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Alternative Dispute Resolution

The NRC has a program involving the use of alternative dispute resolution (ADR) in the NRC enforcement program.

On this page:

• What Is ADR?
• ADR Guidance Documents
• Related Commission Papers
• Frequently Asked Questions
• ADR Program NUREG Brochures
• Sample Mediation Forms
• Post-Investigation ADR Settlements
• Background and Development
• Public Stakeholder Meetings, Workshops, and Comments

What Is ADR?

Alternative dispute resolution (ADR) is a term that refers to a number of processes, such as mediation and facilitated dialogues, that can be used to assist parties in resolving disputes. 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 Ombudsman, or any combination thereof.” These techniques involve the use of a skilled third party neutral, and most are 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 more timely and more economical resolution of issues, more effective outcomes, and improved relationships.

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ADR Guidance Documents

The Nuclear Regulatory Commission revised its Enforcement Policy, on August 13, 2004, to include an interim program regarding the voluntary use of ADR in addressing discrimination complaints and other allegations of wrongdoing. The interim policy will continue to be used during development of the changes necessary to fully integrate ADR in the allegation and enforcement documents.

Enforcement Guidance Regarding the Use of Alternative Dispute Resolution, October 20, 2004, Enforcement Guidance Memorandum.

Frequently Asked Questions

ADR Frequently Asked Questions

ADR Program NUREG Brochures

NUREG/BR-0313, "Early ADR Program"

NUREG/BR-0317, "Post-Investigation ADR Program"

Sample Mediation Forms

• Agreement to Mediate
• Confidentiality Agreement
• Mediator Orientation - This document is designed to assist mediators in understanding the basic aspects of a case within the NRC ADR pilot program. The Agency mission, enforcement program objectives, employee protection and deliberate misconduct regulation language, and the history and concept of safety conscious work environments are included. This document may be revised periodically to include lessons learned during the pilot program.

Post-Investigation ADR Settlements

The NRC’s ADR program documents settlement agreements resulting from post-investigation ADR as confirmatory orders. A confirmatory order is an order that confirms a party’s agreements and commitments made to the NRC.

The following agreements are provided solely as an example of the types of issues that may be addressed in ADR agreements. One of the most important features of ADR is the flexibility to suit the process and resolution to the particular case. Accordingly, these should only be used as tools to help parties develop the proposed actions for their case. The parties should freely delete, add, or modify terms as they see fit to best facilitate resolution of their issues and to serve their particular interests.

Sample agreements

The following provide selected examples of different types of cases the NRC has resolved through mediation.

U.S. Enrichment Corporation: This Confirmatory Order was agreed to by USEC and NRC during an ADR session prior to a predecisional enforcement conference regarding whether a violation of 10 CFR 76.7 occurred. As part of the settlement agreement, USEC agreed to ensure that training related to employee protection will be adequately addressed. USEC’s agreement did not constitute an admission by USEC that it violated NRC’s employee protection regulations. Subject to satisfactory completion of the commitments, the NRC agreed not to pursue further enforcement action on the issue.

Baxter Healthcare Corporation: A Notice of Violation (NOV) and Proposed Imposition of Civil Penalty in the amount of $44,400 was issued for two willful Severity Level II violations and a willful Severity Level III violation related to an event involving personnel entering an irradiator when the source was stuck in an unshielded position. Additional violations were included in the original NOV. As part of the settlement agreement, Baxter agreed to pay a civil penalty in the amount of $31,200 and take additional corrective actions. The NRC agreed to characterize three violations in the Notice as a one Severity Level II problem, and to characterize the other violations as noncited violations. Baxter and the NRC also agreed to disagree on the willful characterization.

LaSalle: a Notice of Violation (NOV) and proposed civil penalty of $60,000 was issued to Exelon for a violation involving three contract employees who entered a High Radiation Area (HRA). Exelon requested ADR as a means to obtain resolution. In exchange for broad, comprehensive corrective actions, the NRC agreed to categorize the violation as a Severity Level IV violation and agreed not to consider it as part of the civil penalty assessment process should the NRC consider future enforcement actions against LaSalle. The NRC also agreed to a reduced civil penalty of $10,000.

Individual: A Notice of Violation and an immediately effective Confirmatory Order were issued based on deliberate actions that compromised an unannounced drill. The NRC agreed to issue a Notice of Violation without a specified severity level. Subject to satisfactory completion of the Order requirements, which included actions such as communicating the event through both articles and various training sessions, the NRC agreed to not pursue further enforcement action on this issue. (Individual order no longer available on the web).

Other Agreement examples:

• Soil Consultants: Discrimination case with ADR conducted after imposition of the civil penalty.
• Davis Besse/AVI: Alleged discrimination case with ADR conducted prior to a PEC
• Williams Power: Discrimination case with ADR conducted after NOV was issued.
• Hershey Medical Center: Non-discrimination case with ADR conducted prior to a PEC.
• Sabia: Non-discrimination case with ADR conducted prior to a PEC.
• Digirad: Non-discrimination case with ADR conducted prior to a PEC.
• NASA: Non-discrimination case with ADR conducted prior to a PEC.

Background and Development

Does NRC have an ADR policy?

Yes, the NRC has a general ADR policy issued on August 14, 1992 (57 FR 36678) that supports and encourages the use of ADR in NRC activities. The NRC has used ADR effectively in a variety of circumstances, including rulemaking and policy development and Equal Employment Opportunity disputes. Enforcement cases raise unique issues regarding the use of ADR that are not addressed in the general policy.

When did the NRC decide to evaluate the use of ADR in the enforcement program?

The NRC was first requested to use ADR techniques in enforcement to resolve a dispute in a discrimination case between the agency and a nuclear power licensee in April 2000. Because the use of ADR was a significant policy issue, the staff provided a preliminary evaluation of the potential use of ADR in NRC enforcement activities in SECY-01-0176, dated September 20, 2001, and recommended that the NRC seek public comments from which a final evaluation and recommendation could be made. The staff published a Federal Register notice soliciting comments on the use of ADR in enforcement on December 14, 2001, and reported the status of the evaluation of the use of ADR to the Commission in SECY-02-0098, dated June 4, 2002. In SECY-02-0098, the staff noted that the initial comments received indicated that many stakeholders may have had misperceptions regarding the nature of ADR. Accordingly, a public workshop was held in March 2002 to explore the nature of ADR and its potential benefits. During the workshop, NRC stakeholders and specialists in the use of ADR by Federal agencies discussed the strengths and weaknesses of using ADR in the NRC's enforcement process. In response to comments received on the Federal Register notice and participant discussion at the workshop, the staff concluded that (1) there may be a role for ADR in the NRC enforcement program; (2) if ADR does have a role, the NRC should focus on using it in areas where the largest benefits could be achieved in terms of time, resources, and more effective results; (3) any ADR program should be implemented as a pilot process; and (4) additional stakeholder input is warranted.

On August 21, 2002, the staff published a Federal Register notice announcing public meetings to discuss options for use of ADR and requesting public comment on specific issues concerning the implementation of a pilot program.

At what points in the enforcement process can ADR be used?

As a result of the comments received in writing and at the public meetings, in SECY-03-0115, dated July 8, 2003, the staff recommended implementing a pilot program for ADR at four specific points in the investigation and enforcement process:

1. "Early ADR” following the receipt of an allegation of discrimination and an initial Office of Investigations (OI) preliminary interview of the whistleblower for low significance cases that meet the prima facie threshold for conducting an OI investigation;

2. in low significance and higher significance cases following the completion of an OI investigation that substantiates an allegation of discrimination or other wrongdoing, but before a predecisional enforcement conference;

3. following the issuance of a Notice of Violation and civil penalty (if proposed); and

4. following the imposition of a civil penalty, but before a hearing on the case.

The report of the Alternative Dispute Resolution Review Team (ART) on the implementation of a pilot program using ADR in the investigation and enforcement processes is included as Attachment 1 to SECY-03-0115.

In a Staff Requirements Memorandum (SRM) dated September 8, 2003, the Commission approved the staff's recommendation to develop and implement a pilot program, however, the Commission directed the staff to expand the "early ADR" process (see Item 1) to allow implementation regardless of the significance of the case and in lieu of an initial OI preliminary interview.

The NRC staff developed a proposed interim enforcement policy statement for implementation of the pilot program that incorporated the Commission and public comments.

Public Stakeholder Meetings, Workshops, and Comments

The NRC sought public comments on the use of ADR on five occasions.

• October 5, 2005, Federal Register notice
• April 20, 2004, Federal Register notice and Comments Received
• December 2, 2003, Federal Register notice, ADR Pilot Program Discussion Issues, and Comments Received
• August 21, 2002, Federal Register notice and Comments Received
• December 14, 2001, Federal Register notice and Comments Received

The NRC has held several meetings and workshops to discuss the use of ADR in the NRC enforcement program. Handouts from the meetings are included below:

Related Commission Papers

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