ML20247N791
| ML20247N791 | |
| Person / Time | |
|---|---|
| Issue date: | 12/12/1988 |
| From: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | Davis A, Ernst M, Russell W NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II), NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| Shared Package | |
| ML20247N685 | List: |
| References | |
| FOIA-89-108 EGM-88-10, NUDOCS 8904060325 | |
| Download: ML20247N791 (14) | |
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y UNITED STA~i ES NUCLEAR REGULATOhN COMMISSION
,j e WASHINGTON D. L. 20565
%,, $ 1 DEC 121988 EGM N-10 i
HEMORANDUM FOR: William T. Russell, Regional Administrator, RI Malcom L. Ernst, Acung Regional Administrator, RII A. Bert Davis, Regional Administrator, RIII I Robert D. Martin, regional Administrator, RIV John B. Martin, Reglonal Administrator, RV Thomas E. Morley, Director, NRR )
Hugh L. Thompson, Director, NHSS j James G. Partlow, Director, OSP j Larry J. Chandler, AGCE, 0GC FROM: Ja:nes Lieberman, Director .
Office of Enforcement ,
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SUBJECT:
NEMORANDUM 0F UNDERSTANDING BETWEEN NRC AND 00J j The enclosed Memorandum of Understanding between the NRC and the Department of Justice was recently signed. The purpose of this NOU as stated in Section I of <
the M00 is to provide for coordination of matters that could lead to both enforcement action by the NRC as well as criminal prosecution by D0J and to provide for the exchange of information.Section II of the MOU r.ddresses, among other things, the responsibilities of each agency.Section III addres;es
) areas of cooperation and is the substance of the M00.
Section III.A of the MOU describes 00J's responsibility to provide NRC with safety information.Section III.B describes responsibilities to notify D0J of suspected criminal violations. That section not only addresses NRC referrals dter an investigation is completed but also describes special circumstances where NRC is to notify 00J prior to a completed investigation. The Director of 01 has the respons,ibility to make notifications concerning referrals of suspected criminal violations and of investigations involving special circumstance;. j Section III.C of the NOU addresses coordination with 00J of NRC regulatory activities that may run parallel to or may affect D0J activities. Under this ,
section potential NRC actions are divided into three categories.
Category 1 (Section III.C.1) are those actions based on lack of reasonabie assurance where immediate action is required. Specifically, this is where NRC concludes that it " lacks reasonable assurance that activities authorized by a licensee are being conducted without endangering the health and safety of the public and NRC concludes that immediate action is required to protect the public health, safety, or interest." Under this cHegory, HRC will take those actions "necessary to abate the immediato problem." NRC is to notify 00J in udvance if time permits and, if not, as soon as possible after the action is taken. This category applies where time does not allow for reasonable consultation.
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i W itiple M dressees l Catecory 3 !Section III.C.3} are civil penalty actions. Prior to a civil l Jienalty Dased on Ohferred case or one involving "special circumstances", i 4RC will notify D0J of the contemplated action. NRC will defer initiation i Of the case until 005 concludes its criminal investigation or prosecution j- or cor,serds to the MC action. There is one exception provided pertaining to matters involving ctatutes of limitations.
Category E (Section III.C.2) are regt?atory actions not convered by Categories 1 or 3. This category provides for consultation and NRC is ,
required to take into accodnt the vibws and concerns of DDJ to the fullest !
' extent possible consistent with the regulatory action NRC beB eves is )
requirad.
If NRC goes forward on a case that 00J is still processing, NRC has agreed to seek a stay in any resu' ting hearing provided D0J is prepared to support the staff with appropriate effidavits and testimony. The Dih:ctor, OE, is the staff official responsible for coordination of regulatory activities with D0J, The Assistant GenGral Counsel for Enforcement also has coordination respontib111 ties.
- The responsibilities of each will need to be developed to avoid inconsistent or duplicative n'tification.
o Ser,tions III.E and F of the MOU address exchanges of information between the I agencies and NRC assistance to'000.Section III.D describes the time frames for consultation IJnder this section NRC is committed to notify D0J of contemplated civil enforcement action nrmally within 45 days of a referral to 1
'00J. 00J is required in turn to notify NRC of its preliminary position on criminal prosecution or investigation normally within 60 days of the referral.
ihe remainder of this memorandum provides guidance to implement the NRC responsibilities to achieve the 45 day co.nsultation provision. The offices ,
and regions will need to work closely together since it will take considerable i effort to have each 01 report reviewed by the various NRC offices and their !
views. coalesced into a recommendation on proposed action within the narrow '
time fra:ne.
When 01 issues a report of an investigation, a copy is sont with relevant correspondence to the requester (normally the Region), the appropriate program office, the Office of Enforcement and the Office of General Counsel. If immediate action is required af ter receiving the report, or if it appears at !
any time during the process, whether during an investigation or the staff's i review of it, such action is required, a conference call between these offices i should be promptly initiated to establish a course of action and initiate the ;
consultation process if time permits. If there does not eppear to be a i violation of NRC requirements or the need to issue an order because of a safety issue, OE will draft a memorandum within one week after receipt of the report f to indicate this and forward it to the Regional Administrator, Assistant General i Counsel for Enforcement, and the appropriate office directcr (NRR or NMSS) for 1 their views. When the findings of the 01 report indicate that a violation may have occurred or there is a need for an order to address a safety issue, a memorandum will be drafted within one week of receipt of the report requesting d review by OGC. 0GC should complete their review of the report normally within two weeks of receiving the request for review from OE and determine whether sufficient evidence exists for developing an enforcement action. j l
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. < q Nultiple Addressees A meeting will be scheduled between NRR/NMSS, OGC, and OE (with tne Region )
included by way of a-te13phnne conference) to discuss the findings of the OI i l report, the views of the vairious offices and the OGC recommendations. This i meeting should normally take place within four weeks of the receipt of the 01 report, or with'n one week of the completion of the OGC revier, whichever is i
sooner. The meeting should determine the general direction of the enforcement action, if any.
Within two weeks of that meeting, a tentative staff position should be )
established OE will consult with the Deputy EDO for Regicnal Operations, and '
the Director, OE will contact the Department of Justice to advise then of the NRC's contemplated enforcement action. This will enable D0J to advise us of whether our enforcement action will interfere with actions planned by their staff. j i
Euclosure 1 outlines the schedule discusser! above and provides milestones by l which each of the actions should be accomplished. !
I If you have any comments on this gujdance or the staff's responsibilities under ]
the MOU, please contact me. j A4H b^ )
James Lieberman, Director l Office uf Enforcement j l
Enclosures:
As stated i cc: J. Taylor, DEDRO J B, Hayes 01 1 D. Holody, RI )
G., Jenkins, RII 1 J. Grobe, RIII i G. Sanborn, RIV j A. Johnson, RV j B. Zalcman, OSP 1 i
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l" Enclosure 1 Hilestones for Followup on OI Investigative Reports Within 1 Week:*
OE makes initial determination of potential for enforcement action end, if so, requests an analysis by OGC OE makes cohtact with OGC, NRR/flMSS, and th~e Region to identify sbff members assigned Within 3 Weeks:
CGC determines whether thero is sufficient evidence to support enforcement action OE schedules a meeting between OE, 0GC, NRR/NMSS, and the Region Within 4 Weeks:
OE, OGC, and NRR/flMSS meet (with the Regional participator 3t y telephone) to discuss 01 report and views on enforcement action Within 6 Weeks: i OE resolves differences and Director, OE (or Deputy Director, in Director's absence) contacts tne Department of Justice to relate NRC contemplated enfertement action I
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- Times given refer to weeks since receipt of 01 report.
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MEMORANDUM OF UNDERSTANDING BEWEEN THE NUCLEAR REGULATORY COMMISSION z AND THE DEPARTMENT OF JUSTICE I .,
Purpose:
The Nuclear Regulatory Comission (NRC) and the Department of Justice (00J) !
enter into this agreement 1) to provide for coordination of matters that could lead both to enforcement action by the NRC as well as criminal prosecution by DOJ, and 2) to facilitate the exchange of information relating to matters within their respective jurisdictions. This agreement does not affet.t the procedures and responsibilities set forth in the April 23, 1979 Memorandum of Understanding between the TiRC and the Federal Sureau of Investigation
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regarding cooperation concerning threats, theft, or sabotage in the U.S.
nuclear industry. Similarly, this agreement dces not apply to those matters !
arising from internal investigations conducted by the NRC Office of Inspector and Auditor.
This tiemorandum of Understanding is not intended to, does not, and may not be relied upon to, create any rights or benefits, substantive or procedural, l-
! enforceable at law by a party to litigation with the United States. Nor are l
any limitations hereby placed on otherwise lawful litigative prerogatives of l D02.
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L II. Ba_ckground:
ilnder federal statutes, the NRC has the responsibility to protect the tsdiological health and safety of the public, the public interest, the common defense and cecurity, and the enviroraent (hereinafter collectively referred to as public health and safety), from hazards that might arise from the material L
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desigr.ed to fulfill these responsibilities by ensuring compliance with NRC requirements, cbtaining prompt correction of violations and adverse conditions l
affecting safety, encouraging improvement of licensee performance, and l
deterring future violations. In contrast, criminal prosecutions for willful violations of NRC requirements are the responsibility of the 00J. Such prosecutions provide ao additional toci to assure ccmpliance and to deter )
future violations. Therefore, it is useful and desirable fcr the NRC and the 00J to coordinate to the maximum practicable extent their different
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responsibilities.
Under the Atomic Energy Act of 1954, as amended, the NRC has t~ n e authority to conduct such investigations as it may deem necessary or proper to assist it in detennining whether enforcement or other regulatory action is required under the Act, or any regulations, licenses, or orders issued thereunder.
Enforcement actions within NRC authority include license revocations, suspensions and modifications, cease and desi~st orders, civil penalties, a M ,
notices of violation. The NRC has the authority to take such action as it deems necessary to protect the public health and safety, including the authority, when appropriate, to take imediate action.
The Department of Justice has the responsibility td determine whether to institute criminal prosecution for violations of all federal statutes, includint cne Atomic Energy Act of 1954, as amended. Such violations are
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typically developed and brought to the attention of D0J by law enforcement or investigative agencies, such as the Federal Bureau of Investigation, the Postal Inspection Service, and the various Treasury enforcement agencies. Similarly, ;
suspected criminal violations of the Atomic Energy Act, as amended, or Title i s
18 of the United States Code may be identified during the course of NRC investigations and referred to 00J for prosecutive determination, f Thus, both the NRC and DOJ have authority and resper,sibility to investigate and take action for certain violations that may arise out of tiie same factuel matters. Although each agency will carry out its statutory responsibilities independently, the agencies agree that the public health and safety would be '
enhar.ced by cooperation and timely consultation on proposed enforcement i
actions where both civil and criminal violations appear to exist, and by the timely exchange of information of trytaal interest. As an example, it may be ,
appropriate in some cases for the NRC to stay its hand pending a criminal i prosecution. Conversely, in other cases the public health and safety may require immediate NRC action that could impact a potential criminal prosecution. Both agencies recognize thct these enforcement decisions are inherently matters of judgment for each agency to decide for itself, with due regard, however, for the views of the other.
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III. Areas of Cooperation:
i A. D0J Notification to NRC of Information Concerning Public Health and Safety Should D0J 1 earn of or discover health or safety related information concerning a matter within the jurisdiction of the NRC, and not already reasonably known to the NRC, 00J shall corrrnunicate such information to the NRC ds soon as practicable, .unless such information is detemined by DOJ to be grand jury material-. Set Rule 6(e) of the Federal Rules of Criminal I Procedure.
j Should 00J, during orand jury proceedings, discover health or safety related )
information concerning a matter within the jurisdiction of the NRC, and not already reasonably known to the NRC, which may warrant imediate regulatory !
action to protect the public health and fafety, D0J promptly will feek a court order, pursuant to the inherent authority of the court to supervire the grand 1
jury, for disclosure of such information to the hRC for use in connection with I its safety enforcement responsibilities.
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l B. NRC,Notificati_on to D0J of Suspected Criminal Violations !
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If NRC learns of or develops information regarding suspect 2d criminal violations on matters not within the regulatory jurisdiction of the NRC, the NPC will provide the information regarding such suspected criminal violations to the appropriate investigative agency having jurisdiction over the roatter.
Should MC learn of or develop information regarding any suspected criminal violations, including Atomic Energy Act violatians, on matters within the regulatory jurisdiction of HRC, it will notify D0J in the following manner.
With respect to matters not involving special circumstances, as described below, the NRC's Director, Office of Investigations (01), will formally refer the matter to D0J for prosecutive determination if, on completion of its ;
investigation, the Director, 01, has determined that sufficient evidence has been developed to support a reasonable suspicion that a criminal violation has ,
occurred. Whenever asiy of the special circumstances listed below occurc, and the Director, 01, has a reasonable suspicion that a criminal violation has occurr+d, the Director of 0I will promptly notify the 001 of a matter involving such special circumstar:ce(s), notwithstanding the fact that an investigation has not yet been completed by NRC. The special circumstances involve:
(1) a matter where death or serious bodily injury is involved; (2) a matter under investigation which is likely to gen'erate substantial
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national news media attention;
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(3) a matter where there is evidence of ongoirg activity datsigned to I obstruct'the investigation; (4) a matter which may require extraordinary investigative measures whiefs require legal assistance from DOJ.
When a matter arises in which the NRC concludes that regulatory action is necessary to protect the public health and safety, or that it is necessary to propose a civil penalty, and the Director, Office of Enforcetaent (OE), has ,
been. informed by.the Director, 01, that there is a reasonable suspicion that a criminal violation has occurred, the Director.of DE will promptly notify the L 00J of such matter, notwithstanding the fact that an investigation has not yet !
been completed by NRC. Any action by the NRC is to be coordinated with 00J as prescribed in Section C. below.
Notification to D0J'will not normally result in cessation of the NRC investigation.
C. Procedure When NRC Reguletory Activities Run Parallel to or May Affect Future D0J Activity NRC regulatory activities with respect to matters that have been referred to 1
00J for criminal prosecution, or to which the notification provisions of I Section B. apply, shall be coordinated as follows:
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- 1. If the NRC concludes at any time that it lacks reasonable assurance that activities authorized by a license are being conducted without endan-gering the health and safety of the public and the NRC concludes that I immediate action is required to protect the public health, safety, or l l
interest, it will proceed with such action as is necessary to abate the immediate problem. If time permits, the NRC shall notify D0J of its proposed action prior to acting, but, in any event, shall notify D0J of its. action as soon as practicable. This paragraph shall apply only to those situations that do not allow sufficient time for reasonable consultation.
.2 . If the NRC concludes that regulatory action is necessary in the public interest, other than the actions described in paragraphs 1 and 3
) 1 herein, the NRC shall first consult with 00J concerning its contemplated l
action. The NRC shall take into account the views and concerns of D0J and proceed in a manner that accommodates such views and concerns to the fullest extent possible, consistent with the regulatory action required. Such co-operation at the staff level shall include the seeking of a stay, upon DOJ's request, of discovery and hearing rights during the regulatory proceeding for a reasonable period of time to accommodate the needs of a criminal investigation or prosecution, provided that D0J s9pports such action with appropriate
, affidavits or testimony as requested by the presiding officer.
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- 3. If the NRC concludes that it is necessary to propose a civil l
penalty, it shall notify DOJ of its contemplated action, and shall defer the l
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[ initiation of such proceeding until D0J either concludes its criminal l
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. investigation / prosecution or consents to the action, except that if a statute of limitations bar to a civil penalty proceeding is imminent, the NRC may initiate such proceeding after consultation with D0J. In such event, the NRC staff shall accomodate the needs of DOJ by seeking a stay, upon D01's request and with D3J support as described in paragraph 2 above, of discovery and hearing rights during the civil penalty proceeding for a reasonable period of time.
D. Time Frame for Notification in Matters Referred to 00J
- 1. If, on completion of its investigation, the NRC concludes that civil enforcement action is appropriate, it will notify DOJ of its contemplated action normally within 45 days of its referral to DOJ.
- 2. 00J will notify the NRC, normally within 60 days of the referral, of its preliminary decision as to whether a criminal investigation or prosecution is warranted.
E. NRC Assistance _to 00J The NRC will make reasonable efforts, at D0J's request, to provide informal assistance regarding applicable NRC requirements, technical issues, and factual circumstances. Such assistance should be requested directly from the Director, Office of Investigations, who will forward requests for technical assistance to the Deputy Executive Director for Regional Operations. A request that one or more NRC investigators be assigned to the 00J
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1 investigation or that NRC technical experts be assigned to assist 00J and the j j
grand jury should be made in writing. Such requests must bear the signature of a United States Attorney or Deputy Assistant Attorney General, as appropriate. These requests will be considered by NRC on a case-by-case basis.
F. Exchange of Informatio_n Relate _d to Civil or Criminal Enforcemen_t Following a 00J decision not to prosecute a referred case, or at the conclusion of a criminal proceeding, D0J will provide NRC, upon its request, information not protected from disclosure by Rule 6(e), Fed.R.Crim.P.,
relevant to the associated civil case. Similarly, NRC will provide infonnation to D0J, upon its request, on matters being considered by DOJ.
IV. Implementation:
The 00J official responsible for implementation of the notification respon-sibilities of this agreement is the Chief, General Litigation and Legal Advice Section, Criminal Division; the NRC official responsible for implementation of the notification responsibilities of this agreement with respect to informa-tion regarding suspected criminal violations is the Director, Office of Investigations; the NRC official responsible for the notification responsi-bilities of this agreernent with respect to enforcernent action is the Director, Office of Enforcerrent, or t.he Assistant Ger.eral Counsel for Enforcement, as appropriate.
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l V. Effective Date- j i
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This agreement is effective when signed by both parties. 1 l
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U.S. Nuclear Regulato ComiMion Date: $$rbh ) l, l6 8% .
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Ilstant Attor e Generak /
Criminal Division s U.S. Department ofg Justice Date: If -
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