ML20199D321

Provides Commission W/Staff Response to Public Comments on FRN Safety Conscious Work Environment, & to Publish FRN Withdrawing Proposal Outlined in Notice

ML20199D321
Person / Time
Issue date:	11/04/1997
From:	Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
SECY-97-260, SECY-97-260-01, SECY-97-260-1, SECY-97-260-R, NUDOCS 9801300192
Download: ML20199D321 (37)

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POLICY ISSUE (Notation Vote)

~ November 4.1997 SECY-M-260 Eor. The Commissioners From: L. Joseph Callan Executive Director for Operations Subiect:

RESOLUTION OF PUBLIC COMMENTS IN RESPONSE TO REQUEST-FOR PUBLIC COMMENTS IN THE FEDERAL REGISTER NOTICE,

" SAFETY CONSClOUS WORK ENVIRONMENT" Puroose:

To prov;te the Commission with the staff's response to the public comments on the Federal Reoister notice " Safety Conscious Work Environment," (Notice) and to publish a Federal Reoister notice withdrawing the proposal outlined in that Notice.

Backcround:

Following approval of SECY-96-255 (December 17,1996), the NRC published in the Federal ,

Reoister. (62 FR 8785, February 26,1997), a request for public comment on the implementation of a standardized approach to ensuring that licensees establish and maintain I a safety-conscious work environment' with clearly defined attributes; the establishment of certain potentialindicators that may be monitored and, when considered collectively, may provide evidence of an emerging adverse trend; and the establishment of certain remedial actions that the Commission may require when it determines that a particular licensee has failed to establish and maintain a safety-conscious work environment. Draft language was provided tha*. could be used in a rulemaking, new policy statement, or amendment to the

' The Commission's May 1996 Policy Statement on the " Freedom of Employees in the Nuclear Industry to Raise Safety Concems Without Fear of Retaliation,"(61 FR 24336, May 14,1996) defined a "safet/-conscious work environment" as a work environment in which employees are encouraged to raise safety concems and where concems are promptly reviewed, given the proper priority based on their potential safety significance, and 7[

appropriately resolved with timely feedback to the originator of the concems and to other employees. kI Contacts: J. Lieberman, OE SECY NOTE: TO BE MADE PUBLICLY (301) 415-2741 AVAILABLE WHEN THE FINAL SRM IS ,

M. Stein, OE MADE AVAILABLE (301) 415-1688 9801300192 971104 /-

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i The Commissioners NRC's Enforcement Policy T .3 Notice sought public comments on various strategies for establishing and msintaining a safety-conscious work environment including where warranted the use of a holding period.2 The Notice also sought comments on an attemate strategy in which alllicensees would be required to institute a holding period policy and periodic site surveys, rather than only those licensees who performed poorly in this area. The Notice is attached as Attachment 1.

In its discussion of the feasibility of using a standardi~d approach to this issue, the Notice described the attributes of a safety-conscious work er.vironment; criteria to be considered as possible indicators that a licensee's safety-conscious work environment may be deteriorating; and standard options for dealing with situations where these criteria are not met.

The attributes of a safety-conscious work environment, as described in the Notice, included:

1, a management attitude that promotes employee involvement and confidence in raising and resolving concerns;

2. a clearly communicated management policy that safety has the utmost importance, overriding, if necessary, the demands of production and project schedules;

3. a strong, independent quality assurance organization and program;

4. a training program that encourages a positive attitude toward safety; and 5, a safety ethic at alllevels that is characterized by an inherently questioning attitude, attention to detail, prevention of complacency, a commitment to excellence, and personal accountability in safety matters.

Indicators that may be considered as possible evidence of an emerging adverse trend in a safety-conscious work environment, as described in the Notice, included:

1. adverse findings by the Department of Labor (DOL) or the NRC's Office of Investigations (01) that discrimination has occurred against employees for engaging in protected activities;

2. a DOL or 01 finding that a hostile work environment exi:;ts;

3. a significant increase in the rate (or a sustain 2d high number) of complaints to the NRC that licensee employees are being subjected to harassment and intimidation; 2

in general, a holding period as described in the Notice would provide that, when an employee asserts that he or she has been discriminated against for engaging in protected activity, the licensee will maintain that employee's pay and benefits until the licensee has investigated the complaint, reconsidered the facts, negotiated with the employee, and informed the employee of a final decision on the matter. The holding period would continue for an additional two weeks to permit the employee to file a complaint under Section 211 of the Energy Reorganization Act of 1974, as amended, (E (A) with the Department of Labor (DOL), and, should the employee file, the holding period would continue until the DOL has made a finding based upon its investigation.

i

The Commissioners 3-

4. a significant increase (or sustained high number) of technical allegations, particularly if accompanied by low usage or a decrease in use of the licensee's Employee Concems Program (ECP) or other licensee channels for reporting concems; and

5. other indications that the licensee's ECP or other programs for identifying and resolving problems are ineffective.*

As described in the Notice, standard options to address a deficient safety-conscious work environment might include (but are not limited to):

1. requiring the licensee to establish a formal ECP if one does not already exist;

2. ordering the licensee to conduct an independent survey of the environment for raising concems, with periodic follow up survays to monitor the progress;

3. ordering the licensee to establish an independent group for oversight of maintaining a safety-conscious work environment; and ,

4. establishing a holding period.

The period for public cornment expired on May 27,1997. A total of 31 comments was received. Attachment 2 is a list of commenters.

DiscussioD:

The May 1996 Policy Statement, stated that a safety-conscious work environment is critical to a licensee's ability to safely carry out licensed activities. Generally stated, the Nuclear Energy Institute (NEI),' as well as the Union of Concemed Scientists (UCS), while supporting the importance of establishing and maintaining a safety-conscious work environment at nuclear facilities, oppe d proceeding with establishing a standardized approach for licensees who had failed to establish and maintain a safety-conscious work environment. Almost all commenters agreed that existing requirements and regulatory options available to the Commission are sufficient to meet expectations in this area and that new requirements and policies were not needed.

Briefly summarized, the NEl comments noted that: (1) the NRC's current processes effectively focus licensee attention on the need to maintain a safety-conscious work environment; (2) the standardizec; approach p.oposal is an " unjustified radical departure from

• Other indications might include delays in or absence of feedback for concems raised *o the ECP; breaches of confidentiality for concems raised to the ECP the lack of effective eval Jation, follow-up, or correctis e action for concems raised to the ECP or findings made by the licensee's QA organization; overall licensee ineffectiveness in identifying safety issues; the occurrence of repetitive or willful violations; a licensee emphasis on cost-cutting measures at the expense of safety considerations; and/or poor communication mechanism within or among licensee groups.

d The majority of the commenters supported the Nuclear Energy Institute's (NEI) comments.

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The Commissioners existing policy and may result in adverse safety consequences";' (3) the proposed indicators would result in a subjective avaluation by the NRC: and (4) the standard options, especially mandating a hold;ng period, constitute inappropriate regulatory action and are likely to be found legally insupportable. Among other things, NEl maintained that mandating such a hMng period is an action outside the jurisdiction of the NRC and is an inapprr.,priate reguietory action based upon its direct intrusion on management's ability to address its own workforce issues.' NEl urged the Commission to ist stand the May 1996 Policy Statement '

as an affirmation of its focus on a safety-conscious work environment witnout implementing the strategies outlined in the Notice. NEl's comment is attached as Attachment 3.

The Department of Nuclear Safety, State of Illinois, also did not support a formal rule. In its view less formal guidance or a policy directive seemed more appropriate.

UCS, in comments dated April 25,1997, atso opposed the NRC's proposeu standardized approach for a safety-conscious work environment. UCS stated that it believes that the May 1996 Policy Statement, as well as rigorous and consistent enforcement of existing n gulations is sufficient to achieve the NRC's objectives.' USC's comment is attached as Attachment 4.'

One commenter (Intemational Brotherhood of Electrical Workers, Local 97) supported the NRC's proposal ac it had been set forth in the Notice, stating that it did not believe that the

' NEl maintains that the NRC's implementation of a regulation as described in the Notice may have adverse safety consequences by actually detracting from licensee efforts to develop a safety-conscious work environment. According to NEl, an inaccurate assessment of a licensee's safety by the NFC, based an a subjective evaluation of such a culture, may result in morale problems and a perception by workers that management does not fairly addise,s worker concems. This could severely undermine actions taken by licensees to

,,, ensure a healthy workplace environment.

'In this connection. W .,otes the potential for abuse of the holding period. NEl states that this approach may give employees an incentive to file baseless complaints, discourage employees from settling disputes early in the DOL process, and promote litigation.

' UCS had no comment on the NRC's proposed " holding penod" strategy.

• UCS recommended that the NRC issue an Information Notice when it detects conditions adverse to a safety-conscious work environment so that licensees could f.etor the Information Notice into their training programs and administrative procedures as necessary to address the issues at their specific facilities. In that regard l UCS suggest that NRC issues Information Notices to highiight enforcement actions against individuals such as the order NRC issued l'arring a licensee's senior manager from licensed activities for five years because of involvement in intimidating an employee who raised a safety concem. The NRC issued a press release to the media on the orrier, but the NRC did not issue an Information Notice. UCS coniments note that licensees tr ,n their staffs on Information Notices, not on press releases. The staff intends to better utilize Information Notices to highlight enforcement actions it has taken, incit:ohg actions against individuals.

O N

l' l- The Commissioners current regulations were adequate. In addition, one commenter (Cheney & Associates) indicated that, while the mechanisms prescribed might work to some extent, they were not ,

fundamentally different from past strategies which failed because neither the govemment nor the responsible corporation respected the strategy. Cheney proposed its own solution to the problem, which was to reinforce the strategy by such methods as certifying the competence of all workers in nuclear environments to identify safety problems in areas under their responsibilities; imposing sanctions for failure to identify a safety problem; and imposing criminal sanctions for failure to report an identified problem.

After considering all the submitted comments and further evalutning the proposal to standardize the NRC approach to a safety-conscious work environment, the NRC staff agrees with the commenters that the standardized approach set forth in the Notice is not warranted, There needs to be flexibility in considering appropriate regulabry action to address each situation on a case by-case basis. Such regulatory actions include options such as Orders,

) Civil Penalties, Demands for Information, additional inspections and investigations, Chilling

>. Effect Letters, and Management Meetings.

The staff also agrees with the commenters that the Commission has suff,cient requirements and policies in place. The May 1996 Policy Statement clearly provides the Commission's expectations on achieving safety-conscious $vork environments. This Policy Statem6nt and its basis in NUREG 1499, "Reassessnient of the NRC's Program for Protecting Allegers Against Retaliation," provides insights and guidance on steps that can be taken by licensees.

The Commission's regulations prohibiting discrimination, e.g.,10 CFR 50.7, provide the basis for enforcement action where discrimination occurs. The Commission has the necessary authority e issue orders to licensees and orders against individuals involved in discrimination to address regulatory issues associated with safety-conscious work environments. Therefore, the staff concludes that a rulemaking, initiation of an additional policy statement, or amendment of the NRC's Enforcement Poliev to address the safety-conscious work environment is unwarranted at t51s time.'

Nonethcless, the staff still believes that th6 agency should consider the emergence of adverse trends in licensees' abilities to maintain a safety-conscious work environment.

Appropriate early intervention may result in a significant contribution to safety as a reluctance on the part of nuclear employees to raise safety concems is detrimental to nuclear safety.

The staff does not believe that the Commission should adopt a strategy in which the NRC acts only upon receiving an allsgation of an actual case of discrimination or where the safety-conscious work enviroriment has failed.

Giving consideration to potential indicators of a deteriorating work :.nvironment may alert the NRC to emerging problems in a licensee's safety-conscious work environment that warrants staff involvement to encourage licensee management to address the environment for raising -

• The staff appreciates that a safety-conscious work environment is not an enforceable requirement. What is enforceable is the results of a failure of such an environment as evidenced by failing to identify conditions adverse to quality ir, viutation of 10 CFR Part 50, Appendix B, Criterion XVI, discrimination in violation of 10 CFR 50.7, or other violations of requirements related to raisin:; and resolving concems,

The Commissioners concerns. The effor+ to identify emerging trends at a licensed facility, while difficult, would be less than the regulatory effort required in responding to a licensed facility where the safety-conscious work environment has already dateriorated.*

Therefore, the staff concludes that consideration of potential indicators to determine whether a safety-conscious work environment is deteriorating at a licensed facility is warranted in order to better focus NRC resources, and more importantly licensee's attention, where improvement in the safety-conscious work environment is necessary to reduce the potential chilling effect on employees at the facility. However, the staff is mindful that there are no singular indicators to judge that a safety conscious work environment is deteriorating et a licensed facility." Evaluating the safety consciousness of a licensee's work environment will require carefuljudgments by the staff In that regard, the Office of Research is examining the feasibility of using a survey instrument for gauging whether a safety-conscious work environmt,nt is deteriorating at licensed facil, ties.

'" As stated in the Notice, when the perception of retaliation for raising safety concems is widespraad, a licensee may find it exceedingly difficult to obtain cooperation from their employees in identifying and eliminating problems adversely affecting the safety-conscious work environment; to reverse this perception of this retaliation; and to regain the trust and confiden :e of their workforce.

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" Many of the commenters appear to have interpreted the contemplated use of t

• indicators" to mean fixed indicators demonstrating a deteriorating safety-conscious work environment. This was not the staffs intent. It was recognized that any one piece of data can be ambiguously interpreted, and focusing on individual data to the exclusion of other information can be misleading. The Notice explained that these indicators in isolation may not be indicative of an actual overall deterioration of a safety conscious work environment particularly if not accompanied by overall problems in operational or safety performance.

While each of the indicators described in the Notice may individually be ambiguous, an evaluation of the totality of indications may indicate a deteriorating safety-conscious Nork environment.

'* In the Staff Requirements Memorandum (SRM), dated September 10,1997, regarding SECY 97-147, "Re-evaluation of SECY-96199 Issues; Plan to Better Focus Resources on High Priority Discrimination Cases," the Commission indicated the factors that the staff should consider in requesting an NRC investigation when DOL is already pursuing its own investigation. These factors include the licensee having a recent history of Ldverse discrimination findings, cases which are particularly egregious, and most important for this discussion, the existence of related license 9 performance 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). The staff intends to consider similar factors in evaluating whether a licensee's safety conscious work environment is deteriorating and whether to implement regulatory actions to ameliorate the situstion. In considering licensee performance problems, the indicators listed in tl,e Notice, as well as inspection and investigation findings, may be relevant. The use of observations by NRC Resident inspectors was also reflected in NEl comments. See NUREG-1499,

• Reassessment of the NRC's Program for Protecting Allegers Against Retaliation," at II.B-3.

I J

The Commissioners 7 Finally as to the holding period, this concept was first introduced by the Allegation Review Team as a recommendation of NUREG-1499. In the May 1999 Policy Statement, the Commission stated that management may find it desirable to use a holding period pending reconsideration or resolution of discrimination issues or pending the outcome of a DOL investigation. Such a holding period may calm feelings on site and could be used to demonstrate management encouragement of an environment conducive to raising concema, The Statement stressed tha*., for both the employee and the employer, participatica in a holdirig period under the conditions of a specific case is entirely voluntary. In light of the potential legal issues, the potential for abuse by employees, as well as the comments received on the establishment of a formal holdi ..J period as an option to address a deteriorated safety-conscious work environme:n, the staff concludes that use of a holding period should not be directed by the Comm ssion." Nevertheless, a holding period is clearly an option that licensees should corider in addressing chilling effects on sites pending investigations. The staff, therefore, continues to support the voluntary use of holding period as described in the May 1996 Policy Statement.

Consistent with the above, the staff intends to make appropriate revisions to Management Directive 8.8 and the Enforcement Manual emphasizing the use of judgment in monitoring indicators and the importance cf tailoring actions to the circumstances of each particular situation. The use of potentialin '&ators of a deteriorating safety-conscious work environment is being considered in the development of improvements to the Plant Performance Evaluation and Senier Management Meeting assessment process in addition, a draft Federal Register notice (Attachment 5) has been prepared to withdraw the proposals outlined in the February 1997 Notice.

Coordinatq1:

The Office of the Gene al Counsel has no legal objection to this paper. The Office of the Chief Financial Officer has reviewed this paper for resource impacts and has no objections.

The Office of the Chief Information Officer has also reviewed this paper and has no comments.

" The staff is still of the view that the expeditious provision of a remedy to individuals who file discrimination cases against their employers is an important step in reducing the potential chilling effect caused by the perception of discrimination at a licensed facility. A revision of Section 211 of the ERA to provide that reinstatement decisions be immediately effective following a DOL finding of discrimination based on an administrative investigation is en appropriate method for achieving this goal. Such legislation has been drafted by the staff and submitted for DOL's review and approval before submission to Congress. The staff continues to work with DOL on this legislative effort.

The Commissionert Recommendation:

The staff recommends that the Commission approve the publication of the draft Federal Register Notice withdrawing the proposal outlined in SECY-96 255 (December 17,1996) which is attached as Attachment 5.

L. Joj p alian Exedutive Director for Operations

Enclosures:

1. Federal Register Notice (2/26/97)

2. List of Commenters

3. NEl's comment 1

4. USC's comment

_- 5. Draft Federal Register Notice commissioners' comments or consent should be provided directly to the Office-of the Secretary by c.o.b. Thursday, November 20, 1997.

Commission staff office comments, if any, should be submitted-to the Commissioners NLT Thursday, November 13, 1997, with an-infvrmation copy to SECY. - If the paper is of such a nature that it requires additional review and comment, the Commissioners and the-Secretariat should be' apprised of when comments may be expected.

DISTRIBUTION:

Commissioners OGC OIF, OPA OCA

- CIO

-CFO

-EDO SECY _ _ _ _ _

ATTACFDIENT 1 Federal Wer / VolIE, No. 38 / Wednesday', FiVruary 30, 1999 / Noticos 8785

~

3 l Safety Conoclous Work Environment AQtseCY: Nuclear Regulatory Commission.

ACDOti: Request for pubbe comment.

avesw.ny: The Nuclear Regulatory Commission (NRC)is considering several strategies in addressing the need for its licenseer to estabbsh and -

maintain a safety conscious work environment. As discussed herein.the Commission is evaluating the development of a standardized approach that would (1) require ,

hconsees M establiah and maintain a safety conscious work environment with clearly defined attnbutes:(2) establish certain indicators that may be monitored and that, when considered collectively, may provide evidence of an emerging advern trend; and (3) outline ya 'fic remedial ections that the Ammission may require when it determines that a particular licensee has failed to establish or snaintain a safety-

)

conscious work environment. Before proceeding further, the NRC is seeking comments and suggestior 2 on the various strategies being considered. ,

DATES:The comment period expires 4 May 27,1997. Comments received after this date will Le considered if it is practical to do so, but the Commis,lon is able to assure consideration only for comments received on or before this dat e.

ADomt&SES: Sub .111 written comments to: Devid Meyer, Chief, Rules Review end DLrectives Branch, Division of

8786 Federd Register / Vol. L4, No. 38 / W:dossday, February 26. 1997 / Not'ces

. Freedom of Inforrosuon and Publication discrimineuen actually occurred in eerung Commission clarifies and promotes (1) a Services. OfLce of Administration, Mall the tone for the work eartronment. etandard definition and attnbutes of a Stop T6D59, U. S. Nuclear Ryulatory When this perception becomes safety-conscious work environmet.t. (2)

Commission, Washington, DC 23555. widespread in a licensee's organizauon, criteria to be considered as indicators Hand debver comments to: 11555 it tecomes exceedingly difficult for that a licensee's sa.fety conscious work Rockville Pike Rochiller, Matviand, liconesie managemtat (1) to obtain the environment may be deteriorating, and between 7:45 arn and 415 pm, Federal cooperation of their employees in (3) NRC aedons to be considered in workdays. Copies of comments received identifying and ehminating problems dealing with situadons where 'r ese may be examloed at b NRC Public adversely affecting the safety conscious criteria are not met (i e., where signs Document Room,2120 L Street, NW, work environment,(2) to reverse the indicate the emergence of an adverse (lower Level). Washington, DC. I ercepuon that raising safety concerns trend). ~

FOR FunTHER IWoms4Aftood Coeff aCT: may cause retallauon (or that As used in this cantext, a safetv.

James Lieberman. Director, OfLce of management does not welcome conscious work environment is defined Enforcement, U.S. Nuclear Regulatory concerns b eing raised), and (3) to regain in b Commission's May 1996 Policy Commission, Washington, DC 20555, the trust and confidence of the Statement as a work environmant in (301) $04-2741. workforce. Experience at several NRC which employees are encouragd to licensed fecilities suggests that rejse concerns and where such concerns eenWmTARY WomeaATmou additional regulatory actions may be are prompdy reviewed, given the proper L Background warranted when there is evidence that. Priority based on tEeir potential safety In May 1996, the Commission issued the licenses may not be maintaining a sig6cance, and op repriately ruolved a policy statement on the " Freedom of safety consciougwork evironmet.

Employees in b Nuclear Industry to II. Discusalos. of Using a Standanlised

{ttrib of safe onsoo rk Raise Safety Concerns Without Fear of Approach to'fhis leeue environment inclu e (1) a management Retaliation" [FR 24336). This policy . atutude that promotes employee statement had first been pubbsbed in The Commission believes that the involvement and confidence in raising d tft in February 1995 IFR 7592), and NRC should focus more ettention on, and resolving concerns: (2) a clearly was based on modi $ed and,if possible devise addiuonal cor'municated managemert policy that recommendauons of the Allegadon aechanisms to idenufy, the emergence safety has the utmost priority, Review Team report pubushed as of adverse tmnds in bcensees' abilities overriding,if necessary, the demands of to maintain a safety conscious work produedon and protect schedules;(3) e NUREG-1499 The basic thrust of the poucy statement was to clarify the environment,8 While identifym these strong. independent quality assurance emerging trends is a difficult , the organization and program:(4) a training

• *

• commnssion's expectation that Commission believes that b effort program that encourages a posiuve hcensees and other ernployers subject to NRO required will be much less than that attitude toward safety; and (5) a safety autbonry will es abbsh and maintain a safety conscious work envuonment in which requLvd in " turn!ng around" a facihty ethic at all levels that is charactented b t where the safety conscious work by an inherently questioning attitude.

• [rmYa the 4 retahation~

e aIdNrMSo , environment has already deteriorsted. attenuon to detail, prevention of Moreover, if indicators can be identified complacency, a comn"tment to The Commission emphasized that that, when monitored, will provide a excellence, end personal accountability problems in the work environment are more timely, reliable alert to b NRC of in safety matters.

emerging problems in a licanwe's Departures from such a safety-most effectively prevented, identi6ed, and resolved from within the licensee's safety-conscious work environment, the mnacious work environment are not organization, rather than by government Commission believes that appro 'ata always easy to detect. However, certain intervention w'll result in a a:i cant indicators, particularly when or obt outside involvement. The pointt of focus in the policy statement- contribution to safety and w be well musidered collectively, may be viewed worth the effort, as providing evidence of an emerting effective processes fo* identifying and Evaluating the safety consciousness el advene tand These include:(1) resolving concerns, improvements in contractor awareness, senior beensee a licensee's work environment is highly Adverse find ags by the Department of subjective, and achieving reliability in Labor (DOL) or NRC's O! Bee of managernerst involvement in resolving such an evaluation requins careful allegstions of harasstnent ar Investigation (01) concluding that Judgment, Any one piece cf data (e g., a discnmination has occurnd against intimidation (Hall, and employees' relatively high number of allegations amployees for engaging in protected responsibilities in raising safety made to the NRC from a Siven facility) activity; (2) in particular, a DOL or 01 concerns--were considered generally can be ambiguously interpnted, and finding that a hostile work environment applicable to alllicensees and focusing on individual data ta the contractors. existed for a licensee employee, or that exclusion of other information can be senior Ucensee management was While the philosophy and message of misleading. As discussed below, the involved in the discrimination; (3) a the pobey statement continue to be Commission believes that judgments sigri6 cant increase in the rate (or a appropriate,the findings of the made in this area should be the result Millstone Indeper dent Review Group sustained high numbst) of complaints to

. of periodic reviews by senior NRC the NRC that bcensee employees an (MIRG) and compilation of industry ll manaEement. In addition, the being sub)ected to harassment and analyses wide allegation data suggest that not a made in this area may become more intimidation (H&T); (4) a significant licensees an successful in tnaintaining reliable and consistent if the increase (or a sustained high number) of a safety conscious work environment as technical allegations made to the NRC, desenbed in the policy statement. As ita Ntuc-lM the AHegabon Renew Team particularly if accompanied by bw discussed in NUREG-1499, P'ovided an analysm of todications that a ucanaes's usage or a decrease in use of the the rception of dacruninetion, as viewed NeDNEYEEj,#Iu 4 a., licensds empbyn concern pmgram or by t one involved and other emptoy998 may analyse appeat in b September le96 report of b other licensee channels for reporting be more important than whether Minstone Independent Review Group (Mmnt concerns; and ($) obt indications that

Federal Register / Vol. 62. No. 38 / Wedn:sday, Fcbrtiary 26, 1997 / Notic:s 8787 t% hamnae's employee concerns group for oversight of maintaining a have been unsumessf4 these actions safety conscious wort environment are not invoked so long as licensees program or othe. programs for meet the basic critens of a safety-identifying and resolving problems are (sinular to that prwcribed by the ina!!ective. Such indicadons taight October 24,1996 Millstone order); or mascious work environment.

(4) mandating that the licensee establish Finally, while such a regulauon might include: delays in or absence of feedback for concerns raised to the ECP; a " holding period" poll y to be apphed prodde addfuonal standardirdion and breaches of confidentiality for concerns in cases where an employee complains consistecy whm Comminion acuon is of being discriminated against for necessary, the primary purpose woold raised to the ECP; the lack of effective engaging in protected acuvity be to focus the licensee's attention in evaluation. follow up, or correctue this area and nduce the need for action for concerns raised to the ECP or (additional discuulon of the holding Commission involvement in directing findings made by the besusee's QA period concept is given below).

bconsees' actions in this area. ne organization; overall lic=nsee ,

• • *" 6*M *7intended effect of this rule would be for ineffectiveness in identifying safety inues;the occurance of repeuuve or

• [ d*[ g licensees (1) to become more

• ware of One strategy to standardizing the the importance the Comr ission places willful violadons; a beensee emphasis on estabushing and maintaintng a on cost <utting measures at the expense Commission's approach to this area would be to initiate a rulemaking safety-conscious work environmer.t. (2)'

cf safety considerations; and/or poor to become more sensitive to indications communicadon mechardstro within or process, in which the regulations of 10 CFR Part 50, *' Domestic 1.icensing of of adverse trends emerging at their own amoog licenses groups. In some cases. Production and Utilleauen Facilities," facilities, and (3) to become more these tudkadons may be identified effective in taking actions to correct

- would be amended. The possible value during routine inspections. such tnnds and prwerve the safety.

The licensee's departure from a of promulgating this otrsiegy as a safety conscious work environment can regulation is as follows. Fint,it would conscious work environment before it deteriorates to a point that demands develop gradually over a period of yean codify the safety conscious work and with varying degrees of 11censee environment as a requirement, clearly Commission intervention. This management awareness. Ah stated linked to the bcensee's safety ethic and in.ention is consistent with the I

above,any one of the symptoms given to the overall fitness of the licensee to Commission's reccqnition, as presemud l

operate the facihty. Second, such e in the May 1996 Poucy Sta'ement, that in the preceding paragnph, taken by departures from a safety conscious work itself, may not indicate detenorstion in regulation could successfully differentiate between licensees who environment are much more effectively the limnSee's overall safety conscious work environu/nt, partjeularly if not perform well in this area and those who corrected from within a limnsee's are cause for concern,in that organization than by the intervention of acxximpanied by overall problems in movernment or another outsida agency.

opentional or safety performance. prescriptive requinments would only Related judgments as to the need for be remedial (i.e., twcribed for those IV,inclualon in the NRC Enfortement NRC intervention should not be made in licensees who fal to establish and Policy or teenan e of a Separate PolJcy isolation. The Commission belies es that maintain a sufficiently safety conscious Statement such judgments, as eve!! as the ensuing work tuvironment on their own efforts). Another strategy toward standardizing decisions on what action would be Third, for those cases requiring Commission intervsntion in the form of the Commission's approach to this area approp;iste in a given situation, would would be to revise NUREG-1600, be appropriate topics of discussion at issuing orders, the presence of a " General Statement of Pohey and the NRC's penodic Senior Management standardized process (i.e., as codined in Promdums for NRC Actions"(generally Meetings. a regulation or suggested in a policy known as the NRC Enforament Pohey),

Once the judgment is made that a statement) may result in less htigation to include this standardized approach.

licensee's safety-conscious work than would result if such orden were While this strategy would not be environment has deteriorated, the devised andissued case by case in the binding on licensees in the sense of Commission's choice of action would be absence of such a standardized requiring,by regulation, a safety.

based on the symptoms that led to that approach.s conscious work environment,it would Judgment. Under this approach. The Commission's experience retain most of the other advantages of however, the Commission would indicates that licensees may successfully use differing methods in codification described above. This

. identify and promote standard options strategy would still successfully for agency action rather than treating achieving a safsty-conscious work each licensee situation on a case by case environment, and what may be differentiate between licensees who perform well in this area and licensees basis. Those options rnight include (but necessary for some licensees is who give cause for concern;it should would not be limited to): (11 Requiring unnecessary for others. Under the heighten licensee awareness of the thelicensee to estabbsh a formal approach discussed herein, however, a Commission's approach to evaluating employee concerns program (if one does regulation could be written such that, licensee performance in this area;it tot already exist);(2) ordenng the while the Commission is prepared to take decisive action where licensees should make licensees more sensitive to licensee to couriuct an independent indicators of emerging adverse trends at survey of the environment for raising their facilities; and it would provide s teablishing and publish 1pr i mandardised cxmcerns, with periodic follow up . heensees the opportunity to correct surveys to monitor nrogress;(31 ordering opproub clartSu the huion4 totenuon b .such tsends before the safetyenscious the licensa to estalitish an independent g",dg*j,j,*g'gg7 Work environment deteriorates to a subsequent scuons the Comuussion taise that arg 8 However, these symptoms eney to advance consistent with this expressed inten on m has point lequiring Cotnmission toduztions. end any resulting dochne tn hiely to be seen as arbitrary or prejudickauf intervention.

epereuonal as . afety performancs ma y poi ornerge mouwsted and tbmfore are less likely to be The logic of ine'.uding such an hmrundiately. For ttne resson. the obsence or c.hauensed.This logic La cona4 stent with prmous h in the NRC Enfornment comminion exponenc. to promuts. tins and SPP opmuon ) or utert p.rtormana probieras should not. by t: wit. to taken u suurance thai uw niety.

impka=ntms the Nnctwormr.n Mey(wtarc Pob,roacey is that it would contain stasdatd noot criteria that, after consideration. could conscious wort envuoi nent hu not det.noret=L u o

8788 Fedcral Register / Vol. 62, No. as / Wednesday, Fcbruary 26, 1997 / Notices

' result in issuing orders to licensees. An As discuneed in NUREG 1499, the the options available at the discretion of

. alternattve, however, would le to issue holding period is oesigned to minimi= the Commission.

this approach in a separate Comm' salon onalte conclet (and any anaociated Nothing in the appbcation of such a policy statetaent, ta ensure that NRC chilung effect) ponerated by the .

Commission order or the resulting monitoring of licensee performance in perception bt an employee may have licenwe holding penod pobcy would this area is separate:y administered and been retaliated against for raising mandate that a b.consee employee must evaluated. concerns. La addition, b holding ciPate in or agree to the use of a V, Esplanation of the " Holding Perbl" Pwtod inay be used to dommtrate

& g W 2 a p en case b management support for maintaining a addiuon, for any case in which the C e Pt safety conscious work environment. As Commission ordered the licensee to Within b vretegin teing evaluated stated in the Commission's May 1996 wtrblish such a holding period pobey, and discuued herein,b concept of a pohey Statement: the licensee would continue to have the

" holding period" warrants additional option as to whether a given cladScadon. The holding period ji j ,g"["pjdbe ,g complainant should be restoned to his or concept (sometimes also refened to an e as to whether discrimination occurnd,in the b# Previous posidon, be assigned a new

" safe barbot" provision) was first interwt of not discourasing other employm Position, or be given administrouve introduced by the AUegation Review from raistas concerne, the employee involved leave with pa Team as a racommendation of NUREG- in the dispute wt11 not nu.e pay and ben *Lis Furthermore,y and benents.

the Commission would 1499. Amoug other aspects, the while the e-tion le being moonsi iered or the continue to hold that, when a holdag Allegauon Review Team recommended dispute is belns resolnd. period poucy has teen established, the that, in applicable cases, the NRC in b past, both b staff employer's action of not restoring a Executive Director for Operations (or rommmendaticas and the Commisalon's complainant to his or her previous other senior NRC management) eend a policy have toen to make the um of a Poaltion would not be considered an letter to senior licensee management holding period entinly voiantary. Even additional act of discriminauon if the reminding them of the Commission's under the regulatir a or policy statement DOL AOD or Ariministrative Law Judge paucles on discrimtnsuon and the use strategies discuneed in Sections Ul and (ALJ) subsequently found in favor of 6 of b holdingperiod, and requesting a IV above, the use of a holding perio( (as complainant provided that (1) the well as other measures designed to employee had agreed to the provisions tePoM to,:the NKC detailing the of the holding period (2) pay and licensee course of action.The holding promv.e a safety mnacious work period concept was carried forward to environment) would to entirely beneBts were maintained, and (3) the the Commission s May 1996 Policy voluntary for most lir====s. However, employer restored the employee to the Statement as a pobcy or action that a in casm where b t'ammtenton Previous poaluon without career hcznsee might voluntarily choose to determined that the licensee's safety- Prejudica upon a DOL finding of introduce; however, the Commission muscious work environment was discrimination. Finally, the licensee rejected the provision of sending a letter deteriorating to b point of warranting bears responsibility for making encouraging the licensee a use of the additional NRC intervention, such a legitimate personnel decisions, holding penod in appucable cans. Tha' licy would provide ht including tetrmination or reassignmect Commnsion leheves that seversi regulation ordering b or l bnnee's establishment of of an employee whose presence in 6 alternative strategies for mandating use a holding period policy would be one of workplace could adversely affect safety.

of a holding period policy may merit Ne ther b use of a holding penod reconsideration,particularly as an

• Dot proc = a Onde section su of the snesy policy nor any other licensee action option for dealing with specinc cases a ,amanoon Act.the not aniy provtd. a required by NRC order would relieve where a licensee's environa.ent for mmporeruy es. con rundy to e int ***' b hmnaes of this twponsibihty? The raising safety concerns has signi5cantly N g g *8,',f g

• g* y , ,an anen, function of the holding period is to deteriorated. et ermminauon be occurrwt send on e counteract the chilling effect that may la general, a licensee's holding period wasc t een rwnaumendeuon. the co==* is result when employees perceive that a policy would provide that, when an unnderms lesatsuon. to be denioped in follow em loyee may have been employee complains that he or she has pgong*gggd cuu$ot been dir .riminated aga nst for engaging proomme. tn that the Dot would be provided

,,,,,, terminatekas b result of raising safety concerns, and thus placed at a financial in protected activity, the licensee will JuonsJ tune to conduct a nears taalepth taltial disadva.ntage while seeking redress.

maintain that employee's pay and inn =nascon. and e i.mpor ruy enactive rom.d7 The Coromission roc zes that the beneSts until the licensee has muld'  % rovtd.d P to the complainant bee.d on the tait a .uunauna, me. If b bondas period holding period conmpt as certain investigated the complaint, wwi usaded to h conclusion of Se uunal Dot Perceived drawbacks, as discussed by reconsidered the facts, negotiated with w,wuaanon, an employ = who nues.d the Allegation Review Team in NURIG-the employee, and infonned the discruninsuon for emessins in protected eed'*r 1499. Some potential exists for abuse of employee of a final decision on the y an honesia ai ser

=go, id,noe be remo,ed tram a holding period policy, and it may be matter. After the employee has leen mAvecnoon procum, so lens = as Dot conunued viewed as unfair to ask licensees to notined of the licensee e decision,the . and in the empioyee o hnr. continue pay and bene $ts for ernployees holding period would continue for an a to imporuni m arpiato that e rwon is whom the licensee believes an

• Dot a rol' "

additional 2 weeks to allow a reasonable not etemptins toyr t' ** *mplainant b undeserving)in addition, other fr.ctors time for the em to)ee to file with the 3"i".e*s purpo of the"*"*

bolding period he to neutrahes the DOL. If the emp oyee Eles within that =dtict in tbs workptoce unut h espuw te 'nrwove. if a capute arose u a whe iber as time,the licensee would continue b ruolud w'&out pruan puon u to b outcome, ucer.us bed a legitmete purpose (I a.. b holding period natil the DOL Area th==by ntniminns the chiluts seect on the i==t anPioyee maintained thei m act.oo wu t==d on

'*""Liorm m anuns e5ect can art =. a monsins in protec4d activttv). the bconsee would t etdl be required to maintatr. pay and becofha in OfLce on the Ana Dtrector has made a finding Of6ce investigation., based 'his estuanon, e teuaw worker hu b-se aussed one percette that when sua eothat emplo[y case. edcarmeen dacnnasied inn wta pay and seminst for enomgins La protected ecovery, and bem5ts arisht be 2e best opuan

• !n other words, e boldLas partod would be in immah elyt placed at e diendvantase in pursuins

• Aa &ecuated in Secnon G ar.d TV. tb6 bolbag e5ect et least until the inttaal decision made under e resolub.o by the loss of pay and beneSta. parted would ocJy be one of several optaons that the

26, 1997 / Nodecs 8789 Federal Register / V:1. 62, No, Se / W;dnesday, F$ruary

2. If such an Appmach W:re addluon,this approach would ensure hiopted, Would it Be Most Effective as:

• f sm.h as licensee down sir.ing actions) that, for any situation in which an (a) A Proposed Rulemaking that would may contribute to the occurrence of a employee believes that be or she hu Amend Part 50,(b) a revision to the aignincant increue in complaints of discriminsuon. The Commission would been discriminated against for raising NRC Enfortement Pohey; or (c) a ufety concerns,that employee would Cve these and other facton careful not be placed at a anancial disadvantage ceparately luued Commission poucy consideration before requiring this statement?

(i e., by the loss of pay and benefits) cpproach for any speciac licensee 3 3. What Addithns or Deletic*ns th the However, the Commiulon bebeves that while pursuing a resolution, !!nder Draft this Language of Such a Regult.uon or where there has been a significant approach, such an employee would continue to receive pay and benents Policy, as Pnnented in Secuon IX, failure to maintain a safety-conscious Below, Would increase its work environment, these drawbacks, under b holding period even if the Effectivenen?

including any financial burden incurred liwnsee had never before had such4.aWhat Are the Advantages or by the licensee, would be clearly offset complaint.

As stated earlier,the purpose of the Disadvantages ofImplementing Such a by the benefits of insulting a general Standardized Approacht (Comments are perception 6t senior bcensee bolding period is to neutralize the uested as to whether the managet,ent is senous about becoming conflict in the work environment until specifically riod would achieve the dispute is resolved without une of a hol D alved, aconside tng the fac's, ive o ducing the potential finding a resoluuon and minimizing the presumption as to the outcome, minimMag the rMihng effect on the for themby b]ob' lung eUect in b work adverse impact on the complainant during these debberations. Where a rest of b workbree.ne chilung eUect d ro m ')~

chining effect would otherwise have can arise when other employees ,

5. What o&er mans or Mawn resulted frorn a more confrontauonal perceive that a fellow worker has been m@ 6e NRC use 6 evaluate Ucmce licen ce approach, these benents am dhcruninated against for engagingin nnance in this ama 06er &an &e and then [dicamn me ned in &e language of clear;in ac'dition, h withnkness of hcensee management to wor toward brotected activity, d at a disadvantage ediatelyplace Secu in m , belowf pursuing a resolution by the loss of pay 6. What would Be the Advantages or internal resolution of such a conflict may result ir, financial savings (1) by and beneSts. By requiring all licensees Disadvantages of implementir's the Alternativa Approach to uding the avoiding lengthy, expensive litigauon in to establish and implement a holding the case at hand and (2) by o!! setting the period policy,this alternative approach Holding Period, as Descal in Secuon possibibty of additional cases that may would attempt to offset this potential VI Above?

result from o chilhng effect. Most chilung eUect on an industry-wide 7.What Other Appmaches Not importantly, the avoidance of a chihg tesis, bly, the benents may not Considered Here Would Be More cflect may result in having safety issun outwel the costs in this approach, Effective in Ensuring hat lacensees identiBed that might not otherwise have parti ly in cases whm & Establish and Maintain a Safety-been raised. discrimination issue is a relauvely Conscious Work Environmentf VI. Discussion of Alternative Strategy isolated occurrence in an otherwise

! safety conscious environment. VIII, Request for Regulatory Analysis in Requiring a Holding Period policy tafonnation and Periodic Site Surveys Vll. Requests for Comments on the if a change of requirements is needed, PPmachn macuw Hmin the NRC will pnpare a regulatory sh a t t w c no Commission is considering analysis to support any proposed or limnsees would h, required to institute various strategies that would clarify final the rule. no analysis will examine the a holding penod policy and periodic responsibility of licensees to establish costs ano beneBis of regulatory and maintain a safety-conscious work si;e surveys, rather than on! - environment. thoselicensees who perform poorfy De purpose of describing alternatives in this available to the area. His approach would not Commission.

these strategies and posing certain ne NRC requests public comment on differentiate to the same extent between questions is to illustrate the evaluation the costs and benents, normal business those area andlicensets who those wboyive perform cause for wellin this that has ocrurnd to date, and to request practices, new trends, and obr Pubbe comment on the potential information that should be considered cancern. However, tats approach would eff8'cti'>eness of such actions, the ensure that all licensees periodically in any such regulatory analysis, advantages and disadvantages of the Comments may be submitted as monitor their work environments to strategies described, and any indicatedinthe ADontssts heading assess the degree to which employees suggestions on addiuons or deletions feel free to raise safety concerns. in that would make these stretegies rnore S P'c c l ible elloctive in achieving their state,d 8"*8 P {of NitC would how at its dispanal undr such a

a. purpose. Commenters abould feel fme to Commissim cy Pou'5" res.vi iion or poney B d on con idenesq. submit theircincrvsponses ettribumto these et e partacutarDehc.na's NRC has developed language that qwsuons annymously; however, any

• the$.)* iaImY..h'y..*s$.Yan informatim providec' as to a may be applicable to a revision of part inde no.e+ surd p.in entiishi of the lic.n . commenter's background or degree of so n. (with necessary modi 6 cations)to emp concern prest m. or uo. other m asur, a policy statement. His drah text

.bo.i b. r.qu,r.4 d.ta .ft.r. inst a at er la experien;e in this area will be helpful reflects many of the issues as described.

in analyzing and understanding the id not be The NRC solicits comments on the Yo$ . . omp n comments.

following text, including the extent to required to forf.n ery p.y or b.n.f2ti r.c.w.d 1. Should the Commission Promed dunes a. holdins pened it a pot evt quently with Establishing a Standardized which the text addresses the issues sund that e uc.n did not discruiunst asainst described. The NRC also solicits I. Approach to Ensuring That 1.icensees YI 2."$. d tN."tS. [*"" Estabhsh and Maintain a Safety- suggestions of alternative text that would address these issues-Cn si io . bure.n u warr.nted is new of Conscious Work Environment?

tb. b.os M to the workpl.c. .onronment

8790 Fed:ral Resist:r / Vc), 62, No. 38 / Wedo:sdsy Februuy 26, 1997 / Notkes Proposed hmguage: Sofety-Conscious (4) Othsr indications that the in protected scuvity,the bcensee will Work Ermronment lleensee's ECP or other programs for maintain that employce's pay and identifying and resolving safety and benefits unul the licensee has l (a)IJcensees shall estabush and invesugated the complaint, maintain a safety conscious work regulatory conarns are ineffective.

Such indicauons might include: delays rec ansidered the facts, negotiated with environment in which employees are encouraged to raise safety and in or absenas of feedback for concerns the employee, and infor:ned the mhed to the ECP; breaches of employee of a final decistun on the regulatory concerns, and whwe such concerns are prorcptly reviewed, given mnfidentiality for concerns raised to the inatter, Afta the licensee has informed ECP; the lack of effocuve evaluation, the employee of its final decision the priority based on their potential safety

• significance, and appropnately resolved follow up, or corweuve action for holding period of continued pay and with timely feedback to the orig; ,ator of conodrns raised to the ECP os findings bene 6ts will continue for an addauonal the concern. Attributes of a safety, ,

made by the 11oensee's QA organizauon; 2 weeks to allow a rouonable time for conscious work environment include: overall Doensee ineffecuveness in the employee to file a complaint of (1) A management stutude that identifying safety issues; the occurrence discrimination with the DOL. If, by the promotes employee involvement and of repetitive or willful violations; a end of that 2 week period,the employee confhience in raising and resolving limnsee emphasis on cost cutting has filed with the DOL a complaint of concerns; measures at the expense of safety discnmination for engaging in protected (2) A clearly communicated considerations; and/or poor activity, the licensee will maintain the rnanagement policy that safety has the communicadon mechanisms within or bolding period of continued pay ar,d utmost prionty, overnding, if necessary, among limnne groups- benefits until the DOL has made a the demands of product 2on and project (c) The presence of one or more of the finding based on its initial investigation schedules; indic'ators discussed in paragraph (b) of of tb employee's complaint.

(3) A strong, independent quality this section may or may not,in isolation, be considered evidence of (5) Additional enforcement action anitauon and progru.; Pauant to Subpart B of Part 2, assurance (4) A trai ohng program that deterioration in the licensee's safety.

conscious work environment. including civil penalties.

encourages a postuve attitude toward safety: Dated et Rock Alle. Maryland, this 19th day Evaluation contcious work of the licensee'sabou environment safety *ld of February,1996.

(5) A safety ethic at alllevels that is characten ed by an inherently masider these indicators in the context For the Nuclear Regulatory Commission questionit.g stutude, ettention to detail, of the overall work environment, I**'

prevention of com),lacency, a including the presence or absence of commitment to excellence, and personal other indicators, and the presence or D"t*M" */Ea/***'n'-

absence of related licensee safety and [FR Doc. 97-4r02 FNd 2-2W; 8 45 aml accountability in safety matters.

(b) When circumstances occur that performance issues. ausso caos reeuw could adversely impact the safety. (d)If, bued on a review of indicators conscious environment, or when as discussed in paragraphs (b) and (c) of conditions arise that indicate the this section, the Executive Director f r Blweekly Notloe; Applications and potenual emergence of an adverse trend Operations determines that the licensee Amendments to Facility Operating in the safety conscious work has failed to estabbsh and mt!ntain a Lloonses !nvolving No Significant environment, the licensee shall take safety conscious work etwironment as Hazards Considerations action as required to ensure that the discussuiin paragraph (a) of this section, the NRC at its discretion may 1. Background safety conscious environment is preserved Indicators that may be require the licensee to take action. This Pursuant to Public law 97-415, the considered as possible evidence of an action may include (but is not limited U.S. Nuclear Regulatory Commission emerging adverse trend include, but are to) ordering one or more of the (tb Commission or NRC staff)is publishing this regular biweekly nctice.

() ersIfindingsb the (1)Dlishment of a formal Public Law 97-415 revised section 189 employee concems program (if one does of the Momic Energy Act of 1m, as Debartment of Labor or the NRC Office of vestgation (Ol! concluding that discrimination has occurred against not already exist);

(2) Performance of an independent e Aet)

',d ,9 p e

rQu g employees for eng.ging in protected survey of the F nsee's environment for amendments issued' or proposed to be activity, including a finding of the raising safety a.no regulatory cot cerns, issued, under a new Prevision of section existence of a hostile work environment; with period.ic follow up surveys to 189 of the Act. This provision grants the (2) A rignificarit increase in the rate monitor chanke; Commission the authority to issue and (or a sustained high number) of (3) Establis ment of an independent

' make immediately effective any aUegauens inade to the NRC that group for oversight of licensee performance in establishing a ad amudmet to an opersung beme beensee employees are being sub}emi upon a determination by the to harasst.mnt and intimidauon for mainta!ning a safcty conscious work Commission that such amendment environment:

engaging M protected activity; he rate -(4) Establishment of a " bolding involves no significant hazards _

(3) A significant increase in t consideration, notwithstanding the

. (or a sustained high number) of period" policy, to be applied in cases allegations tnade to the NRC concerning where an employee of the Ucensee or its pendency before the Commission of a contractor registers a complaint of request for a heanng from any person.

matters of safety or regulatory concern, pardcularly if accompanied by low having been discnminated against for This biweekly nouce includes all usage or a decrease in use of the engaging in protected activity. The notices of araendments issued. or licensee's employee concern program holding period policy requires that, proposed to he issued from February 1 (ECP) or other licensee channels for when such an employee submits to the 1997, through February 13.1997. The reporting safety and regulatory licensee a complaint that be or the has last biweekly notice was published on cotcerns; been discrtminated agkinst for engaging February 12,1m (62 FK 6557L ,

Attachment 2 List of Commenters Thirty One Comments were submitted to the NRC addressing this Federal Register Notice.

The fo!!owing is the list of Commente,s by name and type, as well as the date of the submittal:

1. Cheney & Associates (Individual) - March 12,1997

2. Joseph Carson (Individual) - March 22,1997

3. Union Carbide (Materials) - April 15,1997

4. O,naha Public Power District (Reactor)- April 17,1997

5. James Overbeck (Individual)- April 24,1997

6. UCS (Public Interest Group) - April 25,1997

7. Department of Nuclear Saf2ty (State) - May 5,1997 State of Illinois

8. BGE (Reactor) - May 8,1997

9. TVA (Reactor) - May 19,1997

10. Entergy (Reactor) - May 21,1997 '

11. HL&P (Reactor) - May 22,1997

12. Virginia Power (Reactor) - May 22,1997

13. WPPSS (Reactor) - May 22,1997

14. FPL (Reactor) - May 23,1997

15. Performance Technology (Contractor / individual) - May 24,1997

16. NEl (Utility Trade Association)- May 27,1997

17. Winston & Strawn (Utility Law Firm) - May 27,1997

18. SCE (Reactor) - May 28,1997

19. Niagara Mohawk (Reactor) - May 27,1997

20. SCE&G (Reactor) - May 27,1997

21. Union Electric (Reactor) - May 27,1997

+ - -

• _ _ _ _ - _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . .

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May 27,1997 Mr. David L. Meyer Chief, Rules Review and Directives Branch Division of Freedom ofInformation and Publication Services Ot5oe of Admimatration (Mail Stop T15D59)

U.S. Nuclear Regulatory Co= mission Washington, D.C. 20555 0001 i

SUBJECT:

NRC Request for Public Comment on NRC Propoevd Strategive to Address the Need for a safety Conscious Work Environment (62IaiBas. s785 - February so,1997)

Dear Mr. Meyer:

i  :

% Nuclear Energy Institute,1 on bohnif of the nuclear anargy industry, submits the enclue d cummenta in arspone, to the NRO's request for public comment on NEUJroposed Strategies to Address the Need kr a Sahty Conscious Work L

' hvironment (62 Eci Bag. 8785 - February 26,1997). Detailed comments are entained in the onelosure.

' h industry sharma the Commission's interect in assuring that the work i

anvimnment related to nuclear plant operation is one in which employses feel free to identify safety concerns and licansees arv appropriately responsivm.

Maintaining a safety.uuum:iuus work environment is a corneretone of nucicar plant management and afBoent plant operation. As the Commission will agree, hemnver, the foundation for such an environment is licensee mananenamt with a dooply committed safety othic, supported by well trained emp1nynna and reinforced by a comptwhousit's and wall administered u.gulaiory schenc.

4 .

• NE1 is she ersani Jun neeonsiW 5er stab 11shing un&d muetear indust,y puy em manere l

a5ecting & auclear enerst adetry,inchading tb regulatory aspecu of remerie operationel ad indue al issues. NEI's memben ine.lude all utilities hoonced to operate oommercisi mue. lear power i plamns lu h Whed States, mudoar plant designore, sanjar architoot/engineerine Arsas, fuel

+

, /. fabrica don feuiLGee, mudar materials lienneees. and other orsasisareans and individual. involved in the suelaar energy ladustry.

ina e nern. w .c. i een w n.. w o .is r.,w spee o an.m . . eu en, m i...

• ** .*** ee .. . . . . ,, , , , ,

- - ~ , , _ - ,- ,, , - , , . , . , - . , , . . . - - - . . . . -

Mr. David L. Meyer May 27,1997 Pane 3 l

I.

% Cor ieeion already has issued a Statement of Policy providing its expoetations regarding hoensee responsibility to promote a umfuty wascious environment:

"Freedo n of Employees in the Nucleur industry to Jioise Safety Concerns W#hout Fear of Refoliation." (81 Iai Eei .4338 9 - May 14,1996). In our view, that policy statement should be exercieed before considering further regulatory action in this area.

We appreciate the NRC's willingness in pmvida the public with a dimenasion of the regulatory actions it is considering, opportunity to comment, before the NRC has 66termined the speciSc approach it will adopt to addrene a giveu set of cirr.e.' stances, is likely to produce a more informed and, therefore, a better agency

<% sion. We would be happy to discuss our views with the NRC staff.

Sincerely, s

-v /

Ralph E. Beedle RED /ECG/ree

( Ecclosure

(

e.

I i

Attachment 2 l List of Commenters Thirty One Comments were submitted to the NRC addressing this Federal Register Notice. .

The following is the list of Commenters by name and type, as well as the date of the  :

submittkl:

1. Cheney & Associates (Individual) - March 12,1997 ,

2. Joseph Carson (Individual) - March 22,1997

3. Union Carbide (Materials)- Apnl 15,1997

4. Omaha Public Power District (Reactor)- April 17,1997 y

5. James Overbeck (Individual) - April 24,1997

6. UCS (Public laterest Group) Apr;l 25,1997

7. Department of Nuclear Safety (State) May 5,1997 State of Illinois

8. BGE (Reactor) - May 8,1997

9. TVA- (Reactor) - May 19,1997

10. Entergy (Reactor) - May 21,1997

11. HL&P (Reactor) - May 22,1997

12. Virginia Power (Reactor) - May 22,1997

.13. WPPSS (Reactor) - May 22,1997 '

14. FPL (Reactor) - May 23,1997

15. Performance Technology (Contractor / Individual) - May 24, i997

16. NEl (Utility Trade Astaciation)- May 27,1997

-17. - Winston & Strawn (Utility Law Firm) - May 27,1997

18. SCE. -(Reactor) - May 28,1997

19. Niagara Mohawk (Reactor)- May 27,1997

20. SCE&G' (Reactor) - May 27,1997 6

21. Union Electric (Reactor)- May 27,1997 I

_ _ _ --,,.7,----,,. -~ w,r e- e s , - - ~ w,>m- --v>-- w- ~

Attachment 2

22. PECO Nuclear -(Reactor) - May 27,1997

23. Siemens (Vendor) - May 27,1997

24. TU Electnc (Reactor) May 27,1997

25. Southem Company (Reactor)- May 27,1997

26. NEl (Utility Trade Association)- May 28.1997

27. BEW Local 97 (Union) - Undated

28. APS (Reactor) - May 30,1997 -

29. Florida Power Corp. (Reactor) - June 9,1997

30. Westinghouse Energy Systems (Vendor) - June 17,1997

31. Vennont Yankee (Reactor) - June 26,1997

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May $7,1997 Mr. David L. Meyer -

Chief, Rules Review and Directives Branch Division of Fmdom ofinformation and Publication Services Of5ce of Admuustration (Mail Stop TBD59)

- 11.S. Nuclear Regulatory Co:smisalon Washington, D.C. 20555 0001 SUBJE0*n NRC Request for Public Comment on NRC Proposed St.rawgive to Address the Need for a Safety Conscious Work Environment (62 Et.L Bem 8785 - February 26,1997)

Dear Mr.Meyer:

The Nuclear Energy Institute,' on khalf of tb ntwlear anarr/ industry, submits the enclueed wmments in aceponse to the NRC's reguset for public comment on NRO Proposed Strategies to Addren the Need for a Sabty-Conscious Work Environment (62 Eci Bas. 8785 - February 26,1997). Detailed comments are contained in the enclosure.

The industry sharma the Commission's interest in assuring that the work anvimnment related to nuclear plant operation is one in which employees feel im to identify safety concerns and licanme m appropriately responsiva.

Maintaining a nivty.uuuncious work environment is e cornerstone of nuclear plant management and af5cient plant operatior.. As the Commission will agree, hmenver, th foundation for such an environment is licensee management with a deeply committed safety othic, supported by well trained empinynna and reinforced by a temprobamive and well administered regulatory scheme.

• NE1is & orge-:-tu acconsMe for stablishing un&d mustear indust y p&y m mamme=

l a5ecting b auchar eaerst adustry,inaluding the wgulahry aspects of ceneric operationel ed wdudsal issues. NEh saemben include all utilities hoonced to opente commercial surjear power plava in b Unhed States, auchar plant deslentre, mejor arshitoot'enginastia6 ArmsJuel

/- inbrication fad 1!Ger, uutkat materials !!wneces, and other orgamieations and individumas involved

, ta the nuclear energy Ladustry, irra i n.m. w ,i sen wu.. 49 . .s r.,w.m. a m .,,,. .. en w* m inva M iua - _ - -

• '4

,, Mr. David L. Mayer May 27,1997 .

'Page 2 Every key objective manmure of contemporary industry performance bears out that nuclear power plante aeron the nation aro being operated safely and, indeed, are continuing toimprove. Speelftcally, industry performanae Indicators abow a decrease in unplanned automatic scrams, an mename in safety system availability, a reduction in radiation espnaum for plant employees and a nduction in industrial acddente- as shown by both NRC and industry performance indicators.

This record could not have been achieved unlus a pervulve safety conscious environment, in fact, already characterised the industry. The identification of safety concerns by employnea mntributen to this safety record and is done soutinely through proosasos established by lleenwov that are reinforood with training, quality assurance oversight and management support. Ewry llumnsw has wrioctive action and quality assuranco programs that actively encourage the reportmg and investigation of matten aMeetJng nnmplianac and safety.

Tbc safety record of the industry demonstrutw that vaployous report their safety concerns and actions are taken to address them. Exceptions may exist; referenosa in the Commission's noth augent the deterinrntion of the " environment" at one or two facilities. It is not cienr, however, even in thoec once that safety was, in fact, compromised, b Fedmd Resister notiec, wizing on these perceived emptinna, pnstuintaa a sweeping series of measures for the regulation of the safety *cavironment' or

• culture" oflicensee facilities. In our view, these measures are neither necessary nor likely to be effective. Of equal concern is whether they comport with good public policy and law. In sum, the industry believn:

3 There is no demonstrable need for more C==l**bn action in the area of employee concerns. Sound publi: policy demands that the agency not impose further wgulation or take a diferent regulatory appmach without elently identifying tbs need for auch action and carefully expiata8== how the potential benoSts will outweigh the costs, including potential adverase consequences.

Postulated beaeSta are outweighed by potential negativo conseguonoos.

e The initiath ca suggested by the NRC an vague, internally inconsistent, and ineopable of being ob,iectively anfomad by the NRC or nRectively implemented byits liceusen.

The oursested " strategies

• are of questionable legal vandity.

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Mr. David L.Meyer my 27,1997

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% Commission alisady has issued a Statement of Policy providing its expoetations

- regarding 11oenase naponsibilhy to promote a safuty ounecious environment:

• heedo n of Employees in the Nucleur industry to Raise Safety Concerns Without Fear of Retoliation." (81 Zai Eem 9.4M8 - May 14,1996). In our view, that policy statement obculd be exercised before co a idering further regulatory action in this Stea.

We appreciate the NRC's willingnosa in pmvida the public with a discussion of the reguhtory actions it is considering. The opportunity to comment, before the NRC has deimnined the specific approach it will adopt to addrvu a given avt of circumstances, is likely to produce a more informed and, therefore, a better agency dsion. We would be happy to diaenes our viewn with t.he NRC staff.

Sincerely, f

ws-a Ralph E. Beedle be RED /ECG/ree i Enclosure e

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. Enclosure COMMENTN BY THE NUCLEAR ENERGY INDUSTRY 1

ON PROPOSEl> NRC ACTIONS TO ENSURE THAT LICENSEES FROMOTT.

A SAFETY.CONSClOUS WORK ENYlEONMENT I.

NRC'S CURRENT RULRs AND REGULATORY PROCESSES Err 1CTIVELY FOCUS LICENBER ATTENTION ON inr NEED TO MAINTAIN A SAFETY. CONSCIOUS WOME ENVIRONMMNT The NRC is considering regulatory action to addron ite sonocens rogarding tho effectiveness ofliceneses la establishing and maintaining a safety con duus work environment. This enclosure providos our detailed commenta ne that notice. The specifie questione poort by the NRC nm auhaumed in thin tant and are not naparate}y addnesed.

The main concern the NRC seems to be addressing is that 'the Ananga of the Mi11stano Independent Review firnup . . . and industry. wide allagstion data suggest not alllicensees are successfulin maintaining a safety. conscious work environment." From this Emited insight, NRC appunntly bus uuncluded that ihurv is a need to focus licensees' attention on these issues through a ngulation or

(' another policy etatement, b ngulation or policy statement being anneidered would attempt to dcEne the attributes of a safety. conscious work environment, identify the indicators NEC will consider in determining emerging adverse trende nt individual plants, and identify actions that the NRC can impose when it determines that a licensee has failed to maintain a nafety.crmarinua work cariavament. Civen & existing ngulations and other regulatory options used by the NRC, there appears to be no r.eed for an additional prescriptive regulation or a policy statement.

Existing Commi iva regulations,10 CFR Part so, aquire that r.afety ooneerne be nported and neolved. Licenscos and their employees are prohibited from diacriminating against empbyecs in retaliation for their having raised safety monurne. Licenens are regnised to post a notiew. apacihd by 10 CirR 19.12, informing employees of thne protectinna and of their neponsibilities to report safety annonena, either to the licensee or to the NRC. In addition to those direct, speci5e requirements, the Commission adopted in May 1996, a policy statement which explains the Commission'a nouiramnnta and espectatinna and identi6os ponible licanaec management actions to moet those objostivos.

Quality Assurance Programs also are an integral part of the licensee's ethrts to ensure that employee onnrerna an reportAd and then properly addressed in a timely manner. Implementation oflicensee Quality Anurance Progtuma has been andla subjocted to continuous NRC inspection. Lapees, such as failurve to document and k g I

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ourmet ident1 Sed dcociencin, are fuguently L1m sub),et of NRO enfarnement action.

implementation of the proposed FederalJtettsatt requirements could unfairly subject licensus to enfnnnment an'!nn on two fmnts based on a single event. For saample, Endings made by a heennoc's quality wurance erganisation onuld be usod by the NRC to centbde the need for enforcommut activa lim Ucensee's emp!nyce l

concerns program cr other progratas for identifying and resolymg safety and ngulatory ounwns am shown in hn in*Nective.

NRC devotes substaula! inspection and investigative resuurves to me===e compliance with its 1)(2 Policy Stateme:t and regulatory regaremente. N agency actively investigatas, nkrations of dinerimination, imposes escalated enfurcoment when it or the Department of Labor (DOL) Aada that discriminarion has occurred, and publiclues its actions. In fact, the NRC Enfumumuut Policy .

speci5es peerity levels for violations of10 CFR 50.7 that ennvey a clear message that such vialations am conaldamd mnm anrinun then all but the mom safety.

signi& Ant violations. N publication of NRC cafurnement actions, combimod with posted notices and licensee sponsond training, serve to enhance employmen' awareness bf the local protections that assure they can nport concerns without fear afntaliation. i o

l The NRC's existing measures effectYely ennits that licensee management malgns a high priority to maintaming a workplsoe safety culture, h NHC cites no i evidence to demonstemte that licensw. adopted attinna dn ,nt fulfill t.he ntdactive of ennring a safety focund workplace. N only contraryindiention containod in b Federal Register noche relates to circumstances that alther pm.date the Commhsion's 199C Policy Statement, or occurnd so closely to it that they do not provido any bases to conclude that the Policy Statemen 4 nnt effnet.iva.

l l N N1.C's substantia' e5 cts 6 to assess compliance with its regulations and i

understanding ofits expectativas from the polley statement on the owd for a safety.

Mw work environment have not diaelooed evidence o(widespread prohkma.

l In L1m invlntal instances where the NRC han identised a condition as a problem, strong enforcement action has been taken banod on existing authority. The,NRCs actions at Millstone undercut the agency's argument that additional naulatory notion is nooemary becaum bn is litth (escluding b "holting period') that tha proposed %tatesim* would achieve ht the NRC cannot achieve by mains asinting ngulatory processes. The NRC's current inspection and enfbreement program is adequate to identity, in a timely manner, those few instances where a licensn's safety cultun dou not appear to meet the NRC's sepantatinna an am identi6ed in i

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-( the 1996 Policy Statement)

The actions taken by the NRC to address concerns regarding the Md1 stone plants an examples of the NRC's willinpens to exerc.iw strong enforcement measures to addnse workplace conmrns. The NRC not only has impoacd seven monetary pnnnitian against Northeart Utilities (NU), but also has taken the very unusual step of requirinC NU to constitute an ind5 pendent evenight organization to n6 e NUs decisions to addrums workplace lasues, an well as requiring NU to establieb a comprehensive plan to addnas issues identded by the Millstone Independent j

Review Gmup (MIRG). Indoed. the NRC's October 1998 Order to NUin response to the MIRG iu udoquato evidence that no more regulation is mooded to enable the NRC to respond to concerns regardlug the adequacy of t given facility's work environment.

The industry is keenly eware of the NRC's ability to demand, through its regulatory processes, that licenseen mwt the ivuer of uninting regulatiune and ensure that licenstes work to meet NRC's more general expectations act outin the 1M Policy Statement T.icennaca have engaged in rJgnifiennt a*. forts to institute a variety of formal and ininrmal programs to ensure that they are encouraging thh workforw to come forward with concerns. These vedonx hun been taken Luth because die NRC has made cicar throughout the past neveral:' ears the necessity to focus on i work envimnmnnt iuuna and because to do ao is sensible business practice, To the extant that any additional regulatory attluu is taken tu addrene nuclear workplace issues, we suggest that the IM Pohey Statement be the vehicle to cis-ify any amhiguity that rmwr, out of a September 12,1994. decision by the Secntary of Labor conocrning the employco's obligation to repert safety concerns.

The Commission should ranke unequivocal the employee's duty to promptly inic;m the licensee of safety concerns, at least contemporaneously with any notification to NRC.1.icenaena anmpt their non de!egable responsibility for the safety of the plant, but cannot be held fully nouountt.ble unicac they have the opportunity to invntigate an6 evaluate safety concerns as soon as they are identlEvd. In the unlikely scenarlo

'la fact, NRC ruidant inspectors have a good vantage py.nt besa which to deteet whether a heenne is malutuhdug ae ur ty.wumivue mmL eavironament. The NILOiteeM ruegnised the earsagth d&

feature ofits regulatory apptwch in dw .!=musti le64 report i L the Be de* Team for " xment of the b%C's Program is Protecting ADenvrw Ammiunt kimbliuu ("hdow has report *).

The NRC inA:vidual best plaad to observe the t;uality auneduumuma

(the hesnaee's wtrkplace is renotally the NRC resident inspocur.

In itequent interaeuon wtth employees and supervisors at au parts of the licensee's ceganisation, many resident inspectors nodily develop a sense fm which verk groups are most ettetent at problem identificausn ard Maolution, and, on occamon, ad:ntify podarts within the workplace when individuals sum nbetant tn reine concerne or provide irformation to the h30. (Raview Team nport at p.11.8-3.)

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($ that the employes suffers adverne employment action as a result of fulalling 2 .

obligation, the NRC and DOL sach have the nouisite authority to take swin and effective remedial action.

II. NRC'S FAR REACHING PROPOSAL 18 AN UNJURTmED RADICAL DEPARTURE FROM EVIRTING POLICY AND MAY RFAULT IN ADVERSE SAFETY CONSEQUENCES.

N Fhderul Regiek motloc r9 cognises that tb NRC is considering regulatory actions that an far. reaching and sinnhetly dissrent from the NRC's existing regulatory approach. Although the NRC describes the purpons ofits proposed action as standardizing its neponses to concerns about individual work environments, adopuun or(1 agency's proposal would codify a highly subjective and ambiguoun set of attributes and indicators, as well as a pre determined not of nmndian that may be used by the NRC at its discretion.

The NRC's impleavulmuun of hoe meanures would dimotly involve the NRC in the employer. employee relationships at nuclear power plants. This represents a sharp de partum frna NRC's lang. standing policy of placina full responsibility on licensees for identifying and offecting the management measures necessary to achieve safe operation. It also divergvu frum tlw 1996 Policy Statement which neracted proscriptive requirements and acknwiedged that approaches to addressing these I inanna must nenPAAarily reDect the d5velaity of our Workplaces; 'The Commisalon recognisce that what works for one licensee may not be appropriato for ano4er? .

Moreover, the Fedenal Register nouce helf v'Auvwledge . ' hat departures from a safety conscious work environment are much more efec inly corrected ikom within a liconama'a neganiration than by the intervention of government or another outalde agency. This was nieu the view aspmseed in the NRC Review Team's January 1994 report, which found that saflety culture was und to Llw unrull prvuveeve for problem identification and resolution and that continued emphaans on this area was warranted: "Howevne, the. Team alan klinvem that this is a management issue: to be effective, thic emphasis must be cultivated from within oaeh lisonsoo's organization and, av euch, is not achievable by prescriptive aquirements. , , "

This radical departure apparently in hasaA nn eventa at the Minatana plant and

• eeveral [unidenti5ed) facilitian? Beynod that, howevar, the NRC dooe not identify any basis that compels or even supports this unprwundenWd departure in agulatory policy. NRC provides no objective evidence that employees have fa:!od to disclose safety annoorns for faar of advaram employment action or punishment for hisving done so. The *ctandard options" suggested by the NRC as needial measures to -

deal with perceived symptoms of a " deterioration"in a safety. conscious work environment (ir. eluding the ordering of special independent surveys and oversaght activitica) nimilarly have not been justi5ed. Stripped to their essence, they simply are an caerciso in attempting to regulate " culture' or "t, tate of mind." We submit that decisions about huw, whvu or whethen such mens ares are necessary require an 4

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l m. depth understanding of employee relations at its particular facility; sa such, they i* .

should remain within the province of facility management. We do not beheve that the NRC is able,in light of the ambiguous and subjectivn performance measures 4

ideutLa in its current proposal, to identify a

• deteriorating" aufety conscione

' envarvuuut, much less to justify regulating based on auch a Anding. Witb9ut a 4 demonstrated need, these steps improperly impinge upon management prerogatives and derogato from licensee management's ability to pmtant public health and j malety, 1

i The industry also is concerned that regulation of the type proposed by the NXC i

(prescriptive requirements and intrusive agency actinn tn anhinvn a standardized approach) may actuaBy detract from efforts to dmlop a safety conscious work environment. An inaccurate amassent of safety cultun by the NRC, leading it to onnelude that b licenace has failed to maintain a safctyennacious work i onvironment, may nault in morale problems and a perceptior, by workera, n1hait unfoundvd, that manasament does not fairly addman worker concerna. This could severely undermine even the most meriterious and extensive aetlocs taken by

' mant.gement to ensure a healthy workplace environment and good communication with its workors.

Imposition of a mandatory " holding period " which is an intrusive governmental action by any objective standard, may have a particularly adverse effect. Many

' cmployou have well establishod eyetems of graduated disciplinary methm and nthne

' mouvurn whh:h are essential to maintaining the order and discipline so necessary for eiteetive inanagement of nuclear facilities. The NRCs stated purpose, to

" neutralize the conflict in b work environment,"is laudabic. But,in attempting :n achieve that goal, the agency must avoid taking actions that an likely to interfm I ,

with a licensw's abDily tu manage its workfotoe through those employment and

labor policies it deems most effective to safely operate its plant.

B1.

THE PROPOSED INDICATOR 9 WOUtn menULT IN EURJECiMT EV4LUATION 1

Evaluating the anfaty rumsciousness of workers in a nuclear plant is an evaluation L of their " state of mind." Ao euch, the Ladustry belims that an accurate and seliable i

assessment of the intangible " safety cultuaw"is impracticabb. la fact, our view is supported by the conclusica of the NRCs Reviet. Team that

• achieving a deAnite, -

agunntitative characteriration of quality consciousness in the nuclear workplaat is an unrenlintie sonP' i

The language the NRC suggests to implement thcao measures dealgned to regulate human behavior and " state of mind? is as comples and subjective as the behavior it ,

occks to regulate--and contradictory besides. N 6tandards that would ha vand en dictate that unforcement action be taken against licenms are subjective, based on j

( criteria that are pot reliable and, in the NRC's own words, fact patterns to which

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i they ould apply *can be ambiguously interpreted? Each of the tvuununended *

'indLiers" presupposes a osarch for fads that can be misleadtag and would require tb NRC to make highly subjective ananamenta.8 An NRC notes in its

• reguvet for comments, "[e) valuating the safety consciouenoes of n Ibam's work g environment is higiny subjectivo, and achieving n11 ability in soda au vvaluatien requires careful judgment." We quaetion whether the " reliability" of any such judg.nonta aan be demonstrated.

For examplo, two of the four indicators Jdentined in b Federal Jtegisser notka fncun nn inemam in the number of employoo allegations related to concerns of retaliation or plant safsety. As the NRC itulf acknowledges in tb hiami Reti r.kr not.loe, legitimate licensus act. ions such as downsining can result in a air **=t increase in the number of employeo comp 1rinte of discrimination, even though a -'

pnaitive anfety. conscious work environment axists. Also,in its review of allegation statistlos in SECY.97 006, tb NRC concluded *. . . that analysis of raw allagntion i

data alone had uigulamut tuultations, which made it dif$ cult to draw inferences regarding a given facility or to make comparisons between plants . 7 The NRC furbr anneludnd in SECY 97 006 that the number of allegations received is '

, aigniacantiv affected by factors obr than the safety culture of a plant. Momnvnr, SECY 97 006 rvpurta that an NRC staffinspection of one plant's employee concerns program recognized the limitations ofins.*c: ions in ansessing organizational eHmnin, na did NUREG 1499 and the Millstone Independent Review Group report.

,- We further observo that the numbers alied upon by bse indicatore also will hn affected by the impositiuu uf a *14: periody Allegations of discrimination may increase when employees recognize that engaging in protected activity will ensure a basis for mntinuad pay and beneSta following any employment acten they deem advern which they may anticipate will be taken against them. Thus, an inemase in the number of employev allegations is not a reliable indicator that a safety-conscious work environment is not being maintained.

1 Nevertbless, using admittodly subjective judgments based on ambiguous and unreliable data, the NRC propumus to uwlect and impose the speci6ed sauctions upon licensees. Many of the " remedies" cited in the proposal are tools already used by i management (e.g., employee mnnnrna programa, surveys of employoo sentiment, independent oversight organiantiono, or continuation ofpay and benents to an '

employee while resolving allegiations of vaployauent diacrimination). Decisions regarding whebt and how to deploy bse tools should only be made with the 8 Cunounty, the number of allegsidons brought to the NRC h wus'alwed a 'magativ indiantsv.

l Thus, the proposed regulation or policy would penahre harnemus wnaure employees are treely reimas coaccres to the NxC. This uuukt wnd to

• ai64 the stakes' when caple.nes apprumuh thu NRC asal, thereby, perhaps have a chuhag e5ect on employees' wuharness in bring amoras so the hw which is comp)etely cor.trary to the eaal sought to be achieved.

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insight and knowledge of the speci$c circumstances of the caso and conditions at b facility. *

' The dif5eulty with assoasing safkty culture is hkely to lead the NRC to taku inconsistent enforcement actions. For example, various members of the NMC staff an likely to differ on whether a particuhr not nf far:ta at a linanana's facility constitutos a lack of safety conscious work environment. Moreover, it is ennecivable that a single NRC inspector could reach inconsistent conclusions about sicilar fact patterns at different facilitics. For example, how will the management attitude" attribute be de&ned so as to ensun enforaement on thin attribute dona not vary widely.8 In addition, b indicaton depend so heavily on & penoptions of the work force and the reliability of those perceptions tbut it will be very difScult, if not impossible, to ensure equal tavatmest oflicensees.

We alue uute thatElven & extremely broad, vague and subjective nature of the indicators identt6ed in the Federal Register notice, actious Constitutional gut stions wnuld be presented if the NRC's proposals were adopted. It is well established that governmental requinments must be sufEciently specifle to inform thow wnbject in them of the uuuduct un bir part which may nader bm liable to penaltion. An seen in l'sn=lly v. General Commuetion Co. 269 U.S. 885 (1926), fair enforcement requires speci6c standards to avoid arbitrary and discriminatory application. Also, n regulation, like a law, will be struck down for vagueness ifit lacks specific i

' guidelian for wufuruummut. In P.ana.ek 'Stou v. City of Jachaenville. 405 U.S.156, 168 (1972),4 h Supreme Court struck down a statute noting that it kcked standarda for nearcining discretion which " permits and encourages an arbitrary and discriminntery onforoomont o!b law." The courts requin that laws and regulations be susceptible tu objective measurement.5 We believe the NRC's proposals as set fonh in the tederal Retwier notice fail to meet that standard.

Further, we believe & NRC's proposals, if adopted and enforced, would fail under the Administrative Procedun Act as " arbitrary mud capricious . . . or otheninae not in neoordance with law." As is evident from the decision in Chemical Manurne turera hav v EPA 2R F.3d 1259 (D.C. Cir.1994), although agencies are accorded wide discretion in rulemaking by the courts, their regulations will not be upheld if based on generic atudies and " speculative factual anaertivas? Nor will regulations survive court review if they rest on questionable assumptions and hypobwa haaring "nn re!.ationship to the underlying regulatory problem."

8 h is questhmable whoeu Gere is a legal teals for hLing enferoement aarton a en on the beans of *siamager niinuis?

• In the Eanachtistan mae, the sourt found that the ordmance wee also vague because it feued to provide adequata acties i h mma Rag lae. v. L% 631 F.2d lo30 (D.C. Cir.1960) (noting that news that enD for subjective judstment without the use of objective norma are invalid dueet agunanna).

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i These esses espture the essence of the instwity in the Commission's proposals.

Thm has been no showing of nud for the NRC's proposale and no support '

identiSed to demonstrate a relatio: Jhip between a "deterivrated environment" and the m' dicators to identify

• adverse trends." The NRC has not e.,,ided any evidence that its proposed wmedial actions will effectively addren the " regulatory problem" it perceives in a given work environment.

IV. THE STANDARD OPTIONS CONSTITUTE INAPPROPRIATE REGULATORY ACTION AND ARE IJuwL" TO um FOUND 1RCLAY t Y INSUPPORTABLE There can be no dispute that the work envirvaments among NRC licensen very and thet ths 'aafetf culture" ofIloemeees similarly will vary. The NRC neogniwd this fact, statius in Lbv Netullhwiste notice,"what may be neousary (to wtablish a safety conscaous work environment) for some licensees is unnecessary for others."

Sound regulatory policy dictates that tbc NRC craft its regulatory actions to include suflicient Bendbility to allow norroecive actions to be tailored te St the problem at hand mud to permit a licenswe's aranagement to use its judgement without nadue interfeMnce.' -

e Independent surveys, one of the proposed industry awasures, have not been shown to by an adequmW menus of axurately anesseing a lluvuswe's matety culture. Under i

the NRC's proposed squirements, the survey would be initiated in response to an

• nmarging adverse tand" or *when conditions arise that indicate the potential caergeneo of an adverse trend." The indiantore proposed to be used to determine the " potential emergence of adverse trvad" or un " adverse trwad" laulude au im:rvase in the number of employee complaints of discrimination. As discussed above, an inene of allagntinna is not nacannarily a reliable indicator of work environment

! deterioration because the increase saa romult from legitimato lioonsoo actions, such i as downrizing, enrporate reorganization etc. At that point in Limv, a survey is likely to result in an inordinate number of negative employee comments and, thmfnm, the manits wnulel not ha indicative of the overall nafety consciouanoes of the work environment, la this content, a servey is only indicative of emplayoo views, ifindicative at all, kr a discreW period around the time Lhe survey is Laken.

% NRC Review Team recognized that "a sunny would not, of course, give an automatic scuuro of quality consciousous in the work place. To say that Ave percent of a licensve's employuus respumlod lu a given manner immy meau litus; however, comparing relative results might reveal pockets within the licensee's organization with signincantly different responses." The industry dou not bclieve -

e The NRC Review Team reoornia & the importaan of h=e discrvuoo in these manere. Sec. Ar example. Review Team report at p.!!.A 5.

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that survey resulta will prove useful even in such relative comparisons within a

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aingle organization. For example, if there are substantial changes in the organization orits personnel, the common ground for predicting ufety milture changes is lost. For this reason -the lack of a common point of nferenoo . .the value of usio, . .urvey instrument to compare the climate among diffennt Heenrecs is, at best, questionable. The appropriate approach to employee surveys and use of the survey results may vary considerably depending upon the nature of the workforce and the particular manas; ment inum at a speciSc plant. Such decisions regurding the use of surveys should be made by the licensco management responsible for the afe operation of the plant. The NBC staffia neither quali5ed nor in the best position to make those decisions, j

Another of the measures proposed by the NRC is ordering a Ifoonses to establish an  ;

independent group for oversight oflicensee performance in maintaining a safety.

conscious work environment. Indisputably, this will be an expensive undertaking at u nuclear power plant med is not likely en yield particularly uneful resulta. An maightful annument la hkoly to require extensive rev}ew of plant recorda and interviews with a large number of bcensee plant and corporate persotocl, as well as NRC personnel, all of whom should have had the opportunity to observe liansee's perwonnel and b work emironment. This ef>t is likely to dinrupt normal site actmty, and equally important, creates signi5 cant potential for abuse of the process by employees dissatis5ed with licensee actions for reasons completely unrelated to j the maintenance of a safety ==+us work enviroament.

Yet another measure proposed is that of a " holding period." Under this proposal, the NRC also could impose a requirement that pay and bene 6te be extended to employoos who allege discrimination, based upon b mere filing by the employee of an internal ur DOL complaint. Pay and benente, the practical equivalant of administrative leave, would extend throughout the period in which the licenseo and DOL (if a claim is filed) conduct their.invostigatious.

MandaLing a %1 ding purkal" la an action outside the jurisdiction of the NRO. It also is inappropnate regulatory action based upon its dina intrusion on rnanagement's ability to address ita work force issues. In the Review Team Report, the NRC already rooognised that it anamat order lioeneeos to implement the

%1 ding period" approach: "Although 61m [ Atomic Energy Me) provides the Commission with the authority to take proscriptive action against a licensee for discriminating assinat emplnyees who raise safety concerns, it does not provide anthority to order a direct, personal remedy to the employee." That statement notwillstanding, b proposal would have the NRC continue to pursue the imposition of a " holding period."

Clearly, b statutory scheme provides that the DOL, not the NRC. is to provide the navam for an employee to obtain a personal rdmedy for discrimination. The

%) ding period" would circumvent the express terms of Section 211, and indirectly

(

provide a personal remedy to an employee band t;pon speculation that this measu,ro will minimin a chilling effect ora other workers. However, whether or not an employee meeiven additional pay and bonofita mandated by the NRC during the 4' course of an empicyment dir.pute is not likely to afEect the concJusions of other employses concerni:g whether they feel free to 2aise safell' concerns without fear of retaliation. h adverse effect a holding period" would have on a licensee's ability to effectinly manage its workforce is not justified by the questionable benefit cited by Lhe hderalReghter notitx.

To the extent that the ' holding period" contemp tied fa the FederalRegister notico usurde the complainant a form of *administrativo loave" with pay, DeFord v.

Secretary of LRh2T.,700 F.2d 281,289 (oth Cir.1983) establiahed that not even the D01, has authority to order it. Nor does anythier, in the Energy Ecorganization Act x ennfer authority on the NRC to afford such a personal remedy. This is confirmed in '

c " Memorandum of Underotanding Betwoon NRC and Department of bbor; Employee Protection,"? delineating the revpvetive twpunuibilitius of the agencis . b protecting employees against disenmination. '

Specifically, the DOL has the responsibility to investiga'o the complaints of discruniration, hold administrative hearings, and, where appropriate, order violators to correct violationz by reinstatia! the employees to their fonaer positions with bart pay anr1 nwarding mmpenantray damngen (intluding attorney fen). On the other hand, the Memorandum statca:

(Thel NRC, tLouth with.out dirtet authority to crovide a remede to an emnlovee. has independent authority under the Atomic Energy Act to e take appropriate enforcement action against Commission licenesee that violata the Atomic Energy Act, the Reorganization Act, or Comminion requirements. Enforcement mayinclude ljoense denial, suspension or revocation or the imposition of civil pensWS.

47 ?:d. Esg. 64635; December 8,1082 (emphasis added). "

The Memorandum clearly delineutes the typw of remedial > ctious that the agencies may respectively take: NRC has no authority to provide or order any form of personal remedy.s The legislative history also confirme that Congress did not inund to give the NRC juriediction to award perarmal mmadie it, employen that vrn diacriminated against. In the debate over the Energy Reorganization kc of1078. It was stated 47 EsL?g;L 54 685 (Dec. 8.1M2).

• ?wn the May 14,1996 Pr.,Licy Statement said,we repect to implainn of dheriest6,7tJhc NRC win focus w heensee adions and does not obtain perscrshineens for the irdddaal." 51 Eedst 24337, n.3.

10

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' that the DOL's new authority to investigute und afford a personal remedy for k' alleged acts of discriminatse was distinct hem the NH(Js limited authority to investigate discrimination and take. action against an n&ndinE li cRnnee-emphyer 9 The Energy Policy Act of 1992 czpanded the protoction of nuelcar industry ,

whistleblowert, but it did not give the NRC uny authority to issue personal remedies.10 Our position regarding the inappropriatenen ofleposing a " holding period" further is supported by the NRC's remgnition that "potendal crists for abuse of a ' holding period' policy,*u

' where an employee can personally bencSt by the mete filing of a complaint, even if the complaint has abenhitely no marit. Thn criating IX)T.ptnenaa

- prmh a personni remedy for an employee ban d upon an WWatrative Law x

Judge's reco: amended Anding of discrimination. This remedy is speciacal.ly '

[J41, i provided in the 1992 amendments to Section 211 of the Energy Reorganization Act, n

The opportunity to obtain a " temporary" perannal remuly (paymonta in the employee), t.riggered by the mere fact that an employee files an internal or DOL complaint, and which could be extended for periods of several months to a year based solely upon the findings of a preliminary DOI investination, may give employoca an incentive to Ele baselers complaints, discourago employees from settling disputes early in the DOL pocess and promote litigation. In other words, it

]- .

could upset the balance Congress has established in S6ction 211 of the Energy Reorganization Act. If the NRC believea the balance established in Seedon 211 I abould be different, it abould request that Congress amend the Energy hurganization Act.

Finally, the proposed " holding period" policy would have the effact ofimpering specine penalties on licenmoon (in the form of payment of pay and benefits to wnphunants) before the licensee had the opportunity to exercise ste Administrative Procedure Act hearing rights or any of the basic due process to which it is entitled.

Where a licensee appeals and requesta a hearing, the DOL itself cannot prusle the employee with a personal remedy based upon the nndingr s . its investigation. NRC should not intrude into the procen by pmviding an empl, roe with a remedy that io clearly beyond the authority of even the DOL, V. CONCLUSION The industry has dedicated a great deal of affort to encourage employees to come forward with safety concerns without faa. of retellation. The many programs

• 124 Cong. Itec. 515318 (daily ed. Sept.18,1976) (statement of Sen. Hart), see mLe 8. hp. No. SF-thsenmma(tiac through DOUs admMistrative procedm).648, et 29 1976), te

1. E.1tep. No.102 474(1) at 227 (1W2), reennted m IW2 U.S.C.C.A.N. I963,3060.

"62 Fed Ret.8785 5739 11

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implemented by licensees, some of which are required by regulation and some of -

k which licensees have instituted to addrm workplate issues unique to their sites.

npresent just a part cithe industry's overall commitment to safety, in the broader .

context, and as a matter of everyd y me.nagement,licenese6 eeek k ensure a mulet).

conscious work environment because ur ata critical relationsby overt.ll plant safety, in light of the ongoing industry efforta and the h3C's ample existing regulatory authority, NEI urges that the Commission let stand the 1906 Policy Stawr eut as an amrmation ofits focun on a safety-conscious work environment.

Q 9

12

1. -* 'iGHMT 4 (JNIONOF CONCERNED .

. , < .D SCIENTISTS ,

l. , , , ;, ,,33g April 15,1997 h..--

. d.;

Mr. David Meyer e, -

Chief, Rules Review ed Directives Branch Office of Administration, Mail Stop 76DS9 Division ofFr s U. 5. Nuclear Regulatory Commission Washingtoa, DC 20$$$

SURECT:

COMMENT 5 ON SAFE 1T CONSOOUS WORK Dear Mr. Meyer. .

The FededJtegister of February 26,1997 (Vol. 62 No 38 p ,

on NRC strategies in addressing the and for its licensus to est bli h, a

work savironment. The Union of Concerned s and maintain Scientists a safery. consciousresp If there art any goestions or commets, please do not hesitate o acatact me.

Sincerely, (LUk)((. lg.

David A.Lo aum Nuclear Safety Engineer

- sa:losure:

UCS Comments on Safety. Conscious Work Environment WesNhren oths: 1918 F Stee1NW Sute 318 . WeeAbgt CeWerNe Omos: 2307 thetask Avefwe aves 2o3 toft lCambridse Om 3:34820e64 se ey S22344106 CA 947ed.14e7

• S17447 3104431472 9552FAX FAK: $174644406 410443 37 84 Q y 1 .7 v _-

. 7C$ Concents on Safety-Csasclotts Work Environment IXECTTTTVE

SUMMARY

elemer.t af any successful nuclear sa(fety pro nment to be a vital savironment are aest effectively prevented, with the NRC idenSied that problemsand in the work t

organiza: ion, rather than by government ,

o vement.

or other outside inv ltwolve believe that the existingor safety. .

plicyconscious statsant or frwdom work environments. We regulations is sufficient to and schieve &c NRC's o employees in the suelearindustry to raise sensistent enforcement of existing ob zed in the R4enaf Jtegistermotice.

The proposed standardized appmach is the NRC's reactio licensus to the unnecessary burden that would b o:. to issolve, it is anfair to subject C The root cause of the high profile safety culture y the proposed problems standardized w approach.

and by the NRC to effutively respond to clear signals of det ias failu buone untenable. The majority oflicensus , er oratingwho hav until they had conditions should not be expected to psy'for the mistakes of a small an be a er of .v.

sees and the NRC.

longer be accepted; it demands tangible evidence promisu of better things to come wi!! no issued a report entitled

• Reassessment of the N censw performance is irsproving. The NRC Rataliation" (NURIG.1495) ram on forProtecting the lessons Allegers learned Againstor froms policy statement on worker protection in 1995, documented rt e actions in harusment and intimidation cases in a repor issued a request for public t entitledcomm,ent "Assesamsaton of the cement a NRC Enf safety atament on worker protection in 1996, sad surrently has all of the and maintain s safety <enscious work env us regulations work savironmentinpolicies s e iberations 1997. The NRC on the subject. The NRC and h ahopping and buy into its own programs. ironment.

window-It is simply ti D

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April 25,1997 Page1

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ws6Co5asaEon Safety-Conscious Work Ei nv ronmalt -

RESPONSE TO $PECD"lC QUESTIONS

1. NOTICE: IN THE IJcessess Establish and Maintals ppeach to Essarlag nment?

ana:safety C The WRC abould HQI establish a standardi.ad ne approach as or as discaued in the redadAegistermotios. n ts The willnot proposed ymposed stand language positinly tharsfore anwarranted. affect the safsry es! ury a the mWority n approach ower plants and is of operatin The mWority of operating nuclear power plant :a==amas prov savimament. Emplowess are free to e arain safetyn ork s doty seassion monearns to th through other internal svenus (such as ansnadiate saployee supervisors, essponsibility under 10 CFR partc have ,

50,a Appsad;x .

sddress take that nsponsibility very seriously. These haaa potential conditions adverse to quality in a timely manne

. The toWority ofliosasses assess potential problems, including concerns expressed by em es, and pristitias their standardiasd approach would unnecessarily b administrative erefors, the proposed osases: with

+

f

- performance, oosts and reporting aquirements without a co The proposed standardised appmach is a roastion by the NRC t profile safety culture problems. While thus probisms demandedo a to ast,olve,it is unfair to subject all nosasna to and the s reesived NRC anention by the proposed standardized appmach. The soot sause of the problems was failure by both theg specifk proGle safety sulture licensees and by aspond :o clear signals of deteriorating staff anaditions to affectively antil they had b majority oflicensus, who have maintained ecome antsaabic. a notsafety.

The conscious w expected to pay for the mistakes of ansmall r p ace, t e NRC.

anabst abould be of Lammaan 'a In addition to the facess aspect,it is not sisar that the a eas 4 high profile safety culturs pmblems an currently suist. allinvolved The npea that provided ample opportunities for early gnals of interventi detsriorating sontmons is an impmper solution to thea etypmblem conscions n!smaking of a smalfan follow naulations and the NRC staff being anwilling to ng iar oflio

. expected to pay for the fanits r p nes,ahosh:

n t e NRC.

of a not besmall aumbe UCS believes that even one safety culture pmblem is ese ma ngulations and policies to be adequate to address the situation if ey wars safsesed.

k April 25, Ipp7 Page 2

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TICS Connests on Safety-Conscions Work Enviro' rent 2.

If Such an Appmach Wen Adopted, Weald k Be Most Effeedve a t

(a)

' 0) A Proposad Anlemaking that Would Amand Pat $0; (c) a revision oc the NRC Enforossant Policy; or l a separately issued Commisvoa policy semenet?

1 three options are afective. The NRCof these aeosssary,none issued a p 24336). De policy r.atsmaatoutalong with risomas Fear of Rstaliation"(FR

' segulations is all that is needed to assure a safety 4onscious wo ament.

3.

Presented la Section IX, Belcw. u a os orPolicy, Weald a lacteas in Section DC would be its emost ra t anguageafrutive presented s andardiand approach is a treass suse of the high pmfile safetyo ems. cultun The root pmblems w by the NRC stas to affectively respond to clear e specific signals lineasses and et deteriora buase untanable. It is wrong to propen new rules to sorroet sig n cant, but isolated, anwilling te adect compliance. At the sake of e eing along with risomus and soasistant saforcement ofexisting regula ,

x st ng policy statement s all the is needed.

4.

(Comments are specifically aquested as to whe a Standardized Approach?

abe objective of reducing the potestial fon chilling effset la th No ooxasnt on the holding period. ronment.)

not required for most licensees licensees pavide a safetygo s t at such asand effortis any actua employw cesserns program.nscious work savironesnt. Some lisensees ase escalate concerns to senior management Jr too the quality a independent ass ssment. Some licensees encourage organisation for the true sad even going to the extsat of swarding recognition and prians to emplo However the erutiveness of these pmgrams is plant specific k oyees for saising sonesras licensees,with safety. conscious work .

s savironments g ly doubtfW that two could s pmbitas at both facilities, k would be equally aseless and pmb ble r impose

• one sias fitsa all"prescriptive proposition. standardized approach.

A safety consci a y countar.productivt,to

( The secondary disadvantage of ous work easironmastis not a allusion, but not the assurance, implementing a standardized *:pproach ofrender can hang of cleverly eenectingcrafted the problems. Even the worst meaningle posters,incorperste safety cultu April 23,1997 ss bun words and tricky Page 3 I

UCS Conot sts on Safety. conscious Work Introrcent .

undermined when such words ,

art backe e sales message is 4

sampaigns. Nuclear workers are not stupid - toey esadily und n midation

• Door" policy expressing safety means when they see pthat conoorns. door n whst being the new oyees terminmed ak

'Open used by 5.

Wie othersneans orlodicators alght the NRC use to evaluen sus 2 other than the indicson meadosed e esasse la the language perfonamme eow?

la this of S The NRC already hw adequate meer.s sad indicators to eva area For example a de NRC's 051ce for e censee Analysis performance and in this Evaluatio (AEOD) issues an , nnual sport (NUREG.1272) tant includ perational Data plant for the prior five years.in thee 1994.FY 95 mport) list '

regarding sach apers: inst (Table 7 in the Fiscal Year 1996 for the prior two years. a nport) eport that includes a table listing e action history for operanns plants i oversight at potential problem altes. No ad e g tened regulatory NRC Region 1 Administrator, stated during equired. Mr. the RegulatoryInfo Hubert Miller, 1997, that the Plant Issues M>trix allows culture probisms to is a willingness by .he NRC to take action entified. when dete Al' thati is seeded high profile safety culture sites. In evident ere slaarly fact,at theone of t g' to the plants being placed onee the .

NRC's out of the fouryears priorWatch licer. sees behaved badlyp y and responsibilitin. '

ecause a the NRC anall minority of stuT gent in its esgulatory oversight 6.

to Requiring the Bolding Period, enting the Altersselve as Described Approach la os VL Abovet No somment. ~

7.

IJcensees Establish a 4 Mainta!n av ronment?

ective la Easattag Dat a safety 4 De most effective approach in ensuring licensees establish and work envirennent is for the NRC to cleady maintain semmunicate a ssfety+- z% it back up its expsetations with rigorous s expectations to licensees andenforc and sensistent to The NRC communicated its expectations via the policy statem

' Freedom of Employees in the Nucks Ind ement issued in May 1996 on April 23.1997 ustry to Raise Safety Concerns Without Fear of Page 4

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UCS Concend on Safety-Conselons Work Environment i

Ratallation" (FR 24336). He message was clearly communicated and does not need to b aperte Individual licensees who msy not have understood or heeded the message em and aboult N handled through the NRC's inspection and aforcement programs.

The NRC is sommunicating its meessment of asfety salta s to liosasses as evidonood Crystal River, Davis Base, Watts Bar,51 saron Harris and mports identified strsagths and weakanses in the questioning attitudes displayed by lic staffs in handling safety issues. His reinforcement of NRC expectations abould be cont la futurs SALP and inspution ssports. No new ruin or policy statemets aro ssquire NRC to sentinue this presties of expressing its assessment of the safety eniture a an facilities to the licensees.

As evidenced by the SALP reports mentioned above, the NRC holds lu licensees acc frequency or scope of such questions or who must answe unencumbered to publicly criticina licensees when their performance indicats: a qu attitude is lusing. Likewise, the NRC oftsn flags housekeeping pmblems at nuclear planu in its inspection sports despite the absence of a prescriptive (or performan sisantiness rule. As demonstrated by these two examples, the NRC is able to inflamo licensus to improve their performance in arsas not explicitly addressed by prescr agultdons. Bus, no . w rules or policy statements ars needed for the NRC to rsquire licensees to establish and maintain a safetyeonscious work environment.

De NRC issues 60100 Information Notices annually. Very few, if any, of these In Notion have described problems affecting a safety conwious work environment. A

) have an operating experience review program that screens incoming correspond NRC, from INPO and from other lisensus end routs:

problem sching oriented. If the NRC were to issue an Infermation Notice when it detu -

conditions adverse to a safetv.censcious wo* enviree-' aan M1 liet that such behavior feled in ==*' NDf"

=~aa"*6 ens. De licegspes would

_. f 3gC Information Notics into their trainieg programs and administrative procedure address the issues at their specisc facilitin. Rus,if the NRC wers to simply fqfom licensus using existing processa t (i.e., via h fom.arfon Nerices) of performance that identified as actually or potentially compromising a safetynt,conscions then work environa,it all licensus would be able to implement appspri, ate measures. As an szample, th for five years bwause ofinvolvansat in intimidating an concern. He NRC issued a press release to the media regarding is order, but it did not an Information Notice to its licensus. Licensees do not train their staffs on pros in Licensus train their staffs oe Information Notices. No new mies or policy statemen .

aquired conscious work forsavironant.

the NRC to issue generic communicadons on issues it finds sontra U

Licensees ars required to implement a quality assurance pmgram in aceerdams Part 50, Appendix B. He NRC should refocus its inspection efforts to place on the effectivenen of licensees' QA programs For example, who an NRC insp a material deficiency in any plant, that lisensee should be required to ad.Irss

tw April 25,1997 Page 5 i

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UCS Cronent on Safety-Conscions Work Inviro: meat -

, the material deficiency and the weakness in its QA program that permitted the problem to ' be introduced sad rumsin undetected. No new rules or policy statements are required fo< the NRC to saforce the QA requirements that have been on the books for decades.

The Cultural Asussment Team looking into the safety.oonscions work sevironment at Maine Yanks: last year sported that employen were reluctant to identify problems for fear that the oost afrosolving the problems might trigger the plant to be closed prematursly and they would lose their jobs. TLe NRC has the ability to detect the eoesequences of such fears through its surrsat insputien programs. NRC iupactions can identify trends in non conforming conditians and unuceptable work products which may be e snifestations of a lack of self.

asusement. In particular, these NRC inspections should be sensitive to barriers that have the intended or unintended result of preventing the 6se and open expression of safety oonee nuclear workers. For example, many Usensees have instituted or are considering bonus plan that vsward workers if company goals such as capacity factor and refueling outage duration are '

met. Such pasrams, unless balanced by compensation incentivu for identifying safety problems,tand to make workers reluctant to raise issues that might jeopardias their Christmas bcnusu. As it did last year at ont licenses, the NRC has the existing authority to order any

- licensw to conduct an independent survey of the environment for raising ooncerns. No new rules or policy statements are required for the NRC to require independ .at safety cuhure assusments on an as.needed basis.

The NRC receives so many r.llegations every year that it must implement "riage an allegat:

to allocate its limited resources on the highest priority issues. The NRC's evaluatie of 4 a!!ssations must be twofold:

to assertain the validity of the naawe=1 manors s.nd to ascertain why the individual (s) felt it accessary to circumvent the liseasee's programs. Currently, the NRC only examines the first half of these inherently licked issues. An industry worker bypassing internal progra ns to submit an allegation to the NRC is a clear signal of st least the perception reasons:

of a work environment that may not be safety conscious. Thors are only wo (1) the employees expressed their concerns to licenses management and did not get an adequate response, er (2) the employees did not feel free to exprns their concerns to licensa management and elected instead to notify iLe NRC. Nehher of there sevlitions refluts a safety conscious work environment. If the NRC is truly concerned snout a safery.

conscious work enysronment,it would tamnine why employees made allegations to the NRC.

No allegations into this arsa.

new rules or policy statements are vsquired for the NRC to entsad its evaluations of

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s April 25,1997

. Page 6

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.( tKment on Safety Consebus Wark Envi -

ronnent CONCLUSIONS AND RECOMMENDNDONS .

maintain safety conscious e work savironmen RC to esquire its licensees to establish oonscious work environment rule.

ors, the NRC abould act proadsste a sa licensa employ a wide variety ofmethods nflTh uting their unique organiantiona savironment. Thersfors, the NRC should ated objectiva for a safetygoucious work not r There art numerous, independent indicators surrentl a standard environment. Therefore, the NRC should not develoy av p and implement addidonal indicators in .

without fear of retaliation has bwn communicat yees in the nuclear industry to raise safe when it identinu limum uto theperformann indusvy. Licensees contrary know the NRC's to th s.:ssue generic soinaanisations to its noensee expectations, i from nucisarindustry workers. The NRC should ng allegations it receives directly to licensee management. compelled to submit a o orin addidon to expressing their consens

,. expe. cations ngarding a afetA smal'aumber oflicensus have er ormanos levels far short of the NRC's issue orders or suspend opera:y conscious wor performanos in this vital safety arsa.

sasws to improve 4

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April 25,1997

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l' ATTACHMENT 5 r ecer51 Register Notice O

o en

s s

[7590-01-P)

NUCLEAR REGULATORY COMMISSION Safety-Conscious Work Environment; Withdrawal of Proposal AGENCY: Nuclear Regulatory Commission.

ACTION: Notice, i

SUMMARY

The Nuclear Regulatory Commission (NRC) has considered several strategies in addressing the need for its licer. cees to establish and maintain a safety-conscious work environment.- The NRC described these strategies and requested public comment in a document published on February 26,1997 (62 FR 8785). The Commission evaluated the public comments submitted in response to its request and is withdrawing the proposal outlined in the February 26,1997, document.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, (301) 415-2741.

SUPPLEMENTARY INFORMATION:

The NRC publisheo in the Federal Reaister. (62 FR 8785; February 26,1997), a request for public comment on the implementation of a standardized a,nproach to ensuring that licensees establish and maintain a safety-conscious work environment' with clearly

' The Commi sion's May 19')6 Policy Statement on the " Freedom of Employees in the Nuclear Industry to Raise Safety Concems Without Fear of Retaliation" (61 FR 24336; May 14,1996), defined a " safety-conscious work environment" as a work environment in

9 4

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2-defined attributes; the establishment of certain potentialindicators that may be monitored and, when considered collectively, may provide evidence of an emerging adverse trend; and tne establishment of certain remediai actions that the Commission may require 1.nen it determines that a particular licensee has failed to establish and maintain a safety- conscious work environment. In its discussion of the feasibility of using a standardized approach to this 1

issue, the NRC described the attributes of a safety-conscious work environment; cruria to be considered as possible indicators t' at a licensee's safety-conscious work environment may be deteriorating; and standard options for dealing with situations where these criteria are not met. The NRC included draft language that could be used in a future rulemaking, new policy statement, or amendment to the NRC's Enforcement Policy.

The Notice requested public comments on various strategies for estabt;shing ano maintaining a safety-conscious work environment including where warranted the use of a holding period! The NRC also sought comments on an attemate strategy in which all licensees would be required to institute a holding period policy and periodic site surveys, which employees are encouraged to raise safetv concems and where concems are promptly reviewed, given the proper oriority based on the potential safety significance, and appropriate'y resolved with timely feedback to the originator of the concems and to other employees.

In general, a holding period as described in the February 26,1997, document would provide that, when an employee asserts that he or she has been discriminated against for engaging in protected activity, the licensee will maintain that employee's pay and benefits until the licensee has investigated the complaint, reconsidered the facts, negotiated with the employee, and informed the employee of a final decision on the matter. The holding period would continue for an additional two veeks to permit the employee to fi'a e complaint under Section 211 of the Energy Reorganization Act of 1974, as amended (ERA), with the Department of Labor (DOL), and, should the employee file, the holding period would continue until the DOL has made a finding based upon its investigation.

__ _______________-____m _ _ -

3-rather than only those licensees who performed poorly in this area. The NRC received a total of 31 comments in response to its request.

Generally stated, the Nuclear Energy institute (NEI)

• as well as the Union of Concamed Scientists (UCS), while supporting the importance of establishing and maintaining a safety-conscious work environment at nuclear facilities, opposed proceeding with establishing a standardized approach for licensees who had failad to establish and maintain a safety-conscious work environment. Almost all commenters agreed that existing requirements and ragulatory options available to the Commission are sufficient to meet expectations in this area and that new requirements and policies were not needed.

Briefly summarized, the NEl comments noted that: (1) the NRC's current processes effectively focus licensee attention on the need to maintain a safety-conscious work environment; (2) the standardized approach proposal is an " unjustified radical departure from existing policy and may result in adverse safety consequences"; (3) the proposed indi,cators would result in a subjective evaluation by the NRC; and (4) the standard options, especially mandating a holding period, constitute inappropriate regulatory action and are likely to be found legally insupportable. Among other things, NEl maintained that mandating such a holding period is an action outside the jurisdiction of the NRC and is an inappropriate regulatory action based upon its direct intrusion on management's abiiity to address its own 3

i Tha majority of the commenters supported the Nuclear Energy Institute's (NEI) comments.

A

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workforce issues. NEl urged the Commission to let stand the May 1996 Policy Statement as an affim.ation of its focus on n safety-conscious work environment without implementing the strategies outlined in the February 26 request for comment.

The Department of Nuclear Safety, State of !:linois, did not support a formal rule. In its view, less formal guidance or a policy directive seemed more appropriate.

UCS, in comments dated April 25,1997, also opposed the NRC's proposed standardized approach for a safety-conscious work environment. UCS stated that it believes that the May 1996 Policy Statement, as well as rigorous and consistent enforcement of existing regulations, is sufficient to achieve the NRC's objectives.

One commenter (Intemational Brotherhood of Electrical Workers, Local 97) supported

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the NRC's proposal was presented in the February 26,1997, document, stating that it did not believe that the current regulations were adequate. In addition, one commenter (Cheney &

Associates) indicated that, while the mechanisms prescribed might work to some extent, they were not fundamentally different from past strategies which failed because neither the govemment nor the responsible corporation respected the s'rategy. Cheney proposed its own solution to the problem, which was to reinforce the strategy by such methods as certifying the competence of all workers in nuclear environments to identify safety problems in areas under their responsibilities; imposing sanctions for failure to identify a safety problem; and imposing criminal sanctions for failure to report an identified problem.

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5-After considering all the submitted comments and f 2ther evaluating the proposal to standardize the NRC approach to a safety-conscious work environment, the Commission agrees with the commenters that the standardized approach set forth in the request for comment is not warranted. There needs to be flexibility in considering appropriate regulatory action to address each situation on a case by case basis. These appropriate actions include options such as Orders, Civil Penalties, Demands for Information, additional inspections and investigations, Chilling Effect Let+ers, and Management Meetings. -

The Commission also agrees that sufficient requirements and policies are in place.

The May 1996 Policy Statement clearly provides the Commission's expectations on achieving safety-conscious work environments. This Policy Statement and its basis in NUREG-1499,

" Reassessment of the NRC's Program for Protecting Allegors Against Retaliation," provides insights and guidance on steps that can be taken by licensees. The Commission's regulations prohibiting discrimination, e.g.,10 CFR 50 7, provide the basis for enforcement action where discrimination occurs. When a licensee fails to achieve a safety-conscious environment, there may be violations of other NRC requirements such as 10 CFR Part 50, Appendix B, Criterion XVI. The Commission also has the necessary authority to isses orders to licensees and orders against individuals involved in discrimination to address regulatory issues associated with safety-conscious work environments. Therefore, a rulemaking, initiation of an additional policy statement, or an amendment of the NRC's Enforcement Policy to address the safety-conscious work environment is unwarranted t.t this time.

However, the Commission concludes that NRC should consider the emergence of adverse trends in licensees' abilities to maintain a safety-conscious work environment.

6-Appropriate early intervention may result in a significant contribution to safety as a reluctance on the part of nuclear employees to raise safety concems is detrimental to nuclear safety.

Giving consideration to potentialindicators of a deteriorating work environment may alert the NRC of emerging problems in a licensee's safety-conscious work environment that warrants NRC involvement to encourage licensee management to address the environinent for raising -

concems. The Commission recognizes that there are no singular indicators to judge that a safety-conscious work environment is deteriorating at a licensed facility.' Evaluating the safety consciousness of a licensee's work environment will require careful judgments. The effort to identify emerging trends at a licensed facility, while difficult, would be less than the j 4

regulatory effort required in responding to a licensed facility where the safety-conscious work environment has already deteriorated.'

As to the holding period concept, in light of the potential legal issues, the potential for abuse by employees, as well as the comments received on the establishment of a forrnal holding period as an option to address a deteriorated safety-conscious work environment, the

• Many of the commenters appear to have interpreted the_ contemplateo use of

" indicators" to mean fixed indicators demonstrating a deteriorating safety-conscious work environment. This was net NRC's intent. It was recognized that any one piece of data can  ;

be ambiguously interpreted, and focusing on individual data to the exclusion of other informathn can be .nisleading. The request for comment explained that these indicators in isolation may not be indicative of an actual overall deterioration of a safety-conscious work environment, particularly if not accompanied by overall problems in operational or safety performance. While each of the indicators described in the request for comment may individually be ambiguous, an evaluation of the totality of indications may indicate a deteriorating safety-conscious work environment.

5 As stated in the request for comment, when the perception of retaliation for raising s7?aty concems is widespread, a licensee may find it exceedingly difficult to obtain cooperation from their employees in identifying and eliminating problems adversely affecting g the safety-conscious work environment; to reverse this perception of this retaliation; cnd to regain the trust and confidence of theinworkforce.

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's Commbslon believes that the holding period option should not be required by the NRC.

Nevertheless, a holding period is clearly an option that licensees should consider to reduce chilling effects arising out of issues of discrimination pending investigations Thus, the

- Commission continues to support thc voluntary use of a holding period as described in the May 1996 Policy Statement.

Consistent with this discussion, the February 26,1997, document is being withdrawn.

m Dased at Rockville, Maryland, this day of 1997.

FOR THE NUCLEAR REGULATORY COMMISSION John C. Hoyle, Secretary of the Comrnission.

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