ML18122A101
| ML18122A101 | |
| Person / Time | |
|---|---|
| Issue date: | 05/31/2018 |
| From: | Harrison J NRC/OE |
| To: | |
| Meyd, Donald | |
| References | |
| NUREG/BR-0317 R02 | |
| Download: ML18122A101 (2) | |
Text
NUREG/BR-0317 Rev. 2 May 2018 Timeliness Goals The timely resolution of issues is one of the goals of the enforcement ADR program. Accordingly, the NRC expects timely progress of a case at each stage of the mediation process. In cases where the parties achieve settlement, the NRC expects to issue a CO within 90 calendar days of the date of the agencys letter offering the ADR option to the other party.
Additional Sources of Information More information about the NRCs ADR program is available from the following:
- Cornell University's Scheinman Institute on Conflict Resolution Toll-Free Number: (877) 733-9415
- The NRC's ADR Program Manager in the Office of Enforcement Toll-Free Number: (800) 368-5642 or (301) 287-9527
- The NRC enforcement ADR program on the agencys Web site at www.nrc.gov/about-nrc/
regulatory/enforcement/adr.html Mediation Location and Duration The parties usually hold the mediation at or near one of the NRCs offices. However, the parties may agree on any alternate location. Mediation sessions are usually no longer than 1 day. In some cases, the mediation may take longer with the mutual consent of the parties.
The NRC Mediation Team The responsible NRC senior manager (i.e., Office Director, Regional Administrator, or his or her designee) will serve as the principal negotiator for the NRC in cases that involve wrongdoing and technical issues.
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The Confirmatory Order A CO is a legally binding document that includes the terms of the AIP. The NRC will issue a CO only with the prior written consent of the other party and with a waiver of the right to a hearing. After the entity or the individual has completed the terms of the CO, the NRC will verify that the terms of the CO have been satisfied in a timely manner. Because the CO is legally binding, failing to comply with its terms exposes the entity or individual to additional enforcement action.
Although the substance of the mediation session remains confidential, the details of the settlement will normally be made public via a press release and the publication of the CO in the Federal Register.
Enforcement Alternative Dispute Resolution Program
The Program The U.S. Nuclear Regulatory Commissions (NRCs) enforcement alternative dispute resolution (ADR) program, formerly referred to as "post-investigation ADR," provides an amicable process for resolving enforcement matters. It is intended to produce more timely and effective outcomes for the NRC and an entity (e.g., an NRC licensee, certificate holder, or contractor of an NRC licensee or certificate holder) or an individual who is subject to an enforcement action, through mediation.
The NRC established the post-investigation ADR program in 2004. In 2015, the NRC expanded its scope to include certain types of enforcement cases that do not involve an investigation. Accordingly, the name of this program was changed from "post-investigation ADR" to "enforcement ADR."
Enforcement ADR includes two distinct case types:
(1) discrimination cases or other wrongdoing and, (2) nonwillful (traditional) enforcement cases with the potential for civil penalties (not including violations associated with findings assessed through the Reactor Oversight Process). For discrimination cases or other wrongdoing, mediation is used after the completion of an investigation by the NRC Office of Investigations.
As long as the enforcement matter is within the scope of the program, the NRC normally offers enforcement ADR at each of the following stages of the enforcement process: (1) before an initial enforcement action, (2) after the initial enforcement action is taken, typically upon issuance of a notice of violation, and (3) when a civil penalty is imposed but before a hearing request.
Mediation is an informal process in which a trained and experienced mediator works with the parties to help them reach a resolution. The parties are the NRC and the entity or individual in the mediation. The mediator focuses the attention of the parties on their needs and interests rather than on their stated positions. Mediation gives the parties an opportunity to discuss issues, clear up misunderstandings, identify creative ways to address issues, find areas of agreement, and resolve their dispute.
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The Program Administrator The NRC has a contract with the Cornell University Scheinman Institute on Conflict Resolution (Cornell) to serve as the program administrator for the enforcement ADR program. Cornell manages the logistics associated with enforcement ADR, including working with the parties to select a mediator from Cornells roster of mediators.
Cornell uses a network of independent and experienced mediators who help the parties find areas of agreement and settle their dispute.
The Mediator The mediator is an experienced neutral individual who is mutually selected by the parties. He or she has no stake in the outcome of the mediation or any power to make decisions that may bind either party. The role of the mediator is to facilitate communication between the parties and to provide an environment where the parties can address their differences. The mediator uses consensus-building skills and knowledge of negotiation to help the parties find ways to overcome any misunderstandings and find areas of agreement. The mediator does not act as legal counsel or provide legal advice. Each party should consult an attorney for legal advice as appropriate.
The Mediation Process Historically, most enforcement ADR mediations have occurred at the first stage of the enforcement process (i.e., before an initial enforcement action). In those cases, the NRC presents the entity or the individual with the opportunity to engage in mediation with the agency before it makes an enforcement decision. If the entity or tIe inEiviEVaM eMeDts "%3 $oSneMM XiMM IeMQ tIe /3$ anE tIe entitZ oS tIe inEiviEVaM KointMZ seMeDt a NeEiatoS "fteS selecting a NeEiatoS tIe QaSties in coordination with the mediator, set a date and place for the mediation. Typically, tIe NeEiatoS IoMEs a QSeNeEiation teMeDonfeSenDe XitI tIe QaSties to EisDVss Mogistics or any special needs.
During the mediation, the mediator will give the parties an opportunity to discuss their views on the issue.
Often, the mediator will meet privately with each party to develop a clear understanding of the partys perspective and explore and assess options. Although the mediator does not have any power to make decisions that may bind either party, he or she may ask questions intended to help the parties assess the merits of their positions, help them converse in a respectful atmosphere, and identify potential settlement options.
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Confidentiality Although the terms of an ADR settlement become publicly available through the issuance of the CO, with certain exceptions, the substance of the discussions during the mediation session is confidential. The mediator is prohibited from discussing the mediation proceedings, testifying on anyones behalf concerning the mediation, or submitting a report on the substance of the discussions.
Cost The NRC and the entity or individual, equally share the fees and travel expenses of the mediator and any meeting room fees. However, each party is responsible for its own expenses, such as travel, lodging, and legal representation.