ML20154P217
| ML20154P217 | |
| Person / Time | |
|---|---|
| Issue date: | 10/19/1998 |
| From: | Travers W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Collins S, Lieberman J, Paperiello C NRC (Affiliation Not Assigned), NRC OFFICE OF ENFORCEMENT (OE), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| References | |
| SECY-96-199-C, SECY-97-147-C, NUDOCS 9810220254 | |
| Download: ML20154P217 (10) | |
Text
-_
MT 4
g UNITED STATES j
NUCLEAR REGULATORY COMMISSION 2
WASHINGTON, D.C. 20666-0001
% w +/
October 19, 1998 MEMORANDUM TO:
Samuel J. Collins, Director, NRR Carl J. Paperiello, Director, NMSS James Lieberman, Director, OE Guy P. Caputo, Director, Ol Richard L. Bangart, Director, OSP Hubert J. Miller, Regional Administratorc RI Luis A. Reyes, Regional Administrator, Ril James L. Caldwell, Acting Regional Administrator, Rlli Ellis W. Merschoff, Regional Admini.strator, RIV FROM:
William D. Travers y
Executive Director for Operat ons
SUBJECT:
ALLEGATION GUIDANCE MEMORANDUM 98 REVISING THE CRITERIA FOR INVESTIGATING DISCR8MINATION ALLEGATIONS The purpose of this Allegation Guidance Memorandum (AGM)is to in,.:.....t the guidance provided by the Commission on this topic in the Staff Requirements Memorandum SECY 97-147,"Re-Evaluation of SECY 96-199 Issues; Plan to Better Focus Resources on High Priority Discrimination Cases." This AGM revises the priorities for investigating discrimination allegations. Additionally, the AGM provides guidance for Allegation Review Boards (ARBS) on implementing the revised priorities and determining when it is appropriate to defer investigations of discrimination allegations by the Office of Investigations (OI) because the Department of Labor (DOL) is conducting an investigation based on the same or similar complaints.
REVISED CRITERIA FOR HIGH PRIORITY DISCRIMINATION INVESTIGATIONS - PART lj IV(B)(5)(a)(ii)(c)
Section (B) of Part IV of Handbook 8.8 in Management Directive 8.8 (MD 8.8)," Guidance for Initiating, Prioritizing, and Terminating Investigations," describes the current priorities for
- investigating discrimination allegations. Examp!es are provided to assist in applying the priority hp p/
guidance. In subsection (5)(a)(ii)(c) of Part IV, Section (B), examples ar6 provided of
'1 1 allegations of discrimination that should be given a high priority. The guidance provided in that I
subset is superceded by new guidance as set forth below:
Discrimination issue:(c)
Allegations of discrimination as a result of providing information regarding nuclear safety e
or regulatory issues directly to the NRC (/).
Allegations of discrimination caused by a licensee or contractor mid-level manager or above (consistent with the current Enforcement Policy classification of Seventy Level I or il violations)(il)
_$g 9810k20254 981019 PDR SECY N N,. N, p V'
f f/ d - f.
9 y /, +/ # /
l
i J
Multiple Addressees 2
Allegations of discrimination caused by a licensee or contractor mid-level manager or e
above (consistent with the current Enforcement Policy classification of Severity Level I or ll violations)(il)
Allegations of discrimination resulting from raising concerns of degraded or non-conforming conditions that, if true, would impact the operability of a safety-related structure, system, or component, or safeguards equipment (iii), or Allegations of discrimination that appear particularly blatant or egregious (iv) e ADDITIONAL GUIDANCE FOR INITIATING AND COMPLETING INVESTIGATIONS OF DISCRIMINATION Al i FGATIONS - Part l(EV2) l
' Section (E)(2)(c) of Part I of MD 8.8 provides guidance on issues that should be considered by l'
ARBS in determining appropriate actions to address allegations. Guidance is being added to i
. Subsection (c)(iv), " Wrongdoing concems and the prioritization of investigations," to assist ARBS in determining when it is appropriate for Ol to proceed with an investigation of a l
. discrimination allegation, including when it may be appropriate to defer an 01 investigation of a j
discrimination allegation pending completion of the DOL investigative process.
l (a) When an allegation of discrimination is received, the ARB should assign a priority for Ol investigation based on the MD 8.8 criteria, as revised by the guidance in this AGM. This priority
. should be assigned without regard to whether the DOL is separately investigating the allegation. The ARB minutes must document the decision and the rationale for the priority assigned.
' (b) For both high and normal priority discrimination cases, Ol will continue to conduct an initial l
interview of the alleger and any other preliminary investigation deemed appropriate to understand the nature of the allegation and the basic circumstances of the case.
I (c) After Ol has performed the initial interview of the alleger and the transcript or summary of y
L
. interview has been reviewed by the staff, the ARB will re-convene. This second ARB meeting should review the circumstances of the case in a broader context, considering the history of discrimination cases at this facility (or for this licensee); trends, if any, which exist at this facility l-
- (or licensee) related to technical or discrimination allegations, to settlements of discrimination cases, to findings of discrimination by the Department of Labor, or related to NRC enforcement actions'; if this case has generic or unique legal implications; if DOL is investigating (or g
l adjudicating) this case; and/or if there are any generic or programmatic weaknesses identified l
by Ol in the course of investigation (s).8 l
l
' As part of the input to this evaluative process, the ARB should review the statistical information available concerning allegations, investigations, and enforcement relevant to the i
. case.
8 This second ARB should also determine if any new technical or regulatory issues were l
raised by the alleger during the interview and, if so, disposition them appropriately.
i
.w.,
-,. - ~ -.
-- ~
f.
t Multiple Addressees 3
Based on consideration of these questions, the ARB should determine the further disposition of the case, as outlined in the following sections.
(/) For high or normal priority discrimination cases in which the DOL is pursuing an investigation, the ARB will request that Ol defer the investigation and await the results of the DOL investigation unless (1) there has been a finding by NRC or DOL in the previous 24 months that the licensee discriminated against an employee, (2) the alleged discriminatory act is particularly egregious, (3) the existence of related licensee performance issues indicating a deteriorating safety conscious work environment (e.g., the findings of other ongoing discrimination investigations, or relevant licensee problems in identifying and resolving safety concerns) lends credibility and/or potential significance to the discrimination allegation under investigation.
(ii) For discrimination investigations that do not meet the criteria to be deferred, the ARB will request that O! perform a full investigation.
(iii) For instances where there are multiple open discrimination allegations involving a licensee with a history of adverse 01 or DOL discrimination findings or other relevant performance characteristics which would indicate an environment not conducive to raising safety concerns',
the ARB should consider additional actions to supplement investigations. These actions may include a meeting with licensee management; a review of the licensee's employee concerns program (Inspection Procedure 40501); a request or order that the licensee obtain an independent evaluation of its environment for raising concerns; an order to establish independent third-party oversight of the environment for raising concerns; or other actions as appropriate. These actions should be coordinated with appropriate levels of NRC management.s
' If an investigation is deferred, the alleger will be informed of the deferred status in writing.
The letter will also inform the alleger that the NRC will continue to monitor the DOL proceedings.
d Other relevant performance characteristics that may indicate an environment not conducive to raising safety concerns include, (1) a lack of effective evaluation, followup, or corrective action for findings made by the licensee's Quality Assurance or oversight organization or concems raised to the Employee Concerns Program (ECP), licensee l
ineffectiveness in identifying safety issues, (3) delays in or absence of feedback for concerns I
raised in the ECPior (4) breaches of confidentiality for concerns raised in the ECP.
5 The Commission has stated that they are to be consulted prior to ordering a licensee to conduct a survey or. hire an independent third party to oversee the work environment.
4 Multiple Addressees 4
l The following table outlines the major steps discussed in this AGM.
l Initial ARB 01 Performs Second ARB (1) Case Deferred Pending Meeting:
Initial Alleger Meeting:
Results of DOL Process interview Initial Evaluation of (ii) Ol Proceeds With Priority Staff Reviews Allegation in Independent Full Investigation j
Assigned to 01 Transcript of Relation to or Interview and Licensee History, (iii) Supplementary Action i
j Recommended Other Trends, and Proposed Considering Overall for the Case information Other Information Licensee Performance Gathered by 01 Identified by Ol c-
%where Step 1 Step 2 Step 3 Step 4 (d) For investigations deferred, the decision to defer the investigation will be reviewed as each stage of the DOL process is completed. Following NRC review of the DOL Area Director's l
decision and the DOL investigator's report or Administrative Law Judge's decision, an ARB will review the decision to defer the investigation. The ARB will reconsider the criteria in (c) above in light of any new information resulting from the DOL process. The ARB should also consider whether an Ol investigation is necessary to provide information beyond that provided by the DOL process in order to reach a decision on whether to proceed with an enforcement action.
CONSISTENCY OF IMPLEMENTATION To assure triat the agency consistently implements the provisions of this AGM, the EDO has requested that all decisions to defer an investigation pending completion of a DOL investigation be reviewed by the Agency Allegation Advisor (AAA) and headquarters representatives of the Office of Enforcement (OE) and OI. Therefore, the ARB's decision and the rationale for l
deferring the investigation must be documented in the ARB minutes. The AAA must be notified l
of allinvestigations deferred under these uiteria and provided a copy of the ARB minutes i
describing how the criteria were applied and the rationale for deferring the investigation pending completion of DOL action. The AAA will coordinate the review with representatives from Ol and OE. If the reviewers conclude that the 01 investigation should not await completion of the DOL process, the AAA will arrange with the appropriate office or regional OAC to discuss the differences during the next scheduled ARB. The AAA willinform the office or regional OAC of the decision within seven working days of receiving the ARB minutes. If differences of opinion are not resolved through discussion during the ARB, the differences will be discussed with the Deputy Executive Director for Regulatory Programs.
l l
l
1 l
j 4
M.ultiple Addressees 5
TRAINING The allegation coordinators in each region and offica should discuss this guidance with appropriate staff members currently working on allegations prior to the full implementation date.
In addition, future training sessions shall cover this g Jidance, as appropriate.
l REVISION OF OFFICE LETTERS AND REGIONAL INSTRUCTIONS Office letters and regional instructions should be revised as necessary to reflect this guidance.
Altematively, this AGM may be forwarded to the appropriate staff as interim guidance pending revision of Management Directive 8.8, " Management of Allegations."
i IMPLEMENTATION This AGM is effective as of the date of issuance and will be fully implemented within 30 days.
l
Multiple Addressees 5
. TRAINING The allegation coordinators in each region and office should discuss this guidance with appropriate staff members currently working on allegations prior to the full implementation date.
In addition, future training sessions shall cover this guidance, as appropriate.
REVISION OF OFFICE LETTERS AND REGIONAL INSTRUCTIONS Office letters and regional instructions should be revised as necessary to reflect this guidance.
Alternatively, this AGM may be forwarded to the appropriate staff as interim guidance pending revision of Management Directive 8.8," Management of Allegations."
IMPLEMENTATION This AGM is effective as of the date of issuance and will be fully implemented within 30 days.
DISTRIBUTION:
FILE CENTER /PUBLIC To receive a copy of this document, indicate in the box C= Copy w/o attachment / enclosure E= Copy with attachment / enclosure
' N = No copy
-- DOCUMENT NAME: P:\\AGM98-02. FIN * = See previous sheet for concurrence, LLM.~
OFFICE AAA:
E OE*
Ol*
OGC*
D:NRR NRR*
EBAKER JLIEBERMAN GCAPUTO JGOLDBERG SCOLLINS DATE 10/08/98 9/24/98 10/13/98 10/06/98 10/08/98 N
OFFICE EDO*
EQD ]
i HTHOMPSON Whe rs DATE 10/19 /98 10/ h98 OFFICIAL FILE COPY i
j
)
l-1 r
i
I s
4 Multiple Addressees 5
TRAINING The allegation coordinators in each region and office e requested to discuss this guidance with appropriate staff members currently working allegations. In addition, future training sessions shall cover this guidance, as appropr' e.
REVISION OF OFFICE LETTERS AND GIONAL INSTRUCTIONS Office letters and regional instructi s should be revised as necessary to reflect this guidance.
i Altematively, this AGM may be rwarded to the appropriate staff as interim guidance pending revision of Management Dir tve 8.8," Management of Allegations."
i IMPLEMENTATION j
This AGM is effe ve as of the date of issuance and will be fully implemented within 30 days.
i DISTRIBUT N:
FILE CE ER/PUBLIC To receiv a copy of this document, indicate in the box C= Cop w/o attachment / enclosure E= Copy wrth attachment / enclosure i
N=
copy DOCUMENT NAME: P:%GM98-02. FIN m
OFFICE AAA-g OE 01.
- NR
/
,,,i) d E,!
(W N
/
((
EBAKERN J$$dbRMNN GCAPUTO JGblDBERGhfpbOhS NE
[fgg gfyy fgg gf;3fgg 7 [, fgg gf fgg DATE i
OFFICE EDO,, f EDO HTHN) SON LCALLAN ME ATE Af g /gg gf fgg
/ /gg
/ /gg
/ /gg F
OFFICIAL FILE COPY
,... - ~.... -. -. - -. -.
.. -. = -. - - - - -.
Multiple Addressees TRAINING The allegation coordinators in each region and office ar equiested to discuss this guidance with appropriate staff members currently working on egations. In addition, future training sessions shall cover this guidance, as appropria REVISION OF OFFICE LETTERS AND R lONAL INSTRUCTIONS Office letters and regional instructio ould be revised as necessary to reflect this guidance.
fd
'Altematively, this AGM may beJ varded to the appropriate staff as interim guidance pending revision of Management Direotfve 8.8," Management of Allegations."
IMPLEMENTATION This AGM is effepe as of the date of issuance and will be fully implemented within 30 days.
DISTRIBUTION:
FILE CE TER/PUBLIC To receiv a copy of this document, indicate in the box C=
w/o attachment / enclosure E= Copy with attachment / enclosure N = No copy DOCUMENT NAME: P:%GM98-02. FIN
[/
OFFICE AAA:
NRR EBAKhM JLINERMAN GCAPUTO JGOLDBERG SCOLLINS NME g/p///gg g/ fjf\\/gg g/
/gg g/
/gg g/
/gg DATE l.
OFFICE EDO EDO NME HTHOMPSON LCALLAN DATE g/
/gg g/
/gg
/ /gg
/ /gg
/ /gg OFFICIAL FILE COPY l
6 e
(
. ~. _. - _ _. _ _ _. ~ _
_ _ _. _ _..~.. _... -. _ _ _ _ _
~.. _. _. _._ _ _ _
- [pKEgg%
. UNITED STATES g
>(
hfflO M
SS M
~-
'M bum TO:
L.' Joseph Callan OFFICE OF THE Executive Director for Operations SECRETARV FROM:
John C. Hoyle, Secretary /s/
SUBJECT:
' STAFF REQUIREMENTS - SECY-97-147 - RE-EVALUATION OF SECY-96-199 ISSUES; PLAN TO BETTER FOCUS RESOURCES ON HIGH PRIORITY DISCRIMINATION CASES
. The Commission has approved the staffs proposal for focusing resources on high priority discrimination cases subject to the specific comments provided below and approved clarifying 1
~ the Enforcement Policy as stated in Appendix D, Section 2(c) to add the word "normally" that 01
' reports involving discrimination will be made public.
The Commission has approved the proposal to modify the criteria for designating high priority Ol investigations, except for the last element of the proposed new criterion on cases involving i
" degraded or non-conforming conditions that, if true, would impact the operability of a safety-related structure, system, or component, or safeguards equipment, or result in operation outside the desian basis." The portion of this criterion that would " result in operation outside the design i
a basis" should be deleted. With that deletion, the Commission approves this new criterion.
The staff should implement its revised process in a way that will minimize NRC duplication of
' DOL investigative activities. For each case in which the Allegation Review Board (ARB) determines that Ol should conduct an independent investigation, the justification for that a decision should be clearly documented. The current guidance in Appendix B, Step 4A of the subject paper is somewhat vague, and may unduly restrict deferring to the DOL process. For f
cases in which the DOL is already pursuing an investigation, the ARB, should put the case on hold pending the DOL result unless the licensee has a recent history of adverse discrimination findings,.gr the case is particularly egregious,.Q.r the existence of related licensee performance-w issues indicating a deteriorating safety conscious work environment (e.g., the findings of other ' ~
ongoing H&l investigations, or relevant licensee problems in identifying and resolving safety concems) lends credibility and/or potential significance to the discrimination allegation under review and the ARB determines that an independent investigation is warranted.
SECY NOTE: THIS SRM, SECY-97-147, AND THE COMMISSION VOTING RECORD i-CONTAINING THE VOTE SHEETS OF ALL COMMISSIONERS WILL BE MADE PUBLICLY AVAILABLE 5 WORKING DAYS FROM THE DATE OF THIS SRM.
^'
i 970ffd6$9 M
i l 0 The staff should consult the Commission prior to issuance of an order that a licensee obtain an l
independent evaluation and establish independent third-party oversight of their environment for raising safety concerns, as was done in the case of Millstone.
l l
The Commission recognizes the importance of prompt resolution of issues involving l
discrimination allegations; however, budgetary realities do not allow assignment of all the l
requested resources, in this regard, the Commission approves Ol's request for 4 additional j
l FTEs for direct investigation work but disapproves Ol's request for 1 additional administrative FTE. The OE request for 4 additional FTEs to focus on harassment, intimidation and discrimination was considered in the context of its separate request (in the FY 1999 - 2001 budget submittal) for another 4 FTEs for non-escalated enforcement action consistency reviews, severity level supplement revisions, and enforcement training. The Commission approves an increase of 5, rather than 8, FTEs for OE with OE focussing those 5 FTEs, as needed, primarily on harassment, intimidation and discrimination enforcement actions and, secondarily, on non-escalated action consistency reviews, severity level supplement revisions and enforcement training. Given the limitation of resources, the Allegation Review Board,01, and OE should all be prepared to utilize the factors discussed in the paper for designating high priority cases for making further decisions on which high priority cases will receive the attention of limited NRC resources.
The staff should provide additional information on the need for incorporating into the harassment and intimidation investigatis e process the development and use of expertise in Title Vil of the Civil Rights Act of 1964. Consideration should be given to whether the need for Title Vil investigative expertise can appropriately be determined on a case-by-case basis through the early involvement of the Office of the General Counsel. The staff should provide the Commission with a summary of specific staff intentions in this regard.
(EDO)
(SECY Suspense:
10/31/97)
The staff should note that this action does not predetermine Commission action in response to its recent request for public comment on establishing and maintaining a safety-conscious work environment.
In the proposal to modify Section V of the Enforcement Policy as described in the August 7, 1997 Memorandum from the Assistant for Operations, the word " complaint's"in the last sentence should be replaced with " complainant's."
cc:
Chairman Jackson Commissioner Dieus Commissioner Diaz Commissioner McGaffigan OGC l
CIO CFO
4 s
a L
.An 4
-,A
+-
n-,
,,; n e
a
-,,s--u,4-
.J-a.-
--,s.a
,w__,
4 OCA OlG Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail)
DCS 1
l t
i
.S L
RESOLUTION OF SUBSTANTIVE COMMENTS l
t l'
1.
Under the revised criteria for high pricrity discrimination investigations, the criteria l
concerning providing information directly to the NRC was revised to clarify that the information had to concern nuclear safety or regulatory issues. This change clarifies that raising industrial safety issues is not a protected activity under NRC regulation.
2.
The discussion of the second ARB was clarified to make it clear that it will not be held l
until after the staff has reviewed the transcript of the 01 interview of the alleger.
i t
3.
The time frame the staff must consider in reviewing findings of discrimination was limited to the previous 24 months.
l 4.
As a result of the Commission's decision not to develop an instrument to survey the work environment at a licensee's facility, that option was deleted from the discussion of supplementary actions.-
5.
To address the issue of when it might be appropriate to reinstate an investigation, a provision was added to require reviewing the decision to defer an investigation following completion of each step of the DOL process.
6.
To address potential timeliness issues, a provision was added requiring that the consistency review by the AAA, OE, and Ol of decisions to defer an investigation be conducted within seven workdays 5
7.
The requirement for training was modified to allow the regions and offices to determine which staff needs training.
'8.
The discussion of the consistency review was clarified to indicate that the AAA will coordinate the review with OE and OI.
9.
Conflicting comments were received from Of and Ril conceming whether investigations should be put on hold or closed and reopened. Because of the potential negative impression an alleger may have when informed an investigation is closed, a compromise was reached and the term used in the AGM is " deferred."
10.
OE recommended that additional guidance be provided on what may constitute relevant performance characteristics that may indicate an environment not conducive to raising safety or regulatory concems. OE recommended that the characterisites stated in Footnote 3 in SECY-97-260 be used. A footnote containing the recommended guidance was added to subsection (E)(2)(c)(iv)(c)(iii).
11.
Discussion conceming the fact that normal priority investigations would only be i
invcstigated based on existing resources was removed at OGC's request. The rationale is that this is not unique to discrimination investigations. On a monthly basis the regional administrators and the 01 field office directors meet to discuss the status of l
investigations and which investigations should receive additional attention or resources.
t l
l
s 9
i l
l If the high priority investigations consume all available investigative resources, normal j.
pnority investigations are not worked. Additional guidailce is not needed on this topic.
L i
i h
I i
L L
F D
l r
1 2
l l
i l
_ _ _