ML20059A895
| ML20059A895 | |
| Person / Time | |
|---|---|
| Issue date: | 12/15/1993 |
| From: | David Williams NRC OFFICE OF THE INSPECTOR GENERAL (OIG) |
| To: | |
| Shared Package | |
| ML20059A899 | List: |
| References | |
| NUDOCS 9401030193 | |
| Download: ML20059A895 (22) | |
Text
-.
j- /
(g.
+
mm l
m> ar L
=
Office of The SPECIAL AGENT
-. l
- l nspec or enera 4[gemN4),S\\
U.S. NUCLEAR REGULATORY COMMISSION L'
3 1
z
_c
~
w,
'U h
d.f f'
1,,
$', ff "O
{,
w.-
h'_
h.:
p.
%g.; 47
%.. F 4
.I j'!r'..
f
+-
,w -
n
'l.'
k,., '
W g@eg*:g q
g g
- h
,,x,
",,s'_$l
^ c n.
a 6
t,':
'n p
,r W
,; y,$ : A 4
+
,,,sf y ~,,,p
?
y@
._ /
l~
}
f
- f..""K. T a j?
J,64 L,. ?
1 7
,.+.
y e
.e n,v x c
' eld 1
e N_SPECRW~N i
1 tR E _R G,,
m,#,
- u o
w/ < a : a w / w,.rs
,w+4 r.v
%e*.m-Alq
[_$g es
'i I
s,7' j']{/ i.y'*"
p.f,
-. %)
4,i; h gp V
/j 'p/ f';,ppgA T"pg gy
,M;y
+
r p"'
q$,,].
't g gbJ
- i -;., ' '
. %, * ~
4,.
f ihb,
%Y;eg;e;_h. N
,9 Rf fN%.
.l
%f'q.
's v
e.
- s..-
p
'J#
j, s
y if y-5" 47-(,e
.yy % '" '
)
s
- 'st;
[flo.LO3 ogg I
[
f[
UNITED STATES g-g NUCLEAR REGilLATORY COMMISSION j
WASWJGToN, D.C. MM k...e /
December 15,1993 I
OFFICE OF THE INSPECTOR GENERAL
.I MEMORANDUM FOR: The Chairman Commissioner Rogers I
Commissioner Remick Commissioner de Planque thia l.N W FROM:
David C. Williams l
Inspector General
SUBJECT:
ASSESSMENT OF NRCS PROCESS FOR PROTECIING ALLEGERS FROM HARASSMENT AND INTIMIDATION Attached is the Office of the Inspector General's report entitled, " Assessment of NRCs l
Process For Protecting Allegers From Harassment and Intimidation."
i This report was prepared in response to hearings on July 15, 1993, before the Senate Subcommittee on Clean Air and Nuclear Regulation, Committee on Emironment and Public Works, and subsequent meetings with Subcommittee staff who requested that we provide additional information on several harassment and intimidation (H&I) issues.
We found that from a regulatory perspective, NRC is proactive to technical aspects of l
allegations, but primarily reactive to H&I implications. Simply stated, Section 211 of the Energy Reorganization Act of 1974 divides the responsibility for handling H&I allegations I
between NRC and DOL NRC has the duty to ensure that its licensees and their employees do not participate in H&I against persons who raise safety concerns. DOL determines whether an individual was subject to retaliation and as a result suffered adverse employment g
actions, and orders compensation for victims of H&I.
Our assessment found that NRC quickly addresses the technical safety aspects of allegations.
However, NRC does not know to what extent discrimination has or may be occurring at licensee facilities. For example, NRC does not (1) have a program to assess the H&I-environment at licensees except when serious problems occur, (2) know how many or what I
I
E a
I The Chairman level of complaints emanating from a licensee's employees should cause NRC to increase its scrutiny of those operations, or (3) have a headquarters focal point to assess whether the effect of individual or cumulative H&I complaints indicates a need for either licensees or NRC to take corrective action.
NRC has taken some steps to improve its process for handling H&I issues. Our assessment g
offers additional observations and factors for NRC to consider in identifying where its E
process could be improved.
We are also providing copies of this report to the Chairman and Ranking Minority Member of the Senate Subcommittee on Clean Air and Nuclear Regulation, Committee on l
Environment and Public Works.
Attachment:
g As stated E
cc:
J. Taylor, EDO g
H. Thompson, EDO J. Sniezek, EDO W. Parler, OGC S. Chilk, SECY D. Rathbun, OCA g
J. Blaha, EDO E
R. Scroggins, OC P. Norry, ADM g'i G. Cranford, IRM R. Bangart, OSP T. Murley, NRR E. Jordan, AEOD E. Beckjord, RES E
R. Bernero, NMSS E
J. Funches, ICC R. Vollmer, OPP l
T. Martin, RI S. Ebneter, RII J. Martin, RIII J. Milhoan, RIV B. Faulkenberry, RV a
I NRC's Process For Protecting Megers From H&l l
TABLE OF CONTENTS INTRO D UCDON.................................
1
.I B ACKG ROUND.............................
2-ASSESSMENT METHODOIDGY....................
4 ASSESSMENT
SUMMARY
5 SECDON I: NRCS POLICY AND PROCEDURES FOR HANDLING H&I AI1EGATIONS................
6 Regional Variations in Monitoring H&I Allegations Filed With DOL.................
7 NRCS CRITERIA FOR INVESTIGATING g
H&I ALLEG ATIONS.........................
9 OIG REVIEW OF OI CASE FILES..............
10 I-PROBLEMS WITH THE DOL PROCESS.........
11 l
NRC STAFF SUGGESTIONS FOR IMPROVING THE PROCESS..................
12 l
SECHON II: OIG REVIEW AND ANALYSIS OF H&I ALLEGATIONS...........................
12 l
MANAGEMENT OF H&I ALLEGATIONS........
13 AMS FILE REVIEW OBSERVATIONS...........
14 USE OF INVESTIGATIVE RESOURCES..........
15 SECDON III: ASSESSMENT FINDINGS...............
15 I
H&I POLICY OBSERVATIONS AND FACTORS TO CONSIDER.....................
17 APPENDIX I g
Major Contributors to This Report I
I OFFICE OFTHE INSPECTOR GENERAL US NUCLEAR REGULATORY COMMISSION g
I ASSESSMENT OF NRCS PROCESS g
FOR PROTECTING ALLEGERS FROM E
HARASSMENT AND INTIMIDATION Case No.: 93-07N December 15, 1993 I
I INSPECTION I
REPORT I
l p,8 R E G y b
I
%y he B 8
I
%Nl3 jle 46
...s I
g
I NRC's Process For Protecting Allegers From H&l l
INTRODUCTION The harassment and intimidation (H&I) against nuclear industry employees who raise safety concerns at commercial power reactors and materials licensees has been the focus of Office of the Inspector _ General (OIG) l investigative and audit initiatives. Also, the Nuclear Regulatory Commission's (NRC) ability to track these allegations has been an area of ongoing interest.
For example, on April 3,1992, OIG issued an audit report' that examined the agency's Allegation Management System (AMS), a computer system that NRC established in 1982 to track allegations. We found the AMS was I
achieving its stated goal of accurately accounting for the receipt, processing, and disposition of allegations. We also found NRC staff generally used the system effectively.
I 2
On July 9,1993, OIG issued an inspection report that addressed concerns I
from licensee employees who asserted NRCs efforts and procedures are not adequate to protect them from retaliation when they raise health and safety concerns to their employers or NRC. Shortly afterward, on July 13, 1993, g
OIG issued a Management Implications Report' that responded to Commission and Congressional staff questions regarding how the NRC has dealt with retaliation complaints.
I These reports provided background for hearings conducted by the Senate I
Subcommittee on Clean Air and Nuclear Regulation, Committee on Environment and Public Works on July 15,1993, at which the NRC Chairman and the Inspector General testified about the agency's handling of H&I g
allegations. The Inspector General testified that during a 4-1/2 year period ending in April 1993, the NRC documented the receipt of 609 H&T allegations.
From these allegations, the NRC initiated 44 full-scale l
investigations, of which 31 were complete at the time of the hearing.
2 Review of NRCs Allegation Manacement System. (OIG/91A-07, April 3,1992).
2 NRC Response To Whistleblower Retaliation Complaints, (Case No.92-01N, I
July 9,1993).
3 NRC Response To Whistleblower Retaliation Complaints. (OIG/MIR-2, July 13, l
1993).
c.- e mm wi I
a
I NRC's Process For Protecting Allegers From H&l On August 12, 1993, OIG auditors and investigators agreed to provide Subcommittee staff additional information on several issues. The audit staff developed Section I of this report which examines the (1) processes and g
procedures that NRC and the Department of Labor (DOL) use in handling H&I allegations, and (2) documentation in 24 of-NRCs Office of Investigations (OI) files used to report the progress ofits H&I allegation case l'
investigations. The investigative staff developed Section II which contains our review cf H&I allegations contained in NRCs AMS files. NRCs AMS g
system contains information on all allegations, both technical and H&I. We E,
reviewed 621 AMS files' containing H&I allegation information reported try nuclear industry employees to assess (1) how many allegations may have been g
" seemingly legitimate" to justify an OI investigation, and (2) whether NRC effectively manages files that contain H&I allegations. Also,Section II examines the staffing resources required for conducting H&I investigations.
ll BACKGROUND I-Simply stated, Section 211 of the Energy Reorganization Act of 1974 divides 5
the responsibility between NRC and DOL for handling H&I allegations l
brought by employees or contractors at NRC-licensed facilities. NRCs role is to ensure that its licensees and their employees do not participate in H&I against those who raise safety concerns. DOL is charged with determining whether the alleger has been subjected to retaliation, and if so, ordering compensation, to include reinstatement and/or back pay, for allegers. DOL's gl responsibility differs from NRCs because DOL focuses on taking specific 5;
action to address an individual's complaints, whereas NRC seeks to change the working environment that fostered the complaint. Because of their shared ll responsibilities, NRC needs to analyze DOL reports to determine whether 1
NRC should take action to ensure H&I does not exist at its licensees.
I; l
d After we issued the July 13,1993, report NRC identified 12 additional H&I allegations that should have been included in the 41/2 year period ending April 1993.
g 3 The Energy Policy Act of 1992 renumbered Section 210 to Section 211, and amended other aspects of the Atomic Energy Act of 1954 and the Energy Ei Reorganization Act of 1974.
E c-r*unam rw 2 E1
}
I NRC's Process For Protecting Megers From Hal l
It is important to note that the Atomic Energy Act of 1954 does not specifically empower NRC to compensate - or "make whole" - allegers who have or may be subjected to retaliation or other damages for raising safety I
concerns.
In 1982, NRC and DOL entered-into a Memorandum of Understanding (MOU) that outlines their respective responsibilities. In 1983 g
NRC and DOL developed a " Working Arrangements" document to implement the MOU, which stated that "NRC will not normally initiate an investigation of a complaint if DOL is conducting, or has completed, an investigation and l
found no violations." If the alleger files a complaint with DOL, NRC generally defers to DOL to resolve the H&I portion of the allegation. NRC
.g added General Provision 50.7 to Title 10 of the Code of Federal Reculations 5
(10 CFR 50.7) in 1982 to (1) prohibit discrimination against employees and contractors for raising safety concerns, and (2) to levy civil penalties and other g
enforcement actions against licensees for engaging in H&I.
NRC staff told us the agency places a high priority on ensuring that licensees l
create an environment that encourages licensee employees and contractors to submit allegations, free from retaliation. While NRC encourages licensee I
employees to bring concerns to their employers first, NRC believes they should also feel free to bring issues to the agency at any time. The agency relies on its licensees to create and maintain an operating environment that g
ensures employees and contractors are free from H&I if they raise safety issues to their management and/or NRC. This reliance is important to NRCs success in ensuring the safety of the industry.
NRC's inspection program is comprised ofinspectors at commercial operating I
power reactors, supplemented by specialists with various technical disciplines in each of NRCs regions. However, NRC acknowledges that even with its many inspectors, the agency can review only a fraction of licensed activities.
g During the July 1993 hearings, Chairman Selin testified that if it were not for the allegations it receives, the agency would be unaware of many safety issues.
The nuclear utility industry employs about 100,000 individuals at 112 power plants, and NRC receives about 800 technical and H&I allegations annually.
'I I
I-I
Ea NRC's Process For Protecting Allogors From H&l For the 4-1/2 year period ending April 1993, NRC received 621 H&I complaints from 472 individuals.' Over 80 percent of these complaints involved reactor licensees. From information provided by NRC regional staff in June 1993, we determined about 50 percent of the complaints were from employees at five utilities, and about 25 percent of the total complaints came from Tennessee Valley Authority (TVA) employees.
l ASSESSMENT METHODOLOGY a!
E:
Section I of this report assesses NRCs handling of H&I allegations. In developing this information, we obtained the views and perspectives of a wide ll range of Headquarters and regional NRC officials responsible for the process.
At Headquarters, we interviewed staff from the Office of Nuclear Reactor gi Regulation (NRR), OI, and the Office of Enforcement (OE). We also visited 5
NRC staff in Regions I, II, and IV. At each location, we met with Regional and/or Deputy Regional Administrators, Regional Counsels, Field Office Directors of the Office of Investigations, Regional Enforcement Officers, g!
Senior Allegation Coordinators, and Allegation Review Board members. We also met with NRCs Review Team on Protecting Allegers Against Retaliation l
(Review Team) and attended a public meeting the Review Team conducted in Bay City, Texas to obtain comments on NRCs handling of H&I allegations, gl We provided a briefing of our preliminary findings to the Review Team.
3 I
To develop our analysis of NRCs handling of H&I allegations contained in g
Section II, we examined 621 of the AMS files that NRC staff identified as allegations having potential H&I violations, hereafter referred to as H&I allegations. NRCs AMS files contain all allegations received, and until l
recently, did not distinguish between H&I and other types of allegations. We also examined 24 OI case files regarding H&I allegations to determine the E
adequacy of documentation to monitor and assess the allegation. We also a
developed statistics on the resources that NRC and the Office of the Inspector General, Tennessee Valley Authority (TVA-OIG) devote to investigating H&I l
allegations.
I 6 Some employees filed multiple safety allegations and H&I complaints with NRC.
r.
g 5.
I NRC's Process For Protecting A!!egers From H&l l
l Section III of this report contains our findings and suggested policy I
observations for NRC to consider.
ASSESSMENT
SUMMARY
Overall, our assessment found that from a regulatory perspective, NRC is proactive to technical aspects of allegations, but primarily reactive to H&I I
implications. We found that while NRC is quick to address technicalissues, the agency generally defers to DOL to resolve H&I complaints. NRCs regulations prohibit discrimination against licensee employees and their l
contractor employees who raise safety concerns. NRC's process to manage H&I issues focuses on encouraging licensees to maintain a retaliation-free environment at their facilities. However, NRC does not know to what extent -
discrimination has or may be occurring. For example, NRC does not (1) have a program to assess the H&I environment at licensees except when serious problems occur, (2) know how many or what level of complaints emanating from a licensee's employees should cause NRC to increase its scrutiny of
]
those operations, or (3) have a Headquarters focal point to assess whether the Il effect of individual or cumulative H&I complaints indicates a need for either liceusees or NRC to take corrective actiort l
NRC staff believe iflicensee employees are subject to H&I, there is little that NRC can do to compensate them because in general DOL is responsible for I
resolving the allegation and ordering compensation when H&I is substantiated. When an employee files an H&I complaint with DOL, NRC relies primarily on DOL to resolve the allegation.
However, we are l
concerned because DOL's OlG reported on weaknesses it found in the final phase of DOL's H&I allegation case processing. The magnitude of these management shortcomings should be of concern to NRC because the agency I
I partially relies on DOL to resolve sensitive employee issues. In addition, allegers have complained that it takes too long to resolve H&I complaints, l
g which could have a potential " chilling effect" on other industry workers who may have identified safety issues.
-l From our review of the 621 AMS files, chronic file management and i
organization problems were identified. We found that while technical aspects I
I of an alleger's complaint were quickly addressed by the staff, NRCs tracking one th: rum rise 5 I
I o
E as NRC's Process For Protecting A!!ogers From H&l of the H&I aspect of the complaint often " disappeared" from the file after an alleger was advised of his right to complain to DOL OIG found, however, that the NRC generally referred allegers with H&I complaints to DOL in a g
timely fashion. We offer several observations the NRC may wish to consider to improve its AMS file management.
I.
SECTION I:
NRC'S POLICY AND PROCEDURES FOR HANDLING H&I ALLEGATIONS g
NRC has established procedures at both Headquarters and regions to assess g
each allegation, regardless ofits merit, and monitor its resolution. As stated 3
in NRCs Management Directive 8.8 (formerly Manual Chapter 0517), which provides staff guidance on handling H&I allegations, NRCs primary attention g
is on the technical portion of the allegation which, if true, could adversely affect public health and safety.
I Management Directive 8.8 states that when NRC receives an H&I allegation, the agency will inform the employee of their right to file a complaint with E
DOL The Directive also states that NRC staff should normally await the 3
completion of DOL investigations and other proceedings before considering whether to initiate additional action. This policy is consistent with the MOU g
and Working Arranfements that NRC and DOL adopted in the early 1980s.
We found most regions have implemented this guidance by establishing l
Allegation Review Panels (ARPs) to evaluate both the technical safety concerns and H&I aspects of each allegation. The panels are composed of g
senior level NRC managers who periodically convene and determine the B
course of action that NRC should pursue. NRC staff stated they believe this process is worthwhile because it provides a uniform, senior level review of g
each allegation. Generally, ARPs direct NRC staff to conduct an inspection or other inquiry to quickly ascertain whether additional actions are necessary to resolve the allegation's technical implications.
l)
NRC staff told us that when the agency receives an H&I allegation, the staff gI usually inform the alleger of their DOL rights. If the alleger decides not to 5
file a complaint with DOL, NRC is responsible for responding to the l;
allegation since there is no reason to await a DOL inquiry. NRC normally m
i
{
4 NRC's Process For Protecting Allegers From H&l l
convenes an ARP which may lead to an investigation of the allegation.
However, if resources are limited, NRC may not take any additional investigative action.
NRC staff stated the agency is most sensitive to I
allegations that involve senior level licensee management, or H&I that is widespread. In these cases, NRC may conduct an investigation concurrent g
with DOL to assess whether an H&I conducive environment exists at the licensee, or ascertain whether enforcement action is warranted.
If the alleger files a complaint with DOL, NRC relies on DOL to investigate and resolve the alleged discrimination. Under previous legislation, licensee I
employees were required to file a DOL complaint within 30 days of the discrimination; however, amendments in the Energy Policy Act of 1992 extended the filing period up to 180 days from when the discrimination g
occurred. Once the complaint is filed with DOL, the DOL Area Office Director has 30 days to attempt a reconciliation between the parties, or investigate the complaint to decide whether H&I has occurred. If the decision l
is appealed the case is adjudicated by a DOL Administrative Law Judge
]
(AIJ). The AU issues a recommended decision to the Secretary of Labor (SOL) for final action.
NRC staff also told us the agency generally does not (1) follow up with g-allegers to determine if they filed a complaint with DOL as advised when the alleger initially brought the complaint to NRC, (2) contact the alleger if NRC is notified by DOL that the alleger's claim has been resolved, or (3) review l
DOL reports to determine whether sufficient evidence exists to support potential NRC enforcement action, or if a H&I-conducive environment exists I
at the licensee. However, in August 1993, OE issued guidance that instructed regional staff to obtain DOL's reports, and determine if enforcement action should be pursued.
I Regional Variatiorts in Monitoring H&I Allegations Filed With DOL Through discussions with regional staff, we found that while the regions generally use similar methods to monitor H&I allegations filed with DOL, I
some differences exist. As illustrated in Chart 1, in one region, NRC staff summarize DOL information for the ARP, but in another region, the staff distributes the complete DOL documentation to ARP members.
Omme Na.: 9Mr/N Page 7 I
i
3m NRC's Process For Protecting Niogers From H&l We also found that in some regions, the AMS allegation files were well-organized, contained pertinent information regarding the allegation, and could provide a useful data base to support trend analyses of H&I at licensees.
However, the AMS allegation files in other regional offices were poorly g
maintained, appeared to have information gaps, and would not easily lend themselves to regional or agency-wide trend analysis.Section II of this report
-l provides additional detail regarding our examination of AMS files.
Chart 1:
STAFF RESPONSES TO QUESTIONS REGARDING THE MONITORING PROCEDURES FOR H&I ALLEGATIONS FILED WITH DOL Region A Region B Region C Who collects and The Enforcement The Enforcement Senior Allegation l
evaluates DOL Specialist Specialist (1)
Coordinator collects information?
summarizes convenes a panel all information and information and gives when DOL's AU or distributes copies to it to the ARP for Secretary finds ARP members for review.
discrimination, and their review.
(2) sends all information to regional OI for their
~E review and 3
independent action.
Number of files 2 - A technical safety 4 - Files for AMS, 1-AMS l
that contain case file, and a DOL file.
OI, Enforcement, and information.
DOL Does AMS track Xn, but AMS only Has developed a Has developed a the status of lists "at DOL", and regional tracking regional tracking DOL cases?
does not indicate the system that is not system that is not review level.
linked to AMS.
linked to AMS.
Does the ARP Xn,if DOL's AU Xn,if DOL's AU or In, for all decisions 3
evaluate DOL or SOL find SOL finds reached at each 5,
decisions for
- discrimination, or the discrimination, DOL review level.
enforcement case is settled or depends on OI to
'g action?
withdrawn. En, if take the lead for E
DOL finds for the other results.
licensee.
j g
m,um g'
%s s.,
'l NRC's Process For Protecting Allegers From H&l l
NRCS CRITERIA FOR INVESTIGATING H&I ALLEGATIONS Since January 1986, the primary decision to investigate an H&I allegation has I
rested with NRCs Regional Administrators and Office Directors.
Management Directive 8.8 also provides OI the option to initiate an investigation. Generally, the criteria for deciding whether the allegation I
should be pursued has been based on a judgement of whether there is a reasonable basis to believe wrongdoing occurred, and if the staif believes an I
investigation is needed to determine whether enforcement or other regulatory actions is required. Once that decision was reached, the case was referred to OI to conduct the investigation using a " Request for Investigation" form. This I
process was shortened in March 1992 by allowing OI to initiate evaluations upon receipt of allegations.
I.
NRCs Management Directive 8.8 contains three classifications that are supposed to accompany the " Request for Investigation." Due to OI's limited resources and competing demands from other NRC offices for investigations, the assigned classification plays a significant role in determining whether OI will conduct an investigation:
'g MGH. are deliberate violations of requirements having high safety significance, suspected tampering with vital equipment, or the falsification of records or withholding information.
I NORMAL includes H&I allegations from licensee inspectors or workers of safety-related equipment under construction, or deliberate l
violations of NRC requirements where there is not indication of a recurring nature, or no immediate safety impact on workers or the public.
LOW. cover H&I allegations where the licensee is aware of the allegation and has undertaken corrective actions, or there is no near-
,l term safety concern.
NRCs Management Directive 8.8 suggests that most H&I allegations should I
be classified as " normal" or " low." Staff told us that allegations may be assigned a "high" priority when - evidence suggests senior level licensee management involvement, or H&I is widespread. Staff also told us that I
because OI generally has only enough resources to investigate "high" priority cases, most allegations classified in lower investigative categories are not investigated.
Cass Na: 93#1N Pay: 9
Ea NRC's Process For Protecting Megers Frorn H&l In March 1992, NRC made several adjustments to its H&I investigative policy.
To improve the timeliness of OI involvement in the process, staff was instructed to forward all wrongdoing allegations immediately to OI.
g Wrongdoing includes the falsification of records, lying to NRC inspectors, or 5
other intentional violations such as retaliating against employees for raising safety concerns. OI may conduct a preliminary evaluation by gathering information from various sources to determine whether additional investigation is warranted without waiting for a " Request for Investigation" referral. If the evaluation discloses specific wrongdoing, OI can launch a full-E-
scale investigation. OI Field Office Directors and Regional Administrators 5
generally hold monthly meetings to assess whether additional investigative work is warranted on cases, and to prioritize the case load.
While the March 1992 policy change meant OI could initiate an evaluation for wrongdoing cases if deemed appropriate, the policy also noted that H&I g
allegations should be evaluated on a case-by-case basis for NRC action if DOL was investigating the case. Regional staff told us that OI usually establishes a file number to track the case, and includes these complaints in g
the inventory of all investigative cases. However, they also stated if the alleger files a complaint with DOI, OI generally defers to DOL to investigate the allegation.
The exception to this practice is when the Regional l
Administrator assigns a high priority to the allegation and requests that OI initiate an investigation. NRC staff also pointed out that in the past several years, OI has initiated an investigation concurrent with DOL in a few cases l
because the evidence indicated egregious actions by licensee management.
Effective October 1993, OI policy was changed to require regional OI staff to handle H&I allegations like all other wrongdoing allegations and conduct a l
preliminary evaluation upon their receipt.
l OIG REVIEW OF OI CASE FILES During the 4-1/2 year period ending April 1993, OI received a request to E
investigate, or decided to self-initiate an investigation, on 125 H&I allegations.
3 To assess how the referral process works, we randomly sampled and reviewed 24 of the 59 OI case files available at Headquarters to determine whether g
they contained adequate documentation to monitor and assess the allegation.
5 Nineteen of the case files contained complaints from power reactor facilities; the rest were from university laboratories, fuel facilities, and other materials g
licensees. Our sample included cases from all five NRC regions. In nine E
cases, OI had completed a full investigation.
I cm m 9xm ray to.
B
I NRC's Process For Protecting Megers From Hal
'l We found variations in the types of information maintained in the files. For example, some files contained a formal memorandum that outlined the basis for requesting an investigation, but others requested an investigation based on I
the consensus of the ARP.
Overall, however, we concluded that OI's H&I case files were generally _
I adequate to chronicle OI's receipt, development and disposition of the case.
PROBLEMS WITH THE DOL PROCESS During our assessment, we reviewed an audit report performed by DOL's 7
I OIG that reviewed DOL's Office of Administrative Appeals (OAA), the office that prepares final appellate decisions for the SOL The audit identified
" major deficiencies in OAA's workload management and productivity to a I
degree that constitutes denial of due process to some parties awaiting final decisions from the Secretary of Labor and other Departmental officials." In supporting this assessment, the audit stated that OAA:
Had " served as a burial ground" for cases on which the SOL and other senior DOL officials did not choose to issue a final g
decision.
Did not have a standard of timeliness for case processing. For l
example, OAA had a backlog of 178 cases which had been in OAA for an average of 2.5 years, and OAA's 26 oldest cases averaged 7.5 years from receipt within OAA to adjudication.
l Ten of the 26 cases involved H&I allegations, but the report did not indicate whether they were nuclear-related.
l Does not develop and utilize information essential to workload and resource management.
The audit report concluded that "in assessing OAA's workload management and seeking to develop and apply performance measures, a basic assumption I
that OAA's objective has been to efficiently and effectively move cases forward to decision is not valid."
I 7
I-Audit Of The Office Of Administrative Appeals.
(Report Number 17-93-009-01-010, Office of Inspector General, Department of Labor, May 19,1993).
Case Na: B4r/N I
Page 11
I NRC's Process For Protecting Megers From H&l NRC STAFF SUGGESTIONS FOR IMPROVING THE PROCESS Most NRC staff we contacted believe NRC's policy of relying on DOL to resolve H&I complaints meets the objectives of the Atomic Energy Act, and is the proper mechanism to resolve H&I complaints. However, they neted several areas where improvemcris could be made. For example, staff contend that in some instanc:s the D JL gocess takes too long to determine whether the H&I claims are legitimaa.
.n addition, staff were concerned that the DOL office which currently handles H&I complaints may not have adequate l
investigative experie me. Finally, staff noted the protracted length of the DOL process may diminis the effectiveness of NRC's enforcement action because penalties may be issued well after the H&I occurred. Staff in one region l
confirmed this by citing a case where the hearings and appeals process took over 6 years. Even though DOL finally concluded the licensee had engaged in H&I, NRC was prevented from imposing a penalty because the statue of l
limitations had expired.
To combat these delays and reduce the timeframes between the H&I
'l allegation, case disposition, and potential enforcement action, some staff suggested that NRC could:
Take immediate enforcement, where warranted, based on initial findings by the DOL Area Director.
Encourage DOL to utilize another of its organizations that has more investigative experience to pursue H&I allegations.
SECTION II:
OIG REVIEW AND ANALYSIS OF H&I ALLEGATIONS At the request of OIG, NRC provided for review all AMS files containing H&I complaints received during the 4-1/2 year period ending April 1993. We were told that additional AMS files which contained H&I allegations had l
been identified since the previous OIG inspection report. We determined that 621 reported incidents of H&I violations were available for review.
I We examined each H&I allegation file in order to determine if the complaint met the requirements for an H&I violation as contained in Section 210/211 of the Energy Reorganization Act. This Act requires three elements or l<
criteria to be present for an H&I violation: (1) an alleger must report a concern which he/she believed to have a health and safety implication, (2) the g,
reported concern appeared to have qualified as a " protected activity", and (3) 31 c==re nom r., n i
I l
NRC's Process For Protecting Megers From H&l
]
l l
the alleger appeared to have suffered subsequent H&I for reporting the j
concern. If all three elements appeared to have been evident, our analysis recognized that the allegation could have been investigated?
I' Of the 621 files obtained from NRR and the Regional Offices, we determined that 429 (69%) of the H&I allegations would, if true, meet the violation l
criteria. The remaining 192 (31%) were deemed not investigatable because they failed to meet the criteria.
l MANAGEMENT OF H&I ALLEGATIONS t
l3 Our review observed chronic problems with the portion of the AMS files that 5
contain H&I allegations. These problems primarily concerned a lack of documentation and organization, or other failures to track actions associated with the resolution of allegations.
While technical aspects of an alleger's complaint were quickly
,E addressed by the staff, the H&I aspect often " disappeared" from IB the AMS file after an alleger was advised of his right to complain to DOL OIG found, however, that the NRC generally referred allegers with H&I complaints to DOL in a timely fashion.
j The AMS files generally did not track referrals of H&I i
complaints to the OI, even when OI records showed that such a referral was made. In addition, for those that were referred, j
the AM.S file generally did not reveal actions taken by OI.
Occasionally, AMS files would include a comment such as "no investigation would be conducted due to insufficient evidence j
to warrant the use of additional investigative resources." More j
The NRC considers a protected activity to be the reporting of any potential health 8
and safety concern to licensee management or NRC.
l
' The only exception to the application of this criteria was an alleger complaining of
" blacklisting" by the nuclear industry for previously having reported safety concerns.
Reports of blacklisting often occurred long after allegers reported safety concerns to the I
NRC, the DOI, or their management which may have contributed to their termination of employment. Blacklisting complaints were often not considered by the NRC to be g
" protected activities" because the allegers did not report current technical concerns. OIG g
considers alleged blacklisting to be investigatable and a potential serious H&I issue.
c= m: mrm nyu I
E' a
NRC's Process For Protecting Allegers From H&l often, there were no such statements included in the files, leaving the reviewer to question the resolution of H&I complaints by the NRC.
Although infrequent, the review found instances in which no referral to DOL was reflected in the file, or any other action I
was taken on H&I complaints that were referred to the NRC.
5 The final disposition of H&I allegations was often difficult to g
determine because of file disorganization, lack of documentation, or failure of the process to track action on an allegation.
g There were substantial differences in AMS file management and organization from region to region. Each region used g
different forms to record, track, and close H&I allegations. For instance, some regions used chronologies to track allegations while others relied upon checklists or nothing at all. These g
inconsistencies in record-keeping would likely make trend analysis very difficult to perform.
I OlG was told that no formal training exists for regional allegation coordinators and enforcement coordinators.
I AMS FILE REVIEW OBSERVATIONS S
Our review indicates that the NRC has not provided written guidance in g
sufficient detail to ensure that adequate H&I allegation files are established and maintained.
1.
NRC should consider creating guidance that will delineate how H&I files are to be organized and which documents they should I
consistently contain.
5 2.
NRC should consider adopting a file checklist to assure g
completeness of the file and to allow users to determine the 5
progress and outcome of allegations.
3.
NRC has recently required that all AMS files have a closing memo to indicate the final disposition of the H&I allegation.
I one Na: 9MW Page 14 g
.E E
m
y A
A ' a'h
/
O 0
lq
','S IMAGE EVALUATION
,C %
t,,,*
g
^'
Q
. Nd b
////
1 TEST TARGET (MT-3)
/ },,'[? gf 4
k?jj jf pff j
I.0 2"
- " m
!M _
t_
ily! 2.0 l
o-j,l ns 1
M8 1.25 1.4 ill I.6
==a In m 4. _. __ _ _... _ -
_ _..___. - -- -- 1 5 0 m m w ___ -.
6"
@r c sl %
$ );it) o $ W,o A
d f6 4
///
yy
, + 3 /4 s ; wg,, //,,,-
,a o
,wv 3
a
..)
i
X b
13 i
e e
,0 o.
,a_
3 IMAGE EVALUATION
, +,,
Q
v h
J
+
79 TEST TARGET (MT-3) k
\\\\ r/ p j
h
k h '
4lfh s
l l
l
^
l.0
', 2 ?
l 12.0 1.1
[y?
l.25 l
1.4 lc 1.6
- --- hll w se I
4-150mm - - - -
4 6"
l l
%gy
/*h/
8y e34
+ c.
.. y D
g/
1y 4_.'
a
.gj
._m
N I
+
b
/0 a.:
o'~
q.
[A 4M (;g IMAGE EVALUATION O
O'
</
\\//
TEST TARGET (MT-3) s
\\pg 3
+
<3 1.0 l!)2.2 uL-u pa=.q 2
m l,l 1.8 l2512 1.25 i
1.4 ll 1.6
=
\\
==
u
=u 4...____
_ _ _.. _ _ _ ___ _ _. ---- 1 5 0 m m 4_
6" l
/f x'sg,4f 4 +,Ao ess
+9y
,7 egs'f 4/4x.
L
.i ys '
.Q r;-
O
/
eg{%
c(e qe q
/
,; I L.:..-.
o y
- r
~
$e @* 9>
/ (O
\\k g,(y
\\o t t 'de W
IMAGE EVALUATION 4
//// i
4(f9 TEST TARGET (MT-3)
[@ gg
/
k N" f
N/ <gV
/q sq?
/
i t
i i
i l
I I
l.0 it Ps* W f;; 9 ql2]
Lrm u,.
L se n llll2S 1l==
L Us l.l
- t. -
l'l 1.8 4
0)sea i
1.25 1.4 I i.6 l===
?
i 4~----
- --- 15 0m m l
I I
4.__.--
6" f
i h
%y 4 %
,* N
,s
//
Ak
%)
,,gy,%
7
~-
~ 4 A, //4
,A
- p& 4$<3
%p e
07
/
t M
j
/
[f g
ar6%GUAY...,.-
.: -e h
- 2 N L
. u :=
+
w
f NRC's Process For Protecting Allegers From H&l However, our review indicated the AMS files do not consistently contain this memorandum.
l NRC should consider a single allegation file rnanngement policy. Standards under this policy should ensure that AMS fil.., contain a sufficient level of detail to allow for analyses such as trending. This would be useful for such matters as identifying the severity and location of H&I problems.
USE OF INVESTIGATIVE RESOURCES OIG was asked to examine the staffing rest. trees required for conducting H&I
.g-investigations. We determined that both NRCs OI and the TVA-OIG g
conduct investigations of nuclear industry H&I complaints.
Both organizations were asked to provide statistical information on tV aspect of their work.
During the period February 1990 through August 1993, TVA-OIG completed g
79 investigations of alleged Section 210/211 complaints.
The average workhours expended per investigation was 498.4.
.g For the period October 1988 through April 1993, NRCs OI completed 31 investigations of alleged Section 210/211 violations. The average number of workhours expended per investigation was 786.5. One full-time equivalent g
investigator is available for 2087 hours0.0242 days <br />0.58 hours <br />0.00345 weeks <br />7.941035e-4 months <br /> of total work annually.
~
TVA-OIG is responsible for investigating H&I complaints registered by TVA l
employees who are largely located in the Tennessee Valley region. Of their entire investig tive staff, TVA-OIG has eight investigators dedicated to investigating H&I cases.
By comparison, OI has responsibility for
-l investigating H&I cases throughout the country.
OI has no special component for investigating H&I complairts.
j-SECTION III: ASSESSMENT FINDINGS I
We found that from a regulatory perspective, NRC is proactive to technical aspects of allegations, but primarily macliyg tr. H&I implications. NRCs regulations prohibit discrimination against licensee employees who raise safety I
concerns. We found that while NRC is quick to address technical issues, the agency generally defers to DOL to resolve H&I complaints. NRCs stafi I
E U
NFIC's Process For Protecting Megers From Hal stated the agency's process to manage H&l issues focuses primarily on maintaining a retaliation-free environment at its licensees. However, NRC does not know to what extent discrimination has or may be occurring. For g
example, NRC does not (1) have a program to assess the H&I environment 5
at licensees except after serious problems occur, (2) know how many or what level of complaints emanating from a licensee's employees should cause NRC to increase its scrutiny of those operations, or (3) have a Headquarters focal point that assesses whether the effect of individual or cumulative H&I complaints indicates a need for either licensees or NRC to take corrective E
action.
5 An essential element of a policy to ensure an H&I-free environment is g
compensation for allegers who have been subjected to discrimination. If allegers are subject to H&I, there is little that NRC can do to compensate the alleger becau:,e DOL is responsible for resolving the allegation and ordering g
compensation when H&I is substantiated. NRC's responsibility is to issue enforcement action against its licensees who are found to have an H&I environment. NRC should use DOL reports to assist in determining whether l
an H&I environment exists at its licensees.
We are also concerned about the weaknesses that DOL's OIG found in the l
final phase of DOL's H&I allegation case processing. The magnitude of these management shortcomings should be of concern to NRC because the agency partially relies on DOL to resolve sensitive employee issues. In addition, allegers have complained that it takes too long to resolve H&I complaints, which could have a potential " chilling effect" on other industry workers who may have identified safety issues. Timely resolution should be an essentially l
element in NRC's program to ensure an H&I-free environment exists at its licensees.
I From OIG's review of the 621 AMS files, chronic problems were identified that concerned file management and organization. While technical aspects of g
an alleger's complaint were quickly addressed by the staff, the H&I aspect of 3
the complaint often " disappeared" from the AMS file after an alleger was advised of his right to complain to DOL In addition, OIG determined that g*
429 allegations (69%) met the criteria identified in the Energy Reorganization 5
Act for aa H&I violation. From these allegations, NRC initiated 44 full-scale investigations and completed 31 of them as of July 1993.
I
- r. n E.
I NRC's Process For Protecting Allegers From H&l I
H&I POLICY OBSERVATIONS AND FACTORS TO CONSIDER NRC has stressed the important role that allegers play in surfacing safety problems, and has stated its desire to take appropriate action to improve the process for handling H&I issues For example, in August 1993 NRC I
established the Review Team on Protecting Allegers Against Retaliation (Review Team), composed of senior executives, to examine this issue. The Review Team has analyzed various issues, and conducted six public meetings I
to obtain a broad perspective on H&I. The Review Team is to identify where the process can or should be improved.
'I Our assessment indicates the procedures that NRC and DOL rely on to process H&I allegations are protracted, resource intensive, and primarily reactive. In addition, NRC does not have a focal point to analyze H&I I
information or determine the extent and location of potential H&I at its licensees. Consequently, we believe NRC and its Review Team need to evaluate (1) the environment at licensees to determine whether H&I is g
isolated or widespread, and (2) whether the agency should expand its scope of responsibility by analyzing and responding to allegations beyond technical safety concerns. We offer the following observations and factors for NRC and l
its Review Team to consider to assist in this evaluation.
1.
NRC should consider increasing its understanding of H&I l
environmental factors and its knowledge of the potential H&I l
environments at its licensees by:
l Determining whether the characteristics that indicate the presence of an H&I environment can be identified.
j Improving data gathering capabilities, and using this data to determine the magnitude and location of H&I environmental problems.
Creating a Headquarters focal point to evaluate allegations and analyze investigate findings from NRC and DOL to determine I
what they indicate about the licensees' H&I environment.
Focusing on licensees who exhibit H&I characteristics.
I Cume N: 9347II Page 17 I
l
E U
NRC's Process For Protecting Allegers From H&l 2.
NRC should assess the adequacy of its current efforts by:
Determining the resources need to (1) receive and investigate E
allegations, (2) take enforcement actions, (3) evaluate the E
location and magnitude of licensee H&I problems, and (4) address these problems.
Questioning its reliance on DO'L for victim assistance, given that final resolution of allegations may be delayed for several 3
years.
5 3.
Given the protracted nature of the DOL process, and its effect on 3
DOL's role of assisting H&I victims, NRC should consider expanding 5
its involvement in this process by:
Assessing the value of conducting investigations or taking enforcement actions earlier, at the conclusion of DOL's investigation or after the DOL /AIJ decision.
g Evaluating DOL findings to determine if additional NRC investigative work is needed to assess the licensee's potential l
H&I environment, or if NRC should take enforcement action based on DOL's work.
I Considering greater use of the wrongdoer rule to eliminate an environment of H&I in the licensee workplace, and removing from NRC-licensed activities those who participate in or l
condone H&I activities.
I I
r.
I NRC's Process For Protecting A!!egers From H&l l
MAJOR CONTRIBUTORS TO THIS REPORT Richard J. Donovan, Audit Team Leader William D. McDowell, Jr., Senior Auditor Scott W. Buchan, Management Analyst Jack W. Taylor, Investigative Team Leader I
P I
I I
I I
I I
I A.
- - - - -