ML20059H794

Submits Referral to Dept of Justice of Alleged 10CFR50.7 Violations

ML20059H794
Person / Time
Site:	South Texas
Issue date:	04/08/1993
From:	Newman J NEWMAN & HOLTZINGER
To:	Norton L NRC OFFICE OF THE INSPECTOR GENERAL (OIG)
Shared Package
ML20059H429	List: ML20059H425 ML20059H431 ML20059H794 ST-HL-AE-4169, Informs of Util Position Re Circumstances Surrounding Revocation of Individual Unescorted Access to Plant.Review Confirms That Decision in Subj Case Consistent W/Prior Util Access Authorization Decisions.Encl Attactments Sanitized
References
NUDOCS 9401310162
Download: ML20059H794 (36)

Text

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i NEWMAN & HOl/r2INGEn. P.C.

ATTORNCv5 AT L Aw 86 tS L S T R C CT. N.W.

WAS HINGT ON. O.C. 20036 5640 TELEPHONCs (202) 95 5-6 600 FAX:(202) 672 OS68 April 8, 1993 BY HAND DELTVERY Mr. Leo J. Norton Assistant Inspector General for Investigations Office of the Inspector General U.S. H.uclear Regulatory Commission (Mail Stop EW-542, OIG) 4350 East West Highway Bethesda, HD 20814 4 50.7 Violations RE:

Referral to DOJ of Alleged 10 C.F.R.

Dear Mr. Norton:

This is in reference to the Office of Inspector General's (OIG) invertigation into allegations that. Houston Lighting & Power (HL&P) officials retaliated'against thrse former HL&P security personnel for having raised s~ecurity-related allegations Two of these regarding the South Teitas Project (STP).

individuals have flied complaints that are being considered by the Department of Labor- (DOL) un(er the employee protection provisions in Section 210.(now 211) of'the Energy Reorganization We do not believe that these Act of 1974, as amende.d (ERA).

complaints have merit, nor do 'we 'believe that' the underlying eve'ats' constitute a violation of 10 C.F.R. S $0.7.,

We expect

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thr.t proceedings before the DOL will. confirm our belief.

Nevertheless, we understand that these allegations have been referred to the Department of Justice for review.' However, for the reasons discussed.below, we believe there is neither a basis for further DOJ action in this case, nor is any such action in the public interest.1/

1/

This letter deals primarily with issues affheting prosecutorial discretion.

If prosecution w'ere undertaken, r

fundamental legal issues would have to be considered, (continued...)

i 9401310162 931213 gDR ADOCK0500g8

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Newwan & HotTzinocu. EC.

Mr. Leo J.

Norton April 8, 1993 Page 2 Further Action Is Hot Appropriate In This Type of Case.

As we understand the process, DOJ has historically reviewed

-allegations referred by NRC and exercised its prosecutorial

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Prose'cution h,Ss ijenerally been undertaken only in discretion.

cases where individuals 'have, lied to' investigators, obstructed investigations, falsified fecords, or engaged in other willful Een Attachment 1.

In the vast majority of criminal conduct.

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these cases, individuals have been prosecuted for violations of 18 U.S.C'. S 1001. '.To the best of our knowledge, no such allegati~ons of egregious conduct or violations of 18 U.S.C.

S 1001 are presented in this case.

Accordingly, any prosecution based upon the facts in this case ~ would be a departure from the past DOJ practice.

In those cases involving alleged violi.tions of. Section 210/211 and 10 C.F.R. S 50.7,'from 1989 to.1991,.the NRC's Office of Eng Attachment 2.yestiga, ions (OI) conducted 35 investigatilons.All.egations in three. o In t

Department declined to prosecute in every case.

A Finding that 50.7 Has Been Violated Does Not Establish The Requisite Intent.

DOJ's past practice is in accord with the law EL&P believes ti :

It is neither appropriate nor necessary and sound public policy.

to reach beyond existing practice and precede.nt and expand the Such scope of prosecutions for Section 50.7 violations.

violations necessarily involvb conclusions as to "retc.11atory motive" or intent to discriminate; however, those determinations are not. generally based on evidence of motive or intent sufficient to warrant prosecution.

More specifically, the legal process within which NRC and DOL consider and review Section 210/211 cases often relies on unique

• /(... continued) including (1) whether violations of 10 C.F.R. S 50 7 are properly subject to criminal sanctions under Section 223 of the Atomic Energy Act'Jof.1954, 'as. amended; (2) whether, even if the answer t;o (1) is in the a'ffirmative/j.: adequate notice thereof was provided prior to promulgation %f 10 C.F.R.

S 50.111; (3) whether, assuming there is some doubt as to the answer 'to (2),10 C.F.R. S 50.111 has any retroactive effect.

!J ewn w & Hot.T z morn. P.C.

Mr. Leo J. Norton April 8, 1993 Page 3 presumptions as to motive and intent which should not and cannot The intent to be imputed as a basis for pursuing a prosecution.

(in violation of Section 210/211) retaliat.e against an empi.oyee is often. inferred,by DOL Administrative Law Judges from the mere temporal relationship between an employee',s raising a safety conc' 'rn and any adverse.einployment action.

$m,

e.o., couty v.

e In.such cases an pole,'886 F.2d 147, 148;"('8th Cir. 1989.).,by simply showing that employee"can establish retaliatory motive an emploter took a'dyerse, employihent aption'and knew (or could be presumed to have known) that,s'ev.eral moaths, earlier.the employeo ha,d raised a safety concern.

Once.the ecployee establishes (even

..by, inference)'that,a Totaliatory motive was potentially a' contributing

" dual motive."' case), thel. burden shifts to the em',21 oyer to prove by " clear.and conyirtcing evidence" that it wouw. have made the En seme decision baspd upon other justifiable considerations.

42 U.S.C S 5851(b)(3) (Section 211(b)(3)).

C1harly,. prosec,utorial action for a violation of Section 210/211 which merely rests'en such an " inferred motive" is inappropriate.

The eyidence of " intent'" u'pCn which DOL and NRC can and do grant 1

relief or take action under Section 210/;!11 and Section 50.7, respectively, is insufficient to es' tab).ish the intent required to

"'In no one thing does crimh1 support prosecution.

jurisprudence differ more from civil than in the rule as to

. United states v. m nst'on, 558 F.2d 105, 109 (2d Cir.

intent.'"

1977)'(quoting J. Pishop,, Bishop,on Criminal Law, Vol. I, S 286,

.The prosecution would be required to at 192 (9th ed. 192.3. establish beyond a reasonable doubt that the official acted upon a retaliatory motive. Moreover, if any legitimato reasons exist which could justify the discharge, "the. defendants could not-be held criminally liable under the Act unless the government has proved that the legitimate reasons alone would not have led to mnstori, 558 F.2d at 110. Because of the the d,ischarge.* comp 1,ex.of circumstances.and subjective. decisions which ordinarily influsnee personnel. actions, it is both understandable and appropriate that.DOJ has codsistently' declined prosecution in ~ a typical case where an individual is alleged to have violated 10 C.F.R. S 50.7. Existing Hechanisms Are. Adequate to Promote the Objectives of Section 210/211. p; /. It is unnecessary for DOJ to take further. action in order to promote the objectives of Section 210/211, since those objectives ~

~%: Nr.www & Houzmorn. EC. Hr. Leo J. Nort.on i April 8, 1993 Page 4 i can be and have been' achieved through presently available civil enforcemdnt and administrative remedies. 210/211 has two purposes: (1) to promote safety through section the free flow of information regarding safety concerns; and .(2) to: provide a remedy for an individual if the system breaks down and the individual is subject to wron'gful discrimination. Throughout the nuclear industry employees are free to raise safety concerns throtigh their.own organizations or directly to f In the only..two objective studies conducted by NRC of the NRC. shich we are.avare, the overwhelming m'ajority'of employees did not, feel that they were in any way restricted from raising Within the A comparable atmosphere exists at STP. concerns. past year, HL&P has' r'etairied two independent consultants whose studies su'pport the conclusion that the overwhelming majority of employees at STP, taken as a whole, feel free to raise safety concerns without fear of retaliation. Tile prevalent atmosphere at STP and.in the industry is largely attributable'to the fact that managers are acutely sensitive to their responsibility for assuring s.afe operation and, therefore,

• For those they encoursge employpes to iden ify safety concerns.

t isolated instances where a manager's disposition may be otherwiss, the law affords many disincentives to retaliatory employment discrimination'and' affords qmployees ample remedies. ,An individual who is harmed by an employer's discrimination can file an action in state or federal court, or seek relief by filing a section 210/211 coinpl'aint with DOL. As amended, Section ~ 211 now provides th4t an Administrative Law Judge can order an employ.ee's reinstat'ement while final disposition of a case is still pending before the Secretary of Labor. s In addition, NRC can and does tak,e. enforcement action under 10 C.F.R. S 50.~1 to assure that employers do not discriminate-against. individuals w'ho raise safety concerns.. As you are aware, once a DOL Kr5a Director makes an initial finding that discrimination has occuried, the appropriate NRC Region issues what is known as' a " chilling effect". letter, which requires that the licensee. explain the basis fo'r'the employment action and the-i steps it is t'aking to assure that the action does not have a chilling effect on other workers. (See NRC Enfyrc;ement Manual, Additionally, NRC will normally initiath enforcement i j S 5.5). action if the DOL ultim' tely concludes that there was a disci-iminatiori. Mo'reover, NRC sometimes initiates enforcement action even where no'compla' int has been filed with DOL.

NzwxAn & HoLTzsxcen. EC. Mr. Leo J. Norton April 8, 1903 Page 5 Utility managers fully understand the range of effective enforcemrint and other available legal remediias described above. It is hnnecessary to' expand the threat'of criminal prosecution for 10 C.F.R. 5 50.7 violations, sinc 6 the objectives of Section 210/211 already are being met via these mechanisms. Expansion of, Prosecution Policy,in Response to Section 50.7 violations'Would Mveisely Impact Upon safety. Moreover, there is a compelling public policy that would be .comproinised by any expan'sion, beydad current practice, in the NRC and t,he nuclear industry prosecution,of 50.7 violations. share the conviction t. hat safety deperids upon management insistence that employees maintain high st.andards of performance.

• This incl,udes actions n'ecessary' to promote teamwork, preserve morale and raiso employee consc.iousness of the importance of

'attentien to detail.s.,NRC constantly encourages licensee these qualit.1,es. URC Regional manageaietit to promot Administ.rators,.on'sdee occasions,"have criticized licensee managers for failure t a include, 'among their corrective actions, effect'ive disciplinary action Against emp'loyees whose lapse of judgment or willful disregard cduse a violation of NRC regulatory Indeed, racerit NAC policy stresses the 'importance requirements. of " individual accountalillity" for' violations of NRC requirements and contemplates enfo'rcetnent action in such cases. An unnecessary expansion of Section 50.7 prosecution policy would subjdct utility managers to.a low-threshold threat of prosecution each time they make an employment decision motivated by these A' licensee manager facing the need to take action principles. . 'ith respect to an eihployee whose behavior'is unacceptable -- perhaps disruptive of the conduct.of work or otherwise adversely w affecting morale and discipline. -- necessarily weighs the' fact that a'" retaliatory. shotive" miglit be imputed to him/her 1;y ~ inference or circumstantial evidence in a, DOL proceeding or NRC The mzinager's decisional process would be enforcesent' acition. far more seriously impaired if it al'so carried the threat of The manager would not be able to make trigg' ring a prosecution. e such decisions *'with6ut a lawyer constantly at his elbow to give m nnt on, 558 F.2d at,108 (quoting from the him advice.'" 16gislative history of employee protection provisions in the-p Railway labor Act). 9, Thus, the " chilling effect" of a shift in the DO3's traditional approach would inevitably lead to consequences which do not serve j ~ the policies of the Atomic Energy Act or the public's interest in j i l 'I

~ News w & Hot.rzinoEn, P.C. Mr. Leo J. Norton April 8, 1993 Page 6 nuclear safety. This is not mere speculation. Managers have, in fact,. faced situations, for example,,where an employee raises a safety concern with NRC and infori6s' his supervisor that he has The, supervisor is, aware.of the duty to investigate the done 'so. safety conc' rn so that immsdiate corrective-action can be taken, e ide any information, preferring to wailthe' employee refuses to prov if necessary. At times, however, t for NRC to investigate and substantiate the concerns.' This present's a safety risk, but because of potential 210 consequences managers.may feel 'reludtanttot'ake.actio'n/211/50.7to'.coinpel the employee to reveal the safety probicm. This wbuld inh & bit efforts to' effectively and promptly resolve safety ccinceins',' a problem which can only be compounded by a new threat of expanded and unnecessary criminal sanctions. Summary. On the facts as we know them, this case is clearly disting' ishable from the types of ca'ses that have traditionally u led to prosecut: ion'.' It would be particularly inappropriate for

• ' DOJ'to pros'ecute for,,a Sectilon.50.7 violation in any case where, as here, there is no direct proof,of improper motive, or where there is evidence that the employment action in question was taken for appropriate' reas6ns.

Any such prosecution would be a departure 'from past DOJ.and NRC pracitice,',, unnecessary to promote the objectives of Section 210/211, and potentially have an adyerse impact upon safety. In every respect, such an expansion of DOJ's trudit'ional and sound practice in dealing with such matters is contrary to law and the public interest. In accordance with your discussion with Mr. Gutierrez of our offi~ce, I trust you will bring our views to the attention of DOJ and also communicate our interest in discussing this matter directly with the Department. s Sincerely, W$ , Jack R. Newman /jem y.. Attachments

ATTACHMENT 1-CONVICTIONS / GUILTY PLEAS REPORTED IN NRC ANNUAL REPORT AND INFORMATION NOTICES PENALTY FACI 8 ANNUAL REFr. PARTIES CIIARGE-INFO. NOT. # Stokley: convicted of: Nece reported 2 years prison $7500 fine, $350.000 restitution. 1991 Stokley EnteWc,alce.

• wp'r/ to trame in Corp:

Inc. (Corp. and owner) counterfelt goods (electrical relays) Fined $30,000. $2.5 edition restitution. Counterfeit valves last>Jted in Diablo C% Ashley(owner): 1991 CMA Int'l. Inc. (corp. Piced guilty to: Vogtle, and U.S. Madne Corps base, Quantleo. 3 yeen prison, $213,825 restitution. and oner) oqtr y to traffle la Corp: counterfelt goods (valves) 5 year probation. $213,825 restitutien. IN # 92 22 (22 March 92) The 01 lavestigatlee was the result of an President: 1991 Stanford Mining,Inc. Plead guilty to: imsuccessM attetnpt by the NRC to locate three 3 yean probation, $30.000 fine. econspir.ng to violate 42 USC l nuclear weigh scales. The NRC ceccluded that the Corp: 8 2273 for failure to property lleensen's activities were not conducted in MI $30,000 fios IN s 92 37 dispess of nuclear weigh sesles. comp!!ance with NRC requirements, and that (8 May 92) Individuals had provided inaccurste and edsfending } q. Informstlen. ~ The owner of Saturn inade false statemcets to 01Sentenetng peding 1991 Saturn Wireline Services, fleed guilty to: Region IV investigators while looking into evlolation of 18 USC 11001. Inc. (Gwr.er) antisa " welllogglng setivity Og e

PENALTY FAu8 CIIARGE ANNUAL Rui. PARTIES I INFO. NOT. # Tbmpi.tlens sold counterfelt goods to Palo 100 hours com Ew.ity service. $5.000 fine, Cw.c., Califomia Breakers. Inc. Plead guilty to: Verde nuclear plant. e ale of counterfeit goods. $659,401 restitution to licenwe 1990 and ATS Clicult Breakers, s Inc. (C.as) b owner of Flanned Maintmance Systems, altered $30,000 fin (no Annual Rept. Manned Malatmance Plead guilty to: a commercial-grade certlSesta of compliance to

• Bank frend resemble a class IE certificate.

Corp: entsy) Systems, (Owner) eMaking falso statements & representations to a U.S. Agency IN f 8918 (Supp 1)

• Mall frend (24 August 90) eMaking falso eldms agalast a U.S. Amy Corporate offielats,qresected steel pcJxta sold to Corp:

noe not di.etosed (no Annus!Rept mtry) Abe-Une Corp. (cog. Plead guilty to: ovetear power plants as made of nuclear gende steel,Presidet; IM s 89-18 supp 1 and preeldece and 2 othee swe.y:cuy when actually made of commertin!-grade steel. b 5 years probation, fine (amt. not disclosed).

• mall fraud offic!als falsified or ecasented to falettication of the (22 Feb.1989) omelats) community service required certificates of quality.

Other offielaf s: 3 years probation fine (amt. not disclosed). commtmity service. The emece ir~mingly and wl!!!ngly made a false 2 years probation and 200 hours comrnunity service Radiation Safety Officer, Plead gu!!ty to: statecwnt to NRC Region IU radiation specialists 1989 Wright Patterson AF base.

• violation of 18 USC I1001 regarding the unlawM posseeston of uneocapeutsted Am-241.

N owner and former owner of a NRC licmud 2 and 1/2 years probation and $2500 fine. Midwest Wireline legging Plead gn!!cy to: Arm (Midwestern Wireline Corp.), made a false 1989 and Perforating Inc.

• vlotation of 18 USC I1001 statement to the NRC during en lavest!sation into g--

(Owner) the company. RSO willMiy made falso statements to Region III None reported + 1989 Itospital RSO, Plead guilty to: radtatim speela!!sts to cover op a misedmin!stration B!ceington,IN evio! tlon of 18 USC 11001 e

PENALTY FAuS CHARGE NUAL REPT. PARTIES wecy Corp: INFY). NOT. # Two cpie; and the president of the w $100.000 fine. Rmfistion Technology, Plead gulity to: setempted to defnud the r.aaent by lyleg to econeptrocy to defnud the gov't. NRC inspecton in order to prevent the NRC from 2 years prison. three yean probstion. 1988 Pres: IM t 8942 Inc. (Corp., Preeht, owlotation of 18 USC 41001 1100.000 learn ng about NRC vlofstions regard!ng de!Iberste (9 Jan. 39) % + ;;) i fine bypasslag ofIrradiator esfety facts, Ec:ployees: 3 years probation. 510.000 fines Section CNet willfu!!y failed to +;t two b 3 years probation, $10,000 fine. 300 cornanunity i

service, Sectico Chief. CI!nleal Plead gu!Iry to:

of diagnostle talendministntloes to the NRC, and 1988

• willM falhrte to report subeequently !!ed to the NRC concerning their Noelear Mediefoe - VA W='=bstloca llospital eviof att<m of 18 USC l1001 (s w President of the wcpany latentiona!!y M false Corp:

Fine (amt. not disclosed). restitution. Power Inspection Inc. Pfeed gulley to: statements to the government la ca;=tlen with erlataticeof 18 USC 11001 eddy current testing servlees on safety telsted 3 years probation, fine (stnt. not disclosed). Presideet: 1988 IN # 8911 supp 1 (Corp. and Preshi) equiparei at the Palisades and Beaver Valley Unit 1 restitution. (28 Feb.1989) auclear power plant. Taro senler mangers cortspired to sell and did sell Corp: $109,000 fine Pressure Piping Pleed guilty to: falsely certified inferior flanges and fittings to the

• viointion of it USC 11341 (mail Mamgers:

1988 Components, Inc. (Corp. euelear Industry 3 years probstloo, $11,000 fine.100 hours and managers) fraad)

• conglwrf cotnmunIry service.

U.S. Court of Appeals for the Sixth Circuit DeiPercio, en englacer employed by AEPS, the remanded the case to the District Court to address indleted under: parent of IMECO, at its Cook Nucteer Plant, falsely count one - 18 U.S.C. I 1001. ~ne result was not Indiana and Michigan ES. v. DelPerelo. See. Co.. Amerleen Dec.

• It U.S.C. I 1001 claimed that the Cook plant was in comp!!ance with 657 F. Sepp. 849 842 U.S.C. I 2273(a) edw fire protection requirements in a letter to the reported.

Pwr. Serv. Corp. (W.D. Mich.1937) D e42'U.S.C. II 2131,2272 NRC. He mod his employers were ladicted for gTUS put 870 P.2 wl!!Miy violating NRC regulations as weII as the j 1090 (1939) Cook OL. *ne Ag; were dismissed as untimely. ee

~ PENALTY FAus ANNUAL REPT. PARTIES CIIARGE INFO. NOT. # N!dect of the seg. and RSO were laA+ tai en President: Inc. (Praldent and RS0) elmproper use of byproduct charges of II USC 11001, conspiracy, and leproper Not prosecuted instead I year supervisien 1987 Amerlean Testing 1.abe, Mead guilty ter RSO: use of bypmduct material. snaterial 1 year probation 1500 nne. Two massgers attqd made false **r-ets, ee. Corp-1987 Intemational Neutroe!cs, Convicted of: related to a spm of coatsminated water et thTs $35,000 lac. (Corp. sad VP)

• coespirsey Dover, NJ. facility, et subsequent efforts to eenceal VP:

email and wire fraud 2 years probation

• concealing sad covedag up a the spill froci the NRC.

matedal fact efanure to make timely NRC notiftentlen YOlt Security Project Maanger and Site Cay =h Corp: 1987 YOH Secadty,Inc. (Corp, Convicted on falsified *IYalning and Qualification records of armed $100,000 ftee IN # 87-64 manager, s! e espesin)

• M.:7 (22 Dec. 87)

(seemity contractor to evloistion of 18 USC 11001 guards employed by YO11 security at Ihllsdelphla Project manager: Beetde's Umedek Unit 1. The NRC emphasted 6 mos.jaII, $30.000 noe 1%Ilsdelphia Sectrio's the fleensees' respensibility to ensure NRC Sits Captain: 5 years probarlos Umerick Unit I) requirements are met. The president of Topping was convicted for the President: 1986 Topping coenpany's substitution of commerelal gende filters 1 year probation. $1000 fine $34.om restitution. Convicted of: Associatee/Amerlean Filter

• mall fraud for nuclear grade filters for use by the Calvert Cliffs Co.(Pe.t M nuclear plant.

'lle rnanager.of PTL misled NRC larpeetors Corp: 1986 Pittsburgh Testing Plead guilty to:. IN # 86-54 Laboratory, ino. (Cog.

• vfolation of 18 USC 11001 regarding the pesetices of an unquallfied

$15.000 ftne radiographer, and had destroyed or eeeeesled Manager: (27 Jun. 86) and manager) 842 USC (2273 $2500 Ene. official records. /

• e

4 ANNUAL REFT. PARTIES CHARGE FAC15 PENALTY INFO. NOT. # Contractor QC ', -- -x at M.;,0. falsined inspeetoe. (No Annual Rept. Pullman Higgles tee. (QC Plead guilty so: Inspeetles reports of welding inspectices. He 6 mos.Jall. 3 years Probation entry) lospector at Saalwook ois USC l 2001 documented wodt as beleg compleen med acceptable IN # g5-97 nuclear power pism4 when i-, - had not la fact occurred. The ^' G6 Dec. 85) NRC cautlosed that those who know of and condone as ledividual's latentional violatlees swbject ';n to ededaal prW_. ^-- The caga stem freen an investigation laso conduct As a result of a plea bargain: Not included GPU (corp.) Plead guilty to: ovlolaticosof AEA pdor to the TMI aceldent. Investigotors found that $40,000 noe,1.0 mi!! ion to local govemments OPU had failed to establish a rellebte coolant leak Plead so contest to: ofalsityleg and destroyles records rate test. manipulated the test it had, and failed to And a leakage or shot down the plant when the test showed excessive leakage - allla violation of the AEA. OPU was also found to have destroyed records of the tests and coveral up the problem from the NRC. s l l I l k i 1 t 9 0 e 0 ~ ~...

ATTACitMENT 2 INTIMIDATION AND IIARASSEMENT CASES CLOSED BY NRC 01 (Years 1989 - 1991) FACILITY ALLEGATION RESULT ACTION 1991 substantiated No referra! Hitrassment, intimidation, and discrimination of three Millstone, Unit 2 EA 91 122 Minstone, Urdt 2 employees OB Action-[7] Substantiated No refern! ADeged repdsal against QA/QC Inspector for repor6ng Watts Bar, Unit 1 vlotation of stop wt order Unrubstantiated No referral Bw.a Feny, Unit 1 AHe'ged intinddation and harassment of QC inspectors Unsubstantiated No referral ADeged discrimination and retaliadon / termination for Ocone, Unit 1 reporting safety concerna_ Administrative!y No referral Alleged discrimination against cwtract employee for North Anna, Unit 1 closed i4dng enfety concerna Unsubstantiated No referrat Alleged discrimination by an engineering assurance TVA manager for taleing safety concerns Unsubstandated No referral ADeged discriminaden against employee for providing Brunswick &, Unit 2 ~~ Information to NRC Unsubstantiated No referral ADeged diseribahn against radiation technielan River Bend, Unit 1 Unsubstantiated No referral River Bend, Unit 1 ADeged latimidation and harassment of RBS contreet employee Unsubstantiated No referral Alleged intimidadon and harassment of QA supervisor River Bend. Unit i Unsubstantiated No rerenal Alleged discrimination Trojan

m. RESULT ACTION AT TRGATION FACILITY 1990 Unsubstantiated No referral ADeged disedminaden against WA employees for TVA pie Ws Information to the NRC and DO!, Unsubstantiated No referraf liitimidation and harassment of QC &lDE) Inspectors Sequoyah, Unit I Uneubstantiated No referral A!!eged Indmidation and harassment of former hanger QC Watts Bar, Unit 1 section ai~.-dear Unsubstandated No referral AHeged.wahle for iv. ting safety / quality concerns Watts Bar, Unit 1 Substandated No referral ADeged discriminaden against contractor employees Cryetal River, Unit 3 EA 90-195 08 Action-[7] Unsubstantiated No referral Alleged discrimination of employee for raising safety Crystal IUver, Unit 3 concerns Substantiated Refermf, but Braidwood Employmentdiscrimination EA 88-294 DOJ declined to 08 Acdon NOV take action. Subeantiated Referred, but D!~-LA :kn against a USAF sergeant for fbtnishing EA 88116 DOJ declined to Wright-Patterson AFB leformation to the NRC 01 setion [7] take action. Unsubstandated No referral Intimidadon and harassment against S & W Technical Arkansas, Unit i S& Wee QC Inspedeis Unsubstantiated No referra! Diablo Chon, Unit i Intimidation and harassment of QC/QA personnel Unsubstantiated No referral Death threats against employee and falsification of records Palo Verde, Unit I Administratively No referral Possible employee discriminaden closed Departmentof the Army e

+ FACILITY AT.TRGATION RESULT ACTION 1989 Unavbstandsred No refem! Calvert Cliffs, Unit 1 Indmidation and harassment of QC Inspectors Browns Ferry, Unit 1 Indmidaden and harasement ef QC Inspectors and Unsubstantiated No refemt fa!-htien of :.wter certdication documentaden Sequoyah, Unit 1 Harassment and intimidation within the surveitlance Unsubstantieted No refem! review gmrp Unsubstantiated No refemi Browns Feror, Unit 1 Reprisals against systems engineedng branch for reporting safety concerne IA3fcr. of QC Inspectors by nationalinspection and Substandated Refermf, but Clinton EA 89-164 DOJ declined to consultants OE action NOV take action. South Texas, Unit 1 Indmidation of employees by EBASCO management Administrative!y No referral closed Palo Verde, Unit 1 Indmidation and harassment of Arizona Public Service Unsubstantiated No referral e rpicy= to prevent them from identifying safety cosccme Rancho Seco, Unit 1 Intimidation of QC laspector and lanceurste licensee Administratively No referral closed r-w to Isle'-e San Onofre, Unit 2 Tamination of employee who raised concerns regarding Administratively No referral closed adequacy of SCB's substance abuse progrsm OE setion - letter o Department of the Discriminadon and retaliation due to contact with the Administratively No referral closed Navy NRC OE metion - [7] Administratively No refemi Possible employee direrimination Trojan closed EA 88-251 OE action none Administratively No referral Improper termination of contreet employee Clinton closed

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_ " fv**1I ; _ q SEP 81993 anIf William Sellers, Esq. Senior Legal Advisor, Criminal Division m SQ1L,[j [] g a U.S. Department of Justice Newman & HoltziNer GLLAS, P.O. Box 887 Ben Franklin Station Washington, D.C. 20044-0887 Houston Lighting & Power - South Texas Project Re: NRC Referral for Criminal Prosecution For Willful Vio1ation of 10 CFR E 50.7 ~

Dear Mr. Sellers:

As I advised you on the telephone, our preliminary review of 10 CFR 550.7 ("550.7") raised doubts whether 550.7 could serve as the predicate for a criminal 1,rosecution for alleged whistleblower for conduct predating December, 1992. Our further violations detailed review of the st'atutory scheme enacted by Congress and_ the of the pertinent. regulations has history of the. promulgationeferral by the Nuclear Regulatory. commission convinced us that th ("NRC") in the matter lacks,a proper legal foundation for a number of reasons s,et forth below. Any one of the reasons would bar a successful prosecution as a matter of law.1 We respectfully suggest that the Government's review of this issue is appropriate now sinco if, as we believe, we are correct, no further resources by anyone need be expended ins the criminal investigation and the administrative matter now pending can proceed to its conclusion. At the time of our preliminary review, the NRC had, we 1 understand, also referred the Lamb and Dean matters to your office. We appreciated you' subsequently advising us that these cases had been declined as referenced in my letter to you dated July 1,1993. The legal defects set forth below. applicable to,.the referral in the Saporito matter are equally ' applicable to the T.nh and Dean referrals.

William Sellers, Esq. September 7, 1993 Page 2 INTRODUCTION i The Government has no legal basis for inutituting a criminal 1, l prosecution having as its basis an alleged willful violation of 10 CFR 550.7 ("550.7"). First, the statutory and regulatory framework does not provide the authority for such a prosecution, and even if l I it does, the Nuclear Regulatory Commission's ("NRC") promulgation of the regulation at issue exceeded Congress' delegation of authority.

Second, assuming arcuendo that the NRC has the authority to criminalize willful violations of 550.7, the Government may not impose a criminal sanction for a willful violation of 550.7 based upon conduct that occured prior to December, 1992 because (1) the reference to section 223 (42 U.S.C.

52273) in the statutory authority saction for Part 50 (added by attempted amendment in 1990) did not provide the requisite notice of' criminality; (2) the 1990 amendment to the statutory authority reference for 5 50.7 ' 'vas defective because it was promulgated without notice and opportunity for comment; and (3) retroactive application of the December, 1992 ~ amendments is barred by the Constitutional prohibition against 3X post facto legislation. Finally, Congress' blanket delegation of legislative power to the NRC to criminalize willful violations of virtually all of its regulations was not proper.

SUMMARY

OF ISSUES The NRC has established a regulatory frarework which undertakes to criminalize willful _ violations of, among other regulations, its " Employee Protection" reigulation,10 CFR S 50.7. The NRC claims as its basis for such action, two apparently indepehdent sources of authority. The first is section 211 (formerly section 210) of the Energy Reorganization Act (42 U.S.C. 5 5851) (" ERA")* 550.7. was issued following the enactment of section 210/211 and tracks its provisions. The second is section 161, coupled with section 223 of the Atomic Energy Act (42 U.S.C. 55 2201(i), 2273) ("AEA"). Sect.'on 210/211 of the ERA cannot be the source of such authority. Although Congress, through that statute, established a comprehensive system defining the rights of employees in the nuclear industry to report safety concerns, provided protection for employees who do so, and imposed civil penalties upon employers who violate its provisions, it provided only civil remedies for violations of section 210/211. Congress did not impose criminal penalties upon employers who violate the provisions of the employee protection statute. Nor did it confer authority upon any agency to impose such penalties. Consequently, the ERA cannot serve as a basis for the imposition of criminal penalties for violations of 10

William Sellers, Esq. September 7, 1993 Page 3 CFR 5 50.7, the regulation which the NRC issued in order to implement section 210/211. 1 Nor can sections 161 and 223 of the AEA serve as an independent or alternative source of the NRC's claimed authority to These impose criminal penalties for violations of 10 CFR 5 50.7. secti6ns are very general in their terms. Section 223 imposes criminal penalties for, inter alia, any " willful violation" of three specified subsections of section 161. The only one of the subsections possibly relevant to the inquiry here (51611) allows for rulemaking necessary to the " design, location, and operation of facilities." It is doubtful that, on its face, the phrase " design, location, a'nd operation of facilities" includes employee relations. if the phrase could be ' construed to include employee Even relations, this general language is limited by subsequent detailed legislation which explicitly and in detail addresses employee section 210/211 of the ERA. That section, however, protection: fails to impose criminal penalties for violations of its provisions or to confer authority upon any agency to do'so. The NRC cannot ignore the fact that Congress omitted a criminal sanction now (1) from this specific legislation and (2) nonetheless attempt to make a violation of its subsequently promulgated regulation criminal, relying on the very general delegation of authority in sections 1611 and 223. It would be inconsistent with well-established principles of statutory interpretation (and apparently Congress' intent, as evidenced by its unwillingness to make violations of section 210/211 criminal) to read such authority into sections 1611 and 223. Assuming arauendo that the NRC has the authority to criminalize violations of 10 CFR 5 50.7 pursuant to sections 1611 and 223, it would not be appropriate to impose such sanctions for any violation occurring prior to December 24, 1992, the date 10 CFR 550.111 became' effective and the date prior to which all of the conduct complained of,here occurred. Prior to December 24, 1992 the NRC never provided adequate notice of the potential for criminal liability. When it initially promulgated 550.7 in 1982, the NRC made no reference to section 223 or the corresponding subsections of 5161 as sources of authority for 550.7 and made no suggestion that a violat' ion could be deemed criminal. In its 1990 amendments, the NRC added a reference in the statement of authority for Part 50 that 5 50.7 was issued under section 1611 "for purposes of section 223." This mere reference in the statement of authority, however, failed to provide fair notice of criminally " proscribed conduct in light of common understanding and practices." U.S.

v. Daniel, 813 F.2d 661, 663 (5th Cir. 1987).

Moreover, neither the regulation (5 50.7) nor's'ection 210/211 of the ERA make any n'ention of the potential for criminal penalty for willful violators.

William sellers, Esq. September 7, 1993 Page 4 The NRC itself recognized that it may not have been "readily apparent" from a reference in the authority citation that the t, purpose was to provide notice. of potential criminal penalties, where in 1992, in an attempt to cure this defect, it promulgated 10 CFR 5 50.111. More recently on July 15, 1993, Ivan Selin, Chairman of the NRC, made a Statement to a Senate Subcommittee acknowledging that '!a recent rulemaking (the 1992 amendments) clarified that willful violations of the NRC employee protection regulations are subject to criminal sanctions," and as a result, employers would now be further discouraged from retaliating against employees who raise safety concerns because the employers would now potentially face criminal prosecution. (Selin, Statement to the Senate Subcommittee on Clean Air and Nuc. lear Regulation and Committee on Environment and Public Works, July 15, 1993, at pp. 7-6, a copy of which is attached as Exhibit A.) The NRC's own recognition of the need to "clarif[y)" what was not "readily apparent" is powerful proof that any prior notice that a violation of 550.7 could be criminal was vague and obscure, and therefore, defective. At the time of its rulemaking in November, 1992, the NRC also acknowledged that, "[f) rom time to time," errors had been made in its attempts to provide notice in the authorities sections, including specifically 550.7, the regulation relied upon here. As mentioned above, when initially ~ promulgated in 1982, the statement of authority for Part 50 did not indicate that 550.7 was enacted pursuant to 55161b, 1611, or 161o, or to $223. The NRC attempted to correct this prior " error" in 1990 by amending the statutory authority reference at the same time it was issuing new rules and regulations in substantively distinct areas. This 1990 amendment, consisting solely of adding references to 551611 and 223, was completely inadequate to correct the error and to give, appropriate notice' that a willful violation of 550.7 was subject to criminal penalty. Moreover, the statement of' considerations accompanying the proposal and adoption of the,1990 amendments (which were completely unrelated to the attempt to criminalize 550.7 violations) made no reference to the so-called " technical" changes in the statement of authority.' No mention was made of a previous error or omission. No suggestion was made that criminal penalties would thereafter apply. There was therefore no notice and opportunity for comment on this change. However simple and innocuous the NRC may consider its attempt to correct a " mere oversight," the creation of criminal i liability cannot be considered a " technical" change. Indeed, a regulation.is considered substantive if it, inter Alia, creates, confers, or destroys, liabilities or. rights. Brown l Exoress. Inc. v. U.S., 607 F.2d 695 (5th Cir. 1979). From the perspective of those to whom it applies, no more substantive change l

i William Sellers, Esq. september 7, 1993 Page 5 to a regulation can be conceived than the creation of a criminal penalty. Thus, the Administrative Procedures Act ("APA"), Section 189 of the AEA (42 U.S.C. 5 2239(a)), and the NRC's own regulations (10 CFR 5 2.804), required that the NRC provide genuine notice and opportunity for comment when it made the relevant changes to Part 50's statement of authority in 1990. Its failure to do so is fatal to thervalidity of that amendment, and therefore, no prosecution may ensue based upon the regulation in effect prior to the NRC's most recent curative amendments adopted in 1992. In addition, the pertinent 1992 amendment, 10 CFR 5 50.111, may not apply retroactively to make conduct that occurred prior to its ' promulgation criminal. Retroactive creation of criminal liability' violates the Constitutional prohibition against ex post f acto laws. Nor could a court conclude.that any person had " actual notice" that criminal sanctions might attach to violations of 10 CFR 5 50.7. Egg e,0. U.S. v. Insco, 496 F.2d 204 (5th Cir. 1974).D As a practical matter, attempting to apply the principle that actual notice overcomes a defect of lack of notice in this case is highly questionable in any event. Since it is unlikely that the government vill be able to prove that any. individual employee had actual knowledge that a willful violation of the employee protection provisions would be deemed criminal, any attempt to impose vicarious liability on the corporation would neesssarily fail. Finally, the Supreme Court's recent decisioa in Toubv v. U.S., 111 S.Ct.

1752, 1756-57 (1991),

raises doubts as to whether Congress properly delegated its authority when it enacted section 223, which the NRC has used to criminalize violations of a broad Toubv makes clear range of regulations (ggg e.o.10 CFR 5 50.111). that Congress may only delegate to an administrative agency the authority to promulgate regulations that impose criminal rA:metions if it provides " meaningful constraints on the [ agency's] discretion to define criminal conduct." Section 223 of the Act contains no such constraints. The factors which courts examine to determine if a defendant had actual ~ notice (i.e., legislative

history, practice, and prosecutions) dictate against finding any such notice here: (1) neither the legislative history cf section 210/211 nor the regulatory history of 10 CFR 5 50.7, provides any indication that Congress or the NRC initially intended that criminal penalties would attach for willful violations; (2) NRC practice has been to take civil enforcement action, and has only recently made criminal i

referrals; and (3) there have been no previous criminal prosecutions.

William Sellers, Esq. September 7, 1993 ) Page 6 DISCUSSIOJ{ k I. The Statutory and Regulatory Framework of the ERA and AEA Contain No Local Basis For Imoosina Criminal Penalty Her.g i The NRC has established a regulatory framework from which it has apparently enacted its " Employee Protection" regulation,10 CFR 5 50.7. The first independent source of authority for 550.7 is section 210/211 ERA (42 U.S.C. 5 5851). The second asserted source of authority is section 161, together with section 223 of the Atomic Energy Act (42 U.S.C. 5 5 2201(1), 2273) ("AEA"). Neither of these sources of authority for promulgating 550.7,

however, provides a basis for making willful violations criminal..

Section 210/211 of the ERA does not give the NRC the power to make violations of 550.7 criminal. Section 210/211, 42 U.S.C. 55851, enacted in 1978 -- the ERA's "Whistleblower Statute," a copy of which is attached as Exhibit; B -- does not provide that a willful violation will be deemed criminal.F Indeed, Congress makes no reference' to criminal sanctions anywhere in section 210/211. Nor did it confer authority upon any agency to impose such penalties. On the issue of employee protection and the penalties for violating those provisions, therefore, the legislature has spoken. The NRC can go no further than what Congress has provided for, gr in this case, what Congress has not (Lgg LL, Fertilizer Institute v. EPA, 935 F.2d 1303 provided for. (D.C. Cir.1991) (Analyzing EPA reporting requirements in light of CERCLA legislation and finding' agency's rule beyond that required by specific statute, court vacated agency's rule because Congress had previously spoken clearly and directly. to the issue subsequently addressed by the EPA). Consequently, the ERA cannot serve as a basis for the imposition of criminal penalties for violations of 10 CFR 5 50.*/, a regulation that tracks the language implemented subsequent thereto, and was of section 210/211, was promulgated pursuant thereto. r F In addition to making " criminal the willful violation of section ' 223 of the ' AEA (42 U.S.C. $2273) broadly regulations, allows criminal penalties for willfully violating any statute in the " chapter" that does 'not by its terms expressly provide for the same. Section 210/211 (42 U.S.C. 55851) is not a statute in the " chapter" referred to, and no equivalent penalty statute exists in the chapter of which it is a part. This provides further support that Congress did not intend to make criminal, or' authorize the NRC regulation to make

criminal, a

violation of 210/211 'or a promulgated pursuant to it.

l ) William Sellers, Esq. ~ September 7, 1993 Page 7 The alleged alternative source of authority, section 161 of the AEA, together with section 223, are very general in their terms. Section 223 imposes criminal penalties for, inter alia, any " willful violation" of three specified subsections of section 161: b, i, and o. The only one of the three subsections possibly relevant here ("i") ' authorizes the NRC "to prescribe such regulations or orders as it. may deem necessary," among other things, "to govern any activity authorized pursuant to this act governing the design, location and operation of facilities used in the conduct of such activity."i/ This general language appears to be properly applicable to such technical matters affecting public health and safety as the physical condition and main % nance of structure and components protecting the public from radioactive releases, the permissable nature ~ and extent of such releases, circumstances under which power operations must be limited or curtailed, and the like. It is doubtful, however, that, on its face, the phrase " design, location, and operation of facilities" includes employee relatiaM. Even if the phrase could be construed to include employee relations, this general language is limited by subsequent detailed legislation which specifically addresses a particular area of activity. Section-210/211 of the' ERA explicitly and in detail addresser employee protection and does not impose cri: sinal penalties for violations of its provisions or confer authority upon any agency to do so. The NRC cannot properly promulgate a regulation relying on a Congressional grant of general authority to speak to an issue to which Congross, subsequent to its grant of general authority and prior to the promulgation of the regulation, has seen fit to speak specifically and differently on that same issue. An agency's power to promulgate legislative regulations is limited to the authority delegated to it by Congress, Egg Amalcarated Transit Union v. Skinner, 894 F.2d 1362 (D.C. Cir. 1990), and a specific statutory provision controls over one of more general application. Sag Landmark Land Co. v. OTS, 948 F.2d 910 (5th Cir.1991), cuotina, Gorlon-Peretz v. U.S.,111 S.Ct. 840, 848 (1991). Given the specificity of Congress' enactment in section 210/211 with respect to employee relations, the prior general grart? of authority in sections 161 and 223 cannot be construed to allow the NRC to go beyond what is' clearly provided (or not provided) by the terms of section 210/211. Such a restriction is particularly_ 9 one can only assume that the NRC intended 51611 to be the subsection pursuant to which 550.7 was promulgated for purposes of the criminal penalty allowed by section 223 (42 U.S.C. 52273). N.either the initial regulation nor the 1992 amendments are helpful in that determination. Only the defectively promulgated 1990 amendments purport to specify which authority was intended.

William Sellers, Esq. September 7, 1993 Page 8 applicable when imposing felony criminal sanctions with potential individual loss of liberty. {L, Crandon v. U.S., 494 U.S. 152 ( (1990)(Because construction of a criminal statute must be guided by the need'for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by its text). 'Furthermore, from,a review of the employee protection legislation, it is highly unlikely that 10 CFR 550.7 was promulgated under the authority of the requisite subsections of 5161. Because 550.7 substantially mirrors section 210/211 (42 U.S.C. 55851) and was proposed immediately subsequent thereto in 1980 and finally promulgated in 1982, the NRC would be very hard-pressed to deny that it was promulgated pursuant to that specific Congressional legislation as opposed to the more general 5161 subsections referred to in section 223 (42 U.S.C. 52273). (A copy of the 1982 final' rule, as published in the Federal Register, is attached as Exhibit C.) Indeed, the initial rule expressly indicates that it was issued to implement 42 U.S.C. 55851 and the investigative powers provided by 5161. 47 FR 30452. S_tg Exhibit C. That the NRC omitted any reference (for purposes of 42 U.S.C. 52273) to 5161(b), (i), or (o) in its statement of authority when it initially proposed 550.7 represents a tacit admission that the section bore no relation to the authority granted in those 5161 subsactions at the time of its promulgation. It necessarily follows, therefore, that 550.7 did not magically evolve into a rule created in relation to the pertinent 5161 subsections at any time subsequent, despi,te any retrospective' regulatory whim of the NRC. Any NRC suggestion to this effect -- apparently made merely to provide " notice" of criminality, yet in actuality creatina the crime -- represents only a belated attempt to cure an incurable defect'. It is clear that the NRC exceeded the outer boundary of its delegated authority. Although the general authority provisions may allow for the promulgation of 550.7, and although section 223 (42 U.S.C. 52273)'-- enacted in 1954 and amended.in 1969 to add the word " criminal" for the s'ake of clarity -- may arguably allow for criminalizing.a violatior. of a regulation so promulgated, a later, more specific legislativ'e act (section 210/211) inconsistent with, and in a certain manner totally contrary to, those general grants pre-empts the NRC's exercise of that questionable authority. j.

William Sellers, Esq. September 7, 1993 Page 9 The Government May Not Impose Criminal Sanotions For a II. Willful Violation of 550.7 Based Upon Conduct That 1 Occurred Prior To December, 1992 A. The Notice Was Constitutional 1y Inadequate. It is well-settled that a criminal statute must be sufficiently definite to effect two purposes: (a) 'to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and is subject to criminal penalties, and (b) to avoid the possibility of arbitrary prosecutions and convictions. United States v. Womack, 654 F.2d 1034, 1039 (5th Cir. 1981), cert.

denied, 454 U.S.

1156 (1982);

citino, Panachriscou v.

City of Jacksonyillg, 405 U.S. 156 (1971). M though the language need not be mathematically precise, it must give fr.ir. notice and warning of the criminally proscribed conduct, U.S. v.

Daniel, in light of common understanding and practices.

813 F.2d 961, 663 (5th Cir.1987) ; Womack 654 F.2d at 1039, citino, Gravned v. City of Rockford, 408 U.S. 104 (1971). This issue often in the context of a statute that is clearly arises, most criminal in " nature but fails to adequately. describe the prohibited conduct, rather than the situation where, as here, an agency rule is clearly regulatory in nature and apparently subject only to civil. liability or agency enforcement action. The same principle of fair notice must nevertheless apply. If, therefore, a statute or regulation sufficiently describes proscribed conduct for civil liability purposes,. then it must clearly and expressly note that criminal sanctions will attach under specific circumstances, if that is indeed the legislature's -- or for the sake of argument -- the administrative agency's inten. tion. No statute or regulation implicated here provides notice of criminality sufficient to satisfy due process requirements.

First, a-cryptic numerical reference in the statutory authority section of a proposed or final regulation as published in the Federal Register does.not come close to providing fair notice of criminally " proscribed conduct in light of common understanding and practices."

Egg the proposed and final 1990 amendments as published in the Federal Register, attached collectively as Exhibit D.F 'No reference in the text of the regulation even vaguely ~ suggests that any violation thereof would or could be deemed criminal. Egg $50.7 (1992 Version), attached as Exhibit E. No reference in the statutory authority section explains that any V This is true even assuming the regulation and all amendments thereto were properly and effectively promulgated, which was not true of the amendments at issue here. Egg discussion infra pp.12-16.

William Sellers, Esq. September 7, 1993 Page 10 reference therein connotes that criminal penalties attach. sg2 Exhibit D. Moreover, the final publication in the Code of Federal ( Regulations s s:ates that statutory authority section collectively at the beginning of each chapter, rather than each individual rule, making the reference or " notice" that much more obscure. This cannot constitute adequate notice by any measure, however lenient, and certainly not so for constitutional purposes where personal libedty is at stake. The government and the NRC are not now dealing with a remedial or curative measure, or one that reduces any resulting cost, loss, or penalty. Rather, at issue here is the creation of a crime through a regulation apparently designed to define conduct potentially held to be criminal. As such, the attempt to provide "not. ice" in the manner designed by the NRC is fatally flawed. Significantly, the NRC in its 1992 Proposed and Final Rule, in which it undertook to overhaul completely the scheme for designating regulations to which criminal penalties attach, openly and readily admitted that providing notice via the previous method was inherently faulty, and as a result, the NRC's ability to refer cases of villful violations of regulations to the Department of Justice had been inhibited. S.gg 57 FR 223-24; 57 FR 55063 (Exhibits F and G). Specifically, the NRC conceded: It may.not always be readily apparent from a statement in the authority citations for each part that the purpose of that statement is to provide notice of potential criminal penalties for certain willful violations. To fully apprecis.te this notice, a reader needs to understand the rulemaking provisions of sections 161b, 1611, and 161o, as well as the criminal penalty provisions of section 223. 57 Fed. Reg. 55,062-063 (November 24,1992) (Exhibit G).

Moreover, even as recent as July 15, 1993, Ivan Selin, Chairman of the NRC, acknowledged the prior insuf ficiency of notice in his Statement to the Senate Subcommittee on Clean Air and Nuclear Regulation, and Committee on Environment and Public Works concerning the NRC's efforts to protect from retaliation employees who come forward with safety concerns.

Mr. Salin expressly stated: Another important change to the regulatory process was a recent rulemaking [the

December, 1992 amendments]

which clarified that willful violations of the NRC emolovce protection reaulations are subiect to griminal sanctions. This should further serve i e

William Sellers, Esq. September 7, 1993 Page 11 to discourage licensees from engaging in discrimination -- not.only will they face the ( potential for damages from DOL and civil penalties from NRC for discriminatory conduct, but prosecution by DOJ and criminal sanctions as well. Statem'ent at pp. 7-8. (Emphasis added) (Exhibit A). In light of the Chairman's acknowledgement that the rulemaking " clarified" what plainly was not previously clear, only one concluision can be drawn. was adequate to inform employers that willful If prior notice violations of 550.7 were subject to criminal sanction, there would have been no need for the clarification. In the face of 'the Chairman's admission and the NRC's concessions in its rulemaking, the.NRC cannot now reasonably claim that a potential defendant had ccnstitutionally adequate notice prior to the 1992 amendments and as a result may suffer criminal canct' ion for conduct that occurred prior to their effective date (December 24, 1992). Ironically, the problem of notice is only further exacerbated by the whistleblower statute here, section 210/211 (42 U.S.C. 55851). Th&t specific legislation enacted directly by Congress exists that fails to criminalize willful violations essentially provides notice that such conduct is 'DQt criminal. As noted above, on the issue of whether wilitel viciations are crimes, $50.7 is, at a minimum, in conflict with' the previously enacted specific legislation. As a result, the &nflicting regulation cannot rule. S1q a g.,, McComb v. Wambauch, r34 F.2d 474 ~ (3d Cir. 1991) (In. any conflict between a statute and a agulation purporting to implement the statute, the regulation must give way).. Moreover, given the principle that legislation must be strictly construed when criminal penalties result, the logical inference to be drawn by persons of ordinary. understanding is that willfully violating the whistleblower statute or regulation is not a crime. First, the specific statute does'not.make it a crime. Second, th's statute in no way suggests that further inquiry ~ is warranted to determine specific sanctions or types of sanctions that could result and, as such, is not analogous to the common'(ahd acceptable) circumstance j where the statuto describes the criminal conduct and the companion regulation provides the penalties. Cf. U.S. v. Daniel, 813 F.2d j 661, 663 (5th Cir.' 1987) (Statute defined and proscribed conduct, and provided that regulations may reclassify controlled substances; regulations set forth specifically the drug reclassifications held, "due process (not implicated), provided the regulations are legally and constitutionally promulgated"). At best, the statute and the conflicting regulation here only confuse the 1.ssue of whether the conduct proscribed is criminal or whether the intent was to make it An individual cannot fairly be required to guess as to whether so. his conduct is or is not criminal. Even if all pertinent portions G i

William Sellers, Esq. September 7, 1993 Page 12 of the regulation were properly promulgated, no criminal prosecution can be instituted pursuant to 550.7 as notice sufficient to pass constitutional muster is lacking.F B. The 1990 Amendments To The Statutory Authority Reference For $50.7 Were Defectively Promulgated. 1. Administrative Procedures Act Requirements The requirements fo* notice and comment in administrative rulemaking are clear. i.m Administrative Procedures Act ("APA"), through 5 U.S.C..5 553, requires that notice and opportunity for comment be provided when an agency engages in formal rulemaking. The requirement applies not only.to the initial promulgation of rules and regulations, but also to modifications, revisions, amendments, and under cdrtain circumstances, repeals. U.S. v. Nixon, 418 U.S. 683 (1974)(Rule may not be amended or rescinded except by the same process r.equired for its promulgation); consumer Enerav Council of America v. Fed'1 Enerav Reculatory Comm'n, 673 F.2d 425, 445-4 8 (D.C.Cir.1982) ; aff'd, 463 U.S.1216 (1983) (Same; APA expressly held to apply to a modification or repeal of a defectively promulgated regulation). And, an agency will not be allowed to provide a post hoc rationalization for its actions in countervention of the APA requirements, nor will it be allowed to bolster the validity of an obstensibly invalid regulatory act with after-the-fact explanations for the same. Baylor Univ. Med. Ctr.

v. Heckler, 758 F.2d luS2, 1060 (5th Cir. 1985).

In 1980 the NRC proposed the initial promulgation of 10 CFR 550.7, and in 1982 the NRC. published the final version of the initial rule without indicating that 550.7 was promulgated pursuant to any of the relevant statutes for the purpose of criminalizing willful violations pursuant to section 223 (42 U.S.C. 52273). Egg Exhibit C. In 1989 the NRC proposed to amend, and in 1990 did

amend, a

number of its regulations 'and included in those amendments,. withost substantive explanation or reference in the statement ~ of considerations for the amendments, changes to the statutory authority reference for Part 50 including inter alia a reference that for purposes of section 223 (42 U.S.C. 52273), 550.1(a) was promulgated pursuant to 5161(1). St.g Exhibit D. No mention was made that comments would be received regarding those changes in the numerical references to statutory authority', a.nd For a number of reasons, the inadequacy'of the notice here lot be' cured by an assertion of actual notice of criminality. c, Fo a full discussion ggg infra pp. 18-19.

William Sellers, Esq. September 7, 1993 Page 13 those numerical changes in no way related to the substantive amendments that were being made contemporaneous 1y. Id. (- In 1992 the NRC propo, sed to amend, and did amend, its entire regulatory mechanism for providing notice that a willful violation of certain of its regulations would constitute a felony. The NRC attempted.to explain retrospectively the previous 1990 amendment to the statutory reference for Part 50 (including 550.7) as curing a me: e oversight, but nevertheless found it appropriate to include the fact of that error in its explanation and justification for the present amendments. In doing so, the NRC acknowledged that its previous method of notice was faulty and had inhibited referrals to DOJ. Egg Exhibits F and G.- None of these publications came close to meeting the well-established notice requirements of the APA, and consequently, the NRC's attempt to make criminal violations of 550.7 that occur prior to December, 1992 -- the effective date of the newly amended rule -- is ineffectual. Moreover, both the fact and substance of the 1992 amendments represent an admission by the NRC of its failure to give tihe required notice and opportunity.for

comment, its superficial attempt to explain.

the same notwithstanding. As a result, 550.7, as amended in 1990, is null and void and may m t provide a basis for criminal prosecution. There are certain situations to which the APA rulemaking requirements will not apply, and when determining whether an agency must adhere to the rulemaking procedures of the APA, the distinction between whether a rule is " legislative" or " interpretative" is a crucial factor. The NRC no doubt considers its 1990 amendment to the statutory authority reference relating to 550.7 a technical correction and therefore at the very most interpretative of prior legislation, and as such not subject to the APA's rulemaking requirements of notice and opportunity for comment.U See cenerally Brown Express. Inc. v. U.S., 607 F.2d 695 (5th Cir.1979) (If a rule or regulation creates, confers, defines, or destroys rights, liabilities, or legal duties, then it is substantive or legislative. If, however, it only comments upon, clarifies, or explains a policy.or prior regulatory act or legislation, then it is interpretative and as such, not sub' ject to the notice and opportunity for comment mandates of th2 APA). Accord. Fertilizer Institute v. E.P.A.,.935 F.2d 1303 (D.C. Cir. 1991); Jean v. Nelson, 711 F.2d 1455 (11th Cir.1983), af f'd, 472 U;S. 846 (1985). U The 1990 attempt by the NRC to cure the 1982 defect in 550.7 fails in any event given the NRC's p3B rulemaking regulations, separate and apart from its noncompliance with the APA. Ega section II.B.2. infra pp. 15-16. .a

William Sellers, Esq. September 7, 1993 Page 14 Given the consequences resulting from the amendment, flowever, the NRC's contention must fail. As.a result of the amendment, g viol.ators presumably could face criminal prosecution and punishment when previously they could not, based upon the NRC's failure to include a notation in the statutory authority for Part 50 that for purposes of section 223, 550.7. was promulgated pursuant to 51611 and therefore, willful violations of $50.7 vere subject to criminal sanct' ions. The impact is great, the consequences potential 2y dire, and the amendment therefore substantive and subject to APA requirements. Egg e.c., Jerri's Ceramic Arts. Inc. v. C.P.S.C., 874 F.2d 205 (4th Cir. 1989) (Statement of interpretation was actually a legislative rule where it had the clear intent of eliminating a previous exemption, providing the power to enforce violations previously exempt from enforcement,.and <directly impacting many). As stated by the Fifth Circuit in Brown Exoress, "the label that the particular agency puts upon its given exercise of ' administrative power is not, for our purposes, conclusive; rather, it is what the agency does in fact." 607 F.2d at 700. No credible argument.can be made that the amendments in question did not create or confer upon regulated parties a new liability or legal duty. Indeed, if it was the NRC's intention to give notice of criminally proscribed conduct via the statutory authority section of a given regulation (assuming such notice was constitutionally sufficient, which it was not), then the Commission must follow the prescribed statutory and regulatory procedtiral protections when making its' amendment to that portion of the regulation.F F That the NRC included the proposed change when it published its proposed substantive changes to a number of its rules does not cure the defect. The " notice" required by the APA must fairly apprise interested persons' of the subjects and issues the agency is considering and the rationale therefore, American Transfer & Storace Co. v. I.C.C., 719 F.2d 1283 (5th Cir.1983), in addition to. advising that comments or other submissions would be entertained. Global van Lines v. I.c.C., 714 F.2d 1290 (5th Cir. 1983)(APA requires that interested parties be given fair chance to comment). Accord. Florida Power & Licht v. U.S., 846 F.2d 765 (D.C. Cir. 1988) (Notice requires sufficient detail, and rationale to permit interested parties to comment meaningfully). The emphasis is on fairness - " fair notice" and "f' air opportunity for comment." Evidencing this emphasis,. courts.have held that a two sentence explanation embedded in an otherwise routine order published in an official reporter with volumes of other routine orders was insufficient notice, Mobil Exploration and Producina North America v. F.E.R.C., 881 F.2d 193 (5th Cir. 1989); failure to reference a certain issue which was the subject of rule-making in the summary (continued...)

William Sellers, Esq. September 7, 1993 Page 15 The NRC8s Own Requiraments of Notice and Comment 2. ( The NRC has created through regulation its own procedural requirements consistent with, but in some pertinent ways, more stringent than, those of the APA. The NRC has, likewise, failed to adhere to those mandates despite the fact that the requirements are self-imposed. 'Specifically, 10 CFR 52.804 provides that when the NRC proposes to adopt, amend, or repeal a regulation it must give notice of the same and include therein the terms or substance of specification of the subjects and issues the proposal or a involved. Like the APA, those requirements do not apply to inte'rpretative rules or general statements of policy. Similarly, the notice requirements will not apply if the NRC determines that notice and public comment are impracticable, unnes:essary, or contrary to the public interest. This finding, however, and the reasons therefor, must be incorporated into any rule issued without notice and comment, and the Commission generally must provide a post-promulgation comment period for rules issued without notice and opportunity for comment. Egg 10 CFR 52.804, a copy of which is attached as Exhibit H. Even if, therefore, the NRC relies on its own exclusionary provisions relating to interpretative acts, it not only neglected to provide notice and opportunity fcer comment or alternatively, to make the requisite finding of good cause for failing to provide notice or opportunity for comment pre-rulemaking, but it also failed to provide for post-promulgation comment in a timely manner. As a result, the Government cannot rely on $50.7 as grounds for criminal prosecution. In a similar circumstance, the District of Columbia circuit held that vacating an agency rule was warranted where the Nuclear F (... continued) portion of che proposed rule was insufficient notice, McLouth steel core.

v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988); and, Products failure of document's providing definition of statutory term even to hint that the defJnition was th'e subject of rule-making or.that comments would be entertained was insufficient notice, Medics. Inc.

v. Sullivan, 766 P. Supp. 47, 53-54 (D.P.R. 1991). Given these the ' mere publication of a numerical change in an precedents, authority reference buried among pages of substantive amendments having no bearing on or relationship to the numerical change, is simply not enough. A review of the comments to ~ without more, the proposed 1990 amendments received by the NRC clearly shows that notice was indeed lacking as no comments wereereceived that spoke to the amendment to the statutory authority reference for Part 50 or the criminal penalties that could result.

\\ William Sellers, Esq. September 7, 1993 j Page 16 Regulatory Commission violated the APA, the hearing requirements of the Atomic Energy Act, and its own procedural rules referenced above, when it promulgated an interim rule without notice and opportunity for comment. Union of Concerned Scientists v. NRC, 711 F.2d 370 (D.C. Cir. 1983). In doing so, the court held 42 U.S.C. 52239(a) applicable because the interim rule involved amending operating licenses. & at 379-80.F The court also noted that an agency may grant additional procedural protections to interested persons such as those provided in 10 CFR 52.804, quoting vermont Yankee Nuclear Power Corn. v. NRDC. Inc., 435 U.S. 519, 524 (1978), and having done so, the agency is bound thereby and will not be allowed to interpret or apply the regulation in a manner that flies in the face of the rule's express' language. & at 381-82. The and as a same principle applies to the rulemaking at issue here, result, the pertinent portions of the 1990 amendments to 550.7 are null and void. C. The 1992 Amendments To The Regulatory Scheme Cannot Be Applied Retroactively. 1. XX Post Facto Legislation Is Prohibited. The events alleged as the offenses here were completed prior to November, 1992. Because the most recent amendments to 550.7 became effective December 24, 1992,'their potential application to the alleged offenses is necessarily retroactive. Given the law of retroactivity generally and the constitutional prohibition against criminal. prosecution based upon .qx post facto legislation F Section 189(a) of the AEA (42 U.S.C. 5 2239(a)) provides a hearing requirement for a modification of regulations dealing with the activities of licensees and arguably applies to the amendments at issue here. Specifically, section 189(a) provides in pertinent part: [I]n any proceeding for the issuance or ~ modification of rules and regulations dealing with the activities of licensees the Commission shall " grant a hearing upon the' request of any person whose interest may be affected by the proceeding.... This provision presupposes notice of intent to modify rules and regulations, notice that was not given here. Therefore, the issue i of whether the procedure mandated by this provision was followed by the NRC when it promulgated or amended 550.7 -- as clearly it was not -- need not be addressed. It is worth noting, however, that this failure further undermines the validity of the 1990 l amendments. ) \\ l

i William Sellers, Esq. September 7, 1993 Page 17 specifically, retroactive application of the 1992 amendments is barred. 1, The EX Dost facto provision of the Constitution prohibits legislative acts -- including revisions thereto -- that attempt to make criminal that which was not criminal at the time the act was performed. Miller v. Florida, 482 U.S. 423 (1987). The Supreme Court summarized the meaning of the Ex Post Facto Clause of the constitution as follows: It is settled,.by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishant for a crime, after its commission, or which deprisas one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as s.X Dost facto. Collins v'. Youncblood, 497 U.S. 37, 110 S.Ct. 2715, 2719 (1990), quoting, Bearell v. Ohio, 269 U.S. 167 (1925) (Citations omitted). Accord. Rubino v. Lvnauch, 845 F.2d 1266 (5th Cir.1988); Graham v. Bowen, 648 F.Supp. 298 (S.D. Tex. 1986). Because we deal he're with rulemaking that purportedly criminally proscribes certain conduct and also attempts to impose criminal penalties that had previously not been imposed, the 1992 amendments cannot apply to conduct completed prior to their December 24, 1992 effective date. As a result, due to the invalidity ' of the notice given for the 1990 amendments to the statutory authority reference for $50.7 as asserted above, the Government cannot proceed with prosecutiori of this matter either by applying the regulations in effect during the course of events relied upon here as the basis for the " criminal" violation prospectively, or by applying the 1992 amendments retroactively. 2. The NRC's Explanation Is Inconsequential. The language of the proposed 1992 amendments did not explicitly suggest that the intent was to apply them retroactively to willful violators. Rather, the NRC attempted to evade the issue in the proposed rule by blanketly asserting that the amendments create no further liability, but merely clarify that which already existed. 57 FR at 2_24. Essentially, the NRC's position is that the entire amendment scheme is merely interpretative of its prior regulatory activity. The assertion is without merit in light of the procedural and constitutional flaws previously discussed. It becomes even more so when considered together with the NRC's acknowledgerent in the very same publicatione that its previous regulations failed to give requisite

notice, inhibited DOJ referrals anc criminal prosecutions,* and required curative action

William Sellers, Esq. September 7, 1993 Page 18 of the type attempted in the resulting amendments. Es_q Exhibits F and G. The NRC responded in its final rule to comments received b regarding retroactivity as follows: the newly amended rules would apply retroactively to those regulations for which it~ was previously noted that criminal penalties applied (via notation in the statutory authority reference), but not those for which no previous. notation had been made. 57 FR at 55064-65. Egg Exhibit G. In other words, the NRC responded in its final rulo in a manner consistent with its previous assertion in its proposed rule. It added nothing of substance. Its conclusory response was inadequate. In any event, given the above discussion, the government may not now retroactively apply the 1992 amendments to subject alleged willful violators of 550.7 to criminal prosecution. 3. Actual Notice Exception Does Not Apply. The Government will not be able to overcome the lack of constitutional notice with an assertion that the potential corporate criminal defendant had actual notice that its conduct was considered a crime and thereby subject to criminal penalty. One may not rely on the " notice" provided by a defectively promulgated rule or regulation to justify retroactive application of the if a regulation is properly the cir.Even substantive curative act. cumstances necessary for a finding promulgated, however, that a defendant had actual notice in the case of a unconstitutionally vague statute dictate

• against such a finding here.

Any argument that potential defendants had actual notice that their willful violation of 550.7 could be deemed criminal based upon previous notice via the statutory authority (despite its defective promulgation) should fail, particularly because we are dealing with crimes, criminal penalties, and the resulting loss of liberty. Even outside the criminal context, case law suggests that retroactive application of a properly promulgated regulation is not warranted by the fact that the rule had previously issued and was therefore,known of, but was struck down for failure to follow the notice and. comment procedures. S.gg agg. Georcetown University Hosoit

v. Bowen, 821 F.2d 750 (D.C. Cir. ), af f 'd, 109 S.Ct. 468 (1987).

1W The NRC, in its response to comments published with the final

rule, ignored the procedural and substantive ' defects of its previous regulations and relied on the prior notice given thereby

) to justify what would otherwise be construed as retroactive application of the 1992 amendments. By doing po, it superficially reasoned that the Georoetown Univ. opinion

was,

'therefore, (continued...)

William Sellers, Esq. September 7, 1993 Page 19 An analysis of the factors relevant to the determination of whether a defendant had actual notice despite an unconstitutionally g, vague

statute, likewise militates against applying such an exception here.

When undertaking to antlyze whether a defendant had " actual notice" under circumstances involving a vague statute - - that is, a circumstance where, like here, constitutional notice was in question -- the Fifth Circuit found the following factors relevant: legislative history, universal practice, and absence of prosecutions. U.S. v. Insco, 496 F.2d 204 (5th Cir. 1974). In Insco, the court found that the defendant did not have cufficient notice that his conduct was criminal based upon what the court called "the unusual concatenation of [those) three interrelated factors." Specifically, the court found' complete silence in both the statute and the legislative history concerning the attempted application at issue, a universal practice of interpreting the statute as' inapplicable, to the conduct in question, and no prosecution of similar conduct pursuant to the statute in question. Applying the Insco principles here, one finds that the legislative history with regard to the employee protection regulation and the whistleblower statute in question neither expressly provide for criminal penalties nor display an intent to prosecute criminally willful violators. Additionally, the practice has been to deal with alleged violations through administrative review by the NRC in conjunction with the Department of Labor, rather than criminal prosecution. Finally, there has been no prior criminal prosecution for conduct of the nature at issue here. This shalysis, like in Insco, requires a finding of no actual notice. That,an alleged violator here may be a corporate entity makes application of the actual notice exception even more unlikely. Even if, as a theoretical matter, actual notice was ' deemed to overcome the defect of lack of notice -- keeping in mind, it cannot overcome an unconstitutional delegation of authority, sfa discussion infra pp.19-21'-- its application to this case would be highly suspect. The Government will most likely not be able to prove that corporate employees in this case had actual notice. Assuming this to be so, any attempt to impose vicarious liability, even relying on the vide latitude afforded by the Bank of New Enoland case, would fail. U.S. v. Bank of New Enoland, 821 F.2d 844, 856 (1st Cir.) cert. denied, 484 U.S. 943 (1987)(Knowledge obtained by corporate employees acting within the scope of their employment is imputed to the corporation as its collective knowledge for purposes of corporate criminal liability). & (... continued) ~ inapposite. 57 FR 55065. pga Exhibit G. For reasons previously discussed herein, that contention should fail.

William Sellers, Esq. September 7, 1993 Page 20 Delegation of Authority To Criminalise Willful e III. Congress violation of Employee Protection Rec'ulations Is TmoroDer b It is well-settled that Congress may delegate to administrative agencies the pcwer to promulgate rules and regulations that may result'in criminal sanctions. Congress must, however, provide with such delegation sufficient guidelines 'and standards for exercising the authority. Womack 654 F.2d at 1037-38; United States v. Gordon, 580 F.2d 827, 839 (5th Cir. 1978); cert. denied, 439 U.S.1051 (1978). Accord. Carlin Communications. Inc.

v. FCC, 837 F.2d 546, 561 (2d Cir. 1988); United States v. Davis, 564 F.2d 840, 843-44 (9th.Cir. 1977); cert. denied, 434 U.S. 1015 (1978).

The Supreme Courti has held that all that is required is a delineation of policy, a, designation of the agency to implement it, and a statement of the outer boundaries of the delegated authority. American Power & Licht Co. v. SEC, 329 U.S. 90,105 (1946). Accord. United States v. Best, 476 F.Supp. 34, 38 (D. Colo.1979) (Attack on NRC regulation making it a crime to trespass on nuclear power plant property failed; no unconstitutional delegation found based upon authority given in 42 U.S.C. 52278a which explicitly provides for making such conduct criminal). In a later opinion, however, while declining to answer the question definitively in the case at bar, the Supreme Court suggested that more specific guidance was required when the regulations attached criminal penalties to their violation. Touby v. U.S., U.S. 111 S.Ct. 1752, 1756-57 (1991) (Held, statutory delegation in question found sufficient in the event more i was required as it provided " meaningful () ' constrain (ts on] the Attorney General's discretion to define criminal conduct" and required that the Administrative Procedures Act be followed in rulemaking). In Toubv, the Supreme Court found it significant that in order to schedule drugs temporarily as controlled substances, the Attorney Gencral must make numerous specific factual findings, taking into account expressly delineated factors, publish notice,. notify the Secretary of Health and Human Services and consider any comments received therefrom. No similarly meaningful substantive or procedural protections are provided for here. As a' result, the l delegation is improper. It is true that 42 U.S.C. 552231 makes the APA applicable to the NRC's rulemaking function. It may also be true that perhaps further procedural protections that are found in the Atomic Energy Act at 42 U.S.C. 5 2239(a) are applicable here.& Section 223 W E12 discussion suora at 16 n.9. Although the NRC might rely on this protection to justify the delegation of power, the (continued...) l

William Sellers, E'sq. September 7, 1993 Page 21 (42 U.S.C.5 2273), a copy of which is attached as Exhibit I,

however, authorizes the imposition of criminal penalties for

\\ virtually any substantive regulation promulgated by the NRC, and by its terms does not in any way restrict the exercise of that authority. Although 55161(b), (i), & (o) provide that the rules be deemed necessary inter alia "in order to protect health and to minimize danger to life or property," Congress,

however, provided no substantive guidance as to what types of regulations should have criminal sanctions attach and most certainly no specific staridards for determining what conduct could be made a crime.W Indeed, it is likely that Congress had no idea what conduct -it was making criminal or even what conduct it was allowing the NRC to make criminal.

By authorizing. the NRC to make conduct criminal by virtue of m regulation it promulgated pursuant to those three very broad and general subsections of 5161 without in any way limiting the categories of conduct that the NRC may or may not include, Congress criminalized by default conduct proscribed by virtually m regulation so promulgated. Since Congress did not limit the scope of, or even define the specific. substance of, its delegation, it follows that Congress had no understanding of the breadth of its delegation. Moreover, as the NRC asserts in the background to its 1992 amendments, the relevant 5161 subsections provide the basis for virtually all of the NRC's substantive regulations. 57 FR 222, 223; 57 FR 55062, 55063. (Copies of the proposed and final rules as published in the Federal Register are attached as Exhibits F and G, respectively.) The breadth of the delegation is for the most part, therefore, unlimited -- at least according to the interpretation of the delegatee agency -- and as such, unconstitutional, if not in original intent, in the NRC's translation, implementation, and practice. A serious question exists, therefore, as to whether the delegation of authority contained the requisite

guidance, boundaries, or other protections in order to pass constitutional muster. That courts generally approach this issue with substantial leniency, particularly in matters' concerning national defense --

W(... continued) delegation should nonetheless fail in light of the Touby analysis, as no meaningful substantive ' constraints on the scope or the exercise of the delegated power exist. W No guidance can be found in the legislative history of 42 U.S.C. 5 2273 regarding its intended substantive scope or the expected 'arcadth of its application to regulations subsequently promulgated by the 1mC.

o William Sellers, Esq. September 7, 1993 Page 22 EAR Pauline v. McElrov, 164 F.'Supp. 390, 393 (D.D.C. 1958), aff'd, 278 F.2d 252 (D.C. Cir.),

cert, denied, 364 U.S.

835 (1959)(Congress did not unconstitutionally dolegate to the Atomic Energy Commission authority with respect to nuclear weapons testing; Atomic Energy Act is a valid exercise of Congressional is not authority to promote national. defense and safety) necessarily dispositive of the issue. This case provides facts egregious enough, and also tenuous enough with respect to national defense issues, that the usual deference should not apply. The NRC's utter disregard for the pixedural rulemaking requirements evidenced by its unilateral amendment to 550.7's statutory reference section to provide " notice" that a violation may be deemed criminal (but actually making a violation criminal) make a close examination of the delegation question varranted,.as the NRC has apparently abused its discretion with respect to criminal rulemaking. CONCLUSION For each and all of the above reasons, an alleged willful violation of 550.7, prior to December, 1992, was not a criminal offense. Accordingly, the NRC's referral of the Saporito matter should be declined 'on this ground alone. Should the Department of Justice and the United States Attorney's Office have a different opinion after reviewing this letter,'we respectfully request the opportunity to meet and discuss the issues we have raised. As we have previously discussed on the telephone, Houston Lighting & Power denies any violation

• of 550.7 relating to Saporito, willful or otherwise.

This letter addresses only the specific legal defects that bar a proposed criminal prosecution. I appreciate your willingness, should the need arise, to discuss our other reasons why a prosecution is unwarranted. sincerely, Earl J. Silbert EJS/ck cc. Michael Shelby, Esq. (via Federal Express) /

' pa nna 'o UNITED STATES 8 'I, NUCLEAR REGULATORY COMMISSION 7 { ,E WASHINGTON, D. C, 20555 e, e %*****/ October 20, 1993 T0: ALL HOLDERS OF OPERATING LICENSES OR CONSTRUCTION PERMITS FOR NUCLEAR POWER REACTORS

SUBJECT:

VERIFICATION OF PLANT RECORDS (GENERIC LETTER 93-03) PURPOSE The U.S. Nuclear Regulatory Comission (NRC) is issuing this generic letter to inform licensees of the results of the inspections conducted under Temporary Instruction (TI) 2515/115, " Verification of Plant Records," which addressed the potential for incomplete or inaccurate re' cords at licensed facilities. This generic letter reminds licensees and individuals involved in licensed activities that the NRC may take direct enforcement action against not only the licensee but also any individual who deliberately causes a licensee to. be in violation of NRC requirements. This includes the falsification of records required by technical specifications and plant procedures developed pursuant to Regulatory Guide 1.33, " Quality Assurance Program Requirements (Operation)," or other regulatory requirements. BACKGROUND Section 50.9, " Completeness and accuracy of information," of Title 10 of the Code of Federal Reoulations (10 CFR) requires that information maintained by the licensee pursuant to Comission regulations, orders, or license conditions be complete and accurate in all material respects. The administrative section of plant technical specifications requires that written procedures covering applicable activities (typically in Appendix A of Regulatory Guide 1.33) be developed, implemented, and maintained. Activities for which Appendix A recommends written procedures include surveillances and log entries. Section 50.5, " Deliberate misconduct," of 10 CFR provides that the NRC may take enforcement action against an individual, includ.ing an unlicensed. person, .1 who (1) deliberately causes or,,but for detection, would have caused a j licensee to be in violation of the Comission's requiremen.ts; or (2) deliberately provides information to the licensee concerning licensed activities knowing that the information is incomplete or inaccurate in some respect material to the NRC. On April 23, 1992, th'e NRC issued Information Notice 92-30, " Falsification of Plant Records," to alert the industry to concerns of the NRC regarding record falsification that had occurred at several plants. The notice specifically reminded plant personnel, both licensed and unlicensed, that they are subject. to 10 CFR 50.5 and that individual penalties could result from deliberately violating Comission req' irements. It also noted that the NRC was continuing u its evaluation of the indivic:ual cases discussed. Although the NRC did not j request any action by means of this notice, many licensees initiated actions to ensure that plant personnel were properly performing their assigned duties. l I -93101800F3

Generic letter 93-03 October 20, 1903 The NRC issued TI 2515/115 to provide guidance for NRC inspector evaluation of the ability of each licensee' to obtain complete and accurate log readings from both licensed and unlicensed operators. The inspection findings were documented in a routine resident inspection report for each facility. The NRC 7 reviewed the inspection findings nationwide to determine how widespread the problem was. MMMARY OF Tl 2515/115 INSPECTION R1SULTS The NRC recognizes that it is difficult to compare the Tl 2515/115 inspection results among plants. Many factors can affect the inspection findings, such as the variation in the extent of computerized access areas within the protected area from plant to plant and in the sample sizes reviewed by licensees (some licensees greatly expanded their sample size in response to an identified discrepancy). However, the review showed that at approximately 30 sites at least one discrepancy between security computer records and documented logs existed. Several licensees found that not only auxiliary operators, but also contractor fire watches and health physics technicians had been responsible for creating ~ incomplete or inaccurate records. The NRC is concerned not only with inaccurate and incomplete records regarding the status and condition of plant equipment, but also with the failure of the fire watches to provide a required compensatory action. Several licensees discovered a number of other problems related to the conduct of plant rounds, log taking, and record keeping. In some instances, licensees found that many of the unlicensed operators were performing certain rounds much faster than management expected. Other licensees found that unlicensed operators did not have a clear understanding of what their signatures on a log sheet meant. Some believed that it attested to only the fact that the round had been performed, whether by the log signatory or another operator. Several licensees found that when multiple rounds or log readings were required in a single shift, the operators _ performed a generally rigorous first tour, but a much less formal second tour. Finally, at one facility, management review of the tour and logging requirements revealed that.the operators could not reasonably be expected to conduct the specified rounds in the time provided because of such factors as the number of times the operators had to don and remove anticontamination clothing to enter and leave radiation-controlled areas. The NRC found that licensee responses to Information Notice 92-30 were positive. Licensees took advantage of the information to review records, sensitize employees, and appropriately revise procedures and training. They also took various disciplinary actions against the involved individuals in accordance with their internal programs and policies, commensurate with the seriousness of the violations. Disciplinary actions taken by the licensees against the licensed operators ranged from employment termination to leave without pay.

Generic Letter 93-03 October 20, 1993 ENFORCEMENT ACTION The information from each site was reviewed to determine the appropriate enforcement action. In each case that involved logging falsifications, the NRC has determined that enforcement action is warranted. A Notice of Violation without a civil penalty was issued to all licensees that had logging violations in order to emphasize (1) that such misconduct cannot be tolerated and (2) management responsibility to ensure the cor.ipleteness and accuracy of facility records. However, escalated action is not being taken because: (1) the licensees identified the violations either on their own initiative or as a result of the audits and inspections conducted after Information Notice 92-30 was issued, (2) the licensees took appropriate corrective action for any potential program weaknesses, and (3) the licensees took disciplinary action against the individuals involved, as appropriate. In addition, the NRC.is not taking any enforcement action against individuals because licensees already have taken appropriate disciplinary action. Now that the NRC has reemphasized the need for licensees to ensure that logging activities are being properly conducted, logging violations in the future may result not only in enforcement action against licensees, but also direct enforcement action against the individual involved in deliberate record falsification, whether the individual is licensed or not and whether the individual is a licensee employee or a contractor. LESSONS LEARNED Various licensees have reexamined their programs to ensure that management expectations regarding the conduct of rounds and log keeping are clearly articulated to plant personnel and are being implemented in the plant. Some of the actions taken include steps to (1) ensure that individuals clearly understand the meaning of their signatures on log sheets and procedures, (2) ensure that plant personnel clearly undarstand who is responsible and authorized to perform rounds, (3) ensure that individuals understand the purpose of the rounds and are properly trained on how the rounds are to be conducted, (4) perform periodic audits of field practices, and (5) verify that round and log requirements can reasonably be met in the specified time. Given the turnover of auxiliary operators and others who perform these rounds, these i topics may be appropriate for consideration in licensee routine trainingand auditing programs. 4 i

i ' Generic Letter 93-03 October 20, 1993 'l ~~ ) i This generic letter requires no specific action or written response. If you have any questions about the information in this generic letter, please contact the technical contact listed below or the appropriate Office of Nuclear Reactor Regulation project manager. C Janes G. Partlow As.sociate Director for Projects Office of Nuclear Reactor Regulation

Enclosure:

List of Recently Issued NRC Generic Letters Technical contact: James G. Luehman, OE (301) 504-3280 t i ]! ?

+ 1 ~ Enclosure GL 93-03 October 20, 1993 Page 1 of_1 LIST OF RECENTLY ISSUE 0 GENERIC LETTERS Generic Date of Letter subject Issuance Issued To 93-05 LINE-ITEM TECHNICAL 09/27/93 ALL HOLDERS OF OLs OR SPECIFICATIONS IMPROVE-cps FOR NPRs MENTS TO REDUCE SURVEILLANCE REQUIREMENTS FOR TESTING OURING POWER OPERATION 89-10, INACCURACY OF MOTOR-06/28/93 ALL LICENSEES OF SUPP. S OPERATED VALVE OPERATING NUCLEAR POWER DIAGNOSTIC EQUIPMENT PLANTS AND HOLDERS OF CONSTRUCTION PERMITS FOR NUCLEAR POWER PLANTS 93-04 ROD CONTROL SYSTEM 06/21/93 ALL HOLDERS OF Ols OR FAILURE AND WITHDRAWAL cps FOR (W)-DESIGNED OF R0D CONTROL CLUSTER NPRs EXCEPT HADDAM NECK ASSEMBLIES, 10 CFR 50.54(f) ALL HOLDERS OF OLs OR cps FOR (CE)-DESIGNED AND (B&W)-DESIGN NPRs AND HADDAM NECK 93-03 VERIFICATION OF PLANT 10/20/93 ALL HOLDERS OF OLs OR RECORDS cps FOR NPRs 93-02 NRC PUBLIC WORKSHOP ON 03/23/93 ALL HOLDERS OF Ols OR COMMERCIAL GRADE PRO-cps FOR NPRs AND ALL CUREMENT AND DEDICATION RECIPIENTS OF NUREG-004C " LICENSEE CONTRACTOR ANC VENDOR INSPECTION STATUS REPORT" (WHITE BOOK) 93-01 EMERGENCY RESPONSE DATA 03/03/93 ALL HOLDERS OF Ols OR SYSTEM TEST PROGRAM cps FOR NPRs, EXCEPT FDf, BIG ROCK POINT AND FACILITIES PERMANENTLY OR INDEFINITELY' SHUT DOWN 92-09 LIMITED PARTICIPATION BY NRC 12/31/92 ALL HOLDERS OF IN THE IAEA INTERNATIONAL OLs~0R cps FOR NPRs NUCLEAR EVENT SCALE DL = OPERATING LICENSE CP = CONSTRUCTION PERMIT )

~. ~ =* ,s.;-E' ~l. '. ') {c i Ey. 36452 Federal Register / Vol. 47[ o.135 7 edneedsk.kulyN.$$8 Neh hk 35Ef8sE/bN!inds.l.4d M h,5.k Deputy Adm!ntstra1or. Agr{ cultural making these ar. ads.sde e5ectide s's Marketing Service has determined that specified in that (1) shipment of the ) this action wiU not have a significant (2) the. sussenAstr:., NNRC'Is amendisq lts c current crop is imd.iwbtions were regulations in to job proe-th,, e economic Impact on a substantial amendments to the regu number of small entitles because it " recommended by the committee for employns provide Inforsmation ~ f would not measurably afrect costs for following discussion at pub!!c meetings: to the Co=='=h %ess===ada-ts the directly regulated handlers. (3) Ca!!!ornla handlers have been emphaelse to -

• Is. L '.

. r He amendments of the rules and apprised of these requirements; and (4) licensees, permittees, applicants, and.:, regulations are issued under the the requirements relieve restr4riba on their contractors and sobeostructore-. y' marketing agreementa, as amended, and ' hanAlars.

• that terndnation er other acts of job.

f Order Nos. 916 and 917, as amended (7 CFR Parts 916 and 9171 regulating the W of @ be y Narts MS and. diacrimination against employees who cagege is activitise fartherlag the. ;s. hand!!ng of fresh nectarines, pears. M7 purposes of the Atosmic Enegy Act and ^ plums and peaches grown in California. Marketing agreements and orders, the tion ~Acils. ff %e agreements and orders are effecuve Nectarines. Pears.Q*ums. Peaches." amervl=ents wiH make the prohrbt In tion;thener ., y under the Agdcultural Marketing California.- Agreement Act of1937, as amended (7 %erefore. ll 916.110(b) and awm that if diedmination of thisi j U.S.C 601-874).nis action is based 917.143(b) are amended as fo!!owlf nature is believed to how ocowred,a upon the secommendstions and 1.Section 916.110 la amended readyis avaHable through JbeWage informadon submitted by the Nectarine Labor;To ensare that '

• partment of..

andflourDivisiostof theDe Administra Ove Committee. Peat removing parapph @X2) rsnum A Comamdity Committu. Peac!: parapphs @X3). @X4) ad @X as ttees,edap,p etc.., N * [. _ licants are Commodity Committee and plum (bX2).(bX3) and (bX4)respecu ,and 11oensees! ph(b awm of = - ' ^ ' theast e ,,,g,X,3 (as'. ' organizations are regelred to' poet t$e'id i ~. ~ (.. Commodity Committee, and upon other ayallable information. If to hereby found prem!aes with torymaterial that these actions will tend to effectuate 5 918.110 Easeptorie. related to this tionole 'is .)e the declared policy of the act. ,+ e diacytmhtation and avertahitityInf a. Currently, il 91tL110r,b). for (b) Minimum quartifies.* *

• l.

remedy to the event of discriminaticei.c "'I ** " * " * * " ' ^ *

• IE3888-p1 nd P8ach Pmvide t der to any one person during any one day

. *~ +*-- FO"ft 'PUsrDe' a psPO'AseAtt0st CostrACT!". certain conditions the commodities may does not exceed 200 pounds. be handled without regard to the Mr. A.J.N-05fce of Naclem'R(Z s "O marketing order requiremets pertaining to handler assessments, reports,. i Seedon 917.10 is M Regula tory Research. US. Nedeerfl94sw.' requirements forinspection and removing paragraph (bX2) Regulatory r', s,miWashingtoa.'-. * ;"> 4. . DC20555.f @,1** "".",'.M.%,;.se n= tan naamaamme o ' ' *N'i : ,,w J e l'.. e ) certification. and the grade. size or other Paragraphs (b)(3), (bX4) and (bX5) as - regulations a licable to fruit regulated Paragraphs (hX2).(bX3) and (bX41 under the ma e orders.he specific respectively, and revising paragraph March 10.1980.NRC pub!!ahad in the. conditions under w Ich such handling (b)(3)(as renumbered) to read as Faderal Register (45 FR 15184) proposed 1 can occur includes the requirement that follows. f amndants relatehm-w-pmtecdonMose

==aadaimata hfi th d l 917.143 Enerrpoons-were Intended (1) to imnta==at section he Foo and A It of California, and certain specified 210. hployee Pro'~+ba " of the minimum size requirements. Also. such (b) Minimum quantities.* *

• Energy Reorganization Act of1974. 42 pears. plums, peaches and nectarines (3)%e shipment does not exceed 200 U.S.C 5851. as amended. (2) to must be for home use and not for resale Pounds of pears, plums, and peaches to Inwrporate into the regulations the i

and they must be handled by the person' any one person during any one day. Commission's authority under Section I who produced them at a roadside stand. tot of the Atomic Energy Act of1954. as farmers market or other specified slies. (Sees.1 1s. 48 Stat.31 a: amended: 7 USC amended, to investigate an alleged Finally, shipments to any one person tote 74) unlawful discriminatico against an during any one day cannot exceed 100 Dated: July a 19s2. employee and to take appropriate pounds of nectarines or plums or 200 D. S. KarylosH. action, and (3) to complement the s pounds of peaches or pears. Acting Dirrefor. fruis end Veretable Division, Department of Labor's program that is The amendment contained herein, Asrieviturc/MorteringService. related to this matter (29 CFR Part 24). would eliminate size ree.uirements fo'r tra om a>.ms: ra,o-ms Section 210 identifies specific acts of such e xempted shipments. The sense coese m em loyees as protected activities and amendment would also increase the pro bita employers from discriminating maximum allowable daily shipment of against employees who engage in those nectarines and plums to 200 pounds in order to standardire the minimum CLEAR REGUWRY activities. provides the Department of CMSSIM Labor with new authority to investigste

• l quantity provisions. The changes also an a!!eged act of such discriminadon.

represent retaxations of teatrictions. 10 CFR Parts 19,30,40,50,60,70,72, and provides a remedy to the It is further found that it l' and 150 discrimination by means of an impracticable and contrary to the pub!!c administrative proceeding in the interest to give preliminary notice. engage in pub!!c rulemaking. and Protection of Ernployees Who Provide Department of Labor. Informsuon Rose proposed amandments would postpons the effective date until 30 days announce the statutory prohibition of after publica tion in the rederal Register Acriecy: Nuclear Regulatory discriminaUon of the type described in } (5 U.S C 553). a nd good cause exisis for Commisalon. section 210 above. Indicate the h S

[i ~. :N ?'6 @ w[ f N'? h.DNE N.D N.#[.2.'Y[$.C h. El37Y,@i'.'.N'? l

n5.s;m;y (.;;" :;V :.Q.y ? u nn.;

Y2 m.

y' Fed' ral Register;1,Vol. 47/No.1357.WednesdayQaly 14. tosz '/ Rul l P _. e 30453 ava!! ability thmag@ ' ' rtment o's . %Is rule is not tota $ led to extend tiu (2)ne statete expressly provides kt ~ Labor of a remedy for who. 'en==taat=*s involvement with ~an employee is not protected frees y they have been t. antitrust or security matters to tir=aaaes ar'i=a taken by the essployer when the believe.inated agalnat, and also require discrim with whom such matters am not employer's =rei-is in response to the - Posting by specific types of licensees. prwently conaldered' As noted earuer,, employee's deliberate areh1o violate penn!ttees, and appucants of a revised b Anal rule involves the ei==taalon the Atomic Roerar Act of as54, as r NRC Form 3 ht explains the -

==aadad or the in radiological safety espects of ag Act of1W4, as agiteorganisation prohibit!on and remedy 4 In addition, u,=naama (and tialt coatmetors and %Is D those amendments would delete to CPR. subcoatsches) &at am beyond b area was not included in the proposed 19.16(c) of.tk Commissions regulatloos, gregological woridos canadoes.%Is botAas been imoorporated in the Baal but at the same tirne amend Part19 by-Involvementis appropriate slace se role for-.' (see i 3Gylah the addition of a new I 19.20.nis new - D~ section, when combined with proposed -bdiddud fabdcados r that - (3)& statement devenable MC changes to Parts 30, a E o0L m and 72. is destined for see in with a admament actions est am derind 'of h regula tions, would extend the.- "8'I*'*d facuny or meldty sney b - fresa the Atomic Esergy Act as ~ -- - ' ' (see I so.7(c))has been o cunent prohibition of unlawful fabricating sach cosipmentin a : revised to more clearly state the discrim'ntion againstworkers who nonredloWeal M area bot that g,,g ,la &e ennt d wfd ladividual may possess infonnation that discrimination. { provide taformadon % cons to NRC. indicates the --,-:". when lastaBed redlological working condi

4) A new I 30.7(d)has been added to da(rtfy se fact est some acticas tahan to include employees who provide a t the regulated faculty or actirtty, may~

infonnation relating to rediologien!.. contribute to a degradation ofpublic by an employer that adversely affect en a health protectica matters and saatters beelth or safety. At times this employee are not prohibild by b mew ~ e' that could. affect the pubDe health and .Information has a61been reedOF mgelados. safety.h proh!bition of onlawfd.r._ avaHable from thoes re..sponsible for & Saal rule requires,la a saanrar ~ ~ ~ discrimination also extends to. component fabrication. Ier example, sindar to &e propoed Information relating to. antitrust matters licensees and their hinctors.%e that the prendees ofm: and safeguard matters that could affect co da h toeffectivelyfulfillits includlag permit W-- the common defense and security Il mandata, regulru completa, factual, and appucantsbpoittd gtoCPR tbne manen am casidend in curnnt information comarning the 50.7(e). In the course of constructice of a connect!m with an application for a ngdatd scuddes dits hansees. nuden faculty an organizadon muy Ucense.b amendments metkne 6e exemption from the require' ment to poet Employees are an in:portant source of transfer administrouve control of a. ~ j ud Idmmade ad abdd b Pardon ofits punises to a contractor or "o mn=.g,e,rA: g ia . enm.agd to,_ _. fore.ie as.it.m. e s - r ct. a o m. - ,iy wiu.ifee,orretrh to.det.,.i, -.r or a im.ge aree r.r mete. t,ane of,otado. m gd-isdgtnagg-g s d a nm .ca .a irmer-- oi. y ,e WahWh act!vity and therefore hae notbeen - employers.%e purpose of &e $nal rule 1 granted to the general Dcensee'canier of. la to ensure.that employees'are aware the pennit holder or appucant l special nuclear material (10 CFR that employment discrimination fee of thoes prantsee in a mann=r adequete k mem est @s d a mutmete 70.20(a))., cogsging in a protected activity, foe. or subcontractor are able to observe the le e-+= m the hoposed Rule examfan. contactbg the Comm!wlon. ls* { tad infMmado# on ne way to or illega d that a remedy exists through I Od' P '" # ""I The Commission received 28 letters the Department of Labor.%e in denloplag he Baal" rule 6e commenting a the proposed rule, organizations subject to the rule should a ered Inchang Ma Copies of those letters and an analysts understand that the Co==faalon will not of the comments are sva0able for pub!!c permit anyinterference with mqulmmanu est wm,by me d Yohs Publ C **""

• 8 at rels to pro action be Co "I"

"P " *" Pated on the premlaes of contractas 171711 Street NW., Washington, D.C. employees dsuch organizatim.In and subcontractors of ficenseee-A number of commenters stated that the proposed rule would extend the NRC addition to redress being eva!!able to including permit holdsr-

• activities beyond the regulatory ana of the ladividual employee, the applicants. Based on, among other radiological worilng condidons that is Commtmalen may.upa learning d an thtogs, the ay-h gained in the applicable to aD licensees.De adverse !Indbg against an employer by drafting and imploraenting of to CHL commenters interpreted the rulemdIng the Department of Labor, taks '

Part 21 the Commlaeton has determined 1 preamble as a Commission attempt to enforcement action agalast the employer that contractors and subcontractors become involved in antitrust, safety, and because the employer engaged in illegal should be required to post NRC Form 3. j security matten of aillicensees.This disaimination. Acurdingly, the staff has underway a was not the Commission's intent. Based on the comments received, the rulemaking proposing an amadant of Matiers pertaining to radiological following substantive changes have to CFR 3a7(e) to require contractors and working conditions and redlological been incorporated into the final rule: subcontractors to post NRC Form 3 on safety of alllicensees are of concern to (1)W dennidon ddiscindnadon their premises. the Commission. However, antitrust and Basd m NRC stsNcanents &e security matters are relevant only to has been revised to more closely track, Parts of 71tle 10 that are included in the a 'I la"F88* ("* l 30.7(a)). certain types of!!censees.For example.' rulemaking have been revised to delete antitrust information is considered by Part 71." Packaging of Radlosetive the Comm! salon only with respect to g j $***Q* S,* @ g h Material for Transport and certain production and utilization denese hve slee tiese made to two a M m M Transportation of Radlosctive Material - facultles (primarily noclear reactors). and ra Under Certain %AW to add Part r o

p, . e........ n.,,.w. .. a ::;... w.g.u. .,..4 ea. 4 Federal Register / Vol. 47. No.135 / Wednesday.julp 14.19ttz'f Ruf's%thi Rdai[tiods. T.,,j 30454 e ') 'TcfFJdilicnEse and5pplicant shall ~ ed. -Disposal of High Level Radioacthe 10CDtArrfM We stes in Geologic Repositories." and AmitruM. ClanUQ IETMd'c'n. Fire f@ form NRC-3,.tRevision 6-42 ce ; to add Port 72.*Ucensing Requirements preventjon.Inte ernmental relatforts. M n u -- M ast L for the Storage of Spect Fuella en Nuclest power ts and reactors, regelmd byPans 30.M M M Q.- i Independent Spent Fuel Storage Penalty. Radlation protection. Reactor . T *,'*f.,Rrti,y,chager. q r, d,g,," ', and M of$ds lutatietion (Isrst)" Part n wn deleted siting criteria. Reporting requiremental' since s!! generaIlicensees smder Part 71 - h,s. d.-,.',. s M CDI Airf 80 - ]t,p u. 4., I t.C. - Ifig!develweste/Nede'ipow*er c.. *. ' ' }Elill1818.' Paragrap ,%y are also specific licenaces moder another Part, e.g Part 50, and are, therefore. a v Included in this rulemaking. Conforming Penalty.Staporting requirements. Weste t '< fdllowl1rJ)dM planis and reactors.Naclear maiorista..' 'll A Dew 193 Die %dded to roed as. A. amendmenis to Parts 80 and 72 are Included in this final rulemaktrnt b ' W-S C?~' treatment and disposal. r'.'/ !"I "1 Ease effectuate the Commission's intent that C.

q-all specific lloensees will have similar M CHI ArtiM 2.-yQ-- M b

,j, !!censee tir;a contrador er =M=y,a <.? sesponsibilities under the Employee llazardousmatattais 'tramportation. 'atractor j Protection amendments.Prrte 60 and 72 Nucleatanaterials.Psckaging and of a licemee assinst an amployee for ' .T were not included in the proposed centainers. Penalty.Fa*-'w eng@proteced activities under.h ' m l rulemaklog since they had not been protection. Reporting requirementa. thispartcrPart:30.MMM371b. j r codilled at that time. Conforming M CDIMrf 72 - 50 o}f lds thsyter "Ucensing Requirements for Land MaDPowertrainingprograma.Nadear Egl;,\\, ,.l q j

• amendments will be made to Part 81.

-PART304"IstESCFMIER' AL9 r "t l t APPtJCAMETTfDDOMETICp;;.,< + ! Disposal of Radioactive Weste" when ma teriala. Occupational safety and ; LICDtBIIEG OF.WTPRODUCT i the t proposed rule (48 HI 38081. July 24. health. Reporting m@ a Security l d'M,j,QQ "g, c. g,4 ' 08A 1961) becomes Enal. meevares. Spent feet, a- ^^ i #,** ' 4.NYasthodtydaaHanlarPartmis A number of comments from !!cenaces MCntJtdf230 and their consultants stated that the. 3%J revbd tossadas Annemuc : gg proposed rule would allow the y,g,ggg,gg,g g, individaals to haraes the empt with aggS w . Stat.s s.ses.ges.ase assasemmedad.sec. aecusations the are iaise.triv ous, or unwarranted.To prevent this it was . zn e3 sas.inna - amasaded 14: us.C.zan, recommended that elther civa penalties eatd. Spedd an>< taae mag zua.2nos.2:st,assa zase.assesresca.aes.~ be imposed on the individual that p,,,,,,, g g 4,g . son,as sensesae4.sses tat usc.sost.sessi,. knowingly suppbes false information or is.as = uta A W :. s unless othesmensasted. gW.*g /t*, maata= un iseJessedanderPob.J.ss, a that compensation be provided to an Mig *A sa e Ac c 88 eat me.20.stStatass:(u n tr' nun). ) employer to defroy the costof defending and antirma 552 and 553 oflitle 5 of the ' Section3a34(b)alaslassedundersec.254 es against the a!!cgetions.The Commission United States Code, noticels'himb - Stat en'sWamended(uUAC.223s). 9 % s%cted h commats since the @m that the kHowW m,idev% y Fedhe piepass d sec,tn es k b statutory authority of the Commission .T1de 12. Chapter 1. Code oTFederal

• mended la UAc.zent H sas.3tLM (b) under ecction no neltber provides for Regdadone, are pubilshed as a and (cf. 3s41 fel sad (c), and 35.58 Imamed d cummt subM to cod 1HeaMon.

under sec. mh. as Stat. ses (42 UAC. penalties against Individuals or for any ~ 2201(bil and J i an34(f).1aAI. 3a32 and sa55 relmbursement to en employer;Ened PART W. NOTICES.11tSTRUCTIOttS sawnded 142 U.sc'.'s'aettolk '' I**"*d ""d *- 3 ' 8 "on a review of eBegstions of AND RrPORT3 TO N employmen' discrimination complainta iteSPECD0 pes

7. A new I 30Jis edded teder the filed with dot. It appears that at an center beeding Tleneral Prorleions" to early stage. DOL denies complaints that 1.%e authority citation for Part is is read as foDows:

are without merit. revised to read as ToDows-Authodtyt Seca. $2. sa,81,103.1R 3at.1as, @## m P'*8"888"* Ust of Sub 68 StaL 94 333,335, e38.S37. 94& 9S5, as (a) Discrimination by e Counmiseton M C DIPbrf N ame ded. sec.234,33 Stat.4R as amended licensee, an applica:WL for a Commission (cUAC 2073.2ess 21sttiss.2234,2201. Ecense. er e contrector or subcontractor Environmental protecrion, Nuclear

• 34 2:22) sec. tot. as siet.utr. as materials, nuclear power plants and

• mmaded by Pak L e6.re.ao sms. 413 tu -

et a CMeenhoenece or appBernt aF nsIan --for oging in I c,rtain protM' a'c'tivttles s prohibited. Ug yg P em nee. ta 92 Stat. reactors.Ocrupational safety and, health, Penalty, Radiation protation. Discrimin~ tion includes discharge and Reporting requireme ia. Sex yor the purposes of sec 2n as Stat.ssa, as a discrimination. amended to Uit zzrs):33ta.1tiet(et(dk other actions that reiste to ,nd (el and ttt2 are issued under sec. m A wW.iun, tenne. cond>tions. and g g73 pg es Sta L sea, as amended (42 UAC 22Di(blt privileges C.. A, e.De protected ead ll tais and 19.34(al sie W ander activities irre established in section 210 Byproduct material. Labeling. Nuclear See, tato,se stat osa as amended (c UAc - materials. Packaging and containers. 22Woll. of the Energy Rewrganization Act of 1974. es emended, and in general are penalty. Radiation protection. Reporting g ts.13 memssaj related to the administration or requirements. Scientific equipment. 2.The authority cttation following enforcement of a requirement tmposed M CER fort M i 19.1818 removed, under the Atomic Energy Act er the Coverninen't contracts,liazardous

3. In i 19.11. persgraph (c) is revised EnergyReorgert! ration Act.

to rsad as follows: (1) De Protected acttrities include but mat erials-transportation. Nuclear are riot timfted to-. - materials, penalty Reporting I 8811 P**8af *f **** to *****'*. (I) Providing the Commission requirements. Source ma terial. Uranlam. Information about possibis violations of 1 ae

2 ~ ~ ~M '{*L [ % .f* i. ,.'lk; ... e.c..h... y aoisa federal Resister / Vol. c. No. us / wedassasy.w 24;.uses,/, aides . w.g,m.S$.,, . (e) Each Ilconsee and each applicant privileges danip h,-.. ; 3 i action messee because the assylspee hei aball post Form NRC-3," Notice to aetivitiesare mata Iahad in,seoden 210. engaged in protected mathinies. AsC,.

• Employees." on its preadsaa. Posung of 2he EnergyReorgandeasina Actaf.

empicyee*4 eagegeusset de preaane=d

• must be at lo' cations su!Belent.to permit 1974, as==adad.andla pensualare c.

actividesdees med estemasticalkasader employees proleded by th!s nactw to relatad io the a d=intah=*f as er..'- hhn erherilmemmehemdischasse er. observe a copy on the wayto orbom enferrnmant d a :=rr8===st Jasposed rttacigds== ler sessenser bass e theltplace of wort.Premlees mustbe under Ga AtamicEnergy Ad ar the. advessemedan tedhag posted notiater ha 30 aDaran Energy Raergenization Act.:,, - nonprohibited caseiderc3ces.n ;., applicationis docketed aemain (1) The protected eettv1See includebut 4.) gash h=='== M an4 seich ted whI!e the appliemeinale pending arenotlinetedtt>.. y appigemagtenEpstilssun3E.4,:9 fore the Cotamission, during the term -(I) mmihe "a"""4"la" "Ndtionto- '"enles psendses, of the Bcense, and for 30 days following information suourposefble stolations of Posding most tie a,t lesseum ssecimmt to rega==maals imimaad under eMherd pesmetemployeesyeetected GRe - license terminatios.; ? (W Requesdag,M,;(aalam b. setSeatedbeerwe aespyem 11peiyto Note -Copees elParun NRC.8 anagy be g orfreen'their1 sas deverk,Pym-am A obtained by arrttias o theJtes onal s s instu leaedosagainsthher must beyoWtedmotiarter6est'30 u AAmtahtratw of Qw appropriata UA Nadaar Regulatory Commission 1tas onal Umco employer.fortha ad=l=?ahation er aftwas "' " ' s eschstet Driedin Appendt D.Partso dtida chapter enforcernentofdhese y===aad= m:- ,,,,,g,,,[ sis 6 erh Ss tie h ls ~

• ataa or the Dtractor.cmos dlnspeceanana -

(L11) Test!!yingin any - erm} pending before disets===hab= ea M acovidee s're pro k jQK p-if80 #a"*I ""e*f e octaa4y_.g P d (f)%e generalberneesprovided3n 1IM21.ga22, and 40.25 are exempt in!tiated as a result sieheentpnoyee 2, . N-J'. TufPlu"mblRC4 anyhew., 7 sinnimoaler erstnes to.1helhelands Pr*%, g g from paragra;tdeJ of this sec5an, amistance oe pardcfpetionW  ;,-, Adudaimreser d1beasemiginsesV1Nuciser - .,.c, (3) nis==<ew has ao murijderuma= to E

1. 88"dGE"T / <

i' penhoitad h.this esosion who,actLig]+.., a '8"I88'TM l _e W PART30-DOINESTX:UCEleBINd OF any employee a!!aglag *==endnation % mPaur PR000CTON ANDUT111ZA110M ractumes withoddirecties han Es erher%M

• waiu,,,,,,

l ~ 2aItsauthreitydiationforPartsois 2 [ ,,wd ~ A-re@essantd&e Emergy i;.m And,0'pd Mm&MM n-f revised toisad as Jonowe:. Reorganization ActdisA as===n eansamevann 3A3333814A08401C-Aishedty:ssa. man, sosemes.2atcass,2n mi t.<.fg.pr.gg'. 'A' 1so, e4 9 tat ess. e37.ees, ess,se(ses sed.as oribe Atatt6cilnergyAttaf124/stf 3 O. Mef,

==-adad ese. ass as sant. ass 4,as- -ad-d amended, *

• i; " w~'.1. &Kn u:',.: '. W#-

M.%e*,u'r y -(' "P 12 iib ey sansev. A' 333,7-hba (a UAc.uss.m um. em mi mzas. %..m a.m..ifono.s.empA.e.oc 2no, esa ucs. man. ant mos, se stat 22c-aser shehe itta^a*=~l w G w: h ssaa... LWm - ) un 124e u==-na-d tuUAC sec.sau. ,gg,,g,g,,,,,,, % g g W s m.ss e,mlus,a;3st..' ' t,64ekimless otherwise noted. i Section sat aho imeasdimder Puh.Lis. PmonJesasesing la the praa=e*=J nat sun,esstat.smsee,ms.estesus,ses,5 ect.eec.sa,ar si t aosuu vaciosis acovida sPeciSedia Milef ssa,su,as a d cuacaurt.sers.- Section sars also lassed under sec.222.es this sectioatnay eoeka icethe 20er. ions, sons, tut.asoscast.azaak enes. Stat. Bar fu UAC 2152k Secti<=== so.so.aast discharge ertiimv6m+ nation through an 202.208 asStat.,1244,1348jaUAC Aeu, also issand undar sec, as4,es State 64, as administrative proceedlagin1be sa46k Pub.L'95 001. secs,30 and 3AatStat. 2 pet to UAC 20tta and ans1k sec int Pob. "amenand {u U1c:234). Sections 30300 Department oflabor.7te s m1mistraties praemaalmainustbe. Liri-iso,asinstastuuACasszk. mio2 also luurd under sec. saa, as stat. ssa a (o U1c zusk Adt!sted edthloaodeaheran alleged for t!* Purposes af sec.22s,es9tst.1st, u amanAad jet CAC 2375L ll etL7 to e033 For the purposes of sec. 2:3. Os Stat 358, as yg3g,gonoccurs h% a om@ are Iseued under sec.1sto,11s Blat sett es amended (a UAC 22?3111so101eL tbk aHeging the violation with the. ,,,,a,a y,g gge s,mg,y3, and (et san sage, so.4a, sam. sad sano(e) are tsened under eec.telb.e4 Stat,94a as Departmentof14bw Etnployment amended (a U1c tant (blk liscso (bl and Standards Administration. Wage and it. A new i 80.9 is added to Subpart (c! and 5as4 are issued under see. asil, as HourDivision.no Department of rahne A to read as foDows: Stat. 94o, as amended (u UAC 220t!!)k and may order reinstatement back pay, and i I sa55(et Base (bk.m?tt 1051. sa72, and compensatory el===g-a 8, IO # I'I'* I""" 50Js are iseoed under sec.1 sin,68 Stat.s:c. (c) A violation of parmgraph {a) cldde (a)fuer4minmHmIrya mnnisalon e es amended (a UAC 22011clk section by a r.nmmlesian lle*naan !!censee.an app!! cant for a Commtmainn

11. A new I 50.7 is added under the permittea.an mppiloant for a

!! cense, or s contradar er submnhector center beading "CeneralProvisions" to Conn:nisalonllaanse er parmft,or a of a t'a==ta=taalicensee or applicant t l read as follows: contractor or subcontractor of a against an amployee for angaging in Com nfmalonite=name, permittee, or certain protected activities is prohlb!ted. lS&7 F.mployee 8 applicantmay begrounds for Dismimination includes d!a^aese and (a)Disalminationby a Commisalon (1) Dental, revocation.or suspenalon other actions that relate to licensee, permittee, an applicant for a of the11eanam compensation, terms, conditions, and Commisalon11 cense or permit, or a (2) Imposition of a dvil penalty ce the privileges of staployzoent. The protected contractor or subcontractor of a lleensee or applicant. activities are astablished in martian 210 Comrnission licensee. permittee, or (3) Other anforcement =edan of the EnergyReoryantn'lan Act of applicant against an employee for (d) Actions taken byan amployer, or 1974, as amended, and in general are engaging in certain protected acuvities others, which adverulyaffect an related to the edrainistretion or 1s prohibited.Discrimbtion includes employas maybe predicated span enforcement of aroquisementimposed discharge and other actions that relate nondiscrimientorygrounds.2he under the Atomic Enargy Act er the to compensation, terms, conditions, and prohibition appBes when fhe adverse EnergyReor==aivaHaa Act. .\\ - - - -}}