRC Staff applied its longstanding interpretation of the regulations. Nevertheless, this case represents the first adjudication of these regulations and involves substantial and important questions of law, policy and discretion --
particularly with respect to the scope of protected activities , the standard to be applied in determining whether prohibited discrimination occurred, the applicability of 10 C.F.R. § 50.9 to a discrimination case in which the Staff has proven that all reasons articulated by the licensee are false, and the standards to be applied by a Licensing Board in mitigating a civil penalty in a discrimination case, . According, the Staff would not object to Commission review of LBP-03-10.
See 10 C.F.R. § 2.786(b)(4)(iii).
The Staff would note, however, that all the issues, other than the standards applicable to civil penalty mitigation, have been adequately addressed in the record. Both parties have already filed pre-trial legal briefs and proposed findings and responses to proposed findings which more than adequately address any issues which TVA now wishes the Commission to revisit.
CONCLUSION For the foregoing reasons, the Staff does not believe that Commission review of the Boards Initial Decision in LBP-03-10 is necessary but would not object to such review.
Respectfully submitted,
/RA/
Dennis C. Dambly Counsel for NRC Staff Dated at Rockville, Maryland this 25th day of July, 2003
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
) Docket Nos. 50-390-CivP; 50-327-CivP; TENNESSEE VALLEY AUTHORITY ) 50-328-CivP; 50-259-CivP;
) 50-260-CivP; 50-296-CivP (Watts Bar Nuclear Plant, Unit 1; )
Sequoyah Nuclear Plant, Units 1 & 2 ) ASLBP No. 01-791-01-CivP Browns Ferry Nuclear Plant, Units 1, 2, 3) )
) EA 99-234 CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS RESPONSE TO TENNESSEE VALLEY AUTHORITYS PETITION FOR REVIEW OF INITIAL DECISION IN LBP-03-010 in the above-captioned proceeding have been served on the following by deposit in the United States mail; through deposit in the Nuclear Regulatory Commissions internal system as indicated by an asterisk
(*), or by electronic mail as indicated by a double asterisk (**) on this 25th day of July, 2003.
Administrative Judge ** Administrative Judge **
Charles Bechhoefer, Chairman Richard F. Cole U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge ** Office of the Secretary
- Ann Marshall Young ATTN: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Mail Stop: T-3F23 Washington, D.C. 20555 Washington, D.C. 20555 Office of Commission Appellate Adjudication Thomas F. Fine ** U.S. Nuclear Regulatory Commission Brent R. Marquand ** Mail Stop: O-16C1 John E. Slater ** Washington, D.C. 20555 Barbara S. Maxwell **
Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37901-1401
/RA/
Dennis C. Dambly Counsel for NRC Staff