ML20058M774
| ML20058M774 | |
| Person / Time | |
|---|---|
| Site: | Farley  |
| Issue date: | 09/29/1993 |
| From: | Dennis Morey SOUTHERN NUCLEAR OPERATING CO. |
| To: | NRC OFFICE OF ADMINISTRATION (ADM) |
| References | |
| FRN-58FR41108, RULE-PR-30, RULE-PR-40, RULE-PR-50, RULE-PR-60, RULE-PR-70, RULE-PR-72 58FR41108-00051, 58FR41108-51, NUDOCS 9310070017 | |
| Download: ML20058M774 (22) | |
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$ September 29, 1993-the southern etetac ersem '
6; Docket Nos. 50-348 m +
50-364 3
The Chief Rules Review and Directives Branch Mail Stop: P-223 U.S. Nuclear Regulatory Consnission ;
Washington, DC 20555 Comments on ,
Whistleblower Protection (SB Federal Reaister 41108 of Avaust 2.1993)
Dear Sir:
Southern Nuclear Operating Company has reviewed the request for comments
- Whistleblower Protection," published in the Federal Register on August 2, 1993. In accordance with the request for comments, Southern Nuclear Operating company is in total agreement with the NUMARC comments which are to be provided to the NRC. In addition, Southern Nuclear is providing the enclosed comments.
Should you have any questions, please advise.
Respectfully submitted, N
Dave Morey DNM/JDK Enclosure ec: Southern Nuclear Operatino Company R. D. Hill, Plant Manager U,_ 5. Nuclear Reuulatory Comission. Washinaton. D. C.
T. A. Reed, Licensing Project Manager, NRR U. S. Nuclear Raoulatory Conrnission. Reaton II S. D. Ebneter, Regiona1' Administrator G. F. Maxwell, Senior Resident Inspector 9310070017 930929 PDR PR 30 SBFRA110B PDR TOTR. P.12 !
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l Southern Nuclear comments on Whistleblower-protection Southern Nuclear recognizes the vital importance of complete employee :
freedom to raise potential safety issues to management, as well as the importance of assuring protection of employees who raise safety issues to ,
the NRCe Southern Nuclear feels that existing' statutory and regulatory ;
protection insures that employees are free to report concerns to the NRC, j and that emphatic commitment of every level of management to safety is the j most effective way to make employees confident of their ability to raise !
potential safety issues. Said another way, Southern Nuclear believes that {
genuine and continuous commitment to safety by the licensee and its '
employees at all levels is more important in inspiring confidence in the- t work force than over-reliance on procedures, structures, or paperwork. The ;
administrative tail should not wag the dog.
i It is possi* le, v but we hope, improbable, that some employees might be unwilling to address safety concerns directly to management whom they feel '
responsible for the existing unsafe conditions; and the possibility of such l employee reluctance calls for effective alternative ways for employees to ;
raise safety concerns internally. Southern Nuclear has chosen a comprehensive Concerns Program to allow alternate means of communication !
with assurances of confidentiality and (if requested) anonymity for whistleblowers. i As a general matter, the comments at the public meeting by attorneys ,
who represent whistleblowers were skeptical of Wocedure, skeptical of the good faith of licensees, and skestical of the Ntc itself. (See, e.g., .the i statementofRichardConditattleAugust 25, 1993 public meeting that 1 individuals come to his organizatien because they perceive the NRC, the site management and the site allegation management program.., to all be hostile entities," Transcript, p.7). No realistic change in the structure i of employee concerns programs could possibly allay the suspictors voiced by !
whistleblower attorneys. :
The whistleblower attorneys attached far greater importance to the j protection of whistleblowers than to resolution of geguine safety issues. !
(See, e.g., the statement of Lynn Bernabei at the August 25, 1993, public ,
meeting that safety investigations should be deferred to insure the ;
anonymity of whistleblowers, Transcript pp. 25-26). That reflects :
precisely the wrong emphasis, and it would be inconsister.t with the .l responsibility of the NRC. The protection of the anonymity of '
whistleblowers is important to the extent that it contributes to safety, not as an end in itself. The protection against retaliation is statutory, 1 and is effectively enforced by DOL. l Although attorneys representing whistleblowers understandably put the interest of their clients ahead of the safety interest their clients presumably advance, it would be irrational for the NRC to do so. The question of priorities, particularly the priority on safety, requires evaluation of the cost of additional regulation and particularly of procedural complexity directed at protecting the identity of whistleblowers. The resources of the NRC, as well as the resources of the licensees, are finite; and to suggest that more of the resources be committed to procedural protection necessarily reduces the resources available for identification and resolution of safety issues.
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l, The suggestions that licensee resources would better be connitted to formal establishment of concerns programs depending upon outside ombudsmen, and that NRC resources be committed to duplication of DOL proceedings in .
whistleblower complaints, must be rejected %cause those suggestions compel j a diversion away from matters of more direct safety significance. Again, '
it is understandable that whistleblower attorneys would suggest such a diversion in the interest of their client; but it would be a mistake for i the NRC to agree. If a fire department had the choice of hiring more 3
firefighters or hiring lawyers to defend individuals who fear they may be charged with turning in false alarms, the decision would seem difficult only to lawyers. ,
l In response to the specific matters about which comment was requested '
at 58 FR 41109, Southern Nuclear submits the following:
(a) The NRC has in fact taken sufficient action through issuance of I
regulations, policy statements, and inspections to assure that NRC ;
licensees encourage their employees and contractors to raise safety i concerns without fear of reprisal; l (b) The current NRC process for handling allegations is appropriate from the perspective that allegers feel free to bring safety concerns to i the NRC; and i I
(c) In situations where it is alleged that discrimination may have j occurred: !
(1) there are not likely to be any NRC actions that materially l accelerate the resolution of issues within the DOL process; ;
(2) the employment issues addressed by DOL proceedings do not require NRC involvement, although the NRC should always respond promptly to genuine issues of safety significance in accordance with the Nemorandum of ;
Understanding between NRC and DOL at 47 FR 54585; i (3) the nature and extent of " follow-up action" to remove l potential chilling effects arising from discrimination necessarily depends t upon the discrimination involved, and is a matter appropriately within the '
expertise of the DOL; o
(4) no further civil penalties or orders are necessary to '
emphasize the need for licensees actively to encourage employees to raise safety concerns without fear of discrimination; and
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(5) there is no need for more vigorous use of orders and demands for infomation as to individuals found to have caused discrimination.
(d) The NRC is sufficiently proactive in cases where employees raise concerns with the NRC and express fear they may receive retaliation for raising safety concerns.
As to the items on which specific comments have been requested regarding licensee responsiveness to employee concerns (Issue A. at 58 FR 41110), Southern Nuclear submits the following:
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SOUTERH NLCLEAR OP' COMP TO 913015042259 P.04 SEP 1993 Ert:O7 FROM A. Responsiveness and Receptiveness of Licensees to Employee Concerns so That Employees Will Feel Free To Raise safety Issues Without Fear of Retaliation A.1. a. Southern Nuclear has a comprehensive Concerns Program (described in Attachment A) that permits omployees to address concerns of any nature, including safety concerns, on an anonymous and confidential basis. Such concerns include, but are not confined to, safety issues that employees may be reluctant to address with 1 mediate supervision. However, employees are encouraged in the interest of expeditious resolution of any safety issue to bring the matter promptly to the attention of line management to permit the most rapid response by those directly concerned with and informed of every aspect of safe operation.
Each plant has a Plant Concerns Coordinator with reporting i
responsibilities to the Plant General Manager, and to the Corporate ;
Concerns Program Administrator. Individuals reluctant to deal with the Plant Concerns Coordinator may communicate directly with the Corp' orate Concerns Program Administrator. The number of concerns received each year at the corporate level (which primarily involve many unemployment issues i unrelated to safety) has varied, from 20 in 1991 to 36 in 1992 with 12 so i far in 1993; one of the concerns in 1993, and one in 1992, involved perceived safety concerns. Resources available include personnel within the human resources function, and technical expertise as necessary.
Southern Nuclear has in appropriate circumstances arranged for personnel from Technical Services to assist the Corporate concerns Program Administrator by providing expertise necessary to evaluate and respond to a safety concern provided by an employee who chose to remain anonymous.
A.1. b. In situations in which employees are reluctant to address safety concerns to immediate management, concerns may be presented on an anonymous and confidential basis to persons outside line management either within the plant (to the Plant Concerns Coordinator) or outs 10e the plant (to the Corporata Concerns Program Administrator). Outside counsel may also be engaged by the Program Administrator, if necessary. The independence of the Concerns Program is protected by establishing reporting responsibility of the Corporate Concerns Program Administrator to the Vice President-Administrative Services and the Corporate Compliance Officer, rather than to the line management.
A.1. c-h. The organizational structure of an effective concerns program is not as important as effective co:nmunication at every level of the preeminent importance of safety. If the commitment to safety il regularly demonstrated, the formal structure of a concerns program is of relatively little importance, and many alternatives may be useful depending upon the specific circumstances. Experience has shown that the best means to resolve safety concerns is direct communication with immediate supervision; and that the overwhelming majority of safety matters are addressed in this way. For the relatively rare cases in which a concerned individual wishes to raise an issue outside the chain of command, the personal credibility of the Concerns Coordinator or Program Administrator is very important.
A.1.1-k. Southern Nuclear does not feel it necessary or advisable for the NRC to adopt a policy statement or regulation or order concerning
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SEP 19e3 FD de ' FROM employee concerns programs. The critical requirements of such a program are credibility and flexibility, neither of which depends upon rigid structure, and both of which require that the licensee develop a program suitable for its circumstances. Such programs exist in the well-understood 1 context that all employees- are free to raise safety concerns to the NRC at !
any time, and that DOL is- available to respond to unlawful employment action. '
q A. 2. a-d. Empluyee confidence to raise safety issues within normal '
organizational processes arises from a genutne commitar--' to safety from '
the highest management through every level of supervis 1 down to the most i
. junior employee. The most important organizdional attribute to encourage !
use of nor1eal organizational processes is leadership. Verbal commitment. '
although necessary, is not sufficient. If employees see action to address ;
safety concerns within normal organizational processes there will be :
promptutilizationofthoseprocesses,andrelativelylittleuseof .i alternative means to resolve safety issues.
B. Responsiveness of the MRC to Allegations B.1-2. Southern Nuclear coes not feel that the NRC is unresponsive ?
to allegations, and Southern Nuclekt supports the policy of-referring allegations to licensees for action. .
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B. 3. Where it_ appears that a problem might arise from inadvertent :
' identification of allegers, the NRC should exercise extreme care in ;
phrasing communications to the licensee. It should be recognized, however, ,
that the difficulty of assuring confidentiality as to nuclear safety ;
allegers is not unique. Sexual harassment allegers, and whistleblowers of ;
all sorts, typically furnish information that only a limited number of -i people might know,.and statement of the allegation'in unnecessarily l specific terms may make the identity of the alleger easy to deduce. 1 Experience in investigation of other concerns suggests that identities can l be protected by care in the way allegations are disclosed. However, the primary responsibility of the NRC in such cases must be the underlying j safety issue. i l
i B. 4. A toll-free 800 number might encourage additional raising of concerns, but it is difficult to know how many persons are unaware of the existing opportunities to communicate with resident inspectors and other NRC personnel.
B. 5. Southern Nuclear is not aware of any inadequacy in the measurement of employee views by interviews, but survey questionnaires might be useful in confirming the effectiveness of inspections based on .
Interviewing employees.
C. Potential for Discrimination C.1. Employees concerned about potential retaliation should be .;
advised of their statutory protection and of the responsibility of 00L to i investigate and remedy violations of law. It is important to recognize I that sincere employees apprehensive of retaliation are not the only persons l who might raise such a fear of " retaliation"; manipulative employees who i 4
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,,gp_ x-1993 an 48 FROM 50msat HUCLEAR OP' COMP TO 913015042259 P.06 face deserved discipline or discharge can also offer allegations if they feel that their allegations immunize them from justifiable employment 1 action. The impact of such employees' disruption can be serious, diverting personnel and resources away from the important work of producing nuclear I energy safely. Discord caused by manipulative employees can pose a safety '
risk in and of itself. See discussion of Shannon Doyle in D.2-3.
C. 2. Notice of NRC " monitoring" of employment actions affecting employees who have expressed fear of retaliation should not be .given. Such notice would be abused by manipulative employees who face , justifiable discipline. It is not difficult to foresee that, prior to a reduction-in-force, many of those who expect layoff might seek leverage through the involvement of the NRC, and that would be a waste of NRC and licensee resources.
D. NRC Investigation During 00L Process D.1. The MOU between NRC and DOL is appropriate and should remain in effect. Parallel investigations would pose the same problems of '
duplication of effort, waste of resources, and counterproductive involvement that prompted the MOU.
D. 2-3. The NRC should not repeat DOL investigations. Aside from the obvious duplication of effort, it is unfair to subject a licensee to interminable proceedings based on allegations that do not support a find of violation, and such pointless duplication unnecessarily diverts employee attention away from matters at hand. The request for comments seems to be based on a perception that DOL is unable to investigate whistleblower complaints. The experience of Faricy Nuclear Plant shows that not to be the case.
On March 17, 1983, Shannon Doyle resigned from employment with Farley Nuclear Plant because of what he perceived to be unsafe conditions.
He was aware of his access to tN **" and in fact, reported his safety complaints to the resident inspector p.ior to his resignation. Several months after his voluntary resignation, unable to find work in the nuclear ,
industry, Doyle inquired of the NRC as to complaint procedures, and was advised of his right to file a complaint with DOL; in January,1984, Doyle s soke with DOL and was advised of the statute of limitations applicable to wiistleblower complaints under the Energy Reorganization Act.
Subsequently, Doyle continued to furnish information in support of his allegations of safety violations at Farley Nuclear Plant to the NRC.
Doyle consulted more than a dozen lawyers, none of whom agreed to represent him in litigation against his former employer.
In May, 1987 (more than four years after his voluntary resignation), Doyle filed a charge with DOL alleging violation of Section 210 by his former employer. Notwithstanding the apparent untimeliness of the complaint, 00L thoroughly investigated the matter and quickly found his retaliation complaint to be without merit. Subsequently, Doyle took an administrative appeal within DOL, the resolution of which was delayed by his requests for extension of time. The administrative law judge ruled against Doyle, and Doyle thereafter appealed the decision of the 5 i LO*d LEld 1N]% 31]HM DtJN LET T POS TOE 10:00 E661-0E-60
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administrative law judge to the Secretary of Labor, who also ruled against l Doyle. Doyle then appealed pro se to the United States and in 1992 Doyle finally unsuccessfully petitioned for certiorari to the United States ;
Supreme Court, again pro se.
Contemporaneous with DOL investigation of Doyle's complaint was a review of safety allegations made by Doyle to the NRC, and the collateral suggestion that Doyle's employer had precluded employees from furnishing infonnation to the NRC. Investigators from the NRC Office of Investigations (01) investigated allegations that employees were precluded from furnishing information to the NRC; 01 found that there had been no violation of law precluding access to the NRC.
These related proceedings are illustrative. DOL promptly accepted, rapidly investigated, and correctly concluded that Doyle's complaint was unsubstantiated in a matter of weeks. Several months and years of delay thereafter resulted from Doyle's appeals, through an unsuccessful petition for certiorari to the U.S. Supreme Court.
Because DOL has investigative responsibilities with respect to whistleblowing and other sensitive matters under the Fair Labor Standards Act, and numerous other statutes, DOL has substantial investigative experience and in particular experience in protecting the confidentiality of employee witnesses, and an effective administrative hearing system for employment matters. There have been no serious concerns raised about whether the DOL has the tools available to investigate whistleblowing, nor whether DOL makes effective use of those tools. There is no reason for employees or the NRC to distrust the DOL in protecting whistleblowers in the nuclear area. Conversely, the expertise of the NRC is in technical matters, and its resources are properly devoted to issues of nuclear safety. With respect to technical issues, it would be irrational to suggest that DOL should supplant the NRC; and the converse is equally true, ,
that there is no justification to supplant 00L in its area of expertise.
E. Earlier NRC Enforcement Action E.1. NRC should not initiate enforcement action following a decision of an Area Office Director, because the decision may be based on incomplete information. The administrative appeal process provides decision by an administrative law judge on a fully developed record, and NRC action should be deferred until that stage. Again, it is important to weigh not only the impact on the true whistleblower, but also the impact of the disruption on the licensee's operation if, due to incomplete information, action is taken on a manipulative employee's complaint that later is determined to be unfounded.
E. 2. NRC enforcement action following the decision of an Area Office Director would likely increase litigation.
F. Chilling Effect Letters F.1-5. Although the use of " chilling effect" letters may be appropriate to assure that the licensee knows of the DOL complaint in those 6
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cases where the complaint is filed against a contractor of the licensee, such letters should not be used to initiate quasi-enforcement actions 1 duplicative of DOL proceedings. Southern Nuclear is troubled by the j suggestion that a purpose of " chilling effect" letters is to discourage '
licensees from using the appeal process of DOL. Licensees are well aware '
of the consequences of an adverse resolution of a DOL proceeding, and inevitably consider the possibility of an early resolution without an adverse determination. NRC should not become involved to hinder the presentation of a meritorious defense, or to increase the cost of such a ;
defense to the licensee.
G. NRC Civil Penaltics G.1-3. NRC civil penalties for violations for discrimination provide deterrence; the NRC need not increase the Severity Levels for discrimination violations. Penalties should continue to k assessed after consideration of the normal mitigation factors under the NRC Enforcepent Policy, 10 CFR Part 2. Appendix C. No amendment is necessary to Section 234 of the Atomic Energy Act to provide for higher civil penalties for violations involving discrimination.
H. Use of Deliberate Mtsconduct Rule ,
H. 1-2. The August 15, 1991 regulations concerning " Deliberate Misconduct" (e.g.10 CFR 50.5), which provide for enforcement action directly against' licensee's employees who engage in deliberate misconduct, should be applied in cases of intentional discrimination in violation of Section 211. The penalties applied should not be excessive in relation to ,
the actual culpability; civil penalties generally should not be assessed ,
against individuals.
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SEP-30-1993 07:50 FRcF1 SOUTFERN fOCLEIN OP' COrF TO 913215042259 P.e9 Attachmant ,T Corporate Guideline Southern Nudear Operating Company A CONCEPM5 PROGRAM 720-011
( Effective: 09/30/91 Revised: 06/30/93 PURPOSE This guideline delineates the procedure to be followed to communicate and resolve concerns of employees of Southern Nuclear Operating Compary and its contractors.
Such matters may include, but are not limited to, possible violations of law, nuclear safety, unethical actions, employee concerns, and any other work-related problems.
While any matter of concern may be presented at any time, individuals are urged to make such concerns known to their supervisor, or management representative if a contractor, as soon as possible. When traditional averues of problem resolution fail to produce a satisfactory response, or when the concerned party believes it necessary to circumvent such traditional approaches, the Concerns Program provides another avenue for resolution.
SCOPE This program is applicable to all employees of Southern Nuclear Operating Company and its contractors. The program is not intended to circumvent the terns and conditions of any collective bargaining agreement, including contractual grievance and arbitration procedures. Further, this program is in no way intended to affect an individual's rights to pursue concerns through governmental / regulatory bodies such as the U. S. Nuclear Regulatory Comission (NRC), the Department of Labor, EEOC, or OSHA.
ADMIN]5TRATION At slant sites, the Concerns Program is administered by a Plant Concerns Coordinator witi reporting responsibilities to the Plant General Manager, and to the Corporate Concerns Program Administrator. At corporate headquarters, the Concerns Program is administered by the Corporate Concerns Program Administrator, who has reporting responsibilities to the Vice. President-Adminis,trative Services and the Corporate Compliance Officer. The Corporate Compliance Officer will monitor the functioning of the program.
l NONRETALIATION l Employees and contractors should feel comfortable about comunicating their concerns.
Retaliation will not be tolerated. Any employee, including any' supervisor,'sanager or officer, who retaliates against or penalizes an individual in any way for submittal of a concern will' be subject to appropriate disciplinary action, up to and including temination of employment. l l
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SEP-30-1933 Err:51 FROM SOUTFERN HILECR OP' COtP TO 913015042259 P.13 Corporate Guideline Southem Nuciear Operating Company CONCERMS PROGRAM 720-011 PROCEDUP1 GENERAL Individuals located at plant sites are encouraged to submit their concerns to the Plant Concerns Coordinator, unless the submitter deems it necessary to pursue the concern at the corporate level. Individuals at corporate headquarters may submit concerns to the. Corporate Concerns Program Administrator. Contact information (e.g., names 1 be prominently p-800 ostednumbers, mailing at plant sites and address, etc.)headquarters.
at corporate for the Concerns Program Concerns will may be submitted anonymously; however, anonymity precludes feedback to the submitter.
Confidentiality of submitters' concerns will de maintained to the extent practical.
LOCATION Plants The Plant Concerns Coordinator facilitates the resolution process at the plant level. After initial evaluation, the Plant Concerns Coordinator refers the concern to the appropriate management level above that of the submitter's supervisor for investigation. The Plant Concerns Coordinator may refer any concern to the Corporate Concerns Program Administrator if the Plant Concerns '
Coordinator believes that the resolution can best be achieved at the corporate level. The management individual responsible for the investigation will proYide a complete report to the Plant Concerns Coordinator upon completion of the '
investigation. The Plant Concerns Coordinator is responsible for detemining l whether the response is timely and complete and for comunication of the response j to the submitter. The Plant Concerns Coordinator will work with the involved 1 manager to ensure proper closure of the concern with the submitter. Submitters I who are not satisfied with the response to their concern may pursue their concern j with the Corporate Concerns Program. Administrator. The Plant General Manager and ;
the responsible Vice President wilf periodically review a sumary of concerns - i submitted to the Plant Concerns Coordinator. The Corporate Concerns Administrator will audjt concerns activity at the plant site annually.
Coroorste l The Corporate Concerns Program Administrator'
- acts as facilitator in t'he resolution process at the corporate level. After initial evaluation, the Administrator refers the concern to the appropriate level of corporate management above that of the submitter's supervisor for investigation. The individual receiving the concern is responsible for ensuring the concern is addressed and an appropriate response is provided to the Administrator. The Administrator is l 2 of 3 TT*d LET d 1NI'id 311HM OtJN LETT POS TOE EO:GO EGGT-OE-60
SOLTDERN NUCLEAR OP' CD1P TO 913015042259 P.22 SEP-30-1993 07:51 FROM . ,
Odrporate Guideline Southern Nuclear Operating Company d CONCERNS PROGRAM 720-011 I
responsible for ensuring the response is timely and complete, and for comunicating the response to the submitter. The Corporate Concerns Program Administrator will work with the involved manager to ensure proper closure of the concern with the submitter. The Corporate Comp 1tance Officer is responsible for auditing the overall Concerns Program annually.
CRIMINAL ACTS Any concern submitted involving a potential criminal act is to be referred imediately to the Corporate Concerns Program Administrator, who will in turn inform the Corporate Compliance Officer. The Corporate Compliance Officer will monitor the proper functioning of the program for resolution of such concerns.
RESPONSE TIME All concerns within the ' scope of this program will be addressed to the fullest possible extent. Every effort will be made to provide concern submitters an initial response within 20 days. Extensions, if necessary, will be comunicated to the submitter (if known).
EXIT INTERVIEWS Concerns that surface in exit questionnaires or interviews completed with individuals leaving the Company's employ will be referred to the appropriate Plant Concerns Coordinator or the Corporate Concerns Program Administrator.
EXECUTIVE REVIEW The President & Chief Executive Officer will periodically review a sumary of concerns submitted. In certain instances the Corporate Concerns Program Administrator may deem it necessary to fully involve the President & Chief Executive Officer prior to comunicating a response to the submitter.
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l 913015CW12259 P.B4 SEP-33-1993 a3:30 POM SOUTFERN NJCLEM CP' COMP TO Georgia Power A U. S. Nuclear Regulatory Commission Page Three I confidentiality is offered and non-retaliation is guaranteed. Each plant also maintains a " Deficiency Card" system and a " Major Problems List,"
through which plant employees or managers can docurnnt and notify their supervision of a potential quality or safety co c,.ern, and require that the concern be fomally addressed and, if neces sry, resolved by appropriate management.
At the corporate level, we 9aintain the Corporate Concern Program, a direct outgrowth of the success r.f the nuclear plant Quality Concern Program. The Corporate Concern Program allows any employee to by-pass plant management and file a concern at a level reporting directly to the Company's executive officers. Once again, confidentiality and non-retaliation are assured.
Employees may also utilize the company's Internal Auditing and Corporate Security Functions or call or contact management, including the l President, directly to have their concerns investigated. Finally, the Company maintains and encourages, at both the plant and corporate levels, l open and frequent communication with the NRC and its resident inspectors.
i The ccmpany has implemented the employee concerns program in a manner that ensures each employee is aware of the company's commitment to provide a work environment where they can feel free to raise safety concerns withcut fear of retaliation. At each plant, before each employee is badged, he or she received orientation training concerning the Quality Concern Program. Each employee then receives a letter from the plant General manager which explains the program and the employee's obligation to identify quality or safety concerns to their supervisor, or if they feel uncomfortable discussing it with their supervisor, to the next level of management or with the Quality Concern Program. The letter also explains that employees have the right to bring their concerns the attention of NRC Resident Inspectors, and their respective phone numbers are provided. With respect to acts of harassment or intimidation, the letter advises employees to be aware of their rights to report such acts to the NRC or the DOL, as described on NRC's Form 3. Each new employee is required to sign an acknowledgement fom indicating that they have reviewed the plant General Manager's letter and that they are aware of the existence of the Quality Concern Program and their obligations to report quality or safety concerns, as well as their rights to raport harassment or intimidation to the NRC or DOL. In addition, upon each employee's separation from employment, they attend an exit interview (or are provided an exit acknowledgement form) to provide an opportunity to identify any concerns which they feel have not been addressed or any acts of harassment or intimidation. A similar
" Copies of the Plant Vogtle seneral Manager's Letter, the Quality Concern Program orientation acknowledgement form and the exit interview acknowledgement fom are attached for infomation. Similar forms are used at Plant Hatch.
HL-3474 LCV-0165
SEP-30-8993 13 38 FROM SOUTHERN NUCLEm om M TO O m f9 P.M Georgia Power d U. S. Nuclear Regulatory Comission Page Four procedure is in place at the corporate office. Finally, the employee concern programs at the plant and the corporate office are audited annually and, periodically, company management reviews a sumary of concerns which have been submitted.
In conclusion, Georgia Power Company has established sufficient programs to ensure that any legitimate safety concerns held by its employees are identified and promptly resolved. Furthermore, Georgia Power Company believes its policies and programs adequately convey its position to employees that those who raise concerns are considered vital to the safe and reliable operation of its nuclear plants. Thus, Georgia Power believes that its employees do feel free to raise concerns without fear of i retaliation.
Based on the above, Georgia Power Company does not believe that the NRC should order, or provide prescriptive regulations or policy statements requiring licensees to adopt an employee concerns program. First, there is insufficient justification for imposing such requirements on the industry as a whoir.e Second, imposing such requirements will imposa substantial resource burdens on licensees, most of whom already have some kind of concerns program, to confom their programs to such requirements. Third, substantial NRC Staff resources, which the NRC has recently observed are shrinking, will be unnecessarily consumed. Fourth, such requirements are not likely to make a difference where the licensee already has a similar program. Finally, as Chaiman Selin observed in his remarks to the Senate Subcomittee, it is the licensee's corporate culture, rather than any particular program or procedure, that will make the difference in whether employees feel free to raise concerns. If the employees do not receive the day-to-day encouragement from their management to raise safety concerns, the most elaborate concerns program in the world will not allay their fears of retaliation. In sum, the issuance of such new regulations would place form over substance, and require a major investment on the part of both l licensees and the NRC without any meaningful increase in nuclear safety or employee welfare.
B. ResponsivenLumd Receptiveness of the NRC to A11ecatiens The Federal Register notice seeks comments on the NRC policy of referring allegations to licensees and actions which HRC can take to minimize compromising the identity of the alleger.
l Georgia Power believes it is appropriate for the NRC to promptly l refer allegations to the licensee which affect safety. This is the most expedient way to ensure that legitimate safety concerns are swiftly resolved. While Georgia Power respects the desires of some employees who raise safety concerns to have their identities kept confidential, this HL-3474 LCV-0165
913025042259 P.EE sy-3a-1993 13:31 FRCr1 SOUTHERN W:LEM OF' CCrP TO Georgia Power 1 U. S. Nuclear Regulatory Commission Page Five j should not be a critical matter in a corporate atmosphere which encourages its employees to bring their concern to management. In those cases where l j
) the corporate atmosphere discourages employees from raising concerns, the
}
issue should not be how to protect the confidentiality of allegert, but how i to improve the licensee's corporate culture.
NRC resident inspectors are in an excellent position to determine f whether licensee's corporate culture is such that employees feel free to l raise concerns. Because these inspectors are located at the plants, they l
have daily contact with plant employees at all levels in the organization. l The residents are able to accurately determine whether special precautions should be taken to protect the identity of an employee who brings them an allegation. With rare exceptions, we believe that the NRC's current procedures for protecting the identities of allegers are adecuate. The NRC should not permit the exception to swallow the rule here, and undermine the significant achievements of licensees in the voluntary non-retaliatory resolution of safety concerns.
C. Ratential for Discrimination Georgia Power Company believes that the NRC should always advise a licensee when employees express a reluctance to raise safety concerns for fear of retaliation. This infomation is important in assessing the licensee's corporate culture as well as the effectiveness of its concerns programs. Of course, the NRC should also advise the licensee whether it believes such infomation is indicative of a widespread problem or is an exception to the views of most employees.
With respect to those employees who infom the NRC that they have safety concerns, but will not disclose them, the NRC should inform such employees of their obitgations under NRC regulations to report significant safety issues to the NRC. The NRC could also offer these employees confidentiality, pursuant to a written agreement, under their current procedures. At the same time, the licensee, who presumably does not know the identity of the employee, could issue a general notice to all employees urging them to bring forward any safety concerns and assuring them that harassment and intimidation will not be tolerated.
These steps should be adequate to ensure the disclosure of any legitimate safety concerns and alert licensen management to the potential for a retaliation situation. On the other hand, the NRC must be cautious not to create increased opportunities for those who abuse the system. Even a cursory review of the whistleblower case law and DOL's experience under the Energy Reorganization Act establishes that licensees have produced an exemplary record in the non-retaliatory treatment of legitimate whistleblowers. At the same time, licensees must be free to take those HL-3474 LCV-0165
SOUTHEW NUFLECiR OP' COMP TO 9830158 2259 P.07 see-so-3993 83:32 MOM Georgia Power d U. 5. Nuclear Regulatory Comission Page Six employment actions which they reasonably deem necessary to ensure that their workforces are competent, trustworthy and willing to abide by regulatory requirements and that a free flow of information in their workplaces is assured, D. NRC Investications Durino 00L Prgan There appears to be little dispute that duplicative NRC and DOL investigations of retaliation claims will be counterproductive. Not only would it require a substantial commitment of additional NRC resources, but it weald likely work to delay the resolution of such claims and, at least up through the hearing stage, DOL has a commendable record for timeliness.
NRC should await the completion of the DOL process through the hearing stage and the NRC should utilize the record, to the extent it is developed, by the DOL Administrative Law Judge (ALJ).
In a DOL case where the ALJ does not reach a finding on the merits, as when the case is settled, the NRC should make its own determination, based on the facts gathered to that stage of the proceeding and any additional facts it may develop, as to whether enforcement action is appropriate. The NRC should not automatically take enforcement action based on a DOL compliance officer's finding against a licensee. Fairness and due process require that the NRC afford licensee the opportunity to demonstrate that a violation of NRC requirements did not occur. Without such an opportunity, licensees will perceive that, with an adverse finding from a 00. compliance officer, settlement of the case should not be considered because the compliance officerr s report will be used by the NRC as a basis to take enforcernent action. This adversely affects the interests of both licensees and DOL complainants. Duplicative or parallel processes by the NRC would also allow illegitimate whistleblowers the opportunity to expand and frustrate the adjudicatory process, heaping delay and expense upon licensees. The result is that well-meaning licensees are punished without due process.
E. Earlier NRC_ Enforcement Action As noted above, the NRC should await the completion of the DOL hearing process before initiating enforcement action. Early enforcement action will require the licensee to defend its actions on two fronts which is inherently unfair, .ieopardizing the ability of the licensee to present a full defense, while allowing whistleblowers to impose undue litigation costs upon the licensee. The NRC should not encroach upon the 00L process HL-3474 LCV-0165
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m _ _- "
913015042259_ P.00 SEP-30s gg3 13:33 FROM S0WERN M)CLEm OP' COMP TO Georgia Power m.
k U. S. Nuclea.' Regulatory Commission Page Seven which, at least through the hearing stage, works as well or better than any whistleblower resolution process under federal law. Moreover, the DOL hearing process allows for a full and independent assessment of the credibility of both the whistleblower and the accused management.
F. Q11111ng Effect letters Georgia Power Company's observation is that the so called " chilling effect" letters serve an important function and are adequate. However, NRC's current practice of issuing those letters at the time of an initial DOL investigation finding of discrimination creates misconcestions concerning the merits of the case es well as the extent to w11ch NRC has been kept informed. Such a " chilling effect" letter can create a perception among employees that the licensee has already been found guilty of misconduct, and that potential filers of safety concerns should fear for their job security. This is clearly not the message the NRC should be sending, and it punishes licensees without due process and well before any determination of wrongdoing has been rendered Furthemore, the issuance of a formal " chilling effect" letter with respect to a given DOL complaint may give the impression that the NRC and th9 licensee have not comunicated and that the NRC is uninformed of the facts of the case and unaware of the licensee's general corporate culture, which Georgia Power submits is not the case. The NRC should take steps, including the timing and message of such letters, to minimize the potential for these misconceptions.
! G. NRC Civil Penalties NRC civil penalties for violations do provide deterrence for retaliation. Any violation of NRC regulations carries with it criticism fom local public officials and the comunity at large. A violation for retaliation adds the stigma of an employer mistreating it employees.
Georgia Power Company does not believe there is sufficient justification to increase the Severity Level or the amount of civil penalties for retaliation violations. This will escalate the enforcement i
processincreasingtheburdensonthelicensesaswellastheNRCstaff.E E A similar conclusion was expressed by Chairman Selin at the July 15, 1993 Senate Subcommittee hearing when he said:
l
[Tjhere has been a lot of discussion about heavier penalties at the end and things like that. We'll look at these, but heavier penalties mean higher standards of proof, which mean a longer process and not a shorter process, so there is a real trade-off between hitting people with a bigger stick at the end and moving more quickly at the beginning, and that has to be looked at very carefully...
and more use of criminal [ penalties) has the same problems.
Tr. at 139.
HL-3474 LCV-0165
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9 2 5042259 P.09 FROM SOUTHEN NUCLEnR CP' C35) TO SEP 1?93 13 i Georgia Power d U. S. Nuclear Regulatory Commission Page Eight It is unlikely that such escalation will have any substantial effect on those few cases of actual harassment and intimidation which will occur.
H. Use of Deliberate Misconduct Rule The comments expressed above with respect to increased enforcement sanctions apply with even greater force to the use of the deliberate misconduct rule in cases of retaliation. These actions will be hotly contested and resolution will be more difficult, when the careers of individualsareatstake. Licensee disciplinary policies are capable of adequately addressing individual misconduct. The NRC should limit its oversight to whether the licensee has taken appropriate actions to address the problem.
III. CONCLUS10N For the reasons expressed above, Georgia Power Company does not believe there is sufficient justification for the NRC to impose additional requirements upon licenssas to protect licensee employees who would raise safety concerns. The overwhelming weight of the evidence is that licensees recognize such employees as valuable contributors and only a small percentage of industry employees file retaliation claims each year.
Among the Section 211 cases which are filed, there are few actual cases of retaliation and, because of the nature of those that do occur, imposition of requirements for employee concerns programs and procedures is not likely to prevent their occurrence. Additionally, imposition of such requirements on itcensees are likely to increase the opportunities for those who seek to abuse the process for illegitimate purposes. An increase in the number of cases of abuse will be a source of frustration for licensees who will be targets of such abuse, and will further burden the limited resources of the DOL and NRC.
Georgia Power Company agrees with the observation of Chairman Salin that it is tne licensee's corporate culture, more than anything, which will effect whether employees feel free to raise safety concerns. The commitment of substantial NRC and licensee resources to prescriptive requirements for employee concerns programs would do little to ensure an appropriate corporate culture, and therefore, would not be fruitful.
l Respectfully submitted, e.,. ~o, HL-3474 LCV-0165 l
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99,3015042259 P.10 SEP-30-1993 3:34 FROM SOUTHERN MJCLEAR OP' COMP TO
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GeorgiaPower d U. S. Nuclear Regulatory Commission Page Nine CC: Georaia Power comoany J. T. Beckham, Jr., Vice President, Plant Hatch J. B. Beasley, General Manager - Vogtle Electric Generating Plant H. L. Sumner, Jr., General Manager - Plant Hatch U. S. Nuclear Reculatory Comission. Washinoton. DC l K. N. Jabbour, Licensing Project' Manager - Hatch D. S. Hood, licensing Project Manager - Vogtle R. S. Nuclear Reoulatory Commission. Recion II S. D. Ebneter, Regional Administrator L. D. Wert Senior Resident Inspector - Hatch B. R. Bonser, Senior Resident Inspector - Vogtle <
I HL-3474 LCV-0165 mn __
c SouTFERN NUCLEAR OP' COMP TO 913015042259 P.11 SEP-30-1993 13:34 FRO 1 i
. erooosne no. :snm m, u, l VEOP 00015-C 3 10 of 13 TO ALL PERSONS INVOLVED WITH VOGTLE ELECTRIC GENERATING PLANT You are important to our success because you have s >ecial talents skills, and experience which allow you to make a positive contribution to P ant Vogtle, dn important part of the service which we expect you to render is to notify us of any condition that you see or suspect which may be detrimental to either quality or safe operation. In return, you have the right to be heard, you deserve considered response, and you can be assured you will not be retaliated against, in any way, for raising quality concerns.
Please notify your immediate supervisor if you know of any work or other operations that are not in accordance with a? proved procedures, or which are contrary to established quality, safety, or eng.neering practices or to regulatory requirements. If you are hesitant to contact your immediate Su ervisor, you may and should contact the next higher level of management, or the Quallt Concern Program. On site you can contact the Quality Concern Coordmator at ext. 294. The Coordinator can also be reached, toll free, at 1-800 225 2055. Contacts can be made anonymously if your prefer.
You should feel an obilgation to provide Southern Nuclear Operating Company with the i first free opportunity to address to bring nuclear safet andany concern uality you matters to msy have. However'the the attention of U.S. Nuclearyou may also fee Regulatory Commission SNR The USNRC's Region II Office of Inspection and Enfoitement, located in tlanta twenty-four hours a day. Of cou,rse, y(ou mn.
also 404-3314503),
contact the resident wil accept collect calls USNRC Inspecter on site at Waynesboro local calls ) 554-9901 or (706) 554-9902; or Augusta :ocal calls (706) 826 4249 or (706) 26-4116.
If, at any time, you feel that you have been harassed, intimidated, discriminated or retaliated against for having raised a quality issue, you should report this to the Quality Conectn Program. You should also be aware of your options of reporting acts of '
retallation to the USNRC and/or to the Department of Labor, which are described on "NRC Form 3' posters located throughout the site.
Southern Nuclear Operating Company is committed to operating VEOP in compliance I with all safety and quality requirements. As a part of the VEOP team,it is your responsibility and obligatlon to assist Southern Nuclear Operating Company in meeting i that commitment by informing us of any and all conditions which might prevent such compliance.
General Manager Nuclear Plant Vogtle i
FIGURE I (Example) l - - ._ _
913085042259 P.52 SEP-30-1993 13 m FROM SOUTFERN NUCt. EAR OP' COMP To
^'
namy.-S. ne a an o.,. m VEOP 000lS-C 3 tI of l3 QUALITY CONCERN PROGRAM EMPLOYEE ORIENTATION Welcome to Vogtle Electric Generating Plant. You are new a part of a team: A team dedicated to operating this plant using the highest possible quality standards. As part of this team, you have two very important responsibilities. These are:
- 1. To do your job to the very best of your ability and to make sure that your work is safe and of the highest possible quality; and
- 2. To report any event, actiYity, practice or procedure which you feel adversely affects the quality of this nuclear plant or the safety of !bture plant operation.
Southern Nuclear Operating Company has a " Quality Concern Program", which allows l you to report any questionable act or practice, cither orally or in writing to the plant's Quality Concern Coordinator. There are posters explaining the program, forms for submitting your concerns, and collection boxes for concern forms located throughout the site. You can also contact the Quality Concerns Coordinator directly at extensLon 3294 or at 1-800 225-20$$ (toll free). Any concern or complaint will be held in confidence; you can remain anonymous if you reguest. Each concern will be investigated and you will receive a response if you request it.
You have received a letter from the Geners! Manajer regarding the plant's concern for safe operation. Read the letter, familiarize yourselt with the Quality Concern Program, and remember your two primary obligations: To do good work and to report bad work.
ACKNOWLEDGEMENT I, the undersigned acknowledge that I have received a copy of the General Managers '
quality letter, am aware of the existence of the Quality Concern Program, and know what my obilgations are regarding the reporting of substandard or poor quality work or unsafe practices to my supervision, to the QualTty Concern Program or to the USNRC.
Also, I understand that raising of a quality issue through any forum upervision, Quality Concern Program, Quality Control, SAER, USNRC or othe should have no effect on my employment and if I should believe that such retallation as taken place I understand Southern Nuclear Operating Company's commitment to correct sny such I retallation and I further understand my options of reporting this retallation to my supervisor, to the Quality Concern Program, to the USNRC and/or to the US Department of Labor. 4 EMPLOYEE: _
WITNESS DATE: .__
FIGURE 2 (Example)
N
913a15042259 P.13 SEP-30-1993 13:35 FROM SOUTHERN NUCLEAR OP' COMP TO
- a. c on p.;, no.
nweny, .
3 12 of 13 VEOP 00015 C _
VOGTLE ELECTRIC GENERATING PLANT QUALITY CONCERN
/ /
NAME _ _ _
How can you be reached? __
Vostle Phone Ext. Other Phone ( )_ - __
Local or Permanent Address:
Z.ip City State Street or PO Box (You may remain anonymous and not complete this section. If you identify yourself a l response will be given to you. Your name will be kept confidential unless you indicate otherwise.)
What is the prob!cm? What do you think should be done about it? Please be specific and describe the location, equipment and/or system affected.
1 l
Has a Defielency Card been written? __ Card #
You may drop this form in one of the drop boxes, hand deliver to the Quality concerns o!Tice on the second floor of the Admin Building, or send it to the address below:
Vogtle Quality Concern Program Post Offlee Box 11593 Me.rtinez, Ga. 30917 1593 ,
You may also callin your concern at 826-3294 or toll free at 1-800 225 2055.
FIGURE 3 (Example)
I
- + _ _ _ --
913015042259 P.14 SOUTWRN NUCLEAR oP' COMP TO SEP-30-1993 13:36 FROM n m on uom :en no.
00015.C 3 13 of 13 VEGP QUALITY CONCERN PROGRAM EXIT INTERVIEW When you began your employment at VEGP you were introduced to the Quality Concern Program and our team concept. As part of the team you were given two very important responsibilities. They were:
- 1. To do your job to the very best of your ability and to make sure that your work is safe and of the highest possib!c quality; and
- 2. To report any event, activity, practice or procedure which you feel adversely afTects the quality of this plant or its safe and reliable operation.
You were also informed of your rights should you decide to partivipate in the Quality Concerns Program. These were, that all concern or complaints submitted would be held in confidence if you desire and no retaliation for participation in the program would be tolerated. i As part of the Quality Concern Program each individualis afforded an exit interview when leavin VEGP. This provides the opportunity to identify any Quality Concern felt not to have en identified or addressed, or which were inadequately or improperly addressed.
We are also interested in any issues that you feel were retallatory in nature for your having participated in the Quality Concerns Program or for your identifying Quality or Nuclear Safety Concerns to others at VEOP.
I Do you have any concerns at this time?
OYES (OFollow-up call requested) DNO If you have a concern, please identify it on the attached Quality Concern form. It will '
t>e investigated and the results of the investigation will be forwerd:d to you at the address you identify on this form.
ACKNOWLEDGEMENT 1, the undersigned, acknowledge that:
- 1. My exiting VEOP does not exclude me from my responsibility of reporting events, activities, practlees or procedures which could have an adverse affect on the Quality of VEGP or the safe and reliable operation of the faelAy;
- 2. I was given the opportunity to express any outstanding wnceru at this exit interview; and
- 3. Should I later recall, or become aware of, a Quality Concern I hrvc the right and responsibility to contact the Quality Concern Coordinator by mail at Post Office Box !1593, Martinez, Ga. 30917-1593, or by telephone at (706) 826 3294 or toll free at 1-800-225-2055.
Name SSN l Social Security #
i First M1 last i
Permanent Address:
City State 2,ip Street or PO Box
/ /
FIGURE 4 (Example)
TOTAL P.14 m . _ m._ _