ML20129F785
| ML20129F785 | |
| Person / Time | |
|---|---|
| Site: | Sequoyah  |
| Issue date: | 10/18/1996 |
| From: | Adney R TENNESSEE VALLEY AUTHORITY |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| RTR-NUREG-1600 EA-96-269, NUDOCS 9610290210 | |
| Download: ML20129F785 (4) | |
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Tennessee Valley Authority, Post Offre Box 2000. Soddy-Daisy, Tennessee 37379-2000 R.J. Adney Site Vice President Sequoyah Nuclear Plant October 18,1996 l
U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, D.C.
Gentlemen:
l In the Matter of
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Docket Nos. 50-327 Tennessee Valley Authority
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50-328 l
l SEQUOYAH NUCLEAR PLANT (SQN)- UPCOMING PREDECISIONAL ENFORCEMENT CONFERENCE -EA 96-269 The purpose of this letter is to address the application of a portion of the NRC's " General l
Statement of Policy and Procedure for NRC Enforcement Actions"(Enforcement Policy),
i NUREG-1600, prior to the subject predecisional enforcement conference scheduled to take place on October 24,1996. Specifically, this letter addresses recent changes to the enforcement policy which were designed to focus on recent licensee performance, as reflected, in part, by escalated enforcement history during the approximately two-year l
period prior to the event of current interest. If, as a result of this conference, it should l
become necessary to consider how the Enforcement Policy should be applied, we request that you consider how circumstances can best be taken into account to realize that policy's intent. We believe that the implementation of the Enforcement Policy in this case can best be realized if, for the reasons discussed below, SQN 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 a licensee's recent performance. Specifically, the civil penalty assessment process considers, among other things, "whether the licensee has had any previous escalated enforcement action during the past two years..."Section VI.B.2.b also provides that the identification factor "should normally be considered" if during the last two years at least one other escalated action has been issued. In most cases these provisions are applicable because the NRC generally takes escalated enforcement action well within a period of two years from the time of a violation or event.
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. U.S. Nuclear Regulatory Commission Page 2 October 18,1996 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 l
unusually long. As a result, escalated enforcement actions could be issued by the NRC l
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 aller alleged actions have been found to have occurred, 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 sought to focus on recent l
licensee performance. Therefore, in accordance with the Enforcement Policy's explicit I
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.
l These principles apply to the current enforcement proceeding concerning the recent performance of the SQN fire protection program. With the exception of the DOL-related actions described below, SQN has had no escalated enforcement action taken against it in areas related to fire protection performance or any other activity area for the last three and one-halfyears.
l On February 20,1996, the NRC notified TVA that based on the Secretary of Labor's decision in the DOL case involving Randolph Frady (92-ERA-19 and -34), the NRC found that a Severity Level II violation of NRC regulations occurred. However, Mr.
Frady filed his complaims with the DOL in August and September of 1991 and January of 1992, alleging that his non-selection for various jobs at Sequoyah and Watts Bar was discriminatory. Thus, the events which gave rise to escalated enforcement action in the Frady case occurred over four and one half years ago, and some over five years ago.'
On August 16,1996, and September 10,1996, the NRC requested that TVA provide information related to an apparent violation of NRC's regulations based on the result of an NRC Office ofInvestigations report and a DOL Administrative Law Judge'r In its letter of April 4,1996, the NRC notified TVA ofits decision to defer the issuance of orders imposing any civil penalty in this maner pending the outcome of TVA's appeal of the Secretary's decision to the U. S. Court of Appeals for the Sixth Circuit.
. U.S. Nuclear Regulatory Commission Page 3 October 18,1996 Recommended Decision and Order (94-ERA-24) in the case of William F. Jocher. While no determination of any violation of NRC regulations has been made to date, the matter l
could be decided and there is the potential for escalated enforcement action to be taken l
prior to the disposition of the subject enforcement action. However, in Mr. Jocher's l
complaint as well, the events in question occurred three and one-half years ago, well l
beyond the two-year window described in the Enforcement Policy. Consideration of this matter for the purposes of applying the enforcement policy would, therefore, also be inconsistent with the Commission's focus on licensee performance during the prior two years.
i 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.
However, in recognition that such unusual, abnormal circumstances might arise, the Commission did explicitly provide for discretion by stating in Section VII.B.6 that the l
NRC may reduce or refreia from issuing a civil penalty based on special circumstances and where application of the normal guidance in the policy is unwarranted. Clearly, a lock-step application of the two-year rule here would yield an unwarranted result inconsistent with the purpose and intent of the Enforcement Policy.
It must also be pointed out that should the U. S. Court of Appeals for the Sixth Circuit find in favor of TVA in the Frady case, and the Administrative Review Board find in favor of TVA in the Jocher case, any enforcement action in the subject case would j
certainly have to be reconsidered to the extent that such action took into account i
escalated enforcement actions for the alleged 10 CFR 50.7 violations.
l Finally, it is important that the NRC has recently recognized that DOL-related actions present unique circumstances which, if rigidly applied, would not serve the purpose of the Enforcement Policy. As you recall, on August 1,1996, NRC issued TVA a Level III violation for events = surrounding the response of TVA's Browns Ferry Unit 2 Reactor Core Isolation Cooling System following a reactor scram. In deciding not to impose a civil penahy, NRC discounted an escalated enforcement action which occurredjust six months prior to the escalated enforcement at hand. In doing so, the NRC acknowledged j
that the prior escalated enforcement involved events which occurred in 1993, and considered such fact as part ofits determination to exercise enforcement discretion under l
the above-mentioned Section VII.B.6.
To further consistency within the regulatory process, and for the other reasons expressed above, TVA respectfully requests that any escalated enforcement action applicable to the current matter focus on recent licensee behavior.
. U.S. Nuclear Regulatory Commission a
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October 18,1996 I
If there are any questions, please call me at (423) 843-7001.
Sincerely, Y
f R, J. Adney j.
Site Vice President j
Sequoyah Nuclear Plant cc:
Mr. Mark S. Lesser, Branch Chief Commission U.S. Nuclear Regulatory Commission
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Region II 101 Marietta Street, NW, Suite 2900 Atlanta, Georgia 30323 l
NRC Resident Inspector i
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Sequoyah Nuclear Plant 2600 Igoou Ferry Road Soddy-Daisy, Tennessee 37379-3642 Mr. R. W. Hernan, Project Manager I
U.S. Nuclear Regulatory Commission l
One White Flint, North l
11555 Rockville Pike Rockville, Maryland 20852 l
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Mr. James Lieberman Director, Office of Enforcement 1
U.S. Nuclear Regulatory Commission One White Flint, North 11555 Rockville Pike Rockville, Maryland 20852-2738 i
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