ML20205F500

Commission Policy Statement Re Handling of Late Allegations

ML20205F500
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Issue date:	03/13/1985
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
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?. 7590-01-M NUCLEAR REGULATORY C0 m lSS10N l Statement of Policy: Handling of ,

late Allegations AGENCY: Nuclear Regulatory Commission.

ACTION: Statement of Policy: Handling of Late Allegations.

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SUMMARY

This policy statement presents the criteria the Commission will follow in addressing late allegations received from scurces outside the Commission, in the context of licensing reviews. It also directs that the staff's procedures for notifying Atomic Safety and Licensing Boards, Atomic Safety and Licensing Appeal Boards,and-the Commission of the receipt of allegations be revised to provide for an initial, coarse screening prior to issuance of a Board Notification.

EFFECTIVE DATE: ngAg i g gy$

FOR FURTHER INFORMATION CONTACT: Lawrence J. Chandler, Office of the Executive Legal Director, U.S. Nuclear Regulatory Comission, Washington.

0.C. 20555. Telephone: 301-492-8658.

SUPPLEMENTARY INFORMATION: STATEMENT OF POLICY The purpose of this policy statement is to explain the policy which the Comission expects to follow regarding the treatment of late allegations.

0600190224 060012 DE G3 PDR o

r received from sources outside the Comission, in operating license reviews and in the board notification process. The focus of this statement is on NRC staff and Commission pre-licensing safety reviews of uncontested issues, and Commission pre-licensing immediate effectiveness reviews of contested issues. The treatment of allegations in formal adjudicatory licensing proceedinr;s will continue to be governed by the Rules of Practice in 10CFR Part 2. Apart from this policy statement, the Comission has initiated a rulemaking to codify NRC caselaw criteria for reopening a closed evidentiary record in a formal licensing proceeding and to specify further the documentary bases for motions to reopen, including those which may be based on allegations.

49 FR 50189 (December 27,1984).

The most fundamental tenet flowing from the NRC's statutory mandate under the Atomic Energy Act is that a license may be issued only if it can be found that there is reasonable assurance that the activity to be authorized presents no undue risk to the health and safety of the public.

There can be no abdication of the responsibility to make this determination and if there is a serious question as to the ability to make such finding, no license may be issued and the time necessary to resolve such question must and will be taken. Therefore, in the cuntext of late allegations, it is necessary that appropriate criteria be applied to enable the decisionmaker, be it the NRC's staff or the Commission itself, to expeditiously determine the significance, in terms of safe operation of the facility, of any allegations made.

In connection with its review of a number of recent cases, the NRC has been Confronted with the task of addressing large numbers of allegations which were brought to its attention very shortly before, and in some cases

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on the eve of, th,e date on which a decision on whether to authorize the issuance of an operating license was to be made. Some of these allegations

/ related to matters in controversy and others related to previously uncon-tested issues not under consideration by a particular adjudicatory tribunal.

Significabt commitments of staff resources often must be diverted at the last minute.to address large numbers of late allegations, many of which

- have proven to be unsubstantiated or of little, if any, safety significance.

Ideally, all allegations concerning a particular facility will be resolved before any license is authorized. If, however, because of the

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Inumberofallega ans and/or their tardy submission, all allegations cannot be resolved in a timeframe consistent with reasonable and responsible

'llicensing action, it may be necessary to give priority to those allegations which, because of their potential impact on safety, must be resolved before licensing action can be taken.

Initial 5cteening of Allegations Any concerns bearing on the safety of a facility should be brought promptly to the attention of the applicant or licensee. II If, however, this approach is unsatisfactory, any person is free to bring such concerns directly

'to the NRC. To eliminate unnecessary delay in the licensing process to the extent possible, any persen who has an allegation concerning the design, construction, operation,or management of a nuclear power plant has a duty r to" bring such information to the Comission's attention as promptly as s

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1/ The Comission encourages the establishment of oroarams by utilities for the purpose of identifying and resolving allegations affecting safety in a timely majmer as design and construction of a nuclear i facility proceeds.

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possible. All al. legations should be specific and documented'to the fullest extent possible. Those submitting allegations in good faith should be aware that appropriate protection against retaliatory action by an applicant or licensee (including its contractors and subcontractors) is afforded by Section 210 of the Energy Reorganizatico Act of 1974, 42 U.S.C. 5851. All parties and persons are reminded that Federal law imposes penalties upon  ;

any person who intentionally makes any false statement or1 representation to any agency of the United States.

In reviewing allegations, the appropriate Comission staff office will first determine whether, if true, the allegations are material to the licensing decision in that they would require denial of the 1.icense sought, '

the imposition of additional conditions on such license, or further analy-sis or investigation. Allegations which, even if true, are not material to any licensing decision or which on their face or af ter initial inquiry are determined to be frivolous or too vague or general in nature to provide sufficient information for the staff to investigate will receive no further consideration.

As to allegations which are material to the licensing decision, the Commission staff will next determine whether the information presented is new in the sense of raising a matter not previously considered or tending to corroborate previously received but not yet resolved allegations. In making this determination, all information available to the Commission will be considered, including that previously provided by an applicant or licensee and that obtained by the Comission in the course of f ts review and inspection efforts or from its investigation of prior allegations. In some cases, information already available to the NRC may be sufficient to resolve

A certain allegations. However, if an allegation is found to be both material and new, the staff will investigate the allegation further.

Further Review if the staff determines that, as a result of the number of allegations or the timeframe in which they are received it appears likely that full consideration of all allegations cannot be accomplished consistent with responsible and timely Comission action, the Commission staff will conduct a further screening of the allegations to determine their significance to safety and therefore what priority should be assigned relative to the activity to be authorized. U The following screening criteria will be considered:

1. The likelihood that the allegation is correct, taking into con-sideration all available information including the apparent level of know-ledge, expertise,and reliability of the individual submitting the allegation in terms of the allegation submitted and the possible existence of more credible contrary information.

2. The need for prompt consideration of the allegation recognizing the public interest in avoiding undue delay. If the staff determines that an allegation raises a significant safety concern regarding, for example, the design, construction,or operation of a facility or about quality assurance or control or management conduct, which brings into question the safe operation of the facility at a given stage of operation, the allega-2/ As a general matter, the Comission has authorized issuance of oper-ating licenses first for low power testing (up to 5% of rated power) and subsequently for full power operation (operation above 5% of I rated power). In some cases these steps have been further refined, for example, into fuel load, hot system testing, criticality and zero power testing. Other refinements too are possible and may be i authorized.

tion must be addressed prior to authorizing that stage. For purposes of this policy statement, an allegation will be considered safety significant if the allegation would, if true, (1) raise a significant question about the ability of a particular structure, system,or component to perform its intended safety function or (2) raise a significant question of management competence, integrity,or conduct or about implementation of the quality assurance program, suff dent to raise a legitimate doubt as to the ability to operate the plant safely. Allegations which are not safety significant will be resolved in the normal course of business independent of license issuance.

Board Notification Procedures Parties to ongoing adjudicatory proceedings have an obligation to bring allegations to the attention of the presiding board. All parties have an obligation to inform boards promptly of relevant and material information that may affect the decisionmaking process.

The Comission's staff, in accordance with its obligations for board notification has in the past submitted allegations to boards promptly and without awaiting their resolution or determination of significance relative to the decisionmaking process. This practice is consistent with the Commission-approved board notification policy. However, it has resulted, on occasion, in presenting boards with new infonnation, the significance of which is not readily apparent. Consequently, in the future, staff board notifications of allegations will not be made until the staff has made at least an initial screening of the allegations. Only those allegations which are found not to be frivolous, which are relevant and material to the decisionmaking process (as determined under existing board notification

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,e *e procedures) and which are determined to warrant further scrutiny will be submitted to the presiding tribunal. Board notifications should still be made promptly, consistent with the need and time required for screening.

The staff's beard notification procedures should be revised accordingly.

Dated at Washington, D.C.,

on this 13th day of March , 1965.

For the Nuclear Regulatory Commission, b

ohn C. Hoyle A stant Secretary

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', UNITED STATES NUCLEAR REGULATORY COMMISSION

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WASHINGTON. D. C. 20555 MEMORANDUM FOR:

Chairman Palladino Commissione'r Gilinsky OCT 2 81983 Commissioner Roberts ~

Commissioner Asselstine Commissioner Bernthal FROM:

William J. Dircks Executivt Director for Operations

SUBJECT:

. REGIONAL PROCEDURES FOR SCREENING ALL In a memorandum dated September 16, 1983 ..

from the Secretary, the Commission requested a report on how the Regions assess screen and allegations.

A report prepared by Region II summarizing the general -

procedures in use in all the Regions is enclosed.

I have asked the Office of Inspection and Enforcement to proceed with the an NRC development of Manual Chapter which prescribes uniform general procedur t es for screening, assessing, tracking, and closing out of allegations.

I expect the new Manual Chapter will closely track the procedures described in the enclosure.

(Signed William J.Dircks William J. Dircks

Enclosure:

Executive Director for Operations As stated cc: Y OGC CONTACT: Edwin F. Fox, IE 49-24905 fC D'l )

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Enclosure REPORT ON REGIONAL PROCEDURES FOR SCREENING, ASS AND CONTROL OF ALLEGATIONS Introduction This report consists of a condensation of typical procedures in u regional offices for processing of allegations, complaints se in the which come to the attention of the staff. or other concerns ize this function within each regional office under the cThe general prac,tic <

vidual, or a panel, of Investigation / Allegation ontrolCoordinators of an indi- (IAC) individuals who are highly experienced and who possess .

These area good of matters relating to processing of a broad spectrum of allegations working kncwledge Their experience and working knowledge however, technical matters. These issues are evaluated by approp i urely personnel.

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nott necessarily r a e technical staff Summary of Procedures

• A. General Allegations, complaints and concerns (referred to ns)as allegatio pertain- '

letter, news media reports or by direct offices, at meetings verbal c y telephone, in and even at social functions.

sionally, promptly and uniformly. allegations processed beprofes-recogn,ized An employees who receives an allegation must be aware that it i to protect the identity of an individual making an allegatio s essential the inadvertent orend, premature n to preclude outside NRC. To this coordinatdisclosure of the individual's entity id Allegation Coordinator, is necessary. ion with the appropriate Investigation /

which is discussed separately. identity is notn to a be ty",

confused w It is very important to note that where safety is involved not recognize the term "off the record." , the NRC does --

"off the record" information must be clearly advised that saf tIndividua information cannot be "off the record" and accordingly e y related will be accepted officially and acted upon as necessary, the information Regional Supervision, and Allegationwho ors,/ Investigati are expected to receive the majority familiaractions with the policies of allegations, procedures shouldto ens become fully required are prescribed performed. and ure that the A panel consisting designated of one or more Investigation / Allegation Coo di r nators is tions are p,roperly documented, screened, processedhaving the expeditiously processed.

, and controlled and

2 Enclosure whatever steps are necessarygations to ensure

. Allegation Coordinator is promotly informed. ropriate Investigation /

to take tht ments made for the IAC to get back e IAC, or,to the indiv arrange-B. .

_ Definitions

1. Alleoation A statement of fact, the validity of which has not b This may include a general statement such as " peri di een established.

being falsified", or a specific statemento such c testsas are"fi l AFXW-392 was not in accordance with welding the wrong type of weld rod were used".

e d weldpro number something is wrong cedure W-152 in that The implication is that tiens until their v;alidity is establishedhowever, the stateme

2. Comolaint A formalized intervenor petition protest againstcensee an individual which may be o or affidavit, is limited to cases,where individuals preor Thecongressional term " complaint" inquiry deliberate actions taken by others which are d t isent formal all personal livelihood or safety. e r mental to their

3. _ Concern anxiety or apprehension about .

a particular m

, uncertainty, Usually these jurisdiction or requirements, or technical issues involved.

lacking rstanding of the an unde e ge of NRC such as "I think you should check the welding that was d spent inspections fuel in pool gates" or, accordance with"Iprocedures" don't think they are ne oncondtscti

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opinions, satisfied. implying concern that NRC requirements are no e ng A concern may also be expressed as a question offers basis. an easy way to retract information should which a conce rn e without

4. Inouiry An activity involving minimal effort to determin response to information reported to the NRC .

e the appropriate entails the use of the telephone or written correspondoTypically formal interviews or other investigative measures  ; howevernce rather than interviews will be conducted if required. formal by the Office of Investigations (0I) or the RegioThe inquiry may,b nal Administrator.

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5. Investigation Formal activities conducted by the Office of Investigation at the I request of Office Directors or Regional Administrators, with or without technical assistance. The Office of Ir restigations is the lead action office for all investigations.

6. Inspection r

Routine or special regional inspection activities specifically designed to examine and subsequently close out allegations. From the standpoint of an inspection may be either preventive or reactive.

The preventive inspection is essentially the routine planned, pro-gram. The reactive inspection, involves response or " reaction" to some influence outside the de 'ned program, usually initiated by an event or allegation.

7. Alleaer An individual who by any means provides information to the NRC which constitutes an allegation. The individual may be a concerned private ~

citizen, a licensee or contractor employee, a representative of a local, state, or Federal agency, or an NRC employee.

8. Sanitize The term " sanitize" refers to the protection of data which directly, or otherwise, could identify an alleger by name. The purpose of sanitization is to protect against inadvertent disclosure of an alleger's identity. It is a precautionary measure, and is not intended to deny access to the identity of the alleger when required by staff members to evaluate and resolve allegations.

9. Control A formal process utilizing control numbers whereby each allegation is -'-

identified chronologically to all pertinent facts and by which number, the allegation is tracked through final closeout. Control also includes the measures necessary to ensure the confidentiality of the alleger.

10. Screening A process involving prompt review by an allegation review panel, of facts associated with an allegation, and considering other factors such as time sensitivity, importance to safety, plant status and media interest. This will permit determining appropriate response timing, technical expertise required, and where to assign responsi-bility for further action.

4 Enclosure I C. The Investication/ Allegation Coordinator (IAC) 1/ The IAC serves as a focal point for administrative processing and control of all allegations received in the region. The IAC is responsible for tracking allegations from initial receipt to final resolution. The IAC establishes and maintai.ns. files which clearly identify allegations, concerns, complaints and suspected improper activities received by the Regions, and documents actions initiated to resolve such matters. The IAC ensurey that management and Cogni-zant staff are informed of allegations, kept current on the status of allegations in the Allegation Tracking System, and, briefed on proposed final resolution of allegations.

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The IAC assists Technical Staff members who are reviewing allegation information, primarily in the form of coordinating activities necessary to resolve issues. In addition, the IAC may assist in the formulation of a course of action to resolve issues.

D. Receiot of an allegation

1. Allegations Received by Telephone or Personal Visit Any NRC employee who receives a telephone call from someone who wishes to make an allegation, express a concern, or register a complaint, should have the caller transferred to the IAC. Likewise, if an individual appears in person at an NRC Office, the individual shoulo be referred to the IAC. Technical employees, when unable to refer the telephone call or the visitor to the IAC, shall obtain as much information as possible from the individual (see paragraph 3 below). Administrative employees when unable to locate the IAC should refer the individual to a technical staff supervisor.

2. Allegations Received By mail Allegations received in the mail and may be handwritten or typed on plain paper. Therefore, personnel responsible for opening and --

screening mail will forward correspondence which appears to contain an allegation, to the IAC. Both letters and envelopes will be forwarded with no copies being made. An employee who receives direct correspondence, including internal NRC memoranda, which contains allegations whether or not the alleger is identified, shall forward the correspondence to the IAC.

3. Discussions with Alleger or Concerned Individual Any employee handling a telephone call or visit as discussed above shall attempt to obtain as much information as possible from the individual, and in particular, the following:

(a) full name (b) complete mailing address

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Enclosure (c) telephone number where the individual may be contacted i (d) position or relationship to facility or activity involved  ;

If the individual declines to provide the above information, attempt to establish the reason (s) using the following guidance:

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If the individual is concerned about protecting his identity, inform the individual that if he so requests, his identity will be kept confidential. Explain further if necessmry, that Public Law 95-601 prohibits employer discrimination against an employee for contacting the NRC. Unless the identity of the caller is learned, it would not be possible to provide the protection afforded by Public Law 95-601.

The individual may be informed that the NRC employee taking the call does not have the capability to evaluate the information to determine followup action or to establish NRC jurisdiction; therefore, it may ~

be necessary to contact the individual for additional information.

The individual should be informed also, that it is NRC policy to send a letter to the individual, at an address he designates, documenting the NRC understanding of his allegations or concerns. This will

• permit the alleger to review the information and inform the NRC if his information has been incorrectly interpreted. The individual will be advised of this policy and unless he objects, a letter will be prepared and forwarded in accordance with establisheri procedures.

If the individual persists in not identifying himself after the above explanations, document the allegation in as much detail as possible and advise the individual that he may contact the IAC in thirty days, for information on the status of any actions being taken on the

( information supplied.

E. Action by the Investigation / Allegation Coordinator (IAC)

1. Upon receipt of an allegation, the IAC will assign a Regional office CASE FILE NUMBER for entry into the tracking system, prepare an~ -- -

appropriate investigation / allegation case file folder and tracking form, and conduct a preliminary review of the file to determine the required technical staffing and coordination actions. In add',cion to the foregoing initial administrative tasks, the IAC will also prepare and NRC Form 307, Allegation Data Form, and forward the completed form to NRC Headquarters. The NRC Fonn 307 serves as notification to Headquarters that an allegation is being tracked within the Region.

This form will also be used to forward allegations to other regions when the allegation pertains to licensees or vendors in other regions.

2. The IAC will prepare and forward an acknowledgement letter to the individual who made the allegation, restating the individual's allegation and advising the individual of actions being taken.

Depending on the nature of an allegation, the IAC will provide a

6 Enclosure sanitized copies of the allegation documentation and letter sent to the alleger, to the cognizant technical staff supervisor for evalua-tion and initiation of action. Sanitized copies will also be for-warded to the cognizant Office of Investigations Field Office for information. The IAC will followup with the cognizant technical staff supervisor at periodic intervals until the matter has been satisfactorily resolved, at which time. the case will be closed in the Allegation Tracking System.

3. The IAC will coordinate allegation information with the Technical Staff and may assist in determining whether the information is sufficient to identify the issues. If the information is determined to be insufficient, the IAC will assist in further contact with the alleger. A single point of contact with an alleger provides a means of better control of comunications, aids in developing rapport; establishes continuity in the flow of information between the regional offices and the NRC, and aids in protection of the alleger's identity.

4. Identification of Issues The IAC assists the cognizant Technical staff in identifying and -

separating the issues involved in allegations into one of the fol-lowing categories,

a. Allegations which are purely technical, such as inadequacies in procedures, qualifications or training; inadequate implementa-tion of procedures; inadequate corrective actions; and radiation overexposures,

b. Allegations which involve wrongdoing; record falsification; willful or deliberate violations; material false statements, or other improper conduct.

c. Allegations involving matters not within the jurisdiction of NRC.

5. It should be recognized that technical issues involving failure to meet requirements, have the potential for being willful or deliberate violations. However, in the absence of specific allegations of willfullness or deliberateness, such issues will nomally be tracked separately as technical issues and resolved using routine inspection program resources. If an allegation covers issues that affect other regional or headquarters offices, followup activities will be coor-dinated with the affected offices and a lead office designated.

F. Documenting Allegations

1. In order to ensure proper screening and evaluation, as much informa-tion as possible should be documented concerning each allegation.

In addition to obtaining basic information, attempts should be made

7 Enclosure to expand and clarify the information so that the issue is relatively

. well defined. All allegations, regardless of source or how received, must be documented, screened and evaluated.

2. There will be occasions when an allegations obviously have no sub-stance and appears to represent a distortion o.f facts. However, even in these cases, documentation sunnarzing the contact, the general content of any communications; and the basis for a conclusion that the matter need not be pursued any further, is necessary. Instances such as these will be coordinated with the appropriate technical staff by the IAC to ensure proper disposition.

- 3. The importance of obtaining and documenting all possible details concerning an allegation cannot be overemphasized. Screening and evaluation of the allegation as well as the proposed course of action that will be initiated to resolve the issue, will be based primarily ,

on this information. In some cases, the information may be so substantial, technical, or indicative of possible wrongdoing, that a personal interview with the alleger is warranted. In these cases, the IAC will consult with management to determine the best way to

• obtain the details required. Depending on the nature of the allega-tion and the time sensitivity, assistance from the Office of Investi-gations (01) or other resources may be requested. If OI assistance is appropriate, a formal request for an OI investigation will be made.

i 4. As soon as possible after receiving an allegation or becoming aware 4

of information which indicates improper activities, the IAC shall be notified. No actions will be taken to verify the validity of the allegations or concerns, nor shall such matters be discussed with licensees until after the IAC has briefed appropriate NRC management.

i 5. Information regarding suspected improper conduct of NRC employees will be brought to the attention of appropriate management for possible referral to the Office of Inspector and Auditor (0IA)., , .s .

6. Technical employees and supervisors who receive allegation in the absence of the IAC, shall prepare an Allegation Report and forwarded it to the IAC. Preparation of an Allegation Report shall be accom-plished as soon as possible, but not to exceed two working days following receipt of the information. The Allegation Report may be i typed or legibly written, in original copy only. No copies of the Allegation Report shall be made. The originator is prohibited from retaining copies. This will provide an extra measure of protection to both the a.lleger and the individual receiving the allegation. The prohibition against copies of Allegation Reports will ensure the highest degree of identity protection that can be afforded the alleger, by precluding inadvertent disclosure. The IAC may copy and distribute a sanitized Allegation Report if required. However control of the copies is required.

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7. The IAC is responsible for reviewing all information received in conjunction with an allegation and ensuring that management and cognizant technical staff members are fully informed.

8. Allegations normally should not be addressed in. Preliminary Notifi-cations (PN) or Daily Reports (DR); however, if it is determined that PN or DR enties are appropriate, the approval of appropriate manage-ment should be obtained.

9. After coordination with the IAC is responsible for notifying other agencies such as the Occupational Safety and Health Administration, and the Department of Labor, when applicable. Notification of other federal law enforcement agencies of possible criminality or nationally significant information contained in allegations shall first be coordinated with the appropriate Office of Investigations Field Office, and the Office of Inspector and Auditor.

G. Evaluation by Cognization Technical Staff

1. Upon receipt of an allegation package from the IAC, the cognizant technical staff will review the documentation and propose a course of action to resolve the issues. The cognizant technical staff is responsible for development, initiation, and follow-through on corrective actions. There are several areas to be considered by the l cognizant technical staff during review of the allegation, such as:

- Determine whether the allegation package contains sufficient information for a thorough evaluation. If it does not, identify  !

the additional information that will be necessary.

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- Determine if the allegation can be examined and resolved during a routine, scheduled inspection. If this is not possible, determine the best way to address the issues.

- Determine whether the identity of the alleger is necessary for a thorough evaluation.

- Determine what specific issues are involved in the allegation, and whether the issue can be adequately addressed by a technical inspection.

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- Determine whether the allegation has the potential to require escalated enforcement action.

- Determine the time sensitivity of the allegation, and what immeciate actions are necessary.

- Determine whether investigative assistance will be necessary.

- Determine whether peripheral issues which could develop and identify the issues.

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2. It is the responsibility of the cognizant technical staff to resolve

' each allegation which falls under its jurisdication, and subsequently, to notify the IAC of the action taken so that the status of each

. allegation can be tracked. Final resolution of an allegation shall be documented and placed in a case file along with all supporting documentation.

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