ML20058A430
| ML20058A430 | |
| Person / Time | |
|---|---|
| Issue date: | 10/15/1990 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| TASK-PII, TASK-SE SECY-90-354, NUDOCS 9010260135 | |
| Download: ML20058A430 (4) | |
Text
~
e g
l daie '
W!E
................. V.s....e l
POLICY ISSUE October 15, 1990 sEcY-90-354 (Information)
For:
The Commissioners From:
James M. Taylor Executive Director for Operations subject:
RESOLUTION OF INVESTIGATIVE PRIORITIES WHEN THERE IS INITIAL STRANG EVIDENCE OF MISCONDUCT
Purpose:
To respond to the Staff Requirements Memorandum dated August 10, 1990, which directed the staff to provide a paper describing how it resolves issues of investigative need and priority, and potential hazards to the public health and safety in cases with initial strong evidence of misconduct.
Background:
In SECY-90-248, dated July 16, 1990, the staff consulted with the Commission regarding the issuance of Notices of violation for willful violations identified at the LaSalle and Zion facilities. The violations occurred and were identified in early 1987.
Because of the time elapsed between the discovery of the violations and the enforcement action, cnd the early indications that wrongdoing may have been involved, the Comission directed the staff to review its practices in cases where violations have occurred and there is an admission or otherwise strong initial evidence of willful misconduct. At this juncture, staff must decide whether to take enforcement action based on available infor-mation, refer the matter to the Office of Investigations (01),orboth.
Discussion:
On January 10, 1986, the Comission approved the guidelines for initiation, establishment of priorities, and termination of investigations. The Comission concluded that uniform guidelines should be used by both the staff and 01 in esta-blishing priorities for investigations and that staff views on the netd for and priority of an investigation were an integral part of the investigation process. NRC Manual Chapter and Appendix 0517, Management of Allegations (0517) provides guidance to the staff on when imediate action may be nect. ~ ay, and when it is more appropriate to await the outcome
? an 01 investigation.
Contact:
J. Lieberman, OE NOTE:
To BE 11ADE PUBLICLY AVAILABLE x20741 IN 10 NORKING DAYS FROM THE DATE OF TFIS PAPER jDh 1..( #4M46O M
s\\0
The Comissioners The Chapter provides that
- Regional Administrators and Office Directors shall refer to the Office of Investigations for possible investigation all matters where:
(a) there is defined elsewhere in this chapter; and (b)g, as that term is a reasonable basis for belief of wrongdoin the staff determines an investigation is necessary for it to decide whether enforcement or other regulatory action is required.
Matters for which there is not a reasonable basis to believe wrongdoing is involved or matters which may involve wrong-doing but for which an investigation would be unnecessary to determine the appropriate course of action should not be referred to 01 for inves'igation. For example, where a licensee discovers that e r level employee deliberately violated a requirement or falsified a document, disciplines the employee, and takes a ppropriate corrective action which the staff has reviewed, tie staff may conclude that further NRC action is unnecessary.
However, all matters which involve wrongdoing shall be reviewed with 01."
01 may chose to self-initiate an investigation if in its judgement there is evidence that the wrongdoing issues need further investi-gation to determine potential involvement of management or where other wrongdoing matters pertaining to safety have not been made sufficiently clear by virtue of the staff's actions thus far. Copies of all requests for investigations are provided to Office of Enforcement, Office of General Counsel,
)eputy Executive Director for Materials Safety, Safeguards and Operations Support and the program office. These organi-zations may also provide recomendations to the requesting office if their review indicates a need for imediate regu-latory action.
To ensure continuing high-level management involvement in the investigative area, by. memorandum dated August 8, 1990, I directed the Regional Administrators to meat on a monthly basis with the 01 Field Office Directors (F0D) to discuss the prioritization of ongoing 01 cases and to determine the need for regulatory action resulting from the development of the wrongdoing issues. As a result of these meetings, Regional Administrators are to prepare a memorandum each month to DEDS listing the five highest priority cases in that region, and the five lowest priority cases. The Directors of HMSS, NRR, 01 and OE will receive copics of these memoranda and are responsible for reviewing assigned prior-Ities and making any concerns they have known to the appropriate Regional Administrator and, if necessary, the EDO s office.
I also reemphasized the guidance in the Enforcement Manual that Regional Administrators are to be particularly sensitive to the need to consider enforcement action when there is a potential significant safety impact with regard to wrongdoing issues and there is sufficient evidence availabic to take immediate action.
The criterion for deciding whether staff should take ictediate regulatory action is the same as for issues not
n e
The Commissioners ir.volving wrongdoing, i.e., the potential safety signifi-r,ance of the issue. When the staff 'ias information which it believes demonstrates that there is no longer reasonable assurance that the public health and safety is being protected, it will take irisnediate action to restore that assurance whether or not an investigation is ongoing by O!
e tne Departent of Justice (DOJ). This is consistent with theMemorandumofUnderstanding(MOV)withtheDOJwhich specifically provides that, "If the NRC concludes at any time that it la:ks reasonable assurance that activities authorized by a license are being conducted without endan-gcring the health and safety of the public and the NRC concludes that insnediate action is required to protect the public health, safety, or interest, it will proceed with such action as is necessary to abate the innediate problem."
However, it is not always necessary for the staff to take l
insnediate action when there is strong initial evidence of wrongdoing.
For example, on many occasions the licensee is aware of the issue under consideration and has taken action. These actions may involve an internal review or investigation by the licensee and personnel actions taken by the licensee. When the licensee has acted to mitigate potential or real safety problems, the specific action taken by the licensee becomes a major determinant in staff's consideration of the need for insnediate regulatory action.
When the safety significance of the issue may be impacted l
by the continuing activities of a potential wrongdoer, immediate action by the staff is considered.
The agency practice with regard to willful misconduct is to make a considered judgment as to whether there is sufficient evidence available to take immediate action, if the safety significance warrants it. This was the situation withregardtoMidwestWireline(EA88-166)andAmerican RadiolabeledChemicals(EA89-237). Staff has used Con-firnatory Action Letters to address safety issues in instances where the licensee on its owr,has restricted the activities i
of individuals involved in wrongdoing. A 11<
e's conclusion of wrongdoing by its employees or contractor.
not be sufficient to support staff action in a cont case where-in the staff has the burder of proof. Theret
, in almost every case, there rem 61ns a need to do some investigative work to develop sufficient evidence to support ary NRC enforcement action that may be taken. The staff must also ensure that the licensee is not blaming a lower level employee for its management's wrongdoing.
In other instances 01 may be able to conclude early in its investigation that wrongdoing has occurred.
In these instances, as provided in ny August 8, 1990 Memorandum and in the Enforcement Manual, the 01 F0D is to notify the Regional Administrator who is to consult with the Director i
o The Commissioners
- of the Office of Enforcement, the appropriate srogram office and OGC.
Immediate action may be taken in suc1 instances.
If it is determined that imediate enforcement action should be taken, the Director, OE, will advise the Director. 01, of the reasons why enforcement action should proceed during the pending investigation, in addition, OE will coordinate with D0J if the Director. 01, determines that the case will likely be referred to D0J for prosecution.
Enforcement actions taken during the pendency (of an investigation include, for example, Finlay Testing Labs EA 87-186), Philadelphia Electric /PeachBottom(EA87-046),PetroData,Inc.(EA90-131)}.
UltraSonicSpecialists(EA89-171),andQuadCities(EA90-031 In the case of wrongdoing involving violations of 10 CFR 50.7, Employee Protection, Manual Chapter 0517 provides detailed guidance to staf f on action to be taken, it states, "When a complaint has been filed with DOL, staff should normally await completion of DOL investigations and other proceedings before initiating its own investigation of the intimidation and harassment aspects of the complaint of discrimination. However, if an allegation is made to the NRC that involves significant public health and safety implications, e.g., the allegations of intimidation or discrimination are so widespread as to require imediate L
i action or involve high levels of management, the NRC can and should take certain action imediately without waiting o
for DOL. The action to be taken should be determined on a case-by-case basis and should include consideration of referral to 01 for investigation, enforceiaent action for i
specific acts of discrimination, action to identify patterns of discrimination and levels of management involvement, bringing the issues to the attention of the licensee, and enforcement conferences and management meetings to discuss possible licensee actions with regard to the potential chilling) effects of discrimination" (Appendix 0517 Part I.C.4.b..
->, l mes M. T or xecutive irector for Operations DISTRIBUTIOM: