ML050820287
| ML050820287 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 03/18/2005 |
| From: | Daniel Shapiro ShawPittman, LLP |
| To: | Diaz N, Jaczko G, Peter B. Lyons, Mcgaffigan E, Merrifield J NRC/Chairman, NRC/OCM |
| References | |
| 1-2004-040, G20050200, LTR-05-0151 | |
| Download: ML050820287 (10) | |
Text
EDO Principal Correspondence Control FROM: DUE: 03/25/05 EDO CONTROL: G20050200 DOC DT: 03/18/05 FINAL REPLY:
Daryl M. Shapiro ShawPittman LLP Commission FOR SIGNATURE OF ** GRN ** CRC NO: 05-0151 Reyes, EDO DESC: ROUTING:
Request for Reconsideration of the NRC Staff's Reyes Denial of Entergy Nuclear Operations, Inc.'s Virgilio Request for a Copy of OI Report No. 1-2004-040 Kane Prior to an April 8, 2005 Predecisional Merschoff Enforcement Conference Silber Dean DATE: 03/22/05 Burns Caputo, OI ASSIGNED TO: CONTACT: Collins, RI Travers, RII OE Congel Cyr, OGC SPECIAL INSTRUCTIONS OR REMARKS:
Commission to review prior to dispatch, add Commission on for concurrence. Note: response time is half since Enforcement Conference is April 8, 2005.
OFFICE OF TIHE SECRETARY CORRESPONDENCE CONTROL TICKET Date Printed:Afar 22, 2005 14:57 PAPER NUMBER: R--0 1,4 LOGGING DATE: 03/2212005 ACTION OFFICE: EDO AUTHOR: Daryl Shapiro AFFILIATION: SHAWPI1T ADDRESSEE: Nils Diaz
SUBJECT:
Request for reconsideration of the NRC staffs denial of Entergy Nuclear Operations, Inc.'s req for a copy of 01's Report No. 1-2004-040 prior to an April 8, 2005 predecisonal enforcement conference ACTION: Signature of EDO DISTRIBUTION: RF...OGC...05-0151 LETTER DATE: 03/18/2005 ACKNOWLEDGED No SPECIAL HANDLING: Made publicly available in ADAMS via SECY/EDOIDPC NOTES: Commission to review prior to dispatch....NOTE response time is half since Enforcement Conference is April 8th FILE LOCATION: ADAMS DATE DUE: 03/W/2005 DATE SIGNED:
EDO -- G20050200
ShawPittmanuLLp A Limited Liability PartnershipIncluding Professional Corporations DARYL M. SIIAPIRO 202.663.8507 darylshapiro~shawpittman.com March 18, 2005 Chairman Nils J. Diaz Commissioner Edward McGaffigan, Jr.
Commissioner Jeffrey S. Merrifield Commissioner Gregory B. Jaczko Commissioner Peter B. Lyons United States Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Washington, DC 20555-0001 Re: Request for Reconsideration of the NRC Staff's Denial of Entergy Nuclear Operations, Inc.'s Request for a Copy of Office of Investigations Report No. 1-2004-040 Prior to an April 8, 2005 Predecisional Enforcement Conference
Dear Commissioners:
Entergy Nuclear Operations, Inc. ("ENO") respectfully requests that the Commission direct the NRC Staff to provide ENO with a copy of NRC Office of Investigations ("O0") Report Case No. 1-2004-040 prior to a scheduled April 8, 2005 Predecisional Enforcement Conference ("PEC") based on the findings and conclusions contained in the OI report. ENO has requested this report from the NRC Staff, and this request has been denied. The NRC Staffs denial is inconsistent with the stated purpose of a PEC, which is to ensure that the NRC Staff has a complete understanding of the facts before making an enforcement decision. Without access to the OI report, ENO is denied a meaningful opportunity to address any inaccuracies or misunderstandings contained in the 01 report that could result in the NRC Staff issuing an unwarranted enforcement Washington, DC Northern Virginia New York Los Angeles 2300 N Street, NW Washington, DC 20037-1128 202.663.8000 Fax: 202.663.8007 www.shawpittman.com London
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ShawPittman LLP it The Commissioners March 18, 2005 Page 2 action. Therefore, immediate Commission intervention directing the NRC Staff to provide to ENO a copy of the 01 report is necessary.
I. FACTUAL AND REGULATORY BACKGROUND
- 1. Factual Background The NRC Staff recently informed ENO and an ENO employee that they will be receiving a letter offering the opportunity to attend a PEC relating to a June 28-29, 2004 incident at the Pilgrim Nuclear Power Station ("PNPS"). This incident involved a former PNPS control room supervisor ("CRS") falling asleep while on duty in the control room and a former PNPS licensed reactor operator filming the CRS while asleep and failing to awaken the CRS. The 01 conducted an investigation into the facts and circumstances surrounding this incident, and its analysis and conclusions form the basis of the "apparent violations" that the NRC Staff will discuss with ENO and its employee at the April 8, 2005 PEC.
On February 23, 2005, PNPS requested from the NRC Staff a copy of the 01 report relating to the control room incident. On March 8, 2005, the NRC Staff rejected ENO's request and stated that ENO would instead receive "a synopsis" of the 01 report as an attachment to a forthcoming correspondence relating to the enforcement conference.
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The Commissioners March 18, 2005 Page 3
- 2. Regulatorv Background The NRC Staff is well aware of stakeholders' concerns about OI reports. For many years the NRC Staff refused all requests for OI reports prior to PECs, instead providing only the two or three sentence "synopsis" contained in the 01 report. Yielding to stakeholder concerns, the NRC Staff changed its practice in the late 1990s and began providing, prior to the PEC, a more detailed summary of the OI report that the NRC Staff viewed as forming the basis for its belief that apparent violations of NRC requirements occurred. At the same time, the NRC Staff continued to deny requests for 01 reports by PEC participants. This change in the NRC Staff's practice proved unsatisfactory because stakeholders were never confident that all the information contained in the 01 report that either formed or could form the basis for a NRC enforcement decision was contained in the summaries.
Most recently, as part of the NRC's review of its process for handling discrimination complaints, the NRC Staff revisited the issue of whether to provide PEC participants with a copy of the underlying 01 report in advance of the PEC. Commenters to the Discrimination Task Group ("DTG") expressed overwhelming support for the release of the OI report prior to a PEC.' A fair reading of these comments reveals that
'See SECY-02-0166, Policy Options and Recommendations for Revising the NRC's Process for Handling Discrimination Issues, Attachment I at 58-61 (Sept. 12, 2002) ("DTG Final Report").
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The Commissioners March 18, 2005 Page 4 the comments applied to all PECs that result from an OI report, not just discrimination PECs. Indeed, the DTG specifically addressed who should and should not receive a copy of the OI report prior to the PEC in the non-discrimination context. 2 Both the DTG and the Senior Management Review Team ("SMRT") 3 recommended that OI reports be released prior to PECs. 4 The Commission approved of the DTG and SMRT recommendations to provide a copy of the underlying OI report to PEC participants. The Commission's SRM approving the recommendation did not appear to limit its application to discrimination PECs.5 Nevertheless, the NRC Staff presently takes the view that the DTG and SMRT recommendations apply only to discrimination cases. Similarly, the NRC Staff interprets the Commission's SRM as applying only to discrimination PECs and refuses to provide OI reports to PEC participants in nondiscrimination PECs.
2 See "Draft Review and Preliminary Recommendations for Improving the NRC's Process for Handling Discrimination Complaints" at 31 (April 2001) ("DTG Draft Report").
3 The Executive Director for Operations established the SMRT "to review the [DTG] final report and provide any additional perspectives that could enhance the potential options for Commission consideration." Secy-02-0166, Attachment 2 at 1.
4SECY-02-0166, Attachment 2 at 6.
5 See "Staff Requirements - SECY-02-0 166 - Policy Options and Recommendations for Revising the NRC's Process for Handling Discrimination Issues" (Mar. 26, 2003) at 2 ("SRM").
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The Commissioners March 18, 2005 Page 5 II. REVIEW OF THE 01 REPORT PRIOR TO THE PEC IS NECESSARY TO FULFILL THE STATED PURPOSE OF THE PEC The PEC provides an early, relatively inexpensive, and efficient process for licensees and individuals to ensure that the NRC Staff makes a fair and informed enforcement decision based on a full understanding of all the relevant facts. Providing the 01 report to PEC participants is essential to this process.
The NRC Staff's refusal to release the OI report prior to a PEC stands in stark contrast to the stated purpose of the PEC as set forth in NRC's Enforcement Policy.
Specifically, the NRC aims to develop through the PEC process, (1) a common understandingof thefacts, root causes, and missed opportunities associated with the apparent violations; (2) a common understanding of corrective actions taken or planned; and (3) a common understanding of the significance of issues and the need for lasting comprehensive corrective action. 6 Indeed, withholding 01 reports from PEC participants handicaps the NRC Staff in fulfilling the purpose of a PEC. To even attempt to develop a "common understanding" of the factual basis supporting an apparent violation, both the NRC and the PEC participants must be able to fully evaluate all relevant information. Both sides should understand which aspects of their respective views of the facts are aligned, and which are 6 Enforcement Policy at 13 (emphasis added).
ShawPittman LLP The Commissioners March 18, 2005 Page 6 not. Withholding the OI report, usually the principal manner in which the NRC Staff understands the facts, serves only to hide from PEC participants both the similarities and differences in the NRC Staff's view of the facts. Indeed, as it stands, the PEC is not a forum where the NRC and participants might reach common understandings, but rather only an opportunity for the NRC to determine - for itself alone - whether the participant's assessment of the facts and evidence matches up with its own. This hardly amounts to a "common understanding."
The only real opportunity to address issues raised by the 01 report is at the PEC.
While parties to a hearing adjudicating the appropriateness of an NRC enforcement action can obtain the 01 report through discovery, licensees rarely request a hearing on a NRC enforcement order due to a desire to avoid disputes with the regulatory agency and a desire to move past the underlying enforcement issue. Moreover, individuals rarely request a hearing on an enforcement order because of the time and expense involved in such a challenge.
An oft-stated reason for withholding the OI report is that its release could undermine the NRC's investigatory process, so that the "PEC will likely become a venue to question the strengths and weaknesses of the evidence rather than a forum for the licensee to focus on the issues" thus preventing "[o]ther matters of significant interest to the staff, e.g., safety-conscious work environments, etc.," from surfacing during the
ShawPittrnanLP up The Commissioners March 18, 2005 Page 7 PEC.7 These concerns are misplaced. Addressing deficiencies or inaccuracies in the 01 report does not preclude discussion of other issues deemed significant by the NRC Staff.
Rather, it levels the playing field. The NRC Staff retains the full opportunity to explore at the PEC any issue it deems important, while licensees or individuals have the opportunity to address deficiencies or inaccuracies contained in OI reports. Moreover, the NRC has a compelling interest in ensuring that a sufficient basis for a violation exists before issuing an enforcement action. Since the underlying OI.report is often the primary basis for the NRC Staff's enforcement decision, providing licensees and individuals with a copy of the underlying OI report prior to the PEC enables licensees and individuals the opportunity to address the NRC's basis. Therefore, both the stated purpose of the PEC and sound public policy require that the NRC Staff provide a copy of the OI report to licensees and individuals prior to the PEC.8 The NRC Staffs unnecessarily narrow view overlooks the fact that all PECs serve the same purpose: to provide a unique and highly effective means for the NRC to make 7 DTG Draft Report at 31; see also SECY-02-0166, Attachment I at 59 (Sept. 12, 2002).
8 Any privacy issues, which have also been a stated area of concern, can be overcome by redacting private information from the 01 report.
ShawPittman LLP The Commissioners March 18, 2005 Page 8 enforcement decisions based on a complete understanding of facts and evidence. 9 There exists no reason to distinguish between discrimination and nondiscrimination PECs.
For the foregoing reasons, ENO respectfully requests that the Commission direct the NRC Staff to provide ENO with a copy of 01 Report No. 1-2004-040 as soon as possible in order that ENO and its employee may sufficiently prepare for the April 8, 2005 PEC.
Sincerely, Daryl M. Shapiro cc: Roger Davis, Legal Assistant, Office of Chairman Nils J. Diaz, NRC Bradley Jones, Legal Assistant, Office of Commissioner Edward McGaffigan, Jr., NRC Katherine Barber Nolan, Legal Assistant, Office of Commissioner Jeffrey S. Merrifield, NRC Angela Coggins, Legal Assistant, Office of Commissioner Gregory B. Jaczko, NRC Katherine Marco, Legal Assistant, Office of Commissioner Peter B. Lyons, NRC Karen Cyr, General Counsel, NRC John F. Cordes, Jr., Solicitor, NRC Guy P. Caputo, Director, Office of Investigation, NRC Frank J. Congel, Director, Office of Enforcement, NRC Dr. William D. Travers, Regional Administrator for Region II, NRC Samuel Collins, Regional Administrator for Region I, NRC 9No difference exists (nor has the NRC Staff identified one) between discrimination and non-discrimination 01 Reports.