ML042590234
| ML042590234 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 09/15/2004 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | |
| 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 04-830-01-R, RAS 8464 | |
| Download: ML042590234 (5) | |
Text
UNITED STATES OF AMERICA RAS 8464 NUCLEAR REGULATORY COMMISSION DOCKETED 09/15/04 ATOMIC SAFETY AND LICENSING BOARD SERVED 09/15/04 Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. Richard F. Cole Ann Marshall Young In the Matter of Docket Nos. 50-390-CivP; 50-327 CivP; 50-328-CivP; 50-259-CivP; TENNESSEE VALLEY AUTHORITY 50-260-CivP; 50-296-CivP (Watts Bar Nuclear Plant, Unit 1; ASLBP No. 04-830-01-R Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2 & 3) EA 99-234 September 15, 2004 Memorandum and Order (Requesting parties views on remand questions)
In our Initial Decision in this proceeding, LBP-03-10, 57 NRC 553 (2003), this Licensing Board, by majority vote, determined that the Tennessee Valley Authority (TVA) had violated 10 C.F.R. § 50.7 by discrminating against an employee, Mr. Gary Fiser, on account of his whistleblowing activities (i.e., his engagement in protected activities.) The Board imposed a civil penalty of $44,000 on TVA (reduced from the $110,000 initially sought by the Staff). Judge Young concurred in part and dissented in part, finding that the NRC Staff had not met its burden of proof to show discrimination against Mr. Fiser.
TVA appealed the Boards decision. In a Memorandum and Order dated August 18, 2004, CLI-04-24, 60 NRC __, the Commission affirmed the Boards decision in part, reversed it in part, and remanded the case to the Board for further proceedings. On September 14, 2004, this Board was established for purposes of these further proceedings. 69 Fed. Reg. ___ (___).
The Commission seeks further findings on the following questions (see CLI-04-24, 60 NRC at __ (slip op. at 55):
- 1. Whether eliminating certain protected activities from consideration (as set forth in CLI-04-24), 60 NRC at __ (slip op. at 25-47) but explicitly permitting several other protected activities relied on by the Board majority to be considered, requires modification or retraction of the Boards finding that protected activities were a contributing factor in TVAs unfavorable personnel actions regarding Mr. Fiser.
- 2. If the contributing factor finding stands, has TVA shown by clear and convincing evidence that it would have taken the same actions regarding Mr. Fiser regardless of his protected activities.
- 3. If the Board finds against TVA on both the contributing factor and clear and convincing evidence issues, whether and to what extent should the proposed civil penalty of
$110,000 be mitigated.
Parties should address these questions in writing by Friday, October 8, 2004. Parties shall provide explicit citations to the record for any asserted facts relied on in their briefs.
Responses shall be filed by close of business Friday, October 22, 2004.
On September 9, 2004, TVA filed a Motion for A Status Conference. It seeks additional briefing by TVA and the Staff concerning the additional proceedings called for by CLI-04-24. In seeking the parties views on the foregoing questions, the Board has in effect granted TVAs request. After receipt of the briefs, the Board will decide whether a telephonic conference is desirable.
For the Atomic Safety and Licensing Board
/RA/
Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Rockville, MD September 15, 2004
[Copies of this Memorandum and Order have been transmitted by e-mail to counsel of record.]
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
TENNESSEE VALLEY AUTHORITY ) Docket Nos. 50-390-CIVP,
) 50-327/328-CIVP and (Watts Bar Nuclear Plant, Unit 1; ) 50-259/260/296-CIVP Sequoyah Nuclear Plant, Units 1 & 2; and )
Browns Ferry Nuclear Plant, Units 1, 2 & 3) )
(Order Imposing Civil Monetary Penalty) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (REQUESTING PARTIES VIEWS ON REMAND QUESTIONS) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative Judge Adjudication Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Richard F. Cole Ann Marshall Young Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Jack R. Goldberg, Esq. Mark J. Burzynski, Manager Shelly D. Cole, Esq. Nuclear Licensing Office of the General Counsel Tennessee Valley Authority Mail Stop - O-15 D21 1101 Market Street U.S. Nuclear Regulatory Commission Chattanooga, TN 37402-2801 Washington, DC 20555-0001
2 Docket Nos. 50-390-CIVP 50-327/328-CIVP and 50-259/260/296-CIVP LB MEMORANDUM AND ORDER (REQUESTING PARTIES VIEWS ON REMAND QUESTIONS)
Thomas F. Fine, Esq.
Assistant General Counsel Brent R. Marquand, Esq.
Office of the General Counsel Tennessee Valley Authority 400 W. Summit Hill Drive Knoxville, TN 37902
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 15th day of September 2004