ML20059H431
| ML20059H431 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 11/09/1993 |
| From: | Gutierrez J NEWMAN & HOLTZINGER |
| To: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| Shared Package | |
| ML20059H429 | List: |
| References | |
| NUDOCS 9401270311 | |
| Download: ML20059H431 (5) | |
Text
1 NEWM.AN & HOLT 21NGER. P.C.
ATTORN CY$ AT L AW I
e6 4 5 L ST R EET. N.W.
wAS MtNGTON. O.C. 20036 56t0 TELEPHONC:(202) 9S S*66 00 l
FAK: (202) 672-05 64 CIRECT DIALS 202/955-4490 Jay H. Cetterren i
November 9, 1993 VIA ErPRESS MATL Mr. James Lieberman Director Office of Enforcement Mail Stop 7HI, 7HS U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20052
Dear Jim:
This follows up our conversation in Phoenix just pr'.or to the morning session of NRC's workshop exploring its role in the 211/50.7 process.
You may recall that I expressed a concern that regardless of NRC's role in the process, the most fundamental and disturbing shift I see is the apparent movement toward policies that would crisdnalize this difficult employment law issue.
If this trend continues it appears to me that nuclear managers will be increasingly chilled, if not paralyzed, from taking legitimate management action against persons who also may have raised safety concerns.
Although an employee's performance may be substandard or even clearly violate licensee policies or NRC regulations, managers will be reluctant to act if the employee has also raised safety concerns because the potential consequences of being misunderstood are simply too great, i.e.,
the prospect of being prosecuted for a federal crime.
I cited as an example the current grand jury in Houston reviewing 6 termination at the South. Texas Project (STP).
While I am currently involved in several regulatory proceedings relating to employment at another
' nuclear plant site and our as served as nuclear regulatory counsel to Houston Lighting & Power (HL&P) for many years, I have not been personally involved in the proceedings relating to the termination of 6 e nt at the STP site.
From what I understand, however, unescorted access to the STP site was properly rev was determined that he had omitted from his access authorization request form numerous
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items of information specifically required for necessary 9401270311 931213 PDR ADOCK 05000498 G
PDR g
Ntwna & HOLTZINGEH, RC.
Mr. James Lieberman November 9, 1993 Page 2 background checks to determine the trustworthiness and reliability of persons seeking unescorted access to the protected areas of nuclear facilities.
HL&P submitted detailed information concerning the circumstances surrounding the revocation of 6 site access in an August 14, 1992 letter from M M a copy of which is enclosed for your information.
Essentially, many of these omissions concealed highly negative information that is significant in the context of the access authorization rule (10 CFR 73.56) including involuntary termination by three separate
=
employers during the previous three years (the fact that he had worked for these employers was also omitted, making it difficult to detect the fact that termination had even occurred, let alone the circumstances associated with his termination);
the for-cause revocation of his site access at another nuclear facility; and, #
his participation in litigation, the results of which were decisions concluding that he was insuborriinate, a poor performer, and that his rictivities had adversely affected the ability of site mar.agement to safely operate a nuclear plant.
fact throughout 6, there were numerous other omissions of In addition access paperwork.
Apparently, when presented with an opportunity to correct a number of these omissions during his initial processin and a subsequent follow-up interview at the STP site, ailed to do so.
By concealing this information, he prevented STP access authorization personnel from discovering many facts about his background that are obviously material to a proper determination, pursuant to NRC regulations, as to his trustworthiness and reliability.
ute denid of access came only a few months after the NRC had issue In ation Notice 91-59 to M
In this regard, 10 CFR 73.56(b)(4) states:
" failure by an individual to report any previous suspension, revocation, or denial of unescorted access to nuclear power' reactors is considared sufficient cause for denial of unescorted access autho::12ation. "
N cw>uN & HOLT 21NGER, P.C.
Mr. James Lieberman November 9, 1993 Page 3 licensees specifically stressing the importance of assuring that background records used for access purposes should be complete and accurate, and informing them that the NRC would hold them accountable and take escalated enforcement action if persons were allowed access based on falsified or incomplete records.
A copy of that information notice is enclosed.
This notice particularly emphasizes the importance of assuring that employment history records are accurate and ct>mplete.
NRC again emphasized its concern in assuring the ar. curacy of records recently on October 20, 1993, in Generic Letter 93-03, " Verification of Plant Records."
A copy of that generic letter is also enclosed.
- Yet, the decision of HL&P personnel, following the NRC's regulations and idance and the Company's own procedures, to revoke access now apparently puts them and the Company in jeopardy of criminal prosecution.
It is difficult to imagine a greater disincentive to compliance with the NRC's regulations and guidance.
Based on these facts, I cannot discern the criteria used by the NRC in referring this case (which has not yet been tried before the DOL) for criminal review while not referring numerous other 211 claima which have resulted in findings of discrin hation.
This is particularly confusing when missions and misstatements clearly violated 10 6(a)(2), and yet the NRC does not appear to be either CFR 50.5 investigating his misstatements or taking enforcement action against him as contemplated by that rule.
You indicated that the distinction between Houston claim and earlier 211 claims is that &
claim is one of the first brought since the NRC prov ded notice in the Fedcral Register of a final rulemaking clarifying that intentional vidations of selected regulations carry criminal sanctions.
I took f m your statement that criminal sanctions for the matter should, therefore, not be pursued if its operative facts arose prior to notification in the Federal Register.
Setting aside for the moment numerous legal and policy reasons for not. seeking to impose criminal sanctions for the vast majority of 211 cases, one purpose of this letter is to make sure you re ire that the operative facts associated with ermination occurred in January and February,
- 1992, ereas the rulemaking notice was published in the Federal Register on November 24, 1992, with an effective date of December 24, 1992.
Newnew & IIOLT21NGEN. P.C.
Mr. James Lieberman November 9, 1993
'I Page 4 The notice stated specifically that criminal sanctions would not be retroactively applied, however, it also indicated that criminal sanctions could still be imposed for previous violations ~ of those " regulations for which appropriate notice was provided."
57 FR 55064-65.
Although 10 CFR S 50.7 is nominally included in that category of regulations, I believe it is wrong to base a criminal indictment solely on the 1990 amendments to 10 CFR Part 50 which failed to even vaguely suggest that a violation could result in criminal penalties.
In both the proposed alle, (57 FR 223-24), and the final rule (57 FR 55062), NRC reccptized that the previous method of providing
" notice" of criminality simply by indicating that the particular regulation was promulgated under S 161 b, i, or o of the Act was inherently faulty.u In closing I would like to make two points.
First, I feel that it is important for us to como to an understanding as to the int you made in Phoenix, its relation to the facts in the case pending in Houston, and the fairness of basing a cri indictment on inadequate notice.
For this reason, could you please take a few moments to resolve this apparent confusion and also assure that appropriate personnel within the Department of Justice receive a copy of this letter.
I thank you in advance for your serious consideration of this matter and look forward to your reply.
Second, as I noted at the outset, aside from the specific legal deficiencies in the Houston proceeding or any other case, the crNha11zation of this complex employment issue is ill advised.
Some of the policy considerations that militate against'criminalization are set forth in a letter from our firm to the NRC's Inspector General of April 8, 1993 (copy _
enclosed).
Of course, I would be happy to meet with you and
,J.
u Enclosed for your information is a letter to the Department of Justice from counsel for Houston Lighting & -Power Company, dated September 7, 1993, which spells out in greater detail the deficiencies in the NRC notice process and related legal impediments to criminal prosecution.
Nrww An & Hot.rzmorn P.C.
Mr. James Lieberman November 9, 1993 Page 5 expt:nd on these thoughts.
Finally, because this letter and so e of its attachments contain personnel information relating to
@dplacementintheNRCPublicDocumentRoompursuantto10CPR I request that they be withheld from public disclosure an 2.790(a)(6).
Sincerely yours, y
ti ez
/cja Enclosures ces Jim Taylor Tom Murley Ben Hayes Jack Goldberg Suzanne Black bcca J.R.Newman T.A.Schmutz W.E.Baer A
UNITED STATES NUCLEAR REGULATORY COMMISSION 0FFICE OF NUCLEAR REACTOR REGULATION
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WASHINGTON, D.C. 20555 r)))OCT 1419n Septembe. 23, 1991 db@l6Q NRC INFORMATION NOTICE 91-59:
Newman & Holtzineer, e c PROBLEMS WITH ACCESS AUTHORIZATION P Addressees All holders of operating licenses or construction permit reactors.
s for nuclear power Purpose The U.S. Nuclear Regulatory Comission (NRC) is issuing thi to alert addre tion programs.ssees to two areas of continuing problems with access autho One area involves licensee contractors or subcontr completing the requirements for background investigations or fal if the other involves the improper administration or co not ying records; tests.
s cability to their facilities and consider actions, as app similar problems.
or appli-are not NRC requirements; therefore, no specific action or w e, to avoid required.
ce en response is Description of Circumstances In recent months some licensee con, tractors or subcontractors have certif satisfactorily meeting the. licensee's requirements for backgr at tions without com v uals as reference checks.pleting all required residence, employment, education ound investiga-One contractor certified to a lic' ensee that an employee suitable for unescorted site access-before receiving a response t gative inquiry initiated in accordance with the licensee's a was plan.
o an investi-The contractor subsequently received derogatory informati the information.to the inquiry that would have led to the denial of pproved security on in response The licensee discovered the information when reviewing t contractor's screening files and immediately suspended the e access.
The access was later withdrawn because of the informatiomployee' e
and similar problems in the past have prompted the license of all contractor and subcontractor background investigati n.
This event the adjudication reviews to determine access suitabili e to require copies the contractors' or subcontractors' determinations ons and to perform ty instead of accepting have prompted other licensees to require copies of Similar screening problems developed from background investigations conducted ball derogatory infonna subcontractors.
y their contractors or O
9109170084 -
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UNITED STATES bin! @P
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NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION q
OCT 14190 WASHINGTON, D.C. 20555 September 23, 1991 a
_ LMll:. Ol] L Newman & Holtzincer. P C HRC INFORMATION NOTICE 91-59: PROBLEMS WITH ACCESS AUTHORIZATION PROGRAMS Addressees All holders of operating licenses or construction permits for nuclear power reactors.
Purpose The U.S. Nuclear Regulatory Comission (NRC) is issuing this information' notice to alert addressees to two areas of continuing problems with access authoriza-tion programs. One area involves licensee contr" tors or subcontractors not completing the requirements for background inve-.gations or falsifying records; the other involves the improper administration r compromise of psychological tests. It is expected that recipients will review the information for appli-cability to their facilities and consider actions, as appropriate, to aveid similar problems. However, suggestions contained in this information no* ice are not NRC requirements; therefore, no specific action or written resp ase is required.
Description of Circumstances In recent months, the NRC has received numerous reports and allegations that some licensee contractors or subcontractors have certified individuals as satisfactorily meeting the.11censee's requirements for background investiga-tions without completing all required residence, employment, education, or reference checks. One contractor certified to a li' ensee that an employee was c
suitable for unescorted site access.before receiving a response to an investi-gative inquiry initiated in accordance'with the licensee's approved shcurity plan. The contractor subsequently received derogatory information in response to the inquiry that would have led to the denial of access but did not act upon the information. The licensee discovered the information when reviewing the contractor's screening files and immediately suspended the employee's unescorted access. The access was later withdrawn because of the information. This event and similar problems in the past have prompted the licensee to require copies of all contractor and subcontractor background investigations and to perform the adjudication reviews to determine access suitability instead of accepting the contractors' or subcontractors' determinations. Similar screening problems have prompted other licensees to require copies of all derogatory information developed from background investigations conducted by their contractors or subcontractors.
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'9109170084 hy %wg I
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IN 91-59 September 23, 1991 Page 2 of 4 The NRC has also recently received numerous reports concerning licensee con-tractors or subcontractors who have provided false certification regarding the length of time individuals had been employed.
In one case, a union business agent (BA) certified to a licensee that certain individuals had been members of the union for 3 years and, to the best of the BA's knowledge, had shown no adverse character traits. The certification qualified the individuals for an exemption from background screening requirements as set forth in the licensee's approved security plan because of the BA's personal knowledge of the individ-uals resulting from the length of union membership. The licensee subsequently discovered that the BA had falsified the certification. None of the individuals had been merbers of the union for 3 years, and in fact, were not even members of the BA's union local.
Liceiisees identified some of these problems when auditing contractor or sub-contractor programs. One effective audit technique used was telephone contact with the applicant's previous employers and references to verify information supplied by the contractor or subcontractor doing the screening.
l In addition to receiving reports of problems with background in~vestigations, the NRC has received allegations that some licensee contractors and subcontractors have improperly administered or deliberately compromised psychological tests, or have falsified the results of such tests. Some of the allegations were similar to cases discussed in IN 88-91, " Improper Administration and Control of Psychological Tests," in that individuals allegedly completed tests in unproc-tored settings.
In one case, an individual allegedly took a psychological test for employment at a nuclear facility in a motel room in which someone called out the " correct" answers to produce the desired profile. It was also alleged that some falsification of test results occurred because contractors exerted pressure on subcontractors to have certain numbers of craft workers certified as acceptable by certain dates for licensees during reactor outages.
Discussion The NRC has issued IE Circular 78-17, " Inadequate Guard Training / Qualification and Falsified Training Records," October 13, 1978; IE Circolar 79-03, "Inade-quate Guard Training / Qualification and Falsified Records," February 23, 1979; Information Notice (IN) 82-07, " Inadequate Security Screening Programs,"
Harch 16,1982; IN 83-15 " Falsified Pre-Employment Screening Records,"
March 23,1983; IN 87-64, " Conviction for Falsification of Security Training Records," December 22,1987; IN 88-26, " Falsified Pre-Employment Screening Records," May 16,1988; and IN 88-91 " Improper Administration and Control of Psychological Tests," November 22, 1988. These documents alerted addressees
IN 91-59 September 23, 1991 Page 3 of 4
.r to the possibility that contractors might submit falsified records to meet and control of psychological tests used in personnel s reminded licensees of the importance of adequate program audits.
the NRC published Section 73.56 of Title 10 of the Code On April 25, 1991, of Federal-Regulations (10 CFR 73.56)..."(Personnel Access Authoriz Requirements for Nuclear Power Plants" increased assurance that ind and vital. areas are trustworthy and. reliable and do not p licensees may accept an access authorization program, or part of a program, used by its contractors or vendors for their employees provid rule requirements.
contract is an effective method to safeguard against inadequate acces authorization programs.
licensee who accepts the access authorization program of a contractor or vendor nust audit the program every-12 months.to ensure-that the r,equirements of the Access Authorization Rule, as specified in their appro plan, are met.
expertise on their audit and assessment teams.
Failure to ensure that a proper access authorization program is con could compromise nuclear safety.in which licensees fail, whether intentio security program plan commitments regarding their access authorization program.
Furthermore, intentional violations may subject corporations, the individual wrongdoer, and others who knew and condoned such acts to criminal prosec In IN 85-97 " Jail Term For Former Contractor Employee Who Intentionally Falsified Welding Inspection Records," 1H 86-54, " Criminal Prosecution of a Former Radiation Safety Officer Who Willfully Directed an Unqualified Indivi-dual to Perform Radiography," and IN 87-64, " Conviction For Falsification of Security Training Records," the NRC stated that the criminal sanctions avail-able may include a fine and/or imprisonment.
15,1991,(a final rule was published regarding miscond
- l 56 FR 40684). This rule amended the Comission's On August unitcensed persons regulations "to put on notice all persons whose actions relat to civil enforcement action for deliberate misconduct" that causes the Periodically informing contractors, sub-l licensee to be in violation.
1 contractors, and vendors that they may be subject to criminal prosecution for intentional wrongdoing may also be a deterrent against deliberate compromise of background screening programs.
p.
IN 91-59 September 23, 1991 Page 4 of 4.
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This. information notice requires no specific action or written response.
If you have any questions about the information in this notice, please contact the technica1' contact listed below or the appropriate Office of Nuclear Reactor Regulation project manager.
P
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arles E. Ross, Director Division of Operational Events Assessment
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Office of Nuclear Reactor Regulation
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Technical contact: Hany Ervin, NRR (301)492-0946
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Attachment:
1.ist of Recently Issued NRC Information Notices i
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Attachment IN 91-59 September 23, 1991 Page 1 of 1 LIST OF RECENTLY ISSUED NRC INFORMATION NOTICES Information Date of Notice No.
Subject Issuance Isseed to 91-58 Dependency of Offset 09/20/91 All holders of OLs or cps Disc Butterfly Valve's
~.or nuclear power reactors.
Operation on Orientation with Respect to Flow 91'57 Operational Experience 09/19/91 All holders of Ots or cps on Bus Transfers for nuclear power reactors.
91-56 Potential Radioactive 09/19/91 All holders of Ols or cps Leakage to Tank Vented for nuclear power reactors, to Atmosphere 91-55 Failures Caused by An 09/16/91 All holders of OLs or cps Improperly Adjusted Test for nuclear power reactors.
Link In 4.16 KV General Electric Switchgear 85-18 Failures of Undervoltage 09/10/91 All holders of Ots or cps for Supp. 1 Output Circuit Boards In Westinghouse (W)-designed the Westinghouse-Designed nuclear power reactors.
Solid State Protection Sp tem 91-54 Foreign Experience Regard-09/06/91 All holders of OLs or cps ing Boron Dilution for pressurized water reactors (PWRs).
89-90 Pressurizer Safety Valve 09/05/91 All holders of OLs or cps Supp. 2
, Lift Setpoint Shift for nuclear power reactors.
91-53 Failure of Remote Shutdown 09/04/91 All holders of OLs or cps System Instrumentation fot nuclear power reactors.
Because of Incorrectly Installed Components OL = Operating License CP = Construction Permit I
.