[Federal Register Volume 67, Number 162 (Wednesday, August 21, 2002)]
[Notices]
[Pages 54237-54239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21255]


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NUCLEAR REGULATORY COMMISSION


Enforcement Program and Alternative Dispute Resolution; Request 
for Comments and Announcement of Pubic Meetings

AGENCY: Nuclear Regulatory Commission.

ACTION: Request for comments and announcement of public meetings.

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SUMMARY: On December 14, 2001 (66 FR 64890), the Nuclear Regulatory 
Commission (NRC) announced its intent to evaluate the use of 
Alternative Dispute Resolution (ADR) in the NRC's enforcement program, 
which is defined in the NUREG-1600, ``General Statement of Policy and 
Procedure for NRC Enforcement Actions (Enforcement Policy). The NRC is 
undergoing this evaluation because government-wide, ADR techniques have 
proven to be efficient and effective in resolving a wide range of 
disputes. On March 12, 2002, the staff conducted an ADR workshop to 
evaluate the strengths and weaknesses associated with its use in the 
enforcement area. The staff has evaluated the outcome of this workshop 
and concluded that: (1) There may be a role for ADR in the enforcement 
program; however, further review is needed, (2) if ADR has a role, the 
NRC should focus on areas resulting in the largest benefits, (3) a 
pilot program should be the first step to implementation, and (4) 
additional stakeholder input is needed.
    The staff concluded that in order to make any final recommendations 
for incorporation into the enforcement program or the development of a 
pilot program, additional stakeholder input is necessary. As a result, 
additional comment is being sought and a number of public meetings and 
workshops are being scheduled at various locations throughout the 
country. Various options associated with the development of a pilot 
program for the use of ADR in the enforcement process will be 
discussed. Information on ADR is available on the NRC's Web site at 
www.nrc.gov: select What we Do, Enforcement, then Public Involvement in 
Enforcement.

DATES: The comment period expires October 21, 2002.

ADDRESSES: Submit written responses to the questions contained in the 
Discussion section of this Notice to Chief, Rules and Directives 
Branch, Division of Administrative Services, Office of Administration, 
Mail Stop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001. Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 a.m. and 4:15 p.m., Federal workdays. Comments 
may be submitted by e-mail to [email protected]. Copies of comments 
received may be examined at the NRC's Public Document Room, located at 
One White Flint North (O1-F21), Rockville, Maryland, 20852-2738.

FOR FURTHER INFORMATION CONTACT: Barry Westreich, Senior Enforcement 
Specialist, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001 (301) 415-3456, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    ``ADR'' is a term that refers to a number of voluntary processes, 
such as mediation and facilitated dialogues, that can be used to assist 
parties in resolving disputes and potential conflicts. The 
Administrative Dispute Resolution Act of 1996 (ADRA) encourages the use 
of ADR by Federal agencies, and defines ADR as ``any procedure that is 
used to resolve issues in controversy, including but not limited to, 
conciliation, facilitation, mediation, fact finding, mini trials, 
arbitration, and use of Omsbuds, or any combination thereof.'' 5 U.S.C. 
571(3). These techniques involve the use of a neutral third party 
(``neutral''), either from within the agency or from outside the 
agency, and are typically voluntary processes in terms of the decision 
to participate, the type of process used, and the content of the final 
agreement. Federal agency experience with ADR has demonstrated that the 
use of these techniques can result in the quicker and more economical 
resolution of issues, more effective outcomes, and improved 
relationships. The NRC has a general ADR Policy, 57 FR 36678; August 
14, 1992, that supports and encourages the use of ADR in NRC 
activities. In addition, the NRC has used ADR effectively in a variety 
of circumstances, including rulemaking and policy development, and 
Equal Employment Opportunity (EEO) disputes.
    Although a few enforcement cases have been resolved through the use 
of ``settlement judges'' from the Atomic Safety and Licensing Board 
Panel, pursuant to 10 CFR 2.203 there has been no systematic evaluation 
of the need for ADR in the enforcement process. As a result of previous 
stakeholder input, the staff is considering the development of a pilot 
program for the use of ADR in the enforcement process.

Discussion

    On December 14, 2001, a Federal Register notice (FRN) was issued 
soliciting comments on the use of ADR in the enforcement process 
(66FR64890). The 60-day comment period was extended to March 29, 2002. 
A workshop was held on March 12, 2002. The responses to the FRN and 
those expressed at the workshop indicated that the views on the 
appropriateness and potential usefulness of ADR techniques were widely 
varied. The industry and its legal counsel embraced the use of ADR 
techniques broadly and the public interest stakeholders were generally 
opposed to exploring possible uses of ADR in enforcement. Also, many 
stakeholders appeared to misunderstand what ADR is and how it can be 
used.
    The workshop consisted of an overview of the agency's enforcement 
program to a panel consisting of: one independent ADR specialist; four 
ADR specialists from various Federal agencies; representatives from the 
Nuclear Energy Institute (NEI); representatives from the Union of 
Concerned Scientists; representatives from two law firms representing 
nuclear utilities; and, representatives from two law firms representing 
environmental whistle blowers. The panelists discussed the merits and 
debated the usefulness of ADR techniques in the context of the 
enforcement process.
    Overall, many of the participants (i.e., industry representatives, 
agency ADR experts, and an attorney from the environmental whistle 
blower community) believed that ADR could be used beneficially in the 
NRC enforcement process. They also did not think that any particular 
areas of the enforcement process should be eliminated from 
consideration. These participants noted that any decision to

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use ADR was not irrevocable and the results, either from a pilot, or 
some type of full-scale implementation, would need to be evaluated. The 
attorney from the environmental whistle blower community who was in 
favor of ADR confined her suggestions to the use of ADR in 10 CFR 50.7 
discrimination cases and suggested a model that the NRC might follow 
based on DOE experience. Most participants also recommended taking a 
flexible view on what types of ADR techniques should be used and noted, 
for example, that facilitation could also be used effectively, as well 
as mediation. Those participants supporting the use of ADR recommended 
that a wide pool of third party neutrals should be available for the 
parties to select from for any particular dispute.
    The citizen group representative was opposed to ADR on the grounds 
that ADR would only provide an opportunity for the enforcement process 
to be weakened. In written comments, it was noted that if ADR was to 
have a role, it should only be considered for establishing the fact set 
that is then used by the NRC staff to determine sanctions, for example, 
as to when a non-conforming condition was identified or whether the 
cause of the violation was wilful. However, its use would be 
``distasteful'' when ADR is used in a case that involved a challenge to 
a proposed sanction. In respect to the potential need for 
confidentiality in ADR, this commentor noted that more deals brokered 
behind closed doors can only expand the widely perceived impression 
that NRC has an inappropriate close relationship with the industry it 
regulates.

Conclusions and Plans for Developing a Recommendation

    Based on review of the comments received and provided during the 
March 12, 2002, workshop, the staff has reached several conclusions and 
plans to proceed as follows:
     There may be a role for ADR in the enforcement program.
    Based on the many pros and cons regarding the use of ADR in the NRC 
enforcement program and that many of the comments received were opposed 
on the same issues, the staff cannot draw any final conclusions 
regarding whether ADR should ultimately have a role in the enforcement 
program and, if it does have a role, how it should be incorporated. 
However, based on review of stakeholder input, the staff believes that 
there are areas in the enforcement program which may benefit from the 
incorporation of ADR and that these areas should be reviewed further.
    The staff needs to specifically evaluate whether the use of ADR 
will not detract from the overall objective of the NRC enforcement 
program--deterrence and achieving lasting corrective actions, 
maintaining safety, increasing (or at least maintaining) public 
confidence, and increasing (or at least maintaining) effectiveness.
     If ADR has a role, NRC should initially focus efforts on 
areas resulting in the largest benefits.
    Commentors provided a wide range of potential benefits and 
drawbacks to using ADR. While the staff recognizes that it needs to 
evaluate all benefits and drawbacks, the staff believes that the 
largest benefits of implementation of ADR in the enforcement program 
are greater efficiency, lower costs, and better timeliness. Therefore, 
the staff plans to narrow the initial focus and scope of its review and 
evaluation of the use of ADR to areas that would realize these 
benefits. The staff plans to review whether ADR should be incorporated 
into one of the following areas of the enforcement program for reactor 
and materials cases: cases involving potential discrimination and cases 
involving potential wrongdoing. Historically, these types of cases have 
taken the most time and resources for all parties involved. However, 
while the staff plans to limit the scope of its review at this time, 
the staff is not precluding expanded use of ADR in the future. 
Specifically, if incorporation of ADR is appropriate and demonstrates a 
benefit, the staff will review further use of ADR in other areas.
     If ADR has a role, it should initially be implemented as a 
pilot program.
    Based on review of the stakeholder's comments, it is clear that 
some stakeholders, both internal and external, do not see the benefits 
of incorporating ADR into the enforcement program. In fact, some 
believe it will have a negative impact on the enforcement process. 
Therefore, if the staff recommends incorporation of ADR into the 
enforcement program, it will recommend initial implementation as a 
pilot program. The staff believes that implementation of a pilot will 
better demonstrate whether the benefits can be realized, provide 
confidence that there will be no, or minimal, negative impacts, and 
will provide additional information for how ADR can be further 
incorporated into the enforcement program. For a pilot to be successful 
in demonstrating the use of ADR, the staff believes that the pilot 
program should include a representative sample of cases. There should 
be a sufficient number of cases included in the pilot to adequately 
exercise the enforcement process but not too many that will overwhelm 
the staff and process. The pilot should specifically address at which 
points in the enforcement process ADR should be used.
    The staff notes that use of an ADR pilot program would be voluntary 
for all parties, including the NRC. Therefore, if implementation of the 
pilot for a specific case would compromise the enforcement process, NRC 
could withdraw from ADR for the case. Other parties would have the same 
option. In such cases, the NRC would follow the current enforcement 
process.
     Additional stakeholder input is warranted.
    As stated, stakeholder input is very mixed on a number of issues 
important to the use of ADR. In order to make any final recommendations 
for incorporation of ADR into the enforcement program, or even the 
development of a pilot program, additional stakeholder interactions are 
necessary.
    In view of the above, the staff seeks additional input from the 
public and other stakeholders in written form or at workshops to be 
scheduled throughout the country over the next few months. The staff 
proposes to evaluate the use of ADR in a pilot program, initially for 
some percentage of wrongdoing and discrimination cases in both the 
materials and reactor areas. The staff is currently evaluating whether 
to use ADR in a number of points in the process. Specifically, (1) 
following identification of wrongdoing or an allegation of 
discrimination but prior to a full investigation into the matter, (2) 
following an investigation that substantiates the matter but prior to 
an enforcement conference, (3) following the issuance of a Notice of 
Violation and Proposed Imposition of Civil Penalty but prior to any 
Imposition of Civil Penalty, and (4) following an Imposition of Civil 
Penalty but prior to a Hearing on the matter. The staff requests that 
comments be focused on issues related to the implementation of a pilot 
program at the above steps in the NRC process, and include factors such 
as what ADR techniques would be useful at certain points, what pool of 
neutrals should be used, who should attend the ADR sessions, and what 
ground rules should be implemented. Also, the staff requests that 
comments be focused on the pros and cons of ADR as they relate to these 
points in the process and in maintaining safety, increasing public 
confidence, and maintaining the effectiveness of the enforcement 
program for the above noted areas.
    The staff also plans to hold several public meetings and workshops 
at

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various locations to solicit stakeholder input. Specifically the staff 
plans to hold meetings and workshops, tentatively scheduled at the 
following locations and dates:

 Hanford, WA: Week of September 2, 2002
 Chicago, IL: Week of September 16, 2002
 San Diego, CA: Week of September 23, 2002
 New Orleans, LA: Week of October 7, 2002
 Washington, DC: Week of October 14, 2002

    The staff will provide specific information regarding the meeting 
dates times and locations on the NRC's Web site at www.nrc.gov select 
What We DO, then Public Involvement in Enforcement. Once the actions 
identified above have been completed, the staff will provide the 
Commission a proposed pilot program for approval or will provide an 
alternative recommendation regarding the use of ADR.

    Dated at Rockville, Maryland, this 13th day of August, 2002.

    For the Nuclear Regulatory Commission.
Frank J. Congel,
Director, Office of Enforcement.
[FR Doc. 02-21255 Filed 8-20-02; 8:45 am]
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