ML20164A042
| ML20164A042 | |
| Person / Time | |
|---|---|
| Site: | Watts Bar  |
| Issue date: | 06/12/2020 |
| From: | George Wilson NRC/OE |
| To: | Rausch C Tennessee Valley Authority |
| Hilton N | |
| References | |
| 2-2016-042, EA-19-092, LTR-20-0208-1-OE | |
| Download: ML20164A042 (5) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 June 12, 2020 EA-19-092 Timothy S. Rausch, Chief Nuclear Officer Tennessee Valley Authority 1101 Market Street Chattanooga, Tennessee 37402
SUBJECT:
RESPONSE TO TENNESSEE VALLEY AUTHORITY LETTER DATED MAY 29, 2020, REGARDING THE NRC ENFORCEMENT CASE ASSOCIATED WITH NRC OFFICE OF INVESTIGATIONS (OI) REPORT 2-2016-042
Dear Mr. Rausch:
I am writing in response to your letter to Margaret Doane, NRC Executive Director of Operations (EDO), dated May 29, 2020, regarding the NRC enforcement case associated with NRC Office of Investigations (OI) Report 2-2016-042. In your May 29 letter, you requested that the NRC respond to TVAs April 3 offer to toll the statute of limitations and agree to engage in Alternative Dispute Resolution (ADR) with TVA to address some or all of the violations,1 or, alternatively, to conduct an in-person predecisional enforcement conference (PEC) with TVA, in which TVA would be given three days to present its position and would receive a two-week time extension from the currently scheduled PEC date of July 22, 2020 to allow for additional preparation.
Before addressing your request, I would like to provide some background and context for the discussion. On March 9, 2020, the NRC issued a letter to TVA which identified 12 apparent violations (AVs) and offered TVA the opportunity to respond to the AVs in writing or to attend a PEC. The letter also informed TVA that PECs would be held beginning the week of May 18, 2020. On March 29, TVA informed the NRC of its intent to proceed with a PEC.
On April 3, 2020, in the letter to the EDO that is referenced in your May 29 letter, TVA asked the NRC to suspend the schedule for the PECs until a parallel investigation by the U.S. Department of Justice (DOJ) was competed or until June 1, 2020, whichever was later. The primary reasons for this request were that the then-pending DOJ investigation and the restrictions on travel imposed in response to the COVID-19 pandemic impeded TVAs ability to effectively prepare for a PEC.2 In the context of this request, TVA stated that it was willing to consent to tolling the statute of limitations on enforcement for a reasonable period.
On April 17, 2020, Marcia Simon, the NRCs designated point of contact for this case, responded to the April 3 letter and TVAs request to delay the PEC. The response explained 1 TVA suggested that, if necessary, ADR could be followed by a narrowed predecisional enforcement conference (PEC) to address any unresolved issues.
2 In the April 3 letter, TVA also stated that the NRCs refusal to provide the OI Report or interview transcripts was an additional limitation on TVAs ability to prepare for a PEC.
that the NRC had decided to delay the start dates for the PECs to the week of June 29, 2020, because of the open (at that time) DOJ investigation and the constraints related to the COVID-19 pandemic. The response also informed TVA that, consistent with the staffs practice as stated in Section 1.1.18 the NRC Enforcement Manual, the staff would not be providing the OI Report or individual transcripts to TVA at that time.
Subsequently, on May 1, 2020, Ms. Simon informed TVA counsel by email that there was no longer an open DOJ investigation and that, in light of continuing uncertainties and safety concerns associated with COVID-19, the NRC staff had decided to conduct PECs by videoconference. The May 1 email also informed TVA that PECs would be held over a three-week period beginning July 6, 2020, and requested that TVA provide information on its availability during that time period. After receiving TVAs response, TVA was notified on May 26, 2020, that its PEC was scheduled for July 22, 2020.
Through the communications described above, which delayed TVAs PEC until July 22, 2020, the NRC responded to, and effectively granted, the action TVA requested in its April 3 letter.
The NRCs response did not require discussion of TVAs offer to toll the statute of limitations.
TVA has now renewed that offer in asking the NRC to forgo an initial PEC and address some or all of the AVs through ADR, or, alternatively, to grant TVAs request for an in-person, three-day PEC and a two-week extension of time.
TVA Request for ADR The NRC staff is not willing to grant TVAs request for ADR prior to, or in lieu of, a PEC. As part of its normal escalated enforcement process, the NRC considered whether to offer ADR in addition to the offers of a PEC or a written response to the apparent violations. The NRC recognizes the potential benefits of ADR, such as expediting the resolution of issues and avoiding subsequent hearings if enforcement actions are taken. However, the NRC must balance such benefits with other considerations, such as whether agency interests and the public interest would be addressed more effectively through traditional enforcement. In this case, the NRC decided, after careful consideration, that the interests of the agency and the public would be better served by obtaining additional facts through a PEC or a written response rather than offering ADR at the outset. The staff believes such information would be beneficial and would assist the staff in making the appropriate enforcement decision for all stakeholders.
Your May 29 letter quotes from Section 1.2 of the NRC Enforcement Manual, Part II, as a basis for supporting the use of ADR, and states that, for this reason, TVA asked the NRC to consider ADR, but its request was denied.3 As stated in the NRC Enforcement Policy (Section 2.4.3),
ADR is voluntary for all parties, including the NRC. In addition, the Enforcement Policy states that [i]n some circumstances, it may not be appropriate for the NRC to engage in ADR. Such circumstances include cases where the DOJ has substantial involvement or other particularly egregious cases in which the public interest is not served by engaging in ADR. The NRC staff believes that this case falls within the latter category based on, among other things, the prior 3 The May 29 letter represents TVAs first official request for ADR. When TVA counsel contacted Ms.
Simon to discuss the possibility of ADR on May 4, 2020, TVA counsel stated in an email that TVA was evaluating whether to ask the NRC to consider ADR for a few of its apparent violations. In the same email, TVA counsel explained that TVA was still evaluating this approach, that TVA wanted to find out if the NRC would consider ADR before evaluating this approach further, and that, therefore, it was not an official proposal or request.
substantial involvement of DOJ and the apparent extent of TVAs senior management involvement in the AVs.
For the reasons stated above, the NRC staff will not offer ADR prior to the PEC. However, the NRCs enforcement process also contemplates offering ADR at later points in the process, such as when enforcement actions are issued. The staffs decision not to engage in ADR at this point does not mean it will not consider engaging in ADR following the issuance of any enforcement action.
TVA Request for an In-Person PEC The NRC staff denies TVAs request for an in-person PEC. Although the staff acknowledges and shares TVAs preference for an in-person PEC, the staff has concluded that an in-person meeting is not possible for the foreseeable future given the uncertainties surrounding the COVID-19 public health emergency.4 In making this decision, the staff had to consider the situations of participants in all escalated enforcement cases with the agency, not just this case.
It is not possible to predict the conditions and status of each part of the country with respect to COVID-19 restrictions going forward, nor is it possible to ascertain every individuals health restrictions. Accordingly, the only fair and equitable option available, to ensure that everyone is treated the same, is to hold remote PECs. The NRC believes that remote PECs using videoconferencing strike an appropriate balance under the circumstances and reflects similar measures that Federal courts (including the Supreme Court) and Atomic Safety and Licensing Boards have used to conduct more formal proceedings during this unique time. A remote PEC will provide TVA with a sufficient opportunity to achieve the objectives of a PEC: to discuss the apparent violation(s) and the circumstances involved, to provide its perspectives on the issues, and to present any other information that is relevant to the NRC's enforcement determinations.
Although your May 29 letter suggests that conducting PECs by video does not allow for assessments of witness credibility, a PEC is not a hearing. Therefore, whether held in-person or remotely, the NRC would not expect a licensee to present witnesses at a PEC. And although your letter suggests that a videoconference would not allow for candid discussions, the NRC expects licensees to be candid in all discussions, no matter what the medium, and the staff does not see why a videoconference would inhibit TVAs ability to do so.
TVA Request for Timing and Length of the PEC Finally, the NRC has considered TVAs expressed concerns about having only a single day to present its position and agrees that, given the number of apparent violations, one day may be insufficient. Therefore, to ensure that TVA has ample time to address the violations, the NRC will extend the length of the PEC to allow up to three full days for presentations and discussion.
However, the NRC is not willing to extend the PEC date by two weeks, given that TVA will have already had 4 1/2 months (March 9 to July 22) to prepare. As outlined at the beginning of this letter, the staff believes it has been reasonable and accommodating with respect to TVAs 4 Your May 29 letter mentions that TVA is preparing for another PEC in a separate enforcement case.
That PEC will also be held remotely by videoconference. The reasons for conducting that PEC remotely, and for declining an in-person PEC at NRC headquarters or at a neutral location, such as a hotel conference room, were discussed with TVA and its counsel on April 30, 2020. Those reasons apply equally to the PEC in this case.
request to delay its PEC. A PEC is normally held 30 to 45 days after issuing a choice letter. In this case, TVAs PEC will be held 135 days after the date of issuance of its choice letter.
TVA Request for Information Finally, in its May 29 letter, TVA again cited the NRCs refusal to provide the OI Report as a challenge to its ability to prepare for a PEC. In denying access to the OI Report at this point in the process (i.e., prior to issuing any enforcement actions), the NRC staff is following Commission direction and its established policies and practices.5 Conclusion In conclusion, the NRC denies TVAs requests to engage in ADR with TVA prior to or in lieu of a PEC, to conduct an in-person PEC, and to reschedule the PEC to allow TVA two additional weeks to prepare. The NRC will, however, provide up to three full days for the PEC. Therefore, TVAs PEC will be scheduled for July 22 through 24, 2020, from 8 a.m. until 5 p.m. each day.
Based on the above decisions, there is no need to discuss tolling the statute of limitations at this point.
Sincerely, George A. Wilson, Director Office of Enforcement 5 See Policy Options and Recommendations for the Release of Reports Prepared by the Office of Investigations, Commission Paper SECY-05-0213 (Nov. 17, 2005) (ADAMS Accession No. ML060050271); Staff Requirements - SECY-05-0213 - Policy Options and Recommendations for the Release of Reports Prepared by the Office of Investigations, SRM-SECY-05-0213 (Jan. 5, 2006)
(ML060060088); and NRC Enforcement Manual, Part II, Section 1.1.18 (ML19274C228).
George A.
Wilson Digitally signed by George A.
Wilson Date: 2020.06.12 15:20:51 -04'00'
SUBJECT:
RESPONSE TO TENNESSEE VALLEY AUTHORITY LETTER DATED MAY 29, 2020, REGARDING THE NRC ENFORCEMENT CASE ASSOCIATED WITH NRC OFFICE OF INVESTIGATIONS (OI) REPORT 2-2016-042 DATED: 6/12/2020 DISTRIBUTION:
M. Doane, EDO D. Dorman, EDO D. Roberts, EDO L. Dudes, RII S. Sparks, RII K. OBrien, RIII G. M. Simon, OGC M. Lemoncelli, OGC Gulla, OE N. Hilton, OE RidsEdoMailCenter RidsSecyMailCenter Enf Coord.
OE r/f Publicly Available ADAMS Accession Number: ML20164A042
MSimon/NLO*
GWilson DATE 6/5/2020 6/12/2020 6/11/2020 6/12/2020 OFFICIAL RECORD COPY