ML20115E835
| ML20115E835 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 07/08/1996 |
| From: | Machon R TENNESSEE VALLEY AUTHORITY |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| NUDOCS 9607160251 | |
| Download: ML20115E835 (4) | |
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nn Tennussoe VMev Authority, Post Offce Box 2000. Decatur, Alaterna 3' Jo9-2000 d
July 8, 1996 R. D. (Rick) Machon Vice President Browns Feny Nuclear Plant U.S.
Nuclear Regulatory Commission ATTN:
Document Control Desk Washington, D.C.
Gentlemen:
In the Matter of
)
Docket No. 50-260 Tennessee Valley Authority
)
BROWNS FERRY NUCLEAR PLANT (BFN) - UPCOMING PREDECISIONAL ENFORCEMENT CONFERENCE BFN UNIT 2 As you are aware, TVA is scheduled for an enforcement conference on July 11, 1996, to discuss the events surrounding the BFN Unit 2 reactor core isolation cooling (RCIC) system response on May 10, 1996.
If, as a result of that conference, it should become necessary to consider how the commission's enforcement policy should be applied to that situation, we request that you consider how the particular circumstances present here can best be taken into account to realize that policy's intent.
We believe that the recent changes to the enforcement policy were designed to focus on recent licensee performance, as reflected, in part, by escalated enforcement history during the approximately two-year period prior to the event of current interest.
Implementation of that Commission policy in this case can best be realized if, for the reasons discussed below, BFN is considered not to have had an escalated enforcement action in the prior two years.
Section VI.B.2 of the enforcement policy implements the Commission'.s desire to focus on licensee's performance during the two years prior to a recent event.
This section clearly shows the Commission's concern with current performance by providing that "the starting point of this period should be considered the date when the licensee was put on notice of the I
need to take corrective action."
Section VI.B.2.b also provides that the identification factor "should normally be C) censidered" if during the last two years at least one other g7 9607160251 960708 PDR ADOCK 05000260 RQ PDR
U.
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Nuclear Regulatory Commission Page 2 July 8, 1996 escalated action has been issued.
In most cases these provisions are consistent because the NRC generally takes escalated enforcement action well within a period of two years from the time that a licensee is put on notice of the need to take corrective action.
However, some cases which involve claims of harassment and intimidation under 10 CFR 50.7 do not fall within the Commission's expectations as described in Section VI.B.2 of the enforcement policy.
For such cases in which the Department of Labor (DOL) conducts adjudicatory proceedings and appeals, the length of time between the discovery of the precipitating event and the issuance of any enforcement action is unusually long.
As a result, an escalated enforcement action could be issued by the NRC more than two years after the occurrence of the precipitating behavior.
In cases where the NRC has issued an escalated enforcement action substantially more than two years after alleged actions have been adjudicated before the DOL, the Commission's policy of focusing on licensee performance over the past two years would not be implemented if that escalated enforcement action was considered for the purposes of applying the enforcement policy.
Such a delay between the precipitating event and a final NRC enforcement action due to the intervention of a lengthy DOL proceeding was not the normal process considered by the Commission when it strengthened the link between the event and corrective actions.
Therefore, in accordance with the enforcement policy's explicit discretion to consider the abnormal, where an intervening DOL proceeding has delayed the time between the precipitating event and the escalated enforcement action to a period significantly longer than two years, it would be inconsistent with the Commission's focus on recent licensee performance to consider that escalated enforcement action for the purposes of applying the enforcement policy.
These principles apply to the current enforcement proceeding involving the recent RCIC performance at BFN Unit 2.
BFN has had no escalated enforcement action taken against it in areas related to RCIC's performance for over three years.
BFN has, however, recently received an escalated enforcement action for alleged discriminatory acts by one of its contractors more than three years ago.
Its consideration for the purposes of applying the enforcement policy would, therefore, be inconsistent with the Commission's focus on licensee performance during the prior two years.
- s t
i U.
S. Regulatory. Commission Page 3 July 8, 1996 The escalated enforcement action issued by the NRC in February j
1996 stemmed from a complaint that was filed with the DOL by a d
contractor's employee in March 1993. Significantly, that contractor complained of alleged discriminatory activities which he claimed occurred during late 1992 and early 1993.
By comparison, the~ subject RCIC event occurred in May 1996.
7 Therefore, substantially more than three years separates recent BFN performance and the alleged precipitating events l
that eventually resulted in the enforcement action related to 10 CFR 50.7.
i Several unusual factors accounted for the significant delay i
between the alleged discriminatory acts and the final enforcement action. In June 1993, the DOL Wage and Hour 4
Division found, by clear and convincing evidence, that no discrimination had occurred.
This finding was affirmed in i
November 1994 by a DOL Administrative Law Judge (ALJ) after an i
adjudicatory hearing.
Additional confirmation of this l
conclusion was provided by two independent inquiries, one in June 1994 by the TVA Office of the. Inspector. General and a second in May 1995 by the NRC's Office of Investigations.. NRC
.has acknowledged that enforcement action would not'have been j
taken in that case but for the fact that the Secretary of l
Labor (SOL) overturned the ALJ's decision..
such an unusual chain of events was unlikely to have been considered by the Commission when it adopted the most recent changes to its enforcement policy.
The situation where NRC l
would be second-guessed by the SOL and forced to issue an enforcement action-for behavior that occurred several years in the past is not consistent with the Commission's focus on recent licensee behavior.
However, in recognition that such 1
unusual, abnormal circumstances might arise, the Commission l
l did explicitly provide for discretion by stating that i
application of the enforcement policy should "normally consider the factor of identification."
Consideration of that factor in an abnormal situation like the one presented here j
would be contrary to the Commission policy.
1 Finally, it must be pointed out that the SOL decision is currently on appeal to the United ~ States Court of Appeals for i
the Eleventh Circuit (Eleventh Circuit).
As such, the matter has not yet been fully adjudicated and its outcome is still pending.before a court of law.
Furthermore, if NRC were to consider'the recent escalated enforcement action in applying the enforcement policy in this case, and the Eleventh Circuit 1
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U.
S. Nuclear Regulatory Committion Page 4 July 8, 1996 determines that no discrimination took place, as earlier l
determined by NRC, any enforcement action in this case would certainly have to be reconsidered to the extent that such i
action took into account the escalated enforcement action for l
the alleged 10 CFR 50.7 violation.
1 For.all of these reasons, TVA respectfully requests that any i
escalated enforcement action applicable to the current matter focus on recent licensee behavior.
If there are any questions, please call me at (205) 729-3675.
1 Sincerely,
/
R.
D./ achon cc:
Mr. Mark S.
Lesser, Branch Chief Commission U.S. Nuclear Regulatory Region II 4
i.
101 Marietta Street, NW, Suite 2900 Atlanta, Georgia 30323 j
NRC Resident Inspector Browns Ferry Nuclear Plant 10833 Shaw Road j
Athens, Alabama 35611 Mr. J.
F. Williams, Project Manager j
U.S.
Nuclear Regulatory Commission i
One White Flint, North 11555 Rockville Pike Rockville, Maryland 20852 i
Mr. James Lieberman Director, Office of Enforcement U.S. Nuclear Regulatory Commission i
One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 i