ML19341A168
| ML19341A168 | |
| Person / Time | |
|---|---|
| Issue date: | 09/06/1978 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8101220267 | |
| Download: ML19341A168 (39) | |
Text
a; UnQ...adt RETURN TO SECRETARIAT RECORDS N U CLE AR REGUL ATO R Y CO MMI'SSIO N
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IN THE MATTER OF:
DISCUSSION OF SECY-78-308 - PROVISION FOR THE PROTECTION OF INDIVIDUALS WHO PROVIDE INFORMATION TO THE NRC
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THIS DOCUMENT CONTAINS g
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P00R QUAUTY PAGES O
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Place Washington, D, C.
Date - Wednesday, 6 September 1978 Pages 1 - 37
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P00R BRIGR Teiechorte:
("02)347-3700 k
ACE -FEDERAL REPORTERS,INC.~
OfficialReporters 7
- IO1220 W North Cacitol Street l
Washingten, D.C. 20001 NAT:CNWIDE CCVERAGE DAILY
1 1
O DISCLAIMER This is an unofficial transcript of a meeting of the United Statas Nuclear Regulatory Commission held on September 6, 1978 in the Commission's offices at 1717 H Street, H. W., Wasnington, D. C.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is latended solely for general informa'tfenal purposes.
As provided by 10 CFR 9.103, it is not part of the femal or infor=al record of decitica of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final detarminaticns or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or a:g.: ment contained herein, except as the Commission may authorize.
e P00R DRIGINAl.
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UNITED STATES OF AMERICA l
MELTZER mm 2
NUCLEAR REGULATORY COMMISSION l
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Public Session 5
6 DISCUSSION OF SECY-78-308 - PROVISION FC'. THE 7
PROTECTION OF INDIVIDUALS WHO PROVIDE INFORMATION 8
TO THE NRC 9
10
'l l 12 Commissioner's Conference Room.
Room 1130 13 1717 H Street, N.W.
Washington, D.C.
14 Wednesday, 6 September 1978 15 16 Meeting in the above-entitled matter was held, 17 pursuant to notice, at 9:30 a.m.
18 PRESENT:
19 JOSEPH HENDRIE, Chairman 20 RICHARD KENNEDY, Commissioner VICTOR GILINSKY, Commissioner 21 PETER BRADFORD, Commissioner
!1 JOHN AHEARNE, Commissioner ll 22 il Howard Shapar E. Case l
23 M. Malsch V.
Stello Wm. J.
Dircks J. Murray 24 J. Kelley J.
Davis l Ac.4.cero Repornrs, Inc.
Wm. Campbell S.
Kent l
25 J.
Hoyle M.
Staenberg i l 1
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CHAIRMAN HENDRIE:
If we can come to order, the 30 subj ect to start out this morning is a discussion of the 4
Provision for the Protection of Individuals who Provide 5
Information to the NRC.
6 Bill, I guess..you are leading the Staff, so go 7
ahead.
8 MR. DIRCKS:
This is a paper with a number of 9
office viewpoints attached to it, Mr. Chairman.
10 The leadoff on the discussion will be done by Bill
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II Campbell of the Office of Standards Development, and a?
12 appropriate, other offices may wish to contribute.
13 but. CAMPBELL:
In April of 1977,the Staff I4 presented an information paper, SECY 77;73B on the subject 15 of provision for protection of employees who provide information 16 to the NRC.
17 This presentation is to provide additional informa-18 tion to the commission relating to the policy issues involved, 19 to ider.tify some viable alternatives, and to seek. guidance 20 from the Commission for further action.
21 A comprehensive program in regard to the individuals 22 who provide information to the NRC should address the following 23 elements:
24 First, prohibiting discrimination; second, providing Am.Fewd Reormrs, lx.
25 a remedy to the individual that has been discriminated against;>
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mm2 and third, provide a penalty for the person who discriminates.
2 The remedy includes, but is not limited to t
3 reinstitution of job, lost wages and legal fees.
4 Such a program is not necessary in cases where the 5'
individual's identity is not made public. For example,.where 6
the person is anonymous, or where the identity is not made 7
public.
8 of the paper which was prepared by 9
ELD covers the mechanisms and application of anonymity for 10 individuals who provide information.
There is an alternative means for encouraging 12 individuals to provide information to NRC,and this is to provide rewards for information. This alternative method 14 of securing informaticn is under review by the Staff.
15 The present statutory authority and its implementatic 16 was reviewed to determine if a comprehensive program is in placo 17 or can be put in place.
THe current regulations at the NRC 18 and at the federal agencies, do not provide for a comprehensive i
19 program that ccvers employees of licensees, employees of l
20 their contracto s, of their subcontractors and other individuals.
i NRC has a Regulation 10 CFR 19.16(c) which providesi 22 a portion o'i the program in the area of radiological I
i 23 working conditions for individuals engaged in. activities licens@
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Ace.Feder0 Reporters, Inc.
25 It should be noted that is radiological working I
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4 mm3 conditions only.
y The current regulations of NRC and other federal 2
agencies; one, do not prohibit, explicitly prohibit, 3
discrimination against individuals who provide safety-related 4
inf rmati n.
They do not provide a penalty against persons 5
who discriminate and they do not provide a remedy to the 6
individual that has been discriminated against.
7 The ELD review of the existing NRC statutory 8
authority is contained in Enclosure 5 of the paper, and it 9
indicates that NRC cannot provide a remedy for an individual 10
- j that has provided information.
NRC can issue a regulation pr hibiting a licensee from discriminating against an 12 empi yee, and NRC can enforce such a regulation by the 13 imposition of a civil penalty.
34 15 A similar regulation that would be applicable to nonlicensees probably wouldnot be enforceable by a civil 16 penalty.
Later, ELD will provide more detailed information 37 in regard to the current statutory authority and limitations.
18 99 NRC has been involved in only two cases of alleged discrimination. These are detailed in Enclosure 3 of the 20 21 E*P*#*
i One occurred at the Kerr-McGee facility and 22 related to radiological working conditicas.
The FBI and the 23 l
Department of Labor became involved, and the matter was 24
! Am-Faserd Reporters, Inc.
resolved by arbitration.
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A current proceeding involves Union Electric,
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2 an NRC licensee.
3 Later ELD will provide the current status of this 4
proceeding.
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5 lists some typical occurrences that 6
concern information being provided --
7 COMMISSIONER KENNEDY: Excuse me.
8 What you are saying as far as the Kerr-McGee matter 9
is concerned, the particular type of case, that is already 10 covered.
That, in fact, if I interpret correctly what 11 occurred, we don't need to do anything further?
12 Cases of that kind are already manageable.
13 MR. CAMPBELL:
The present regulations do allow 14 for the case to go to arbitration, and the person to have 15 a remedy.
16 And there is a prohibition against discrimination 17 in that area. But there is no specific penalty presently 18 provided, other than the civil penalty procedure that we now 19 have, that will give a penalty to Kerr-McGee or another l
20 licensee.
21 In general, te present legislation and the --
22 COMMISSIONER KENNEDY: Does te Labor Department 23 have authority to take any disciplinary action or issue 24 penalties?
Ace Feder0 Reporters, Inc.
25 MR. CAMPBELL:
Under the OSHA Act they would.
But
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1 mm5 the OSHA Act, if I remember correctly, carves out certain I
2 areas where.other regulatory agencies establish their 3
regulations such as we have done for radiological working l
4 conditions.
Whether OSHA would, under their act, give a l
5 penalty, I am not sure, sir.
6 MR. MINOGUE:
I think Part 19 can actually be seen 7
as a parallel to OSHA applied to NRC-regulated activities.
8 MR. CAMPBELL:
In Enclosure 2 ther,e are occurrences 9
where we got information and we didn't get information.
10 Some of them are anonymous submittal of complete 11 detailed information that can be substantiated without 12 contacting the individual.
13 Another case is complete information provided on an 14 off-the-record basis, only because a person is afraid to be 15 identified for reasons such as a nonunion shop.
16 Also, there are individuals who believe they have 17 information and initially make contact with NRC, but they 18 bach off from pursuing the matter for fear of pressure from 19 their coworkers.
20 Some federal agencies have explicit authority in 21 the area of a comprehensive program. This is detailed in Enclosures 4 and 9.
In general, these can be grouped into i
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four categories:
24 M
of,OroMem wMch are lah Am. Federal Reporters, Inc.
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1 matters.
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2 Second are the OSHA matters, occupational workplace 3
hazards, MESA, mine safety problems.
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4 And, fourth, die environmental issues such as clean l
5 air, water pollution, toxic substances and other matters.
6 COMMISSIONER KENNEDY:
All of those seem to have 7
relationships to other federal agencies. Do statutes or regula-8 tions of those agencies provide remedies?
9 MR. CAMPBELL: Ws,they provide procedures for 10, remedies.
11 The OSHA procedure for remedies is initiated directly 12 in federal court.
They are having a number of problems with 13 getting the attention of the federal courts for their 14 administrative matters.
15 The ones that are handled in mine safety are h adled 16 administratively through an administrative law setup within 17 the agency, and with the reorganization they have recently gone 18 through, this program has been moved through almost intact to 19 the recently created Federal Mine Safety and Health Review 20 Commission.
21 And the decisions by the Administrative Law Judge 22 are enforceable through federal court proceedings, if necessary..
23 The other statutes concerning the environmental-type 24 problems, clean water, clean air, give the technical responsi-Aa-re.r i newrms. ine.
25 bilities to one federal agency, for instance EPA, but assign l
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the responsibilities in the area of discrimination, remedy and ;
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2 penalty to the Department of Labor.
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Its Employee-Standards Administration is inthe I
4 process of preparing implementing regulations.
In these cases l 5
EPA would take. action on the technical matters of the pollution 6
problem,and if there was a report of discrimination, it would 7
be forwarded to the Department of Labor, and they would proceed 8
and handle it fromthere.
9 THe alternatives are five.
One --
10 COMMISSIONER KEsNEDY:
Excuse me.
11 In this particular sort of approach, is there any 12 evidence that that doesn't work well?
13 Or, is there evidence that it does work well?
14 MR. CAMPBELL:
The procedures by the Department of 15 Labor for handling this are not in place yet.
16 COMMISSIONER KENNEDY:
So it is untested?
17 MR. CAMPBELL:
It is untested.
18 The procedure that used to be in the mine safety'has 19 been tested.
They feel it is a workable procedure, can handle 20 things expeditiously and they believe it can weed out the peopld 21 who are seeking the protective umbrella, the man who should i
22 have been discaarged last week for good cause.
They are f
l 23 processing those through the system and effectively *hr?uing l
24 them out at relatively low levels.
Am.se n c am m ws.ine.
25 So their system of Administrative Law Judges has l
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been found satisfactory, md they did carry it over to the 'new I
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commission if it came through.
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The five alternatives are:
1 4
One, the status quo which relies upon 10 CFR 19.16 5
combined with OSHA, combined with the NLRB type of approach.
6 That gives radiological workplace protection for licensee 7
employees.
8 The second is additional rules within the present 9
legislation. This would cover licensees and discrimination by 10 licensees.
Il The third is deferred rulemaking where we would have 12 the present authority and request new legislation for a compre-
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13 hensive program.
14 The fourth alternative is to combine the immediate i
15 rulemaking with a request for legislation where we would have 16 whatever we can do right now, plus going for a comprehensive 17 program.
18 The fifth is an advanced notice of proposed 19 rulemaking.
l 20 The office views were wide on this.
Standards' l
j 21 position was a status quo in that a need for a program has not 22 been sufficiently demonstrated.
If sufficiently demonstrated, 23 Standards' position was to defer the rulemaking pending new 24 legislation.
Ace Federd Reporters, Inc.
25 I&E recommended --
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COMMISSIONER KENNEDY:
Is that pending the drafting 2
and submission of: new legislation, or pending th.? rer"Its of l
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efforts on the Hill in this regard already ongoing?
4 4
MR. MINOGUE: When that position was stated,the work 5
on the Hill was in the very early stages. So in a sense I 6
didn't have anything specific in mind as to a particular piece 7
of legislation.
g MR. CAMPBELL:
THe I&E position is alternative 4, 9
which is immediate rulemaking where present authority exists, 10 and request legislation for a comprehensive program covering 11 licensees, CP holders, contractors and subcontra ctors.
12 NRR agreed in principle with the approach of 33 alternative 3, but recommended caution in the implementation 14 since it would have such wide effect.
15 ELD can present for us any additional information 16 on the legal authorities of pending legislation, and of the 17 present status of the Union Electric proceeding, which is 18 an ongoing proceeding before the Appeals Board.
l 19 MR. DIRCKS:
It might be helpful, Mr. Chairman, if 20 we briefly review the status of that ongoing legislation.
2]
COMMISSIONER AHEARIJE:
Extremely.
22 MR. STAENBERG:
Mark Staenberg.
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i 23 Mr. Chairman, members of the Commission, we j
i 24 understand that the Senate bill currently has in it a provision,
! AceJederet Reporters. tric.
25 Section 7, which is entitled Employee Protection.
It covers
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some of the matters discussed here and is si ilar in thrust to i I
2 the Environmental Acts that contain protection for persons l
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who inform about safety and health matters to a regulatory l
4 agencies.
5 That bill has been reported out of committee and 6
should be, according to Congressional Affairs, before the 7
full Senate this week.
8 A similar provision is not contained in the House --
9 COMMISSIONER KENNEDY: When you -- excuse me, did 10 you say similar to the Environmental Acts?
Similar, the II situation as explained to us here, that where EPA is charged 12 with the responsibility of dealing with the technical 13 aspects of whatever the charges may be, but as to the individual 14 considerations and concerns these were matters turned over to 15 the Labor Department?
I6 MR. STAENBERG: That is correct.
17 And that is, of course, to avoid duplicative inves-18 tigation and proceedings against a company or an individual.
19 A similar provision is not contained in the House 20 bill dealing with the NRC authorization.
As I understand it, 21 that bill is still in committee and has not been reported out.
I 22 No one is quite certain when it will be.
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23 And so the position we find ourselves in is that 24 we may have a bill before the full Senate, and a discussion Am.FWwd Reorms. lu.
l 25 of the employee protection section, which is Section 7, will i
12 mml1 be waiting for some time before we see what happens on the j
! l House side.
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i COMMISSIONER AHEARNE: Well the bill though is the 3
authorization bill, isn't it?
4 MR. STAENBERG: That is correct.
5 COMMISSIONER AHEARNE:
So the sometime is likely to 6
be over in the next month?
7 MR. STAENBERG: We would expect so, yes.
8 COMMISSIONER AHEARNE:
Could I follow up on 9
Commissioner Kennedy's cuestion.
10 Couldyou be a little more explicit on, in what way jj that amendment tracks with the proposal we have here?
12 MR. STAENBERG: The employee protection section of 13 the authorization bill provides that, number one,there wculd g
be a prohibition against discrimination or firing.
15 As Bill Campbell indicated, we presently feel that 16 we have that much authority under our Atomic Energy Acts, at j7 least as against --
18 COMMISSIONER AHEARNE:
Would the prohibition extend j9 behind the licensees?
20 MR. STAENBERG: No.
21 We also have -- let me comment -- we also have 22 Section 206 of the Energy Reorganization Act,and there is some 23 authority there for extending our protection of employees who 24 Ace Feder0 Reporters, tric.
Provide information to the Commissioners.
25
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COM MISSIONER AHEARNE:' I'm asking about the 2
authorization bill.
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MR. STAENBERG: The second thing that it does is, 4
allows the Department of Labor to investigate, and it provides 5
remedies --
6 COMMISSIONER AHEARNE:
Allows?
Requires?
7 MR. STAENBERG: The Secretary of Labor would investi-8 gate such charges, so it is in the mandatory mode.
9 And finally, it does provide for remedies for the 10 employee which we have not felt the NRC currently has authority Il to do.
12 COMMISSIONER KENNEDY:
What kind of authority?
13 MR. STAENBERG:
Rehiring.
14 COMMISSIONER KENNEDY: That is something that would 15 be adjudicated not by the NRC, but the Labor Department?
16 MR. STAENBERG: That's correct.
17 COMMISSIONER KENNEDY:
All the questions associated 18 with the employee himself and his relationships with the 19 employer will be matters for the Labor Department to deal with, 20 is.that correct?
21 MR. STAENBERG: Generally speaking, yes.
22 I can't think of any items that would be not items l
23 taken up by Labor.
l 24 COMMISSIONER AHEARNE: Does that extend also to the t
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25 question of any possible action against the employer?
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MR. STAENBERG: There is a question shether or not j
2 we could, or this bill allows for the imposition of civil I
3 penalties.
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COMMISSIONER KENNEDY:
Excuse me.
I'm trying to --
5 there are two aspects of each of these probl aus as I perceive 6
them.
7 One is the aspect of the technical question, tech-8 nical issue.
9 The other is the aspect in personnel relationships 10 between the man and his employer, and perhaps his peers.
11 Now when we are talkingabout civil penalties, are 12 we talking about civil penalties that will be involved vis-a-vis
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13 of the man and his employer; that is he is a whistle-blower 14 and theref ore, if anybody discriminates against him we take 15 issue of civil penalty?
And if so, would that be based upon 16 a determination made by the Labor Department, or who?
I:7 These are the kinds of things I don't quite 18 understand.
I don't know how all this beautiful thing is 19 going to work, to put it simply.
20 MR. STAENBERG:
I'm not certain that anyone is 100 21 percent certain as to how it is going to work.
There is a lot i
22 of interface problems.
23 COMMISSIONER KENNEDY: Then I suggest we are way 24 ahead of ourselves.
' Aco Federd Reporters, Inc.
25 MR. STAENBERG: Tiere are some interface problems,
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certainly, between the Department of Labor and the NRC that I
5 2
would have to be worked out.
And some of that would be pursuant l 1
3 to our own regulations were we to have the additional legisla-l 4
tive authorities.
5 This bill, the authorization bill, does not directly' 6
provide for civil penalties.
7 Tb,e NRC, of course,flas some civil penalty authority.
8 It is against licensees.
Whether it is something that the NRC 9
uses or would use in the event of ciscrimination against the 10 employee, I am not certain of, and ! would ask Jim Murray or 11 the I&E people to explain that.
12 MR. MURRAY: Well, civil penalty authority flows from 13 certain named sections of the Atomic Energy Act, in rules, 14 regulations and orders issued thereunder.
So, unless it is a 15 repetitive offense and thus subjects the licensee to 16 revocation, the violation would have to be of one of the named 17 /
sections of the Act.
There are elevent named sections.
Or, 18 one of the rules, regulations or orders issued thereunder.
l 19 And, Part 19 would not normally be thought of as being under j
l 20 one of those named sections.
21 MR. STAENBERG: In response, however, to 22 Commissioner Ahearne's question,there are other provisions in 23 our regulations; suspension, revocation, indirect sorts of 24 sanctions, that could be taken against licensees.
For that
- Am Feder.1 Reporters, Inc.
25 we do have clear authority and could use that.
16 mm15 MR. SHAPAR:
In other words, if we put out a rule j
and said, "You shall not discriminate," and they did discriminate <
2 the NRC under its current authority as we see it, could issue a 3
civil penal?v.
4 COMMISb70NER KENNEDY: Who would have to determine 5
whether they discriminated?
6 MR. SHAPAR:
The NRC.
It has that authority now, as 7
we see it.
g MR. CAMPBELL:
In addition of restitution of the 9
10 j b, the Act provides for legal fees under certain conditions',
jj and it also provides for expert witness fees under certain conditions.
12 COMMISSIONER AHEARNE:
Is there anyone from 13 Congressional Affairs Here?
j4 What is the likelihood or passage of that 15 amendment?
16 MR. KENT:
Pretty good, at least in terms of the j7 Senate.
I haven't heard any objections to it.
jg MR. SHAPAR: I think the paper says, "likely."
39 COMMISSIONER AHEARNE:
I never believe anything the 20 21 Paper says.
i MR. KENT: There doesn't seem to be a problem with 22 i
that.
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j 24 COMMISSIONER BRADFORD:
"Likely" as a subcategory.
ll Am.FWw3 Rgortws, inc MR. KENT:
At the House there may be some problem l
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l COMMISSIONER AHEARNE:
Do you know of any strong 3
feelings one way or the other in the House?
l 4
I MR. KENT: No.
Against it, no.
5 COMMISSIONER KENNEDY: Could we ask Ed Case to 6
describe a little more fully, the nature and concerns which he 7
expresses,and which as I understand them, at least, I share?
8 MR. CASE:
Well, I would like to try to include in 9
my discussion, some of the views of not only myself, but 10 other members of the NRR Staff.
11 COMMISSIONER KENNEDY:
I meant NRR, but your own as 12 well, if they differ.
13 MR. CASE: There appears to be here, a clash of N
principles.
There are some who believe as a matter of prin-15 ciple -- Vic Stello is one of that group, and a vociferous 16 proponent of this thing -- th:t this bill that Bill speaks of, I7 would be an unwarranted intrusion by the government, into the 18 affairs of a private company.
l 19 COMMISSIONER KENNEDY:
I would add that that seems t 20 be not the most unusual thing that has happened in this year.
21 (Laughter.)
22 But, let me add also, that philosophically I share 23 in principle what Mr. Stello's concern seems to be.
CHAIRMAN HENDRIE: When you say-the Bill, you mean
- Ace Federd Reporters, Inc.
25 Senate amendment?
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t 18 I
mm17 MR. CASE:
Or the bill that's in the paper, or the
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thrust of the thing.
3 COMMISSIONER KENNEDY:
The thrust of the proposition?
4 MR. CASE:
~'Yes.
5 The other principle involved in this is the question 6
of whether it should be unlawful to discriminate against an 7
individual who honestly has a safety concern and reports it to 8
his government.
9 And I feel strongly that that principle ought to.be 10 upheld.
11 And so these two are inconsistent.
12 COMMISSIONER KENNEDY:
Not necessarily.
Are they 13 necesssarily inconsistent?
14 MR. CASE: Well, if one says the government requires --
15 having such authority, it is inconsistent.
It gets into the 16 the private affairs of the company.
Inherently, it says 17 we ought go leave that to the company and we shouldn't interfere.
19 COMMISSIONER KENNEDY:
It depends entirely on the 20 limits of the authority and the way that authority --
21 MR. CASE: That is a position I'm trying to carve 2T out, as a matter of fact.
I think as a matter of principle, 23 il that this employee should be protected.
It clearly is the 24 i
potential for abuses and bureaucracy --
AeFWwd Reorms. Inc.
25 COMMISSIONER KENNEDY:
On both sides.
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MR. CASE:
-- in the company's affairs.
2 COMMISSIONER KENNEDY:
On both sides, however.
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MR. CASE:
Yes.
l 4
But without such a law, I think that's a more j
5 gross discrimination of the two principles involved, so I think 6
there ought to be a law to prohibit ~this kind of discriminations 7
it ought to be carefully drawn to avoid protection and feather-8 bedding, and protection of an individual who shouldn't be 9
protected.
And the regulations also should be carefully drawn.
10 And I think in doing that you get the better Il comprcmise involved in this situation.
12 That is the office position.
And Harold agrees,.
13 although he is not here this morning.
14 But there are others -- Vic is here -- who strongly 15 disagree with that.
And Crocker has also made a memorandum.
I0 COMMISSIONER KENNEDY:
May we hear their views?
I7 CHAIRMAN HENDRIE:
Feel free.
18 MR. STELLO:
I think you said it fairly well.
19 There is one way to make sure that we get the 20 information we need for safety, is to require people to do that 21 It is my belief that Part 21 whi'ch is in the early 22 stages of being implemented will, in essence require anyone 23 associated with the industry in its present form -- far-reaching 24 away fromthe industry in terms of subtier suppliers, to report Ace-Federd Reporters, Inc.
25 to us any identification of safety problems in general.
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And I don't think that we need to add more than 2
is already required, and we get to implementing it by going i
3 into the various factories we will make sure that they have f
the procedures which require employees to report their concerns.I 4
5 And I think this will go a long way by presenting 6
a relief valve -- (Inaudible.) -- Section 206 Part 21.
It is 7
not clear to me we need to do more.
8 MR. CASE:
I'd hate to encourage employees to report 9
things to their management, yet not provide.them protection 10 against discrimination by that same management.
11 MR. MINOGUE: Mr. Chairman, if I may I'd like to 12 make a statement on thatmatter.
Mr. Campbell was purposely 13 very neutral in his presentation.
14 I do have some views.and they are not dissimilar to 15 Vic Stello's view.
16 I think in many ways this agency can and does 17 get information concerning safety problems, and people working 18 within the industry.
I don't think there has been any showing 19 that there is anc systematic or widespread pattern of 20 discrimination against employees who provide information.
21 There are only a hw isolated instances.
j 22 And further, I don't think there has been any showing 23 that has been made that the other mechanisms for getting at 24 information are not completely --
' Ace Federd Rooorters, f x.
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COMMISSIGNER KENNEDY: Could I interject there?
I 21 1mm20 1
I want to be sure that I do understand what it says 2
on page 11 of this paper.
And, I quote, under Alternative 1:
3 "It should be noted that there are no known 4
cases where information of significance to the NRC 5
regulatory-function was not provided NRC in a 6
timely manner because of fears of discrimination."
7 MR. CAMPBELL:
It is hard to provide procf of lack 8
of information.
9 MR. MINOGUE: This is the old problem of proving a
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10 negative, which.I think we are all very familiar with, 11 COMMISSIONER KENNEDY:
Yes'.
12 MR. MINOGUE:
We know of much such cases. If it 13 happened, you are likely not to know about it.
We don't know 14 of such a case.
15 COMMISSIONER.7ENNEDY:
If there was gross discrimin-16 ation, are you sure you would be unlikely to know that?
17 MR. MINOGUE: Yes.
18 We have so many channels by which we get information; l
19 it is very difficult for me to believe that there is any 20 systematic pattern c f suppression that wouldn't show symptoms,
i 21 that you wouldn't see somehow, somewhere.
We get information i
22 by the tons.
23 But it is very hard to prove a negative.
24 If I may continue my statement:
l I Aa-FWwd Reorters Inc.
25 Further, I think that the resource requirements, the l
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bureaucratic structure that would tend to be created to I
2 implement the kind of thing that you discuss in this paper, the' 3
bureaucratic interfaces that have to be resolved, are very l
4 substantial.
5 Further, I am concerned that there is a potential 6
for covert discrimination that can never be reached by any 7
kind of a legal structure.
There are ways that employers can 8
get at uorkers, that you can't get your hands on.
9 COMMISSIONER KENNEDY:
Not until 1984.
10 MR. MINOGUE: We haven't quite reached 1984.
II COMMISSIONER KENNEDY:
'I hope not.
12 MR. MINOGUE:
Lastly, I have some concern, with all 13 due respect to the Department of Labor, as to whether or.not 14 they will be more effective at coming at this -- to be able 15 to come at this effectively.
16 So in view of all that, I really don't think we 17 should do anything at this point.
18 If the Commission should, however, decide to take 19 some action, I think it is important -- you touched on this 20 Commissioner Kennedy earlier -- that the action ought to be 21 taken in a way that the technical questions are handled by 22 NRC. But all of the matters that involve personnel 1
23 interrelationships and actions related to that should be 24 handled by some agency with more skills, expertise and back-
~
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25 ground in that area, like the Department of Labor.
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I That's basically what my view is. Thank you.
I 2
MR. DAVIS:
First, IE would prefer the comorehensive 3
legislative approach, and our support of Alternative 5 on this 4
particular paper was basically a timing problem.
We felt that 5
we should move forward with whatever authority we have now, 6
since we,do believe that there is a problem out in the industry 7
of people coming forward.
i 8
We don't have a lot of examples of people who do 9
not come forward, but we do have examples of people who do come 10 forward, and who desire to remain anonymous, which would lead II us to believe that they fear some kind of retaliation will be 12 taken against them if they become known.
I3 COMMISSIONER KENNEDY:
I want to be sure that's not 14 the only interpretation that can be placed on that.
15 MR. DAVIS:
That's correct.
16 We think that a worker should feel that he could I7 come forward to provide us with any information that concerns 18 him about the safety of the plant without any fear of retalia-I9
~
tion.
And we believe that there is a fear out there now. But, 20 of course, we can't qualitize it.
2I COMMISSIONER GILINSKY:
Let me understand, John.
j 22 Your feeling is based on the fact that informants want to i
23 remain -- want you to keep their identity confidential, or 24 does it go beyond that?
Acs. Federal Reporters, Inc.
25 MR. DAVIS: No, it is based on the fact that we do i
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mm23 get information that it is not infrequent that he who provides ;
it will either not talk with us directly and runs it through -i 2
i 3
i he washes the information.through a third party.
Or, once he 4
does talk with us, he desires to remain anonymous.
5 COMMISSIONER GILINSKY': Does he explain why?
6 MR. DAVIS:
Generally, either expressed or unexpressed 7
fear of retaliation.
8 COMMISSIONER GILINSKY:
So there are expressions of 9
fear?
10 MR. DAVIS: Yes, there have been.
s 11 COMMISSIONER GILINSKY:
Is this rare?
12 MR. DAVIS: There are not a great number of these.
13 We don't get a lot of allegations that come directly to us.
14 If you look at --
15 COMMISSIONER KENNEDY:
How many is a lot?
16 What's the range of numbers we are talking about?
17 Tens, hundreds, thousands?
18 MR. DAVIS:
It is into tens over a year period.
19 We don't get a lot of them.
20 COMMISSIONER KENNEDY: And of the tens, however many, 21 what percentage involve this desire for anonymity because they 22 are concerned?
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MR. DAVIS: Well, most people we don't ask them why.
24 I Ace Focterd iqecorters. Inc.
In other words if they want to remain anonymous, we just try 25 to respect that request.
But, most people ask to remain
2s 1
anonymous.
Most workers do, members of the public don't.
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COMMISSIONER KENNEDY:
How do we then determine that!
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they want to remain -- if they don t tell us, how do we determine 4
that they want to reami anonymous because of fear?
5 MR. DAVIS: We make that assumption.
6 MR. CAMPBELL:
On the Rancho Seco case, the 7
- employee, when asked to put it in writing and sign a statement 1
8 he said, "No, it's a nonunion shop, I'm afraid I'll get fired."'
9 There was a New England utility where the man 10 specifically stated, "I'll be blacklisted. I won't be able to 11 get a job anyplace else in the industry."
12 He had already left the utility he was working with, 13 but he did want to work in the industry.
14 There was another case at North Anna.
It didn't 15 go anyplace. The informant said, she feared for her brother-16 in-law who was a plant worker, and they would not go on the 17 record.
18 So we do have a number of them.
19 In cases where we have gotten information, in a 20 Pennsylvania utility, the informant submitted the information 21 anonymously, but it wasn't detailed. We went out and checked i
22 and we couldn't find anything that was wrong.
23 But, in 1972 there was an anonymous letter submitted 24 to the ACRS that was very detailed, very specific. And as a t
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25 result, significant changes were made in a number of plants.
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2 COMMISSIONER GILINSKY:
Are you talking about the l
1 i
3 stemmlines fire control?
4 MR. CAMPBELL:
Yes, sir.
firing, blacklisting --
5 They range, John,would the currently 6
COMMISSIONER AHEARNE:
existing amendment in the Senate, be sufficiently comprehensive 7
8 to meet your concerns?
If it reaches to the construction --
9 MR. DAVIS:
10 the nonlicensee employee, I believe so.
our basic concern is really reaching to nonlicensee II employees for future problems. In other words, when you are 12 it is not a probl em dealing with the ceastruction industry, 13 today, it is what may happen five years from now.
I4 And that makes it somewhat more difficult to handle.
15 The bill would reach nonlicensees.
16 MR. SHAPAR:
What is the other side of I7 COMMISSIONER BRADFORD:
this equation in terms of what some of you are worried about.?
I3 for example, seem in.
I9 How many of these allegations, the end after you have checked into them, to be based not on a 20 or real safety concern, but on some kind of disgruntlement, 21 1
22 desire for retaliation?
The motivation for allegations is very 23 MR. DAVIS:
24 difficult to arrive at.
l I guess basically IE believes that when an individual Aa-Federd Reporters, Inc.
25 1
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comes forward with information, generally it is his perception i
2 of what the facts are.
I 3
Now, why he comes forward 4
CHAIRMAN HENDRIE: No, no.
After you have looked at i 5
it, what tends to be your experience?
6 MR. DAVIS: My experience is that generally:the 7
facts will be somewhat correct, but the significance will be less 8
than that which the informant thought they would have.
9 COMMISSIONER AHEARNE:
But you are saying in 10 general your experience is that it is not simply a case of 11 attempting to harras-cne management?
12 MR. C.
_S: We do not have that impression.
13 CHAIRMAN HENDRIE:
Other comments?
14 John?
15 COMMISSIONER AHEARNE: Question of in' formation.
16 Did the Commission ever take a position with respect 17 to the amendment to the authorization bill?
18 CHAIRMAN HENDRIE: Not that I know of.
19 MR. DIRCKS: Not that we recall, not from the Staff 20 point of view.
21 COMMISSIONER KENNEDY:
I don't recall being asked.
22 COMMISSIONER AHEARNE: And the next question, Bill, 23 perhaps you are the right person to ask.
24 I'm still puzzled by why one of the issues isn't
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25 what should the Commission's position be with respect to the 1
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1 amendment.
2 MR. DIRCKS: Well, in effect,when we sent the paper 3
down in June, the EDO note did call attention to the fact 4
that we had this pending legislation, and that we would appre-5 ciate the focus being on the legislation.
6 COMMISSIONER AHEARNE: But I thought I just listened 7
to a presentation, and I didn't recall that being a major, 8
substantive issue, at least, on what the alternatives being 9
presented were.
10 MR. DIRCKS: The paper that was prepared in advance 11 of the legislation, there was a discussion of the need for 12 comprehensive legislation and the discussion of, should we 13 have interim regulations in the meantime.
14 When it passed through our office, by that time the 15 authorization bill was being put together in firm fashion and
'16 we said that rather than focus on the disparate views of the 17 offices regarding, should we have interim regulations or should 18 we not --
19 COMMI3SIONER AHEARNE: I understand that.
j 20 My question really is why, here we are now in the 21 first week of September with six weeks or so left at most of I
22 the Congressional operation, and a reasonable chance that this 23 legislation will make its way through, why are we not 24 addressing the question of, should we be supporting that Ace Feder0 Reporters, Inc.
25 amendment.
I would expect that one of the questions that might i
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very likely be raised by the House committee is, what is our position on that amendment?
Do you see any real problems with !.
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MR. DIRCKS:
I guess the answer from this end is 5
that the views that I have been gathering is that the bill 6
in that section might be an appropriate way to get at the 7
problem.
8 And I think you might ask the ELD to comment. I 9
think there has been some discussion back and forth with the 10 committee on the subject.
II MR. SHAPAR:
One of our comments on the paper was 12 just this point, which is in one of the attachments to the I3 paper.
14 I guess, in my perspectise you have got legislation 15 like this in other areas; mine safety, EPA.
And I can't, in 16 my own mind, differentiate any significant differences between 17 our situation in nuclear safety from those other situations 18 where there is legislation.
19 And unless someone can come up with a pretty good 20 rationale for distinguishing the nuclear industry, it seems 21 to me in view of the numbers and the kind of legislation that 22 address this kind of problem in other industries enacted already t
23 by the Congress, it seems to me legislation is a proper remedy' i
24 here, in view of the defects in the present system that have Ace-Federal Reporters, Inc. j 25 '
been identified.
mk2D 30 1
It seems to me that brings it precisely to your 2
point, is the legislation that has picked up some momentum in 3
the Senate, the kind of legislation you all want to live with?
I 4
It seems to me that one thing you ought to want to 5
have now that hasn't been provided you, is a detailed analysis 6
of this legislation, the pros and the cons. And then maybe 7
another meeting so ths:_you can -- or by affirmation -- have 8
a position on this legislation.
9 MR.MINOGUE: Can I make a comment?
10..
This paper was sent up to EDO in early May, and I 11 encouraged it being sent up to the Commission to make the 12 Staff work in it available in the discussions regarding the 13 legislation.
14 I think EDO's note takes position on the legislation, 15 it makes a very definite recommendation.
16 Wediscussedheresomeofthefacporsthatwould 17 arise in attempting to implement that legislation.
And I think 18 it came out rather clearly that there would be some real 19 difficulties.
l 20 Another point I would like to make, there is a 21 difference between this industry, let's say, and others in thatj 22 we have a very extensive system of reporting and surveillance t
23 required that I think is rather unique.
It is not, for 24 example, directly analogous to OSHA with their very limited Ace.fsder3 Reporters, Inc.
25 army of inspectors looking at occupational safety problems in
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various industries.
2 We have a rather extensive program of getting l
i 3
information, licensee reporting, of inspectors, resident 4
inspectors, that provide alternate channels to obtain 5
information.
6 The basic question to me, is whether the bureaucratic 7
burden is worth the gain.
And I submit that hasn't been shown.
8 COMMISSIONER AHEARNE:
Bob, the impression I am 9
getting though -- at least in trying to track what is happening 10 up on the Hill -- is that there is going to be a bill. And so 11 I think the issue really that is before us at this stage is, 12 are there any changes we want to strongly urge the House to 13 make in that bill?
14 The question of whether or not we should do anything 15 at all -- although it might at one time have been a very 16 interesting question -- I don't think is questionable.
17 MR.MINOGUE: Staff work here identifies three key 18 elements; prohibit discrimination, provide penalties, provide 19 remedies.
20 The bill, in the Senate version, as I understand i
l 21 what I've heard here and what Mr. Campbell has told me, does l
22 not clearly provide penalties. Certainly not to people other 23 than employees of licensees.
24 But, in fact, many of the people concerned, many of
. Am Fewd Amornrs. Inc.
25 the instances that have been cited, were employees who were
e...
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not employees of licensees --
2 COMMISSIONER AHEARNE: Except that it does extend to --
I f) 3 at least the coverage extends to nonlicensees.
4 MR.MINOGUE: Not as it relates to the imposition of 5
penalties.
6 MR. MALSCH: The bill does not address at all the 7
question of NRC's imposition of civil penalties.
8 (Simultaneous discussion.)
9 COMMISSIONER AHEARNE: But it does address, as I I
10( understood it --
II MR. MINOGUE: 'What we have identified here as an 12 important element, is the ability to provide some kind of 13 penalties, not just remedies.
14 COMMISSIONER AHEARNE: Are you saying then, that one 15 of the issues we ought to be addressing, is wheth e or not 16 we ought to recommend to the House, an addition to that bill 17 which would include that coverage?
18 MR. MINOGUE: Yes, sir.
19 COMMISSIONER KENNEDY:
THat's a question that ought 20 to be examined.
21 MR. MINOGUE: That's what I really mean.
That is a i
22 question that should be examined.
I think that is something 23 that we can identify, if you look at the Staff work versus the 24 rule versus the law.
Ace Feder:3 Reporters, Inc.
l 25 COMMISSIONER AHEARNE: I think this still goes back l
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l mm32 to Howard's point.
At least I would feel it would be very 1
2 useful, where I could have an analysis of that bill and what 1
3 the possible modifications to it that we want to recommend, j
and that would be an appropriate focus for a discussion.
f 4
5 CHAIRMAN HENDRIE: Other comments at the moment?
6 (No response.)
7
. It seems to me you are quite right, John. With a
8 set of language already in S.2584 on Employee Protection, I 9
think that ought to be the focus of the Commission's attention 10 rather than draft language in a Staff paper, or other variations i
11 on the thing.
12 The broad sweep of the Staff paper,the alternatives 13 and so on has been narrowed by the course of the events on the 14 Hill.
I think rather specific item -- I think you are quite 15 right, the Commission ought to have in mind what it thinks of 16 this provision so it can inform both sides of the Congress in 17 the hoped-for event that the House passes an authorization bill 18 and that there gets to be a conference committee on the matter, 19 with the possibility of an authorization bill ultimately
- l 20 with the agency for fiscal '79, a highly-desirable 21 circumstance.
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22 Well, as I read the provisions in the proposed t
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It would protect employees AwFews Reormrs, inc.
25 of licensees, applicants, or contractors, subcontractors of e
34 mm33 same, and provide remedies, Department of Labor to handle these i
i 2
- l matters.
But I think some sort of a rundown on the specific 3
language and recommendations as to wh ether we should suggest 4
changes, would be useful.
5 I w uld suggest to the Commission that the alternative 6
would be either now, or soon to follow, in a consent mode, that 7
we would vote up or down on whether we support the proposal now g
before the Senate.
9 It seems to me it would be better to have some 10 specific analysis on this proposal.
One leap forward that way.
j; S
if I can recommend that --
12 13-COMMISSIONER AHEARNE: Unfortunately, it would have to be in shortly.
34 CHAIRMAN HENDRIE: It needs to come rapidly.
15 And I'm not sure that it need be an enormously 16 exhaustive analysis, but somebody needs to sit down and read j7 these words caref tily against th @rovisions -- similar provisions 18 for et her agencies, and take a look at -- at least in a summarv j9 l
way, of how that seems to work or not work, and make some 20 re mmendations.
21 I
COMMISSIONER AHEARNE: And also pick up on tat 22 i
Bob said. There might be at least additions or deletions for 23 l
24 that matter, that we might want to recommend.
That's Ace Federd Recorrors, Inc.
what I think the Commission should focus on.
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mm34 MR. MINOGUE: Another point I would like'to make, I j
think the interrelationship between say the NRC and DOL would 2
need to be clearly spelled out. Just from the sense of the 3
discussion here I got a feeling that it would really be a 4
bucket o'd worms.
5 And-if the legislat,lon were precise on this thing, 3
very clearly defining what DOL was to do, that would be another 7
p int that could perhaps be focused in this analysis.
8 CHAIRMAN HENDRIE: I think it is clear in the language 9
as I read it, that that would suggest by a large margin.
10 But, let me ask which of the law offices of the 11 agency, or both, should do this?
12 MR. KELLEY:
I think the agency should meet with 13 Staff --
j4 MR. SHAPAR:
I would never work both.
I would never c 15 under any circumstances, say both.
I would certainly defer to 16 the Office of General Counsel, which has delegated authority 37 f r legislation.
18 (Laughter.)
39 Unless they are really willing to have us do it, 20 in which case we would be happy to do it.
21 MR. KELLEY:
I would be more than willing for the 22 ffice that has already done all the work on this to continue 23 i
to do so.
24 Ace Feder:A Reporters, Inc.
We would be happy to read it.
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1 COMMISSIONER KENNEDY:
That sounds Solomonic.
I-l 2
CHAIRMAN HENDRIE:
Let me tell you what a simple I
3 mind gathers out of that discussion.
I i
4 Howard is going to do it.
l 5
(Laughter.)
6 COMMISSIONER AHEARNE: Now can I as' a question?
2 7
When?
8 MR. SHAPAR:
When would you like it?
9 COMMISSIONER AHEARNE:
Well, I wouliLprefer to have 10 it in this package.
11 MR. SHAPAR:
That's not possible.
12 (Laughter.)
13 COMMISSIONER AHEARNE:
A week?
14 MR. SHAPAR:
Yes.
15 COMMISSIONER AHEARNE:
Fine.
16 Can I make one last comment?
I don't want to leave 17 the impression that the work that was done in building this 18 was not useful.
I think it is very useful.
It is a good, 19 solid, substantial base. And certainly for my use it was i
1 20 absolutely necessary, because it gave all of the development 21 of the issues. And I found it very profitable going through it.l 22 So my comments about them, we now really have to l
l 23 focus on something else, in no way should be interpreted meaning 24 that it didn't find this work very useful.
jAa-Feder-J Reporters, Inc.
l 25 MR.MINOGUE: Since I sent the paper to EDO at the i
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COMMISSIONER KENNEDY:
Let me also express l
3 appreciation for the extreme candor with which a variety of i
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Staff views were brought out clearly and precisely.
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CHAIRMAN HENDRIE:
Good.
6 I thank you very much.
7 We will turn to the next order of business.
8 (Whereupon, at 10:25 a.m.,
the hearing in the 9
above-entitled matter was adjourned.)
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