ML20205J885
| ML20205J885 | |
| Person / Time | |
|---|---|
| Issue date: | 02/12/1986 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8602260626 | |
| Download: ML20205J885 (119) | |
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8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the matter of:
COMMISSION MEETING Discussion of Staff Recommendations on Enforcement Policy (Public Meeting)
Docket No.
i Location: Washington, D. C.
Date: Wednesday, February 12, 1986 Pages:
1 - 95 8602260626 860212 PDR 10CFR PT9.7 PDR ANN RILEY & ASSOCIATES Court Reporters
/
1625 I St., N.W.
Suite 921 Washington, D.C.
20006 (202) 293-3950
o 4
9 1
D I SC LA 1 MER 2
C3 3
4 5
6 This is an unofficial transcript of a meeting of the 7
United States Nuclear Regulatory Commission held on i
e 2/12/86 In the Commission's office at 1717 H Street, 9
N.W.,
Washington, D.C.
The meeting was open to public 10 attendance and observation.
This transcript has not been 11 reviewed, corrected, or edited, and it may contain i
12 inaccuracies.
13 The transcript is intended solely for general 14 informational purposes.
As provided by 10 CFR 9.103, it is 15 not part of the formal or informal record of decision of the 16 matters discussed.
Expressions of opinion in this transcript i
17 do not necessarily reflect final determination or beliefs.
No 18 pleading or other paper may be filed with the. Commission in 19 any proceeding as the result of or addressed to any statement.
20 or argument contained herein, except as the Commission may 21 authorire.
22 23 24 25 i
l k
o-e-
1 1
UNITED STATES OF AMERICA i
2 NUCLEAR REGULATORY COMMISSION 3
4 DISCUSSION OF STAFF RECOMMENDATIONS 5
ON ENFORCEMENT POLICY 6
7 PUBLIC MEETING 8
j 9
Nuclear Regulatory Commission J
10 Room 1130' t
i 11 1717 H Street, Northwest 12 Washington, D.C.
13 14 Wednesday, February 12, 1986 15 16 The commission met in open session, pursuant to 17 notice, at 2:05 p.m., the Honorable THOMAS M. ROBERTS, 18 Commissioner, presiding.
i 19 COMMISSIONERS PRESENT:
20 THOMAS M. ROBERTS, Member of the Commission 21 JAMES K. ASSELSTINE, Member of the Commission 22 FREDERICK M. BERNTHAL, Member of the Commission 23 LANDO W. ZECH, JR., Member of the Commission 24 25
.. _ -.,, - -. - _, -. _ _ _. _ _. - _. _. _. _ _ ~ _ _. _ _ -.,., - -. _ -.,, _.. - _. -. - _, _ _ - ~. - _. _ _ _ _
O 2
1 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE:
2 S. CHILK 3
H. PLAINE
- i 4
R. LEVI 5
J. LIEBERMAN 6
G. CUNNINGHAM 7
V. STELLO 4
8 J. TAYLOR 9
J. AXELRAD 10 AUDIENCE SPEAKERS:
11 J. FOUCHARD 12 13 14 4
15 16 17 18 19 s
20 21 22 I
23 24 l
25 i
J 3
f 1
P R O C E E D.I N G S 1
2 COMMISSIONER ROBERTS:
Good afternoon, ladies and 4
3 gentlemen.
Chairman Palladino is ill today and has asked that 4
I chair this meeting in his absence.
5 The Commission meets today with the Staff to review 6
documents that are before it.
The first is SECY 86-36, 7
material false statements.
The other is SECY 86-47, annual 8
report on the enforcement program with response to the report i
9 of the advisory committee for review of the enforcement 10 policy.
11 Both of these documents were prepared-by the Staff 12 for Commission consideration following the meeting wi,th the "13 advisory committee on enforcement policy which was held 14 December 10th, 1985.
4 15 The Staff has revised its material false statement 16 proposal, and I believe the Commission should take this matter j
17 up first.
Following that discussion, the Commission could 18 take up the other Staff responses to the advisory committee 19 recommendations.
There are a number of viewgraphs to cover l
20 both of these topics.
21 I would suggest we devote the first 45 minutes of 22 this hour and-a-half meeting to material false statements, and 23 the balance of the remaining 45 minutes to the other topics.
24 Do any of my fellow commissioners have any opening i
25 remarks?
'I i
_. _ _ _ ~. _ _,
n 4
1 COMMISSIONER ZECH:
I do.
2 COMMISSIONER ROBERTS:
Go ahead.
3 COMMISSIONER ZECH:
I'd like to -- I agree with the 4
suggestion to discuss the material false statements first.
1 5
You know, we've been talking about that policy for a long 6
time.
It's also an enforcement policy which the advisory 1
7 committee suggested that we give high priority to.
8 But my other comment is that the entire briefing 9
seems to me to cover an awful lot of territory.
And it is an 10 important subject, but you're trying to cover the annual 11 report, as I understand.
You're also, you know, making 12 responses to the advisory committee report.
You're giving 13 Staff reactions to other Commissioner suggestions.
14 And it's simply quite a large package as far as I'm 15 concerned.
And I'm not at all sure that we can adequately and 16 properly address this issue in one meeting.
And therefore, I 17 would support giving priority to the material false statement 18 section.
19 Also, my last comment really is, as I read over your 20 SECY 86-47 paper on this subject, which you're asking us to 21 approve, it seems to me the paper is asking for quite a 22 variety of Staff actions.
23 It was hard for me to find the crispness to the 24 paper that would really see what you're asking us to do.
If 25 there are policy changes involved, I couldn't really honestly
i 5-1 identify them as clearly as I would like in the time I've had 2
to look at them.
3 And so my suggestion is that, at least from my 4
standpoint, the paper needs to put together in a little bit 5
better manner what actually you're asking the Commission co, i
6 rather than say, just to accept the paper as such, which I simply am not prepared to do at this time.
7 t
8 Thank you, Mr. Chairman.
t 9
7 COMMISSIONER ASSELSTINE:. I guess the only comment I 10 would make, Tom, I have no problem with breaking it up-into 11 the two parts.
That's fine with me.
12 I was just going to say, as far as the paper is i
i l
13 concerned, I think pulling out and identifying in summary p
14 fashion what's being covered here might be helpful, Lando.
I 15 think that's a good suggestion.
16 But I thought, as a general matter, the paper did a 17 very nica job of taking what was essentially a set of very far 1
18 reaching comments and recommendations from the advisory panel, 19 going through and addressing every one of them, as well as the 20 ideas that individual commissioners had brought up.
And an j
21 effort to try and take all that and package it together and 1
l 22 present it in one document that sort of covers the waterfront l
23 on enforcement matters, I thought, was fairly commendable.
i 24 I thought it was a good move by the Staff to try and 25 anticipate some of the things that we had interests in, as i
6
~ 1' well as to address the concernsHof the advisory committee.
I i
2 thought it was a good effort from that standpoint.
l 3
COMMISSIONER ZECH:
I think the effort was probably 4
very good.
But, I found it was a very large package.
5 COMMISSIONER ASSELSTINE:
Yes, it takes some study.
1 6
COMMISSIONER ZECH:
It was difficult for me to sort-4
]
7 out and summarize and see in a straightforward manner l
j 8
specifically your recommendations and exactly what you are 9
asking us to do.
And I.would submit that that's the problem I l
10 had with it.
f 11 COMMISSIONER BERNTHAL:
If I could make a comment.
I 12 I agree with you.
I think that part of the problem may very 13 well be that we don't have in front of us a draft n,ow of 14 what's going to be the working document or documents.
And
}
l 15 that, in fact, is one thing that I'm sure Staff intends to do 4
16 after hearing some of our discussion and comments.
i 17 And in particular, I had even given some thought to 18 attempting my own draft on the appendix -- whatever the numb'er i
19 is -- that defines severity levels, for example.
Because j
20 obviously, that would have to be rewritten if we changed the 21 policy on definition of material false statement.
22 I think if we actually we had those draft documents
.t l
23 in front of us, that would provide the focus that probably 1
24 this paper needs.
And I'u sure that will be forthcoming.
4 1
i 25 But I agree with you, that's the missing element.
I.
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-7 1
To really have in front of us what it is in~ rule and in 2
appendix, whichever it is -- C, right.
The sheet.of music 3
that you all will be singing off of when this meeting is over y
4 with.
}
5 COMMISSIONER _ZECH:
I agree.
It's just that we 6
can't really approve, I don't think -- at least I can't --
7 until I see some-of those things more specifically.
In other l
8 words, exactly what you plan to do.
9 COMMISSIONER ROBERTS:
Why don't we turn the meeting j
10 over?
I 11 MR. STELLO:
Let me see if I can start by -- and I 1
i 12 share the concern that you have.
There are a lot of pieces to 13 4
the enforcement that are not yet finished, that need to be 14 finished, and the paper identifies them.
So there's quite a 15 bit more to come.
)
16 You don't have in front of you, as you described, 17 the enforcement policy to make the decision on it.
It clearly 18 isn't here yet.
But what is here is, the advisory' committee, l
19 I thought, did a fairly good job at trying to speak to the issues related to NRC's enforcement policy, had some fairly 20 t
21 far ranging recommendations regarding it, particularly in the i
22 area of material false statement.
23 But in order for the Staff to develop that paper, it i
24 seems it would be useful for the Commission to look at those
)
25 recommendations and not just have us go back and rewrite it,
I 8
1 if the Commission wishes to change how they viewed some of 2
these recommendations.
I think it wculd be helpful to have 3
the benefit of that discussion and any advice of the 4
Commission before we undertaking redrafting it, which we 5
indicated, we plan to do later.
6 And there are so many subjects that if we -- I think i
7 if we bundled these up into just one paper and bring it to the 8
Commission, it may take us forever to try to get through it.
9 And this is really breaking it down into, what we're judging 10 to be smaller bites.
And they really are smaller bites.
11 And we really aren't asking the Commission to say, 12 put your seal of approval on the enforcement policy now.
13 We're not asking you to do that.
14 COMMISSIONER ASSELSTINE:
Wasn't it more a plan of i
15 action?
16 MR. STELLO:
It is.
17 COMMISSIONER ASSELSTINE:
Basically laying out, you 18 know, here's the way we, the Staff, propose to go in a number 19 of these areas.
And what we want to know is, are we on basically the right track, the track you want us to go in.
20 21 Rather than, here's the finished product in each of these 22 areas.
23 MR. STELLO:
Right, we're not ready to tell you what 24 that finished product is on enforcement.
But there are a lot 25 of things that are going to have to go in there that we're
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D-9 1
1 going to be speaking to.
And any one of them, we could
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2 probably spend the~ hour and-a-half that we have allocated.
1 3
And if I picked one, the issuing of press j
4 announcements on enforcement actions, that's an issue that's 5
been controversial ever since I can recall.
And there's, you 6
know, strongly held and very emotional views on both sides of i
7 the issue.
And we could take that issue, which happens to be i
8 one of them we'll be talking about, and spend a great. deal of 9.
time on it.
'i l
10 So to the extent we can get any indication of the i
}
11 Commission's preference to some of these issues, which are j
12 very significant in terms of the impact that this agency has, i
j 13 in the way it conducts its enforcement business.
So we're not i
14 here to try to get the commission to do more than you all 15 ought to do, or I think asking too much.
It's, can we really 4
i 16 have some dialogue, and based on that dialogue, we're going to 1
l j
17 have to go back and do work.
1 18 The only issue that I think you're really going to
?
19 j
be taking under consideration is, with respect to the f
J j
20 guidelines for actions against individuals, should the i
l 21 Commission approve issuance of that, or is that one, something I
22 that requires a lot more discussion?
Again, a very I
23 controversial issue.
One which we spent a great deal of time 24 on.
I i
l 25 I think it would be important though -- I don't care 1
1
3 10 o
1 which issue we take first -- that we definitely have an 2
allocated amount of time and then just sort of stop the discussion, or we're not going to get through very much.
3 So 4
we'll take the material false statement first, and I think we 5
really have to agree to stop at a certain time or -- I know we 6
can spend all of the time we have allocated on that issue 7
alone.
8 COMMISSIONER BERNTHAL:
Well, the chairman of the i
9 day gave us 45 minutes for this and --
10 COMMISSIONER ROBERTS:
We've already expanded 15 of 11 it.
12 COMMISSIONER BERNTHAL:
-- we've already consumed 13 15.
14 (Laughter.)
15 COMMISSIONER ROBERTS:
How about restricting it to 16 30 minutes.
17 MR. STELLO:
I have no problem with that.
18 COMMISSIONER ROBERTS:
I don't either.
19 MR. STELLO:
Even 15.
Because there's no amount of 20 discussion, I think --
21 COMMISSIONER BERNTHAL:
Let's have at it.
4 22 COMMISSIONER ROBERTS:
Let's go.
i 23 MR. STELLO:
So let's begin.
Guy, why don't you try 24 to hold it to 15 minutes.
25 MR. CUNNINGHAM:
All right, I'll do that.
e 11 1
I don't intend to spend any time at all on the 2
history, because the commission has met on this subject a 3
number of times, and I think the history is fairly familiar to 4
you.
5 We might change the slide and put up the material 6
false statement slide, which I'll just sort of keep up there 7
as background during this discussion.
That's the only slide I 8
have.
9 (Slide.]
10 MR. CUNNINGHAM:
What I want to do is quickly get to 11 and highlight the issues which have been the subject of 12 disagreement in the past as we've discussed material false 13 statement.
There have been now a total of three versions put 14 before you.
15 The first version was a staff proposal.
It is very 16 similar to the current version, the third version, which is 17 also a staff proposal.
And it is congruent with the 18 recommendations of the ad hoc advisory committee.
19 Their report said that they thought the first paper 20 was, in fact, the correct approach.
We've gone back and 21 looked at that, modified it slightly.
But as I say, the third t
22 one's very similar to it.
23 The second one was prepared after we briefed you on 24 the first one and got specific direction from the commission 25 as to what you'd like to see in an alternative proposal.
In
12 1
the second paper we generally followed the Commission 2
directions, except for one point where we continued to adhere 3
to our first recommendation.
That dealt with what I call the 4
catch-all reporting requirement.
5 And more specifically, that reporting requirement 6
which called for reporting of all significant information.
7 The question was, who dealt with significance -- who defined 8
or decided significance.
The question was, should the 9
licensee be responsible for determining the significance, or 10 could the Staff, with the benefit of hindsight say, that was 11 significant and you should have informed us.
12 I might note, as you can see, the elements of this 13 paper have been consistent, and all three papers have the same I
14 three elements.
The first was, what is paragraph A of the 15 current proposal, a requirement that all information provided l
16 to the commission be complete and accurate in all material 17 respects.
18 The second element common to all three was the 19 catch-all reporting requirement.
And more specifically, a i
20 requirement that all information having significant 21 implications for public health and safety, or common defense 22 and security, be reported to the commission.
23 And third, all versions redefined material false 24 statement, but there was some considerable divergence in how 25 that redefinition took place.
Specifically with respect to
13 t
1 material false statements, with the questions focused upon how 2
you treat oral statements and how you treat omissions.
l 3
The version which we have before you now does not t
4 include oral statements except sworn oral statements, such as 1
5 testimony or -- well,-it would be primarily testimony.
So i
6 other than that, the other less formal oral statements are not j
7 included in the definition.
i i
1 8
l Maybe I ought to approach it the other way and tell 9
you what we do include in the definition'of material false j
10 statement.
A statement which is written or sworn.
It has to i
11 be inaccurate or incomplete.
It has to be knowingly made, or l
12 made with careless disregard as to the inaccuracy or 13 completeness of the statement.
And it should be material.'
4 14 And material we define as having the capability to influence a 15 reasonable agency decision-maker.
16 Dealing with omissions, which were included in the 1
17 definition of material false statement only in the second i
'18 version.
And in that case, material false statement was 19 defined as an omission where the licensee knew it was required r
20 to have been reported and deliberately failed to provide it, 21 and it was significant.
4 i
22 And significant is a word which is defined -- it 23 sets forth a higher threshold than material.
Significant was l
24 defined to mean, likely to have caused a reasonable agency 25 expert to have inquired further or to have reached a different
F t
14
)
1 decision.
2 The current version does not, as I've said, include j
3 omissions -- at least pure omissions as part of material false
~
4 statement.
If however, the omission is one which would make i
1 1
5 an otherwise affirmative statement incomplete and therefore, i
I 6
inaccurate or misleading, it would be covered because you
)
7 would have a statement -- an affirmative statement that was j
8 not accurate and complete.
]
9 But if it's a pure omission, the Staff has thought, 10 and the advisory -- the ad hoc committee suggested it should 11 not be included in the definition of material false statement.
2 12 Finally, and I think I really already did identify i
i 13 this issue.
All three rules with regard to the catch-all i
14 reporting requirement have required that inf'o'rmation having 15 significant safety implications be reported.
This has been 16 the area, I think, of greatest controversy.
j 17 The Staff fairly consistently has said that as a j
i 18 matter of fairness, that because we have the obligation to I
19 define what it is we want reported, because we believe that we already have comprehensive reporting requirements and there 20 21 are not major categories of information not being reported, l
d i
22 that we ought to -- and therefore, that this requirement is i
23 really a catch-all requirement with ill-defined boundary -- we i
24 should make it punishable to fail to provide the information, 25 only if the licensee himself recognized it as significant.
i
l 15 1
There were other offices -- the office of General 1
2 Counsel, the office of Investigations -- who thought that if 3
we, with the benefit of hindsight, determined it was If 4
significant we should, nonetheless, go ahead and try to i.
5 penalize that.
6 Those are the issues.
I think I've told you where 7
we stand in the current proposal.
We're prepared to either go 2
into more detail or answer questions.
8 j
9 MR. STELLO:
We'd prefer questions.
j
{'
10 COMMISSIONER ROBERTS:
All right.
Now you have to i
11 refresh your memory, but let's go back to the Cooper station.
f 12 What would have been the enforcement action, if we were using s
i 13 your current definition and proposal?
l 14 MR. CUNNINGHAM:
I'm going to have to get --
15 COMMISSIONER ROBERTS:
That's not a fair question.
16 That was years ago.
I j
17 MR. CUNNINGHAM:
-- the facts.
Refresh me.
I 1
18 COMMISSIONER ASSELSTINE:
That's the false statement i
{
19 on the sirens.
Guy, one of our regional people picked up the i
i 20 phone, called the plant and said, do you have the emergency i
}
21 notification system in place and operable.
The guy on the
}
}
22 other and of the phone says, yes.
23 MR. CUNNINGHAMt That's oral.
l i
24 COMMISSIONER ASSELSTINE:
He didn't know.
l 25 COMMISSIONER. ROBERTS:
Wait a minute.
I remember L.-.
16 1
this vividly.
And I'm not going to correct you, but I'll give 1,
you my memory of it.
3 The person that our regional person talked to was 4
sitting in a downtown office building.
5 COMMISSIONER ASSELSTINE:
And he didn't know.
He 6
did not know the answer to the -- he said later on he didn't 7
know at the time --
8 COMMISSIONER ROBERTS:
He had made an inquiry by 9
telephone.
And based on that telephone conversation, it was 10 his understanding that the sirens were in place.
11 MR. STELLO:
And that inquiry, as I recall was to a 12 technician.
13 COMMISSIONER ROBERTS':
A storekeeper.
i 14 MR. STELLO:
It was a technician that made the 15 statement that the sirens were installed, as I recall.
16 COMMISSIONER BERNTHAL:
It sounds like the blind 17 leading the blind.
18 (Laughter.)
19 MR. LIEBERMAN:
From what I recall of the case, the 20 technician who was assigned the responsibility to install the 21 sirens told his supervisor management that it would be done on 22 the idea that he expected to have it done.
And the system 23 failed to follow through to make sure it was done.
24 COMMISSIONER ASSELSTINE:
Right.
25 MR. LIEBERMAN:
I believe at the time we proposed
17 1
the action, we thought that the whole situation was a careless 2
disregard type situation.
3 COMMISSIONER ROBERTSt Was a what?
l 4
MR. LIEBERMAN A careless disregard.
5 COMMISSIONER ASSELSTINE:
But it was an oral 6
statement.
7 MR. LIEBERMANt It was an oral statement.
So under 8
the proposal, it would be an oral statement involving careless 9
disregard.
That would be a violation of the rule, paragraph 10 A.
11 MR. CUNNINGHAM:
Violation of the reporting --
12 MR. LIEBERMAN That information was submitted that 13 was not completed and accurate in all material aspects.
14 COMMISSIONER ASSELSTINE:
But it would not be a 15 violation of C, and it would not be a violation of B?
16 MR. LIEBERMANt Correct.
17 MR. CUNNINGHAM:
That's right.
1 18 MR. LIEBERMAN Now there was also associated with i
l l
19 that case a written submittal.
That was also inaccurate.
And if we believe that was submitted with careless disregard, then 20 l
j 21 that would be a material false statement.
1 i
22 COMMISSIONER ASSELSTINE:
That's right.
i 23 MS. AXELRAD I believe ultimately when we imposed 24 the penalty in that case, we combined the three things 25 together, the oral statement, the written statement, and a
18 1
subsequent briefing into one penalty.
So ultimately we 2
issued one penalty.
3 And I believe that the same result would happen 4
today under the rule.
It would still be called a material 5
false statement, because it was written and with careless 6
disregard.
And the same penalty would be proposed under the 7
Staff's proposal.
8 MR. CUNNINGHAM:
I think that's an important point 9
to make.
That although it would not be a material false 10 statement under the current rule, it is a punishable violation 11 of the rule that information that's provided be accurate and 12 complete.
And the range of severity levels available to such 13 violations'is the same as the range of severity levels l
14 available for material false statements.
l 15 COMMISSIONER ROBERTS:
Questions?
16 COMMISSIONER ASSELSTINE I guess I really don't i
17 have a question, but I've got more of a comment.
Staff can 18 respond if it wants to.
l 19 I've been probably the one that's been most 1
20 concerned and reluctant about changing the existing material 21 false statement ground rules.
I guess I've been persuaded, l
22 particularly by the review by the advisory committee and the 23 discussion that we had with them, that it's useful to change I
24 the rule, somewhat along the lines of what's been proposed 25 here.
But I guess I've got two major concerns about this l
D
o 19 1
particular proposal.
2 And it strikes me that the big point that the 3
advisory committee made was, first, let's not label people as 4
liars unless they really are liars.
If they are, then label 5
them as such, and punish them as material false statements.
6 Where I have a concern about the material false 7
statement part of this, the subparagraph C, is the omission of 8
oral statements that are made, knowing that those statements 9
are false, and if we would have done something differently, 10 or if it wculd have affected a reasonable agency expert if 11 we'd known the truth.
12 It strikes me that it's still beneficial to include 13 those kinds of oral statements.
Not just sworn oral 14 statements, but other oral statements.
And the reason that 15 seems to be given in the paper for why that's not a good idea 16 is that this will have a chilling effect on oral 17 communications between our inspectors and the licensee's 18 staff.
19 I guess what bothers me about that a little bit is, it seems to me that the natural consequence of this provision 20 21 is also going to have a chilling effect on those kind of oral 22 conversations.
And here's why I think that.
23 If our inspectors know that they can no longer rely 24 upon this kind of provision for assuring accurate information 25 on an oral basis or oral exchange.
That is, even if somebody
20 1
knows that the information they're providing is false, that's 2
not a material false statement.
3 It strikes me that what our inspectors are going to 4
say, on anything important, or where they think it may be 5
important, they're going to say, that's nice to know, but now 6
you've got to give it to me in writing.
And the blizzard of 7
paper that you all said might occur if we still maintained 8
this requirement for oral material false statements, it 9
strikes me we're going to get hit with anyway.
10 If I were an inspector and I knew that somebody 11 could come up to me and deliberately lie to me, as long as ha 12 did it orally, as long as it wasn't in writing, could 13 deliberately lie to me and I couldn't go after him for 14 material false statement, what would I do?
I'd say, fine, if it's important, give it to me in writing.
That's what I want, 15 16 because that's my handle.
17 And I nuspect that that's going to be the likely 18 outcome of this.
And I'm not sure I see a real benefit in 19 excluding the oral statements.
20 So on the material false statement part, it seems to 21 me, that if it's done -- if the statement is oral, and at the time that individual knows he's lying, he knows it's not true, 22 23 that that ought to be punished as a material false statement.
24 I guess that's my first concern.
25 MR. CUNNIllGHAM Would you like me to respond to
21 l'
that one now, or wait until you go to the second?
1 2
COMMISSIONER ASSELSTINE:
Sure, go ahead.
Why don't 4
+
3 you respond to that one?
l 4
MR. CUNNINGHAM:
I guess I have two answers.
- First, 5
Alan Rosenthal made a very similar point, but coming at it 6
from a different perspective.
If it's important enough that l
7 we want to rely upon it, it should be formal.
It should be in 8
writing.
And so, if it is important, we ought to be asking
{
9 that people confirm it in writing.
l 10 The second one is, if it really is a deliberate lie, 11 we can escalate it to Level 1.
And the accompanying notice of violation and everything is going to make it clear that, hey, j
12 13 this is a lie.
i 14 We're really talking about a label now.
We're 15 going to give them the most severe penalty we can, if it's a 16 deliberate intentional lie.
The only question is whether you 17 have lost something by removing that label from the many t
la lesser cases you're going to have of unintentional oral 19 misstatements.
l j
20 COMMISSIONER ASSELSTINE:
It also strikes me that i
l 21 it's a bit strange to have a punishment for a lie, an oral lia
.}
22 like that under the criminal system, and yet not saying its a 23 material false statement for purposes of civil penalty l
24 enforcement action, which is, I think, generally recognized as 25 a lower level of punishment than the criminal sanctions.
-4
-e-4-
s 22 1
MR. CUNNINGHAM:
But again, I think it's the 2
question of a label, and applying the label to the most 3
frequently encountered cases.
When you pose the extreme 4
cases, you do have that apparent anomaly.
5 COMMISSIONER ASSELSTINE:
By reaction to Rosenthal's 6
point is, what you will end up with is an overly-formalized 7
system.
That what you want to do is encourage informal, oral 8
communications.
9 And if the practical result of Rosenthal's comments 10 is, that look, if it's important, it ought to be formal and it I
11 ought to be in writing.
Then I think what you're going to do 12 is you're going to harm the very point that the Staff said in 13 the paper they want to protect, which is protecting informal 14 exchanges of communications, rather than overly-formalizing 15 the process.
16 I think what Alan is saying is, fine, drive towards 17 a much more formal process where we insist upon anything 18 important, or we think what may be important being in 19 writing.
I kind of think that's a mistake.
i 20 COMMISSIONER BERNTHAL:
You know, I can see it going f
21 that way, Jim.
But I can as easily see it going a different 22 direction.
And I would hope that that's the way it goes; that 23 the second direction is the way it goes.
Where our staff 24 people and licensees have fairly open, informal communications 25 and exploration of what the facts really are.
23 1
We might eventually find cur Staff people reaching a 2
threshold of frustration.
But I suspect that would be a l
3 rather last resort.
And when the threshold of frustration is l
4 reached, I say it isn't that way.
You say it is.
If you 5
believe that it's that way, then you'd better write it down.
6 I think that's the more likely outcome of thja.
And that in 7
the vast majority of cases, you would havu, pr.?.tps, in some 8
cases a heated exchange of what is and isn't sv.
9 But at the point where the staff reacas. the 10 frustration level and demands it in writing, which I think 11 would be rather rare cases -- I think the mere threat of that 12 would be enough to make the licensee think three times, now, 13 am I really so sure?
Maybe, I'd better go back and check l
14 this.
15 I think that's the more likely scenario.
I can't 16 foresee the kind of paper blizzard that you're talking about.
l 17 I'll concede it's possible it could go that way, but I think 18 if it's handled properly by our Staff it's not likely to.
19 MR. PLAINE:
Mr. chairman, can I intervene for a 20 moment?
21 COMMISSIONER ROBERTS:
Absolutely.
22 MR. PLAINE:
Having heard the advisory committee two 23 months ago, I developed a certain sympathy for part of its 24 suggestion.
When Joe Hendrie said that applying this material 25 false statement to oral statements and applicable to all l
24 1
persons of the regulated company may dry up communication and 2
freedom of communication.
I'm interested in this applicable 3
to all persons.
4 I still feel that there are oral statements that 5
should be -- we should be able to see prosecuted or whatever 6
we do with them.
But making it applicable to all persons of 7
the regulated company is probably much too extreme.
8 It would seem to me that if we made the requirement 9
applicable -- and we're talking about oral statements --
10 applicable to all responsible persons of the regulated; 11 responsible for reporting of that nature.
Maybe my language 12 may not be completely accurate, but close to that.
13 You can then have the licensee feel that everybody 14
-- the company, or even the responsible people are not going 15 to be hit because somebody down the line made a statement that 16 was inaccurate, et cetera.
And it will not inhibit these 17 people, these line people, people down the and of the line, 18 and so on, from communicating with the inspection staff and 19 others who have a business to inquire.
And also it won't 20 threaten the company from that standpoint.
21 But it would seem to me that it is enforced.
And 22 that where an oral statement is given by someone who is in a 23 responsible, required reporting position, if you will, then 24 that's something we ought not to give up on.
We ought to 25 insist that that be something that the company stands behind.
i s
25 1
COMMISSIONER ASSELSTINE:
You know, I go back to the 1
2 original idea behind this.
And I think it's a fair one and 3
it's a good point.
The idea is, if it's not a lie, don't 4
label it as a lie.
I think that's where we all got started on
}
5 this.
It's what the industry complained about.
Look, you hit 6
us for material false statement violations when they're not t
7 really a lie.
i j
8 But the fact is, this goes beyond that.
What this j
9 says is, we'll have instances where it's a lie, and yet we j
10 won't label it as such.
11 MR. STELLO:
But I don't understand --
I 12 COMMISSIONER ROBERTS:
I don't think that's what Guy 13 said a minute ago.
J i
4 14 MR. STELLO:
I don't understand.
If it is really a i
j 15 lie, it's a crime.
16 COMMISSIONER ASSELSTINE:
That's right.
j j
17 MR. STELlot The individual can go to jail.
And if 1
18 we are convinced it's a lie, we'll refer it to Justice and he, 19 goes to jail.
i 20 What more onerous club can you have over your head 21 i
for you not to lie than the fact that you're going'to be j
22 incarcerated?
Should I be more concerned that the NRC will i
23 fine me $10,000, than the fact that I'm going to go to jail if 24 I lie?
i 25 COMMISSIONER ASSELSTINE:
That's true, Vic, but the
26 1
fact is --
2 MR. STELLO:
The hammer is heavy.
3 COMMISSIONER ASSELSTINE:
That's right.
But the 4
fact is, that the Justice Department probably isn't going to 5
prosecute a lot of those cases.
I have a suspicion that if 6
the Commission adopts this rule, you'll have a lot of 7
U.S. Attorneys around the country saying, hey, maybe we ought.
8 to prosecute more of these cases, because it looks-like the 9
Commission is backing.off on going after. oral material false 10 statement, even if they can show that they were deliberately 11 made.
12 MR. STELlo:
Well, then that would be the most 13 effective way that I could think of to stop people from' lying, 14 to have them prosecuted and sent to jail.
15 COMMISSIONER BERNTHAL:
Maybe they ought to 16 prosecu?e them.
17 MR. STELlD:
And maybe they ought to.
I don't have 18 any problem with that.
19 COMMISSIONER ASSELSTINE:
But the problem I have is 20 21 MR. STELLO:
Let me make a point.
You really have 22 got to understand that even as I sit here and I try to respond 23 to questions, I think it's important for me to give you my --
24 the best judgment.
When I'm not sure, I try to qualify it or.
25 hesitate.
But I think it's important for you to have that i
4 27 1
information.
I think it's important for you to know what my i
l 2
judgment is, even if I'm not sure that it is right.
And it 3
may turn out it's not right.
4 And when you're dealing day to day with engineering 5
problems that you're faced with, it becomes extremely 6
important to have that conversation without worrying, now, 7
wait a minute, I don't knew that I want to tell you.anything 8
until I have the chance to go back.
That's the chilling 9
effect that I think the advisory committee was worried about.
10 COE4ISSIONER ASSELSTINE:
Sure.
And that applies to 11 g
the innocent mistake, or where somebody just doesn't know.
12 But it doesn't apply to the situation when you say something 13 and you knew it's false when you say it.
14 MR. STELLO:
Knowing it's false versus having one of 15 our inspectors and investigators go doing an investigation and 16 getting a different standard for testing it, and having to 17 know that I'm going to be subjected to those kind of investigations, to move in that direction is clearly -- I will 18 19 tell you, it would make your Staff hesitate.
20 If I have to come down here and say, well, when I 21 say something at this table, do I really have to go back and 22 check it all out and make sure I've told you because there's 23 an investigator going to come out tomorrow and find out i
24 whether what I said is right, wrong or indifferent?
25 We really ought to do the most we can to encourage l
/
28 1
the best possible communication that we can encourage.
I 2
certainly don't see that there's any question or any problem 3
that the penalty that's there is as severe as it can be, 4
because there's clearly -- anytime we find that, we can go to 5
the Department of Justice and ask them to prosecute.
6 I can't think of anything that would cause people to 7
have more fear not to lie to us.
8 COMMISSIONER ASSELSTINE:
But the fact is, Vic, that 9
the reason that the industry doesn't like the material false 10 statement label is that, quite apart from whether anybody gets 11 prosecuted, or however long that takes, that label is a 12 stigma.
That's what it is.
13 MR. STELLO:
That's right.
14 COMMISSIONER ASSELSTINE:
If we say that someone --
15 that a licensee committed a material false statement, that's a 16 stigma.
It says that that licensee has lied to us.
17 Now your point is a fair one, as far as when you're 18
-- as far as you're talking about mistakes where somebody 19 isn't doing it deliberately.
Where they aren't deliberately 20 telling us something that they know is false when they tell us 21 that.
And I accept that proposition.
And that's, I think why 22 I would go along with this kind of an approach.
23 You're taking that group out and you're saying, 24 we're going to treat that group differently.
That's a failure 25 to report information that they should have reported to us, or
1 29 1
the failure to provide complete information.
2 But it seems to me that the label fits when you have 3
an oral statement that's made to one of our people, and at the 4
time that oral statement is made the individual making it 5
knows that the information is false.
It's a lie.
The stigma 6
ought to attach in that case.
Regardless of what the 7
Department of Justice does, this. agency ought to apply the 8
stigma in that particular case.
)
9 And I guess, I don't understand why we shouldn't do
-I 10 that.
11 COMMISSIONER ZECH:
Let me have a word, if I may.
12 It's absolutely true that there's great stigma --
13 COMMISSIONER ROBERTS:
I'm not going to be the 14 chairman for a moment.
Excuse me.
15 (Commissioner Roberts left the room.]
16 COMMISSIONER ZECH:
-- great stigma attached to the 17 label material false statement.
I think that's the crux of 18 the problem though.
So we don't want to call somebody a liar 19 if he's not a liar.
20 And from a practical standpoint, what we're really 21 talking about, is our people, especially the resident inspector interfacing on a daily basis with the people at the 22 23 plant, exchanging information.
They get to know each other in 24 a respectful, but businesslike atmosphere, it's been my 25 impression and my observation.
But they exchange information
30 1
freely, honestly.
And I think that it contributes to safe 2
operations of the plant.
3 I submit that the statement they have here presented 4
in their proposal on C, the definition, is an excellent one.
5 And I support the statement.
And it does not include oral 6
statements except that are sworn.
I think that's a fair way 7
to do it.
I think we're talking about human beings.
8 (Commissioner Roberts reentered the room.]
9 COMMISSIONER ZECH:
We're talking about people who 10 are generally honest.
And we're trying to refrain, in a 11 prudent, I think, and proper manner from labeling somebody a 12 liar when he's not a liar.
That's exactly what we're talking 13 about.
14 And it seems to me that's the sensible thing to do.
15 It may not be -- if we were perfect, you know, and if we all 16 knew exactly what was right, and we all had the same line to 17 walk, it would probably be -- we could probably have some 18 different words.
19 To me, these words reflect the very practical way of 20 trying to be fair, but to continue the honest communications 21 that goes on at the working level.
That's where it happens.
22 That's what we're talking about.
And I think that's very 23 important that we have that kind of exchange.
24 And I think the advisory committee recommendation 25 was right on.
And I certainly agree with that in this
o 31 4
1 regard.
In fact, I agree with most all their substantial 2
recommendations.
3 But I think this is a very important point.
I think 4
the Staff has come up with what I think is an appropriate 5
recommendation and I support it.
6 COMMISSIONER ASSELSTINE:
Lando, let me ask you a j
7 question on that.
If our resident inspector goes into the 8
control room of a plant, he walks up to the shift supervisor, 9
and he says to the shift supervisor, is all your i
10 safety-related equipment operable and are you complying with 4
11 your technical specifications?
The shift supervisor says to 12 him, yes, sir, we are.
1 13 And the resident inspector later on finds out that 14 the emergency core cooling system of the plant was valved out i
15 and inoperable, and the shift supervisor knew it at the time, 16 knew that was the case.
Should that be labeled as a material 17 false statement?
And if it should, do you think that's what C 18 does?
1 19 COMMISSIONER ZECH:
I think that that situation you 20 describe is --
21 COMMISSIONER ASSELSTINE:
It's a lie.
22 COMMISSIONER ZECH:
-- is very unlikely.
You're saying that the control room operator is going to deliberately 23 l
24 lie to our inspector.
I say that's very unlikely.
I think if a
25 that happens, that organization has more serious problems than
- -..._.-_,~_.. ___. _.. _.......
1 32 1
just that particular incident.
2 I submit that that's a rather unrealistic way to put 3
it.
What you're saying is, that you don't trust any answer 4
you get from a control room operator.
That's not my 5
experience.
6 Those people, in my experience, are trustworthy.
7 They're honest, and they're going to give you an honest 8
answer.
And I don't think that you're hypothetical situation 4
9 is one that is very relevant to really what we're talking 10 about at all.
11 COMMISSIONER ROBERTS:
Let me piggyback on your 1
12 question and ask the Staff, what within our regulatory 13 framework would alert us if an operating reactor had its 14 emergency core cooling valved out?
15 MR. STELLO:
I would be amazed that the resident 16 wouldn't walk over to the panel and find that out for 17 himself.
And if he didn't, he's the wrong person to be in 18 there as a resident.
19 Your hypothetical -- look, I understand it, but if 20 21 COMMISSIONER ASSELSTINE:
Do you want to answer my 22 question?
Why don't you answer it since Lando wasn't able to?
23 MR. STELLO:
I'd be happy to.
If that individual 24 did that, he would no longer be employed in this industry as a 25 licensed operator.
And I don't care whether we have this
33 1
regulation or not, we would do that today.
2 COMMISSIONER ASSELSTINE:
I agree with that.
But 3
the fact is --
4 MR. STELLO:
Let me finish.
5 COMMISSIONER ASSELSTINE:
-- it would be a lie and 6
it would not be a material false statement under this --
7 MR. STELLO:
And we would send it over to Justice 8
and ask them to prosecute.
And if the label that the j
9 individual is feared of having -- not the material false 10 statement, but a number across his shirt, because he's going i
11 to be in jail -- isn't enough to stop him from lying, I can't 12 believe that this regulation would stop him.
If the fact that 13 he's going to have to go to jail isn't enough, I can't fathom 14 that us passing a regulation would stop him from lying.
15 What is more significant than ycu losing your 16 freedom?
Is our regulation going to change that?
I don't 17 think so.
18 But, on balance, if we speak to this, can it in 19 fact chill con unications.
That's what the advisory committee 20 Said..Ibelie{ethatdeeply.
That it will have a chilling 21 effect.
If we start focusing more and more on the very bulk 22 of our business where we have to write, talk and communicate, 23 and we can't have a discussion, I believe it will 24 signific1ntly get people to work.
25 You know what I tell you, in your hypothetical l
i
34 1
example, we pass a regulation, the operator would say --
2 excuse me, the control room licensed operator, I don't think.I 3
shculd answer that question --
4 COMMISSIONER ROBERTS:
I've got to call my lawyer.
5 MR. STELLO:
-- without going back.
I'll have to go i
6 and check each one, and then I will respond.
-n 7
COMMISSIONER ZECH:
Well, I'm sure that's the kind 5
8 of answer you'd get.
9 MR. STELLO:
That's the kind of chilling effect, I 10 think, we're worried about getting.
11 COMMISSIONER ZECH:
Well, that's the kind of answer 12 you would get.
And I guess you're really assuming that our 13 people are helpless, are residents are helpless.
If he, of i
14 course, realizes that he's told a bold-faced lie, I submit-15 he's not helpless at all.
That's much, much that can be done.
i 16 But another thing that troubles me-a little bit is 17 to think that a rule, a regulation like this is going to 18 change human nature.
I do think it would have a chilling 19 effect on communications.
I think it would be very 20 detrimental to exchange of information.
I think it would be 21 detrimental to safety.
22 And I submit that it's simply not practical nor 23 realistic to put the control room operators in a position of 4
24 not being able to communicate freely with our resident inspectors under the fear of perhaps being labeled a liar for 25
35 1
some information they may have passed along that was, perhaps, 4
2 not completely accurate, but certainly was inadvertent, and 3
not done with malicious intent.
4 But-I don't think you can draw that line as 5
carefully.
And if you try to, I submit you're going to defeat 6
what we're trying to do as far as communications are 7
concerned.
8 And I just simply think that there's much that we 9
can do within our own authority and our own regulations, if we 10 do, indeed, have anyone that we find would be giving us a lie 11 in a very significant matter.
There's much we can do.
We're 12 not paralyzed, we're not powerless.
We could take all kinds 4
13 of actions.
We simply don't need to label people liars when 14 they're not liars.
t 15 COMMISSIONER ASSELSTINE:
Well, I agree with that, 16 Lando.
But the fact is, this doesn't label people liars when, I
17 in fact, they may be liars.
I 18 Second, I think the practical effect will be just l
19 what the Staff is talking about.
That our inspectors will l
20 tend not to rely on people tell them.
And they'll feel that o
1 21 given this kind of an approach, they'll have to go out and i
independently check much more than they are able to do now.
22 i
23 And I think the third point, as far as the chilling 24 effect goes, you ought to remember that the law-of the land 25 ever since the VEPCO decision, has been for a broad material l
l
36 9
1 false statement definition, even broader than what I would 2
advocate restricting this to.
And I don't think the reaction a
3 has been, by control room operators, to refuse to answer 4
questions, even under the much broader standard.
5 All I'm saying is, if a statement is made, whether 4
6 it's in writing or orally, and at the time that individual 7
makes the statement he or she knows that it's false, that 8
ought to be labeled as a lie.
We shouldn't label things as a
j 9
lies that aren't lies.
But when it is a lie, we ought to 10 label it as such.
11 But anyway, that's, I guess, my concern about --
12 COMMISSIONER ROBERTS:
All right, can we -- we're t
13 over our allotted time.
Do you want to take subject two?
i 14 MR. STELLO:
I would suggest, because I think if we 15 spend more time on that, like I said, the rest of day --
16 COMMISSIONER ROBERTS:
We could be here for weeks.
17 MR. STELLO:
What I propose then is we start the 18 briefing.
Slide number two.
19 COMMISSIONER ASSELSTINE:
Just before we do that, 20 let me just mention my second point on the material false 21 statement.
I never got to the second point, which has to do 22 winh item B.
And I'll just mention my comment briefly.
23 If, again, if what you wanted to do was what we all 24 said the objective of this was -- that is, first, not to label i
25 things as lies that aren't lies.
And second, to preserve as a i
37 1
separate category a full disclosure requirement, then I'd say g
2 I'm all for it, and I'm willing.to do it.
3 But my concern about paragraph B is, I don't think 4
it is a full disclosure requirement.
And in fact, I think i
5 that this business about restricting it to information 6
identified by the applicant or licensee as having, for the 7
regulated activity a significant implication for public health 8
and safety or common defense and security, substantially 9
narrows the extent to which paragraph B is a full disclosure j
10 requirement.
11 It seems to me that there's a perfect defense.
All 12 the licensee has to say is, well, we didn't identify that as 13 significant information.
And regardless of how slipshod they 14 were, or regardless of the standard that they applied in 15 making that determination, they're home free.
1 16 COMMISSIONER BERNTHAL:
Why doesn't that get caught 17 up in careless disregard, Jim?
18 COMMISSIONER ASSELSTINE:
Because there's no t
19 careless disregard in paragraph B.
j 20 COMMISSIONER BERNTHAL:
But you've got your choice, 21 don't you?
j 22 COMMISSIONER ASSELSTINE:
Well, first of all, if i
23 it's oral and if it's not made knowingly, you're out from 24 under C.
And I thought the idea of B was to provide, 25 essentially, the balance of the full disclosure obligation
,i e-, -s-n w
a
r-m-
,-,wm,,-y.-
,-,a
,e
--emw.,s-.w.--wnw
-m,-
38 j-1 under the VEPCO decision.
2 It seems to me if -- you have to apply a 3
reasonableness standard in enforcing this.
But if youive got l
I 4
information that we think we should have been given, it isn't 5
covered by a specific reporting requirement -- and I'll tell 6
you, after the Fermi experience, finding out that an unplanned 3
criticality is not reportable under our specific reporting 7
8 requirements, that leads me to believe that, you know, they 4
9 aren't as good as we thought they were in terms of cover 10 everything.
11 COMMISSIONER BERNTHAL:
Yes, but why shouldn't we l
1 i
12 t
have a requirement that unplanned criticalities are reported?
.}
I 13 Why shouldn't this agency have made a decision that was 14 important?
We didn't do it.
j 15 COMMISSIONER ASSELSTINE:
We didn't do it.
i 16 COMMISSIONER BERNTHAL:
Is that our fault or theirs?
17 COMMISSIONER ASSELSTINE:
No, it's partly ours.
But j
18 the fact is, you probably can't -- what that shows me is, we l
19
'can't anticipate, in a specific reporting requirement, 20 everything that's of significance, that's of safety 21 significance.
22 COMMISSIONER BERNTHAL:
But the licensee should?
23 COMMISSIONER ASSELSTINE:
But if we had known --
24 well, yes.
If they look at something individually, and 25 they've got the individual item before them and they say, this 4
1
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,m..
,_ -.. - _ _ -, r 4..__-~m.._,_y..r.,
...,.,_,_,-,__._.m.,..~,.-,...w
_,. _,,-,, r,,,-
39 1
is significant, we ought to tell the NRC about it.
l 2
. COMMISSIONER BERNTHAL:
But we're going to decide in 3
hindsight -- and again you get into, we're trying to. reach 4
into the mind of the individual.
Maybe he didn't think it.was t
l 5
significant.
a 6
COMMISSIONER ASSELSTINE:
You look at it in I
i 7
hindsight.
If it was a reasonable judgment, fine.
If it 8
wasn't a reasonable judgment, it seems to me, we ought to have 9
some basis for enforcing.
i 10 And I guess all I'm saying is, B ought to be, in my i
11 mind at least, a full disclosure requirement.
If it is l
l 12 significant, and if it is something that would have led us to 4
13 do something differently in carrying out our regulatory i
j 14 activities, it seems to me there ought to be an obligation on i
15 the part of licensees to report it to us.
g I
s 16 j
COMMICSIONER BERNTHAL:
Well, look, I don't entirely
'l j
17 disagree with the spirit of the comment.
And it's a nit, I i
j 18 guess, for the purposes here.
But I've wondered whether we 19 shouldn't make distinctions between reckless disregard and l
20 careless disregard, either here or in the level system of j
21 violations.
4 22 It may be that, at least as regards oral statements s
23 as covered under B, that reckless disregard should rise to the i
threshold of something that shouldn't be acceptable.
24 j
25 But even if you accept that point, you're flying in i
_ _ _.. ~. -
40 l
1 1
the face of what Staff, with a lot of experience in this area, l
2 is suggesting really isn't needed.
That our regulations now 3
are tested over some 10, 15 years.
4 And the inadvertent criticality is a perfect 5
example.
And if you have a situation that's clear -- it seems
+
6 clear in retrospect now, at least -- it seems clear in 7
retrospect, the licensee should have known that was 8
important.
It seems important to me.
It seems like a 4
9 reasonable person should have known that.
Why in the world 10 didn't the NRC write it into its reporting requirements?
4 11 COMMISSIONER ASSELSTINE:
Well, apparently it was in i
12 there and it got inadvertently deleted at some point down the l
13 road.
But I think everybody was flabbergasted when they found 14 out something like that wasn't reportable under the reporting 15 requirements.
i 16 COMMISSIONER BERNTHAL:
But what I'm saying is --
}
17 COMMISSIONER ASSELSTINE:
That's why you want a 18 fallback.
You want the protection of having, in essence, a 1
19 full disclosure catch-all to make sure that if it's important, 20 we're told about it.
It's that simple.
21 COMMISSIONER BERNTHAL:
But why should the fallback be hung on the licensee instead of this agency, with this 22 l
23 volume of requirements that we have?
l 24 COMMISSIONER ASSELSTINE:
Because the licensee is i
l 25 responsible for running the plants, and the licensee is i
l l
1
41 1
responsible for the safe operation, and they should know.
As 2
Vic keeps telling us, they're the ones responsible.
3 MR. STELLO:
Let me thrust of --
4 COMMISSIONER BERNTHAL:
I don't entirely agree.
5 There may be some room for --
6 MR. STELLO:
Let me tell you the thrust of the two 7
points that come acrcss that you've made to me.
8 You don't trust the licensee, and therefore, we have 9
to do these things.
And if we have a licensee we don't trust, 10 we need much firmer action than anything you're going to take i
11 regarding these regulations.
Any licensee that we don't 12 believe would responsibly meet the intent of what's in here, 13 that we can't trust them, the problem is far bigger than this 14 issue and we have got to take action.
I 15 If we really have licensees that will do the things 16 you're describing, an SRO who would lie to us, or someone who 2
1 17 would purposefully avoid meeting B by just avoiding it, and do i
18 those kinds of things, those licensees need far more severe 19 regulatory response than ever are going to be provided by this 20 regulation.
j 21 And we have to deal --
I think, in our regulations l
22 we have to decide whether we're dealing with an industry that 23 we just flatly can't trust.
And I don't accept that.
24 COMMISSIONER BERNTHAL:
Victor, let me interrupt a 25 minute here.
Let me just ask a straightforward question.
i
42 1-What would be wrong with a reckless disregard criterion in B, 2
for example?
Why is that a bad idea?
3 MR. STELLO:
I think we ought to talk about it a 4
little bit more, because you're building in tests that will i
5 require us to go back, over and over.
And I think if we find 6
a problem with a licensee that isn't faithfully doing this, 7
we've got a deeper problem.
i t
8 COMMISSIONER BERNTHAL:
Well, I don't disagree with 9
that.
10 MR. STELLO:
And that ought to be our concern.
11 COMMISSIONER BERNTHAL:
Answer the question.
I i
i 12 mean, maybe Guy needs to answer it.
4 13 MR. CUNNINGHAM:
Well, I'd like to avoid it, by 14 coming at it a different way.
15 (Laughter.)
l 16 MR. CUNNINGHAM:
Commissioner Asselstine said that i
17 you have a perfect defense if you simply say that I didn't 1
18 recognize it was significant.
We certainly didn't envision i
19 j
that to be the case, and I don't think it is the case.
20 There are all sorts of circumstantial evidence.
If t
21 j
you have reports from your engineering division that go to 22 management and say, we had a serious thing happen, you ought 23 to report it to the NRC and they don't.
There are cases where i
24 you're going to have that circumstantial evidence which will i
25 catch these reporting requirements.
i
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43 f
1 It's not impossible to build in some sort of test of 2
careless disregard.
But if you're looking at the question of 3
careless disregard in connection with recognizing or not 4
recognizing significance, it becomes a competence question, 5
not an intent. question.
6 COMMISSIONER BERNTHAL:
Well, I don't like the word 7
careless for that reason.
And since.it is oral, and since 8
it's B and not C that we're talking about here.
C involves i
9 sworn statements or written statement.
You clearly shouldn't 10 be careless in the sworn and written statements.
Maybe B has 11 a slightly highly threshold, and maybe it ought to be j
12 reckless.
13 But what's wrong with reckless?
That then is not l
14 carelessness anymore.
That's just -- all my engineers have i
15 told me this is so.
I don't care.
That's reckless.
What's l
16 wrong with a threshold like that?
17
[ Pause.]
l 18 COMMISSIONER BERNTHAL:
Is there some legal 19 problem?
I mean, I'm groping for whether there isn't an j
20 appropriate standard that can apply to the case that you have
)
21 some concern about.
22 MR. CUNNINGHAM:
No, it isn't a question of the 23 legal problem.
I mean, the VEPCO decision gave us a 1
24 tremendous amount of latitude.
j 25 COMMISSIONER BERNTHAL:
Well, a practical problem is i
_ ~ _ _ _... _.... _..,.,, _., _. _, _ _ _, _. _ _ - _,.. _ _. _ _ _ _ _ _,,, = - -, _.. _.., _ _..
-~_
4 i
44 i
1 what I mean, not strictly legal under the law.
2 MR. CUNNINGHAM:
I think we view this whole I.
3 paragraph B in terms of practicality and fairness.
If the 4
licensee didn't recognize that it was significant, he's not I,
5 going to report it anyway, under this rule.
6 COMMISSIONER BERNTHAL:
I agree.
That's j
7 carelessness or incompetence.
I don't want to get into that, i
1 3
MR. CUNNINGHAM:
And that is a separate problem.
9 COMMISSIONER BERNTHAL:
I want to get into 10 recklessness.
i 11 MR. CUNNINGHAM:
But see, that's a question -- I think, the way this rule is structured, that goes directly to 12 j
13 competence and not to intent here.
If they did recognize the 14 significance, and didn't report it, it's a violation.
3 j
15 So the question is, that you're getting at, I think 16 is, 'should they have recognized significance?
And that's a i
17 question of competence that I don't think you can regulate.
j 18 COMMISSIONER ASSELSTINE:
Guy, how would you deal e
19 with that situation, whether it's under this rule or some 20 other provision?
How would you deal with a situation in which a licensee has its reporting system set up and it's just 21 22 sloppy.
I mean, it is so unstructured and so undisciplined I
23 that they do not have a way of identifying what is significant i
1 24 information that ought to be reported to the NRC and what 25 isn't.
i
_ _ _ _, _ _ _ _ _ _ _ _ _. _. _ _ _. _ _. _, _ - _ _.. _ -. _ _ _ _ _ _ - ~. _. _ _ _ _ _ _ _ - -.
. =..
45 I
l l
1 And as a result of that, they simply don't let us i
2 know about something that was significant.
Not through any.
i
)
3 intention covering up or hiding it or anything.
Just didn't 4
have good procedures, didn't have a good system in place, and j
5 general sloppiness.
I i
6 Is there a way under this rule to deal with that j
7 situation?
And t.o issue a civil penalty and say, you didn't i
8 have a good system, you didn't provide information that you 9
should have provided to us.
And for some reason, the 10 particular item doesn't happen to fall within one of the i
11 specific reporting requirements that we now have, like an j
12 inadvertent criticality.
l 13 MR. STELLO:
Let me say first, if he has such as j
14 system as badly in place as the one you described, I question j.
15 whether he ought to be allowed to operate the plant.
Because j
16 it's a deeper-seated problem.
And I have a hard time 17 believing that would have such a sloppy system --
18 COMMISSIONER ROBERTS:
How'd they ever get a license 4
19 to begin with?
What have we got reviewers for in NRR7 i
20 MR. STELLO:
-- doesn't have a lot of other problems s
21 in the plant.
}
22 COMMISSIONER ROBERTS:
It's a specious argument.
23 MR. STELLO:
Because.he has a lot of systems he has j
i 24 to bring in in dealing with those kinds of issues, like tech I
^
j 25 spec reviews, 50.59 reviews.
And if they're that gross, then i
i m
46 1
I think we really have a problem.
2 And it seems to me that the issue that would be 3
raised in my mind, should he be allowed to continue to operate 4
the. plant?
5 COMMISSIONER ASSELSTINE:
All right, say he has a 6
basically good system and he just didn't go about implementing 7
it right.
Some people didn't do their job.
Again, not 8
intentional, not deliberate.
They didn't do their job --
9 MR. STELLO:
That happens all the time.
- Mistakes, 10 errors.
11 COMMISSIONER ASSELSTINE:
And what are you going to 12 do?
13 MR. STELLO:
Well, we take action against it.
14 COMMISSIONER ASSELSTINE:
How?
What action and on 15 what basis?
You're not going to shut them down for that, are 16 you?
17 MR. STELLO:
No, but we could get it fixed.
18 COMMISSIONER ASSELSTINE:
How?
19 MR. STELLO:
You could order them, if you had to.
20 MR. CUNNINGHAM:
Which we've done.
I think Jim 21 Lieberman can describe what we did at Sequoyah, for example, 22 which pretty nearly fits your question here.
23 COMMISSIONER ASSELSTINE:
Probably fits the first 24 one.
And you've got a good question, Tom, how did we give 25 them a license?
47 1
COMMISSIONER ROBERTS:
It didn't happen on my watch.
2 (Laughter.)
3 COMMISSIONER ASSELSTINE:
Let me respond, Vic, to 4
your broader philosophical point though before.
I agree with 5
you, that these cases are very rare.
And I think the history 6
of material false statement cases since the VEPCO decision 7
bears that out.
The cases of serious problems in the material 8
false statement area are rare cases.
By and large the 9
industry does a good job.
They approach things 10 conscientiously.
They may make mistakes, but there aren't a 11 lot of deliberate falsifications.
12 But I think the reason why you need a strong rule is 13 to deal with the few instances in which they do occur.
And 14 the fact is, that history, while it shows rare instances, 15 shows that there are some occasions where people don't provide 16 us accurate information.
And in some instances, deliberately 17 don't provide us accurate information.
18 And I think you need a way to emphasize that it's 19 terribly important that they do so.
And you have to have a 20 way to go after the licensee when that occurs, as well as the 21 individuals.
22 MR. STELLO:
I don't think we have any question of 23 having enough authority to go after them to do whatever we 24 need to do.
I have never, in all my years with this agency, 25 felt constrained against actions to individuals, if that's
s 48 1
necessary, which we've done, or to the company, if that's i
2 necessary, for which -- if we ever get time -- we'll be i
3 talking about -- many examples of those.
4 COMMISSIONER ASSELSTINE:
I'm done.
5 MR. STELLO:
To any other range, including shutting i
I 6
the plant down.
7 COMMISSIONER ROBERTS:
Half a minute more.
8 MR. STELLO:
Well, my half minute was going to be,-
4 j
as I said at the outset, when I started with this issue, I was 9
l 10 fearful that we would take up all of the time.
And I would t
i 11 urge, unless the commission has more time, that we at least 3
12 get to thumb through some of the enforcement issues that you i
13 need to speak to.
14 COMMISSIONER ZECH:
I.
Before you go -- and this was my j
15 suggestion at first, was why we take up this subject first,
}
16 because I think it's so important.
And whether we get the 3
17 other business now, perhaps, might even merit another meeting.
i 18 Let me just say this.
I think, I agree with Vic i
19 Stallo.
And I do believe that we have enough authority.
It's 20 certainly my understanding that we have all the understanding i
21 we need to deal with a utility that is -- or.a control room I
j' 22 operator who is simply not being honest with us.
I just think j
23 we have all the authority we need to do that in many, many
)
different ways.
24 25 But the important thing on this, this is a rule.
i
4 49 l
We're' coming up with a rule.
And I think it's important to l'.
2 recognize that rules and regulations don't operate nuclear 1
3 plants, people do.
People operate them.
4 The rules and regulations are provided for guidance, i
j 5
direction and assistance in safely operating the plants.
But i
6 people operate them.
And we've got to keep that in mind.
7 There is where we're trying to focus our emphasis on safety.
8 People operate the plants, not the rules.
1
(
9 Thank you.
1 j
10 COMMISSIONER BERNTHAL:
I'd rather talk about people j
11 and companies for another 30 seconds.
j j
12 (Laughter.)
i i
J 13 COMMISSIONER ROBERTS:
I'm an abject failure as a i
I 14 presiding officer.
i 15 (Laughter.)
3 16 COMMISSIONER BERNTHAL:
But you really try.
I'll j
17 promise to make the question short if you'll promise to make 1
18 the answer short.
1 19 COMMISSIONER ROBERTS:
I have never heard a short t
I j
20 question or a short answer in four and-a-half years.
i 21 COMMISSIONER BERNTHAL:
Tell me why your category B is not just stepping back a little bit, but not very much, 22 i
i 23 from where we already were?
Let me explain.
{
24 Before Staff could second-guess what really was 25 important.
Now you're going to second-guess whether they 2
5
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t 50 1
should have known that something was important.-
Isn't that j
2 true?
Who's going to decide?
i 3
COMMISSIONER ASSELSTINE:
The licensee.
[
4 COMMISSIONER BERNTHAL:
The licensee is going to i
5 decide whether it was important.
But then Staff is going to 6
ask themselves, come on, any person should have known, it
}
7 should have been obvious that this is important information.
8 MR. CUNNINGHAM:
But under this rule, the burden is
)
9 on us to show that they knew.
I l
10 COMMISSIONER ASSELSTINE:
That they knew.
That's l
)
11 right.
s 12 MR. CUNNINGHAM:
That's the rule is structured.
1 13 COMMISSIONER ASSELSTINE:
Not that they should have, i
14 but that they did.
15 MR. CUNNINGHAM:
Right, that's the way the rule is t
16 written.
i 17 j
COMMISSIONER ASSELSTINE:
That's the way it's i
j 18 written, that's right.
i l
19 MR. CUNNINGHAM:
Now we can take into account, as I j
20 said, circumstantial evidence, the menos,to the file --
}
}
21 COMMISSIONER BERNTHAL:
So should have doesn't count 1
i 22 here.
You have to show that they literally know, not that l
1
{
23 they should have known.
i l
24 COMMISSIONER ASSELSTINE:
That's what's wrong with i
25 B.
That's precisely what's wrong with B.
L
51 l
1 MR. CUNNINGHAM:
That's what's written in here.
2 That's what we recommend.
3 COMMISSIONER BERNTHAL:
Good luck.
I mean, that's 4
why it seems to me that -- I'm wondering whether there's any' i
5 real value in that.
Between should have known and knew 6
there's probably going to be a universe of about zero 7
instances in the next 10 years, is my guess.
But maybe I'm 8
wrong.
d 9
I mean, so all the written information is there, and
)
j 10 he clearly should have known, you say, but you didn't know.
t 11 COMMISSIONER ASSELSTINE:
Let's go on to the second 4
12 part.
13 MR. CUNNINGHAM:
We promised you'a short answer, we t
j 14 gave you one.
i
)
15 (Laughter.)
16 COMMISSIONER ROBERTS:
You certainly did.
Now let's i
17 proceed.
4 18 MR. STELlo:
All right.
Jim, please start talking.
19 COMMISSIONER ROBERTS:
Rapidly.
l
]
20 MR. TAYLOR:
I'm going to lead you through the j
i various recommendations from the advisory group and try to 21 I
j summarize briefly what we as staff are proposing to do as a 22 1
23
.usult of the advisory committee's report.
I j
24 And if I can have slide 2.
l 25 (Slide.)
i J
52 1
MR. TAYLOR:
The first area to address -- and this 2
covers recommendations 2 and 3 from the report -- is 3
timeliness of enforcement.
The advisory committee urged the 1
4 Staff to do its best to meet a goal of eight weeks.
And they 5
asked us to please get with it and get the appropriate actions 6
where the Commission was involved down here to you.
i 7
We've been working on that goal, and we're currently 8
at about 10 and-a-half weeks, most of our escalated cases, and 9
we're continuing to press.
So it's strictly within Staff, and l
10 we're going to continue to work on that problem.
11 Sometimes these cases get very convoluted and a 1
12 little hard to sort.
But we work closely with the regions, 3
l 13 and we're trying to streamline our process.
So I look at this 14 as strictly a shove to the Staff, and we're going to keep at i
15 it.
16 Recommendations 4, 5,
and 6 had to do principally in 17 the area of investigations, and talked about the Staff 18 reducing the number of requests and assigning priorities.
And 19 that subject was provided and addressed to the Commission 20 separately, and you acted on a policy statement for that.
So 21 I think that pretty well wraps up what we read from the 22 advisory committae.
Now we'll have to make it work.
23 Slide 4, please.
24 (Slide.)
25 MR. TAYLOR:
The next area that the advisory
,_.__,_-__m
,,_-.-_,m
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53 1
committee got into was enfoqcement conferences.
And they 2
recommended that these view serious exchanges of views between 3
the Staff and the licensees.
And we certainly agree with 4
that, that it shouldn't be a one-sided diatribe.
And we try 5
our best not to have that.
6 It's meant to be a free exchange.
And Jane has 7
attended numbers of those.
I go occasionally.
And we try to 8
keep the people doing that.
And licensees do tell us what 9
they think in enforcement conferences, and they should.
So we 10 agree with that.
11 The advisory committee recommended that we provide 12 three days. notice in writing that we will hold an enforcement 13 conference.
14 We weren't quite sure why they were into this 15 j
because we really haven't had too much trouble with 16 licensees.
We mutually arrange an enforcement conference.
17 However, we agree that as part of our policy we'll give three 18 days notice to them, unless the licensee agrees to less.
19 Sometimes we can see an occasion where, gee, you may 20 want to talk the next day.
And if it's okay with the licensee 21 and it's all right with us, we would do that.
But in the main, it presents no burden to the Staff to give them three 22 23 days notice on this subject.
i 24 And we don't see any real need to go in writing.
25 These things are usually a mutually agreed upon thing, and not
54 1
any type of demand.
So, it's working and I don't see a need 2
to change -- to go in writing.
3 The next subject which covers a provision of the 4
inspection report in advance of the enforcement conference, 5
and we basically think that's a solid thing to do.
- However, t
6 we don't want to mandate that that be required in all cases.
7 We're going to make it our goal.
8 Sometimes it's pretty important, because it takes a s
l 9
while to crank out some. inspection reports.
Some of them are 10 very extensive.
It's important to get the licensee in and i
11 talk about the major issue.
Sometimes inspection reports i
j 12 contain major issues and minor issues, and they're swept up ji 13 because they were all accumulated at the same time.
14 So again, we're going to follow the advice of the 15 advisory committee, and make that our goal to have the regions 16 get the inspection reports out.
4 17 The other thing that I'm worried about here is, 1
18 don't forget the timing.
That eight weeks starts from the end 19 of the completion of the inspection until I complete the 4
20 enforcement action with the regions.
And I'm not at all interested in introducing any more blocks into the loop to get j '
21 22 cnforcement done, 23 So again, this is something we're going to make our 24 goal to get the reports out, but I'm not going to mandate it.
25 MR. STEL10:
But we're going to come close to
55 1
mandating it.
2 MR. TAYLOR:
Within eight weeks.
3
.[ Slide.]
4 MR. TAYLOR:
Recommendations 9 and 10 cover the 5
subject Vic mentioned, press releases.
And this has been 6
talked about a great deal.
4 7
But the committee really came back to us with only 8
two solid recommendations.
The advisory committee recommended 9
that we give a 24-hour waiting period to a licensee before we 10 make our press release.
11 In other words, that very important telephone call 1
12 be made that, okay, the enforcement has been decided, it's on 1
13 its'way.
And usually we can FAX it or get the important 14 information to the licensee.
And that we wait 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to --
15 and sometimes we've tripped on that.
It's not because anybody 16 deliberately wanted to, but we have.
17 So we've talked to public affairs, and we are going 18 to do that.
And if it's necessary to do anything other than 4
19 that, public affairs and we will get together -- and we'll 20 only do it where it's absolutely necessary.
21 MR. STELLO:
Without trying to put further debate, 22 this is an issue I've been involved in the debate a long time 23 with.
I thought that it was interesting, when you looked at e
24 the FAA procedure, which' basically said, we'll issue a press
(.
ir 25 release if we can make the finding that it is in the best y
l
56 1
interest of furthering our program.
If not, we don't issue 2
it.
3 It suggested to me, that sounded like a pretty good 4
principle.
If we can't conclude that issuing the press 5
release furthers our enforcement in our NRC program, why 6
should we be doing it if it doesn't pass that test, 7
But apparently they didn't -- at least the advisory i
8 committee, didn't want to come forward and say we ought to do 9
that.
And I was puzzled why not.
10 COMMISSIONER BERNTHAL:
That is existing FAA policy?
11 MR. STELLO:
That's the way I understood it from the 12 report.
And I thought it made a lot of sense to me.
But they 13 did not come forward with that recommendation.
14 COMMISSIONER ASSELSTINE:
Well, I think -- my 3
i 15 impression, the advisory committee really went back and forth 16 on this and really looked at all of the aspects of the 17 problem.
And it seemed to me they came down with a pretty 18 reasonable conclusion on the matter that everybody_ought to 19 have a fair opportunity to look at the thing, to be able to 20 respond to it.
As a practical matter, you didn't need to 21 announce it.
22 Also, I think FAA practice, particularly recently 23 has been to fairly aggressively publicize a number of their 24 enforcement actions, particularly en bad maintenance n
25 practices.
They seem to be going out of their way to make N
57 1
sure that the public understands their concerns.
2 MR. STELLO:
I don't know what their -- you know, 3
how many they issue an announcement versus how many they 4
don't.
I don't know if we even have that data.
But I said --
5 I was talking about the principle.
I assume if they're doing 6
more, it's because they're meeting that principle.
I thought 7
it was a good principle.
I just wanted to make the comment.
8 MR. TAYLOR:
The other area that in press releases 9
-- they advised us that it might be a good idea to talk about 10 progress of corrective actions, if we could, and the plant 11 operating status in recent operating history.
And the Staff 12 has no problem with that.
And we intend to, where i'
13 appropriate, include that type of information.
j 14 So if they've been running well for the last year
{
15 and-a-half and there's been a problem, then we can duly note 16 their last year and-a-half worth of performance.
In fact, 17 that will impose in our handling of press. releases.
t 18 The next area that the --
19 COMMISSIONER ASSELSTINE:
And I take it, the press 20 release would also.do that if the information were negative.
21 If this were the latest in a long series of problems.
22 MR. TAYLOR:
I think we have our way of --
4 23 COMMISSIONER ASSELSTINE:
Getting that message 24 across.
25 MR. TAYLOR:
-- the message across.
It usually is
58 1
reflected in the enforcement action itself, certainly, or the t-2 escalating factors.
3 MR. FOUCHARD:
The answer is yes, Commissioner.
1 4
COMMISSIONER ASSELSTINE:
Good.
5 MR. TAYLOR:- The next area was some recommendations 6
from the group ~on trying to even out any inconsistencies 7
across the regions, and to take some steps along the lines of l
better classifying the criteria for -- or better define the 8
9 criteria for classifying violations by severity' level.
10 The Staff agrees, again, with these 11 recommendations.
We have a training situation for our 12 enforcement people throughout the regions.
We do train at 13 least one a year.
We hold a lot of conference call's -- Jane 14 does -- and the Staff interacts a. great deal.
15 We do change people.
That's part of our problem.
16 People do change, enforcement coordinators change in the f
17 regions, just like some of our staff does.
So it's a constant 18 task to keep people up to speed.
19 We do intend to -- and we do assess how the regions l
l 20
- carry out our policy.
So basically, we agree with, and we're 21 going to continue to push on it.
j 22 COMMISSIONER ZECH:
I had a question on the training 23 in that area.
Perhaps you could give it to me in some other 24 forum than this.
But question really was, you know, what's 25 covered in that training that you give each year?
And is one
59 1
year enough of an interval, or too much?
What about the l
2 orientation of new people?
Do we identify inconsistencies 3
along the way?
How are they monitored?
Some of those kind of 4
things, I think I'd be interested to hear more about, either 5
now or sometime later.
I 6
MR. TAYLOR:
I'll let Jane address the training, 7~
since she does most of it.
One of the' things we look at, one i
8 of the reasons why headquarters is in the loop is to look at 9
the inconsistencies and the things that we try.to iron out.
10 That's why we're in the review process for escalating cases.
11 COMMISSIONER ZECH:
Is it a formal training?
Maybe I
12 you could talk about it a little bit briefly.
13 MS. AXELRAD:
There's two aspects of the training.
14 One, there's a basic training program that's given to all 15 inspectors by the region.
And at that session the enforcement 16 coordinators in the region provide a session on enforcement, 17 explain the basics of the policy and how it works.
18 I, myself, go to each region at least once a year i
19 and give a formal training session, usually at one of the 20 resident inspector meetings when all of the people, the 21 residents are in.
And talk about the changes that we've made i
'22 to the policy, enforcement philosophy, new issues that we're i
23 addressing, and that type of thing, and take any questions.
24 In addition to that, during the year we use i
25 enforcement guidance memoranda which are, whenever an issue l
60 1
~ comes up and we find that guidance is needed to the region 2
we'll write a memo cut to.the regions that we issue from I&E.
3 COMMISSIONER ZECH:
Is it required for people before 4
they become resident inspectors to take that training?
5 MS. AXELRAD:
Yes, the basic fundamentals of 6
inspection training is given to all new inspectors, including 7
the residents.
And that does include a session on 8
enforcement.
9 COMMISSIONER ZECH:
And new people come into the 10 program --
11 MS. AXELRAD:
Right, every -- it's given -- I think i
12 it's supposed to be given once a year, or at least once a 13 year.
And so all the new people go through that.
14 COMMISSIONER ZECH:
Do you find, as far as the i
15 consistency or inconsistency is concerned that the training is 16 sufficient and effective?
17 MS. AXELRAD:
I think it's been pretty effective.
18 It's also helped by the fact that they have enforcement 19 coordinators in the region who we relate to on a monthly and a
.i 20
-- all the time -- daily basis.
We have formal conference 21 calls, counterpart meetings.
And they tend -- they're in the 22 region.
They work for the regional administrator, and they 23 tend to get the message out to the inspectors.
24 The inspectors interrelate with them on every 25 package that they work on enforcement.
Certainly, all the
61 1
escalated packages.
So with that kind.of interaction, I think 2
that the training that we're doing is --
4 t
3 COMMISSIONER ZECH:
And is there some kind of-i 4
follow-through?
Perhaps, once in a while you see some actions 5
come through that you question the way it was handled and
)
6 perhaps, give some --
4 7
MS. AXELRAD:
Yes, often.
3 8
COMMISSIONER ZECH:
Perhaps give some retraining in 9
that regard?
10 MS. AXELRAD:
Yes, we often -- Well, we certainly, 11 you know, deal with them on every case that we see.
And we I
12 recently instituted a way of sampling the severity Level 4 and 13 5 violations where we're now reviewing the inspection reports 2
)
14 as they go out.
And if we see miscalls, we're calling those 15 to the attention of the region, and we're keeping it in our 16 assessments.
And we'll be notifying the region where we see 17 inconsistencies.
18 COMMISSIONER ZECH:
It seems to me it does bear, the l
19 training does bear on our credibility and professionalism of 20 this endeavor.
So it's worth making sure that we're going-21 that properly.
.i 22 MR. TAYLOR:
Jane mentioned sampling the severity-23 Level 4s and 5s.
I think that's a very important part of what 24 we've been trying to do because, if you have really important j
issues that fall down into that category that should have been 25
- _ _ _ - ~ _ _ _. _ _ _
62 j
q u
i 1
matters of escalating enforcement --
2 COMMISSIONER ZECH:
That's the kind of thing I I
3 meant, too.
J 4
MR. TAYLOR:
-- we're really slipping.
And so --
i 5
COMMISSIONER ZECH:
But you do go back and --
6 MR. TAYLOR:
Right, we have done on a sample basis 7
several hundred --
8 MS. AXELRAD:
About 100.
9 MR. TAYLOR:
-- selectively, just picking on an 10 audit basis in the regions to make sure, you know, that the
]
I 11 gate is there.
'A j
12 COKKISSIONER ZECH:
Good.
Thank you.
13 MR. STELLO:
Let me suggest also, in this area it 14 would be helpful, I guess, if all of the Commissioners and l
15 principal Staff when they give talks to the industry, remind 16 the industry that it's important to get feedback.
r 3
17 When the industry sees an inconsistency, it really 18 helps when they call it to our attention.
I think they're 19 somewhat reluctant and hesitant to do that.
I think we need j
20 to encourage that we really want that kind of information t
21 because we want to do the best we can to avoid it.
And if we 22 could get more of the concrete feedback it would help us.
23 COMMISSIONER ZECH:
I agree.
24 MR. STELLO:
So all of you, when you have an 25 opportunity to make a talk, you might want to keep in mind the i.
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4 63 1
need to throw that point in.
That you rea4fy do want that i
2 kind of feedback.
3
[ Slide.]
i 4
MR. TAYLOR:
The next area that the advisory 9
5 committee got into touched into the inspection program.
They 6
made a number of recommendations, some of which we'd already 7
been working on anyhow.
8 One is, they recommended that the frequency of L
9 inspection be based on licensee performance.
We've done 10 things in the past and in SALP areas to do this, and we're
)
11 taking some further steps to try to reduce inspection where -
4 12 they've had sustained good performance.
i' '
13 And the Staff is currently working on that.
I 14 won't get into the details here, because it's not fully 15 staffed out.
We're working -- and Vic is aware of what we're 4
1 1
16 doing.
17 But I think that's good for resources, and it 18 certainly eases the burden somewhat of the inspection load.
l 19 And where it's merited, we'll do it.
i 20 COMMISSIONER ASSELSTINE:
De you have a sense at l
21 this point for how much you would ease the burden on the truly
====.
22 outstanding performers and how much you would increase the 23 burden on the truly poor performers?
24 MR. TAYLOR:
No.
We obviously are going to keep the 25 resident going.
i
64 1
COMMISSIONER ASSELSTINE:
Sure, right.
l 2
MR. TAYLOR:
And it gets to be, what about the-3 second resident, where he is there at the single sites and so i
t 4
on, and the other back-up inspection.
4 i
5 MR. STELLO:
To give you maybe a bound of the i
6 problem.
Where your sites are -- everything is going fairly 7
well, reduce the inspections strictly to the' resident 8
inspector level.
That's one bound.
l t
9 j
If I had to give another bound to where we've added 4
10 the resources, it would be in conjunction with TVA, where 11 we've obviously pulled an enormous number of resources, which 12 the Commission is aware, to deal with resolving those issues.
- l 13 So if you will, those are clearly two bounds to the i
14 problem.
We need that intermediate where we want to take some 15 of those resources at some facilities where we just feel we-i 16 want to augment and start augmenting those.
It will be that 17 spectrum.
1 18 COMMISSIONER ASSELSTINE:
At least on your first 19 bound, I guess I would -- the only concerns I would raise are, 20 it seems to me you want at least some ability to maintain your 21 quality check on the resident or residents of the site.
And 1
i 22 second, there may be some particular areas where the resident i
23 or residents don't have the expertise to have at least some l
24 baseline sense of are they maintaining the quality in their i
25 f
4; program.
-,,., ~
_ _. ~...
65 I
1 MR. STELLO:
You clearly have to include that in 2
your judgment.
But I was bounding it for you.
Not less than, t
I 3
and if you --
?
4 COMMISSIONER ASSELSTINE:
Certainly I agree with 5
absolutely not less than residents.
6 MR. TAYLOR:
The committee touched on making sure-7 inspectors followed up on root cause.
We've tried to do a 8
great deal of that, so that you don't just see a bad set of i
9 situations in a maintenance area and just drop it because.it 4
10 happened to be that valve.
You've always got to ask the root 11 cause type of question, if it was done poorly here, what about 1
12 elsewhere?
i i
13 We're going to horse up the procedures, so to speak, l
14 and improve them a bit in this area.
So we certainly agree j-15 with that.
i 1
l 16 COMMISSIONER ZECH:
Let me just say here, that's a j
17 very important point, getting to the root causes.
And I was a 18 little concern that you may have an inconsistency in your l
19 recommendations between that second bullet and also when you I
l 20 get back to recommendation number 19, where you also talk 21 about root causes.
It troubled me a little bit, and I'm i
22 concerned about performance indicators and how you really l
23 follow through on root causes.
j 24 So that's a problem that I have that perhaps you j
25 want to address when you get to 19, or now, whichever.
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66 i
1 MR. TAYLOR:
.I think I'll wait until 19 because 1
2 that's a slightly different -- this is --
i 3
COMMISSIONER ASSELSTINE:
I agree with that 4
j.
completely, Lando.
5 MR. TAYLOR:
-- degree of inspection process and
?
6 that I'll address -- or Jane or I will address that.
7 COMMISSIONER ZECH:
Fine.
i 8
MR. TAYLOR:
The timely evaluations of incidents and e
I 9
their.causes and explicit corrective action, I think that the 1
10 Commission is aware of the increased attention by the Staff, 11 and you know, what we've been doing in the IRTs, the AITs.
1 i
12 And there is an NRC manual chapter under AEOD being developed 13 on that subject.
l 14 We spent a lot of attention managerially on this 15 subject in the last year since Davis-Besse.
And I think i
16 we're doing a number of things to improve that whole process.
}
17 We're getting a lot of very useful information.
j 18 The last item, we'd had a mixed use of boards.
19 Several of the larger regions have set up boards for ultimate j
)
j 20 qualification of inspectors.
21 he have standardized the essential training elements 22 for inspectors across the country.
They use journals to check 23 off practical factors, time and plant and so on.
We, of.
24 course, have our training courses that.are prescribed.
And 4
'I 25 all of'those things have been in place.
1 i
4 67 l
.1 There was some variance across regions in actually I
2 saying G.
Brown is now a certified inrpector.
Two of the f
3 regions set up formal boards.
Three of the regions used the 4
)
4 section chief and normal supervisory chain.
We think a board 5
is probably a good idea and we're going to put that into i
l 6
effect in each of the regions.
i 7
(Slide.]
i
..l 8
MR. TAYLOR:
The next one has to do with some 9
enforcement policy wording.
And Jane having worked on this, I
10 I'll ask her to pick up on that one.
11 MS. AXELRAD:
Basically, what the committee picked up on was a relatively minor change that we made to the policy 12 13 the last time.
The policy had originally contained language
)
j 14 that said that noncompliance should be more expensive than-I l
\\
]
15 compliance, which was a nice statement, but something we never l
l!
used and found, probably couldn't ever use, because it was 16 l
17 almost impossible to determine how much money they actually i
j 18 saved through noncompliance.
19 And we also felt that it shouldn't be used unless a 20 licensee did something deliberate.
Like they actually
!/
1 21 consciously made a decision, we want to save money, so we're I
i 22 not going to comply, which we found was never something we've 1
i 23 run into.
I j
24 So we changed the language to say that it is the i
{
25 Commission's intent that sanctions should be designed to a'
t.
A s
68 1
ensure the licensee does not deliberately profit from 2
violations of NRC requirements.
i i
3 And in doing that we inadvertently created the t
i 4
impression, I guess, that the advisory committee picked up on i
5 that licensees only deliberately violated the regulations, f
i 6
when in fact, that really wasn't our intent.
7 So we -- when the advisory committee picked up on
]
8 this, we went back over the language and decided that -- we i
9 couldn't find anything that would solve the controversy and 10 not, you know, run afoul of some problem.
I l
11 So we decided that it would be easier to just 12 delete it, and that the policy wouldn't be losing anything if 13 you just took it out.
And that's what we're recommending that 14 we do in the next revision of the policy.
Since we don't use I.
j 15 it, we don't see any need to do it right away.
16 The second recommendation was that the policy should 17 allow mitigation for severity Level 1s.
And we raised this i
18 issue the last time we came to the Commission fcr revisions to i
19 the policy.
And it was determined at that time that we should j
20 only allow mitigation for severity Level 2s and 3s.
21 d
And the' advisory committee said that they think that t
22 the rationale that we have for mitigation for 2s and 3s l'
23 applies equally to severity Level 1s.
24 For example, if you have a good performer and all of 4
25 the sudden they have a severity Level 1 violation, you might' 1
t J
69 1
want to give them some mitigation to take into account good 2
performance.
Or if they take an unusually prompt and 3
extensive corrective action, you might want to give them some 4
mitigation.
5 So they recommended that the language extend for 6
allowing mitigation to severity Level 1s, and we agree with 7
that.
8 (Slide.]
9 MR. TAYLOR:
The next area that the committee 10 touched on was actions against individuals.
This has been a i
11 subject of a lot of discussion and thought.
And they 12 recommended that action be taken against individuals only in 13 the case of licensed operators who exhibit a serious incapacitytodischargetheirlicensIfunctions.
14 And their 15 position -- the committee's position was, in no case should 16 civil penalties be used in the case of individuals.
17 The Staff has developed and attached to the paper, 18 some guidelines in the decision process in enforcement against 4
l 19 individuals.
And basically, we agree with what the committee 20 has advised.
21 And we have set it up so that we would take i
22 enforcement action against only individuals where there was 23 misconduct involving significant violations of our 24 requirements, either caused by incompetence or willfulness --
25 this will be hard to show, all the time -- or where it appears
70 1
that operators were not competent to perform what they were 2
supposed to be doing.
3 We certainly wouldn't want to take action against 4
individuals if the failure on their part to act or to carry 5
out could be attributed to management failures, and failures 6
in procedures and directions and processes which can 7
contribute to the individual's failing to do his job.
8 We definitely -- we looked at the various sanctions 9
that we could impose, and we would not impose civil 10 penalties.
We would look at the areas of imposing letters of 11 reprimand or suspension or revocation of individual licenses 12 on the part of the individuals.
13 For licensed operators, we always have the option, 14 if their performance is such that we don't consider that they 15 ought to be doing what the company -- that's the first thing 16 you'd have to say is why?
How has the company ever allowed 17 them to be in that position?
But if he, in some way, in spite 18 of all the efforts by the company, were to demonstrate 19 unsatisfactory performance, we always have that option of 20 ordering his removal from the performance in the plant.
21 So I think these options which are there and which I 22 think we would be very careful in applying where individuals 23 are involved, and it's probably with consultation and 24 concurrence of the Commission, we think we have an approach.
a 25 COMMISSIONER ZECH:
I have a little problem -- go
1 71 1
ahead, Jim.
1 2
COMMISSIONER ASSELSTINE:
I was just going to say, 1
3 that doesn't apply just on licensed operators, does it, Jim?
j 4
I mean, it would apply to anybody in the organization, j
5 including senior managers.
For example, if we found that i
6 there was a real problem, we'd have the authority to go i
r i
7 against the licensee and direct the licensee affecting their J
l 8
continued --
l' 9
MR. TAYLOR:
Yes, managers, yes..
l 10 COMMISSIONER ASSELSTINE:
Okay.
}
11 COMMISSIONER ZECH:
Just a brief comment.
I agree, l
12 I think what you're telling us in the sentence-up there in the 4
{
13 first bullet on -- it's gone now.
I j
14 COMMISSIONER ASSELSTINE:
The preceding one.
15 MR. TAYLOR:
Would you put the previous slide on?
i i
16 (Slide.]
{
17 COMMISSIONER ZECH:
Where you say, in no. case should 1
l l
18 civil penalties be issued.
That's kind of an absolute i
)
19 statement.
It seems to me, I think what you're telling me is I
l 20 that you've modified that to the extent that perhaps J
1 21 individuals might be issued a civil penalty..
22 COMMISSIONER ASSELSTINE:
No.
l 1,
f 23 MR. TAYLOR:
Not civil penalties, no.
j 24 COMMISSIONER ASSELSTINE:
They're saying no fines 1
l 25
,against them.
i i
72 1
MR. TAYLOR:
We would not recommend fining 2
individuals.
3 COMMISSIONER ZECH:
Well, I would still submit --
4 COMMISSICNER BERNTHAL:
There could still be 5
criminal action though.
6 COMMISSIONER ZECH:
Yes.
7 MR. TAYLOR:
I'm talking about under our civil 8
authority.
9 COMMISSIONER ZECH:
All right.
Well, it seems to me 10 that's kind of an absolute in any case.
But, perhaps it's 11 appropriate.
I don't like to use absolutes unless we're, you 12 know, absolutely sure.
13 (Laughter.)
14 MR. TAYLOR:
We thought a lot about that and it's a 15 sensitive subject.
16 COMMISSIONER ROBERTS:
I'm pretty absolutely sure on 17 that.
18 (Laughter.]
19 MR. TAYLOR:
This is another one --
20 COMMISSIONER ZECH:
I'd ask you to think a little 21 bit more because, you know, there might be a case, and I just 22 don't think you ought to necessarily foreclose that.
23 A couple of other quick ones.
The misconduct i
24 significant violations certainly are severe ones.
Those are 25 onom that we ought to be involved in in a pretty significant
73 1
manner, and perhaps revoking licenses even, or considering 2
those type of action if it's actually a significant violation, 3
a serious -- in other words, if they're serious ones, they 4
ought to be treated seriously.
5 And the last comment was, where you say improper 6
management actions caused by individual -- by management i
7 failures.
But perhaps it would even be a combination.
So, if 8
an individual performed improperly, as well as the management 9
performed improperly, then that ought to perhaps be handled a 10 littic bit more than you're telling us you're going to do i
11 here.
12 MR. TAYLOR:
What we'd do would be to take action on 13 both sides.
l 14 COMMISSIONER ZECH:
Yes, that's right.
It's a i
15 little more complicated than I can read from --
16 MR. TAYLOR:
It is more complicated, but it could be i
17 i
18 COMFISSIONER ZECH:
It should be -- you should have I
i 19 the provision for that, if indeed that's the case.
20 MR. TAYLOR:
That's our intent.
21 COMMISSIONER ZECH:
Fine, sir, thank you.
22 COMMISSIONER ASSELSTINE:
I thought the paper 23 actually did a very nica job, too, in the guidelines in giving i
l 24 some examples of the kinds of things that would fall in those 25 various categories.
To me that was quite helpful in i
74 1
understanding how you'd apply those criteria.
2 MR. TAYLOR:
Tech specs, I think we'll pass because 3
the comm.asion has already dealt heavily in that subject.
4 And Jane, why don't you pick up on data collection 5
and the recommendation?
6 (Slide.]
7 MS. AXELRAD:
What we thought that the advisory 8
ccmmittee was getting was, data collection and performance 9
indicators that would show how the enforcement program was 10 working.
The agency is doing a lot to determine, you know, 11 how to evaluate whether a plant is performing well and to 12 evaluate the root causes of events.
And that's sort of done 13 separately.
i i
14 But it's trying to mesh together how the enforcement 15 program is performing with those kinds of performance f
indicators that's very difficult, because the two data systems 16 i
17 are sort of separate.
And we've been trying to do that, i
j 18 If you look at what the advisory committee with 1
19 those 11 plants in their report, where they tried to look at i
20 enforcement history and LERs and all of those things and mesh 21 them together and try to draw some conclusions about whether l
22 the enforcement program is working.
I think that's very 23 difficult to do.
24 As they said, you can't do it for just 11 plants.
25 You really have to look at all the plants.
And I think that's
'T
75 1
going to take a lot of resources to do something like that.
2 COMMISSIONER ZECH:
I understand that, but it's a 3
very significant endeavor and a responsibility we have, as far 4
as I'm concerned.
And I was just concerned by this short 5
paragraph here in recommendation 19 that you might be 6
indicating that we're doing all we can regarding this, we 7
can't do any more.
You talk about resources being -- you 8
know, you need more, and all that.
9 It troubled me to think that you're telling me that 10 this is going to go away, because I don't think it is.
11 MR. STELLO:
No, no, no.
What Jane was just 12 speaking of is with respect to her activity.
13 COMMISSIONER ASSELSTINE:
The enforcement program.
14 MS. AXELRAD:
Right.
15 MR. STELLO:
We are spending a lot of resources in a 16 lot of places in the agency dealing with this issue of getting 17 into the root cause.
It's very, very important.
18 COMMISSIONER ZECH:
But it also concerns me that I&E 19 people should coordinate with the AEOD people or whoever.
20 Because, you see, I&E people can perhaps make a real input to 21 the significant program of trying to improve performance, and 22 following trends and information and so forth.
23 And so I agree with you.
It's your whole staff 24 involved, and more than I&E.
But I&E has a large part to play 25 in this, and I&E should have the resources they need to make
76 1
that contribution.
2 MR. TAYLOR:
I believe we're.doing that, sir.
3 Jane's comment largely came from within the enforcement 4
staff.
We are doing what you want.
When things reach the 5
enforcement and escalated enforcement level, that data is 6
swept up into the general -- into the trending we're trying to 7
do.
And so I understand.
8 She was trying to make the point, from her staff 9
viewpoint.
10 COMMISSIONER ZECH:
I'm still interested in 11 performance indicators and trends.
12 MR. TAYLOR:
Yes, sir.
13 COMMISSIONER ZECH:
And I just was concerned that 14 this might be showing that you have some problem that I'm not 15 aware of.
And I don't think you should have it.
It's too 16 important.
17 MR. TAYLOR:
No.
18 MR. STELLO:
No.
It was only in the limited aspect 19 of trying to get into doing more and more of this and 20 correlating it to enforcement itself.
Except for that small 21 area, and that's the extent to which this comment applied, and 22 only.
23 COMMISSIONER ASSELSTINE:
It does strike me though 24
-- I had the same reaction Lando did -- that there is a link.
25 One would want to know whether the enforcement program -- and
I 77 1
really it's the combination of the inspection and the j
l 2
enforcement program -- encourage licensees to look behind just 3
the item that was found in the inspection report.
4 And to understand the root causes, and to search 5
those out and correct them throughout their system, rather 6
than just, well, there's a problem with this valve, we have to 7
fix that particular valve, and not look at the underlying root 8
causes.
Are they maintenance?
Are they design problems?
9 Does the inspection and enforcement program l
10 encourage that kind of deeper look, or are there things that 11 could be done to improve it to further encourage that deeper 12 look.
13 COMMISSIONER ZECH:
That was my view, too.
14 COMMISSIONER ASSELSTINEt I think there is a link.
15 COMMISSIONER ZECH And the problem I had, frankly 16 was, there is links.
And they should be coordinated, I&E, as 17 a part of the action.
18 But also my thought was, who's in charge?
Who's in 19 charge of following through root causes, if I&E does part, 20 AEOD does part.
Who's in charge?
21 MR. STELLos Do you want to go first?
22 MR. TAYLOR:
Well, we do a great deal of it, AEOD.
l 23 COMMISSIONER ZECH:
I know you do, but who's in 24 charge?
25 MR. TAYLOR I&E.
78 1
COMMISSIONER ASSELSTINE:
The big guy in the middle.
2 MR. TAYLOR:
The big guy.
The big guy's in charge.
l 3
(Laughter.]
4 (Commissioner Bernthal left the room.)
5 COMMISSIONER ZECH I want to hear him tell me that.
6 MR. STELLO:
When it comes to a specific action 7
taken on a case, it's I&E's responsibility to look at the l
8 enforcement action and the response of the licensee to 9
determine that they indeed got back into the root causes that i
10 created the problem, and in fact, understood those root causes 11 and fixed it.
12 COMMISSIONER ZECH:
Are you in charge?
13 MR. STELLO:
I think I am.
I'm responsible.
So if 14 it's fouled up, I accept that responsibility.
15 COMMISSIONER ZECH:
Okay, I appreciate that.
But 16 also, my other point really is, coordination is vital in this 17 area.
There's a lot of very good information here --
18 MR. STELLO:
Absolutely.
19 COMMISSIONER ZECH:
-- that should not be lost in 20 cur various staff offices.
It should be coordinated, and it 21 should be acted upon, and should be treated, I think, as 22 valuable information.
That's my point.
23 MR. TAYLOR:
And we do that, and we do share that l
l 24 with AEOD for their long term look at the generic problems.
25 So there are linkages between each of the elements.
And the 1
79 1
pecple who evaluate the events and the performance -- the 2
licensees go through the SALP program, which captures this.
3 And we're trying to improve this, Commissioner, 4
along the lines I know you're looking for.
5 COMMISSIONER ZECH:
Fine.
6 MR. STELLO:
But it is a responsibility that is l
7 diffuse in the Staff.
Recall, we have an office, AEOD, that 8
this whole thinking process is fundamental to what they're 9
getting behind.
10 COMMISSIONER ASSELSTINE:
Yes, but Lando's point --
11 MR. STELLO:
Now they work very, very closely with 12 NRR, and very closely with IE, and work very closely with the 1
13 regions in trying to go out and get that kind of information.
14 So if you think in terms of the generic lessons that l
l 15 are learned and how to deal with them, AEOD is doing --
16 COMMISSIONER ZECH:
Is your primary --
17 (Commissioner Bernthal reentered the room.)
18 MR. STELLO:
-- primary, with respect -- and it's l
19 very, very important, on the actions when an individual 20 licensee, where we're taking action.
And that's principally 21 I&E's responsibility.
22 MR. TAYLORt That's principally IEE.
23 COMMISSIONER ASSELSTINE:
Yes, but I think Lando's 2t point is a good one, though.
There are bits of relevant l
25 information in several different spots.
And to the extent
80 1
that they can be pulled together and coordinated, they should 2
be.
3 MR. STELLO:
And they are.
It's not just within the 4
NRC, it's information like NPRDS, and information in INPO.
5 COMMISSIONER ASSELSTINE:
Yes, that's right.
6 (Slide.]
7 MR. TAYLOR:
The next area the Staff included in the 8
paper were two issues which have been raised by the 9
Commissioners.
And one was -- the first one I'd like to talk 10 about on Slide 13 is the concept of a civil penalty point 11 system.
12 And we take this opportunity to talk to you about 13 this.
This type of approach was tried a number of years ago, 14 and we tried to get into some detail on that in the paper that i
15 we have provided to you.
16 COMMISSIONER BERNTHAL:
How long ago was that?
17 MR. TAYLOR:
Jane, do you have the date?
That was 18 from the original policy of the '70s.
19 MS. AXELRAD:
Before 1980.
It was in the policy in 20 the '70s, before the predecessor to the current policy was 21 published in 1980.
So, it was '75 through '80, or something 22 like that.
23 COMMISSIONER BERNTHAL:
Well, to save you a long 24 exposition, since I was the one that requested comment on 25 this.
I have to say I'm not very convinced by most of your
81 1
comments.
I'm not going to fall on my sword o'ver this issue, 2
because if you don't think it's going to help, then there's no 3
point in doing it.
4 I still believe, first of all, we shouldn't be 5
levying fines that are insignificant.
A fine for a utility 6
under $100,000 is insignificant in my judgment.
7 It wasn't until you got down, in fact, to.--
8 COMMISSIONER ROBERTS:
Fred, I would disagree with 9
that strongly.
10 COMMISSIONER ASSELSTINE:
I would too.
The dollar i
1 11 amount is insignificant --
12 COMMISSIONER BERNTHAL:
Let me finish my comments, 13 because I have to go visit my dentist soon.
That's my second 14 most favorite task.
15 (Laughter.)
16 COMMISSIONER ASSELSTINE:
Next to Commission 17 meetings?
18 MR. TAYLOR:
I was worried about a comparison.
19 COMMISSIONER ROBERTS:
Maybe that could be an i
20 incentive to wrap this thing up.
21 COMMISSIONER BERNTMAL:
I really was unimpressed by 22 the comments that you made because most of them appeared to 23 indicate that it simply hadn't been applied very well.
In 24 fact, I could down there and in almost every case ask why that 25 needed to be that way.
It wasn't very convincing.
4
82 1
The one thing that was somewhat convincing, I will
{
2 say, is the point that you raised about litigation.
That if a 3
licensee chose not to fight as points were accumulating on his i
4 license, so to speak, until three years later -- and by the e
5 way, most point systems don't accumulate over an indefinite.
6 They accumulate over three years, typically, on driver's 7
licenses.
8 If he fights only after three years, having to go 9
into litigation and raise all the issues, and remember all the 10
)
old issues, that's a cogent and legitimate argument, it seems 11 to me.
12 I am still unpersuaded that this would not relieve 13
)
you of discussions over the amount of money.
It's bad enough 14 trying to decide which category a violation falls in.
But if 15 you don't want it, I'm certainly not going to press the point.
16 I think if a licensee is fined, it ought to mean 17 something.
And by meaning something, it shouldn't be the back 18 door meaning, which I'm not sure what Tom's point is.
He j
19 can explain better than I can.
The back door meaning that it 20 gets in the paper and says $25,000.
And most people think 21
$25,000 is a lot of money.
Well, it isn't for a; utility.
22' COMMISSIONER ROBERTS:
But you just make the point.
l 23 Most people think it is a lot of money.
Sure, to some of 24 these utilities a $25,000 fine isn't much.
But how do you think that plays in the local newspaper where the people --
25 4
I
83 1
where the plant is, where people work in the plant?
The feds have come in anh fined these people $25,000.
I think that's 2
3 quite significant.
4 COMMISSIONER BERNTHAL:
But then you're saying that 5
what we're really doing is we're imposing the penalty of press 6
exposure.
And if that's what we're doing, then what's that 7
got to do with money?
I don't follow the logic.
8 COMMISSIONER ASSELSTINE:
I did seem to me though, 9
Fred, that what the Staff, at least in the table had shown, 10 was that the change we made in the enforcement policy the last time around' deemphasizing the large numbers of small fines, 11 12 making sure that smaller fines are not just a routine cost of 13 doing business, and that everybody gets a number of them.
And instead, using them effectively to identify and get management 14 15 attention to problem areas before they get to be real big 16 problems.
17 That that seemed to be working pretty well, whether 18 you use a point system or you use the existing system with a 19 little bit more refinement.
It sounded like what the Staff 20 was doing was accomplishing what you had in mind.
21 ER. TAYLOR:
We think we've -- you know, we've fully 22 mitigated numbers of penalties, and so forth.
And that really 23 means, he's had a lack of points.
24 COMMISSIONER BERNTHAL:
But you're mitigating 25 trivial dollars basically.
1.
84 1
MR. TAYLOR:
True.
2 COMMISSIONER BERNTHAL:
And to me that's silly.
3 It's not a big point and I still think it may not be a bad 4
idea, but I'm not going to press it.
So I think it's enough 5
said.
6 (Commissioner Bernthal left the room.)
7 (Slide.]
8 MR. TAYLOR:
The next subject that we wanted to 9
touch with the Commission on was the subject of reopening 10 previously closed enforcement actions.
11 We give a discussion of this in our paper.
And the 12 object here is really two-fold.
And that is, that I think, 13 further development of facts could prove that we were in 14 error.
And I think it is important to recognize that, as good l
15 a' process and as much attention as we try to give it.
That 16 could be the case.
17 And truly, if we have closed an enforcement action 18 and later development of information, in spite of our efforts, 19 develops we've been in error, then we ought to reopen it and 20 4 settle the record.
21 The other area that really bothers me here is that 22 we would -- I can foresee -- in fact, I think we've had cases 23
-- not very much -- where you would take an enforcement action i
24 based upon the technical issues that were completely identified, and then later on establish that that violation, 25
85 1
whatever it was, and whatever caused the imposition of the 2
enforcement, was willful.
That there was a deliberate action 3
involved.
4 It seems to me that whatever sanction we imposed -
5 previously should be relooked at, because I think where a 6
violation of regulations -- and some of-them can be very 7
important technically -- deserve enforcement action, where 8
there is a later development of willfulness involved, that it 9
should be revisited.
10 And we obviously would not do this in any carefree 11 way.
That is, we'd give it a great deal of attention in 12 trying to establish that that was the case.
It seems to me 13 then we ought to modify our enforcement action.
14 COMMISSIONER ZECH:
I've got a brief question for 15 you on that.
.You know, if you do that, it seems to me, how 16 does the licensee ever know that the matter is closed?
And 17 along with that, if you have additional information, why don't 18 you just open it up on that additional information, rather 19 than go back and revisit?
20 MR. TAYLOR:
That's essentially what we would do.
I 21 mean, we'd have to reopen based-on the additional information.
22 COMMISSIONER ZECH:
But why don't you call that a 23 new one and start over.again?
24 MR. TAYLOR:
Because you've really cited them for 25 the baseline of the technical violation.
So you have to go d
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86 1
back to where he violated the basic regulation, wouldn't you, 2
Jane?
3 MS. AXELRAD:
Yes.
4 MR. TAYLOR:
I think, legally.
5 COMMISSIONER ZECH:
Well, of course, that doesn't --
6 from a licensee's standpoint, I would think that doesn't give 7
him much assurance that you've ever closed out_any of them.
i 8
MR. TAYLOR:
I would think this would not be done 9
very frequently.
It would be rare circumstances.
10 COMMISSIONER ZECH:
I'm sure it would.
11 MR. TAYLOR:
But I'd just hate to think that because 12 we had concluded an enforcement action along the lines that I a
(
13 described, and then we later established that there was a 14 willful action involved, which is the -- you know, to us is 15 the worst type of --
16 COMMISSIONER ZECH:
But would there be a problem 17 just opening it up on that new information?
I mean, let it 18 stand on its own, rather than start over again?
19 MS. AXELRAD:
What you're talking about -- the 20 problem is that what happens is, you cite them for the 21 violation of a specific requirement.
And then you later find 22 out that that same violation was willful.
23 So essentially, what you cite them for is the exact 24 same thing you cited them for in the first place, only you 25 just explain that it's willful.
And therefore,-it's at a
87 1
higher severity level and you'd have a different sanction.
2 COMMISSIONER ZECH:
So it is essentially a new 3
citation?
4 MR. TAYLOR:
Yes.
5 MS. AXELRAD:
Yes.
6 MR. TAYLOR:
I mean, it isn't --
7 MS. AXELRAD:
But it's the same as the other one.
8 COMMISSIONER ZECH:
I see.
9 MS. AXELRAD:
It would look -- including the same 10 dates and everything.
So it would look a lot alike.
11 COMMISSIONER ZECH:
I didn't understand that from 12 the way you've worded it.
13 MR. TAYLOR:
There's a linkage.
14 COMMISSIONER ROBERTS:
Well, now let me ask a 15 specific.
Suppose you have a circumstance -- and picking 16 arbitrary numbers -- you have a civil penalty of $100,000, all 17 right?
Now later information would lead you to believe that a 18 more appropriate civil penalty would be $150,000.
Now what do 19 you do, give them $150,000 penal y?
20 MS. AXELRAD:
I think that what we were talking 21 about here is pretty much in the situation that Jim 22 described.
And that is, where later information shows that 23 the violation was willful, and we did not know that 24 originally.
25 We're not talking about just anytime we decide a
.=
88 1
civil penalty wasn't high enough, jacking it up.
It's purely 2
where we went out on the basis of --
3 COMMISSIONER ZECH:
New information.
4 MS. AXELRAD:
-- a non-willful violation, and 5
information is later developed that shows it was willful.
6 COMMISSIONER ASSELSTINE:
Now you might, in that 7
circumstance, you might say, because this has moved from a 8
severity Level 2 to severity Level'1, some additional penalty 9
may be appropriate.
10 MS. AXELRAD:
Right.
11 MR. TAYLOR:
That's exactly the logic.
12 MS. AXELRAD:
Or a 4 to a 3, where there was.no 13 penalty and you want some penalty.
14 MR. TAYLOR:
But if we mischaracterized a severity 15 Level 3 and put it out at $100,000, and gee, the different 16 addition and subtraction might later show it might have been 17 higher, we wouldn't even bother with that.
18 COMMISSIONER ASSELSTINE:
It's only if there's 4
t 19 really a material change in what you know about 2he violation.
20 MR. TAYLOR:
Yes.
21 MS. AXELRAD:
And basically, willfulness was really 22 what we were thinking about here.
23 MR. STELLO:
You know, usually the unknown is that 1
24 there is investigations that typically.will be ongoing past 25 when we want to take the enforcement action.
Where that's the l
89 1
case, many times we've dnferred -- as you are aware -- the 2
enforcement action until after the investigation was finished.
3 For where that's not the case, that's really the new 4
information.
And maybe it's a misnomer to characterize it the 5
way, because it tends to have a degree of looseness that --
t 6
COMMISSIONER ZECH:
Yes, that was kind of how I read 7
it.
But I see what you mean.
But it should be new and 8
significant information that would obviously make it 9
necessary.
10 MR. STELLO:
Yes, that's clearly the --
11 MR. TAYLOR:
That's the way we --
12 COMMISSIONER ZECH:
I understand.
13 MR. STELLO:
And it clearly is, usually -- I can't 14 think of any other example except the investigative process
\\
15 that brings out the new information.
16 COMMISSIONER ZECH:
Fine, thank you.
17 (Slide.]
18 MR. TAYLOR:
The next slide 16 was an attempt on our 19 part, along the lines Commissioner Zech asked about, was to 20 summarize our various positions and recommendations.
And 21 we'll proceed to flesh some of these out, to changes in the policy as you indicated at the beginning of the meeting.
22 23 We do have a little -- more information on a summary 24 of enforcement activities, but I think that's pretty well 25 captured in the paper.
In the interest of time, unless the 7-u 9'
90 1
Commissioner's want to get into that today, I think we're --
2 the statistics sort of stand for themselves.
3 The policy is working.
We are applying the factors 4
of the policy as described by the Commission.
And-I don't 5
think there's anything startling.
Numbers of material cases 6
is up some -- because I think we're taking a hard.line, 7
because of the effects on people in material cases.
And we 8
are enforcing.
9 COMMISSIONER ASSELSTINE:
Do you have anything more 10 on the reasons for the decrease in the number of reactor 11 cases?
12 MR. TAYLOR:
No.
I think.-- I'd like to think that 13 some of the performance is up.
But I couldn't' convince 14 everybody of that.
I don't see any pattern of people 15 shoveling things aside.
You know, I don't see much of that.
16 COMMISSIONER ASSELSTINE:
Okay.
I take it, for some 17 of the big problem cases in 1985 that you aren't through doing 18 your business on some of those.
19 MR. TAYLOR:
Right.
You're exactly right.
Yes, the 20 information is still being accumulated.
21 COMMISSIONER ASSELSTINE:
Because when I look at 22 1985, it didn't look to me like a terribly great year in terms 23 of a few significant events.
But I guess those just haven't 24 worked their way through the pipeline yet.
I 1
25 MR. TAYLOR:
That's right.
~.
91 1
COMMISSIONER ASSELSTINE:
Good.
2 MR. STELLO:
Mr. Chairman, I would suggest we stop 3
right here.
4 COMMISSIONER ROBERTS:
Excellent suggestion.
5 MR. STELLO:
And wait until you have had more time 6
to reflect on it, and tell us where we ought to go from here.
7 There's an awful lot of information covered in the last couple-8 of hours, and I'm sure any one of these subjects, as you are 9
aware, we could get back and debate any further.
10 So we'll just have to await your guidance.
11 COMMISSIONER ZECH:
Well, you've-gotten a lot of it 12 today.
I would kind of hope that perhaps with what we've 13 given you, you might come back with some fleshed out and more 14 specific addressals as far as the enforcement committee 15 recommendations were concerned, to get those in a little bit 16 different form so that we could address them in a more direct 17 manner.
18 I think, that's your task, as far as I'm concerned.
19 I would hope it would be.
20 MR. STELLO:
Yes, what our plan is is to now meld 21 those changes and recommendations they've made into the actual e
22 enforcement policy so that you can see in the context in j
23 which it will exist.
And our plan is to bring that back to 24 you sometime this summer.
25 COMMISSIONER ZECH:
Fine.
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92 1
MR. STELLO:
But my point was, if there's some 2
specific recommendations that were made that we suggested how 3
we thought we ought to go and you want us to go differently, 4
to the extent we can get that from the Commission, that would 5
be helpful, too, so that we don't, you know, start writing it 6
in a way you didn't want us to.
7 And of course, without -- I recognize almost 8
material false statement tends to put us in a mode like --
9 suggest that the Staff is here arguing with the Commission.
10 And we certainly don't want to do that.
It's an issue that's 11 been around a long, long time.
And'there are a variety of 12 views, as is evident,-on the issue.
13 COMMISSIONER ASSELSTINE:
I think we just ne,ed to 4
14 vote on that.
15 MR. STELLO:
The Commission clearly needs to vote on 16 that issue --
17 COMMISSIONER ZECH:
Yes, I think so.
18 MR. STELLO:
-- and bring that to us.
19 COMMISSIONER ASSELSTINE:
We've talked about it.
20 MR. STELLO:
I really think I would urge -- that 21 we've had more than adequate conversation on this matter.
And 22 you bring that one --
23 COMMISSIONER ZECH:
I agree on material false 24 statement.
I think on the other matters we do need a little 25 bit more fleshing out.
t i
93 1
MR. STELLO:
Well, we intend to clearly bring back 2
to you -- and I said, any guidance you can give us in that 3
regard would be helpful.
4 COMMISSIONER ASSELSTINE:
I'd say go ahead and put 5
the packages together, you know, for myself.
One quick i
6 question, Tom, if I could.
I don't want to delay this 7
unnecessarily.
8 It strikes me, particularly in light of the TVA 9
experience -- and we've talked about it a little bit on 10 occasion in other contexts -- that civil penalties don't 11 necessarily seem to be the most effective enforcement tool for 12 government agencies, like TVA, for example.
We fined ~the i
13 devil out of those' people for a year or so with seemingly no i
l 14 effect whatsoever.
j 15 What's the status of the Staff's efforts?
I 16 remember we've talked about this on occasion in the past --
4 17 about thinking about some other enforcement tools that might 18 be useful against licensees like a government agencies, 19 VA hospitals, TVA?
TVA stands out foremost in zur mind at 20 the moment.
21 But you know, if.you have to wait until the point i
l 22 where you've got enough to shut large numbers of plants down, 1
23 it seems to me you've waited too long.
I don't know to what 24 extent the Staff's been thinking about other creative options, 1
25 or whether you are thinking --
i.
94 1
MR. STELLO:
One that the Commission, you know, did 2
discuss is bringing those organizations to this table and 3
telling them like it is.
It might help.
I just think, you 4
know, the Commission involvement is something you don't call 5
enforcement, but clearly --
$l 6
COMMISSIONER ZECH:
I agree with that.
I think more i
a 7
of that can be done.
8 MR. STELLO:
-- having them here, and you telling 9
them like it is, I think it would be kind of awesome.
And you 4
10 need to think about, perhaps, doing that some.
You've done it l.
11 in the past.
12 COMMISSIONER ASSELSTINE:
Yes.
j 13 MR. TAYLOR:
We have used orders, where appropriate, i
14 in lieu of civil penalties with some entities like Veterans
(
15 Administration hospitals.
Most effectively, I had a very high 16 level meeting with Staff with some very senior people at VA, i
17 and that seems to have had an impact on their whole system.
18 COMMISSIONER ASSELSTINE:
Good.
19 MR. TAYLOR:
So that was an enforcement conference, 20 so to speak, in general with VA hospitals, and it seems to 21 have had its effect.
22 COMMISSIONER ASSELSTINE:
Okay.
3 23 COMMISSIONER ROBERTS:
Anything else?
j 24 COMMISSIONER ZECH:
No.
1 25 COMMISSIONER ASSELSTINE:
No.
1'
.h 95 1
COMMISSIONER ROBERTS:
Adjourned.
2 (Whereupon, at 4:00 p.m., the commission meeting was 3
adjourned.]
i 4
5 i -
6 7
8 1
9 i
i 10 i
i 11 12 i
i 13
- s t
i 14 i
15 16 1
17 1
I 18 19 J
20 21 22 1
23 4
24 4
i 25
.... ~,.
1 CERTIFICATE OF CFFICIAL REPORTER 2
3 4
5 This is to certify that the attached proceedings 6
before the United States Nuclear Regu l a t ory Ccani s s i on in the
.7 matter of COMMISSION MEETING e
9 9
Name of Proceeding: Discussion of Staff Recommendations on Enforcement Policy (Public Meeting) 10 11 Docket No.
12 Place: Washington, D. C.
i l, 13 Date: Wednesday, February 12, 1986 14 15 were, held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.
1 IS (Signature)
(Typed Name of Reporter)
P a Briggle 21 22 23 Ann Riley & Associates, Ltd.
24 25
MATERIAL FALSE STATEMENTS RULE - INFORMATION SHALL BE COMPLETE AND ACCURATE RULE - INFORMATION IDENTIFIED AS HAVING SIGNIFICANT SAFETY IMPLICATIONS SHALL BE REPORTED RULE - REVISED DEFINITION OF MFS WRITTEN OR SWORN STATEMENTS INACCURATE OR INCOMPLETE WILLFUL CAPABILITY TO INFLUENCE FULL RANGE OF ENFORCEMENT SANCTIONS FOR VIOLATION OF RULE A
4 t
t I
I m
D TIMELINESS OF ENFORCEMENT (RECOMMENDATIONS 2 AND 3)
COMMITTEE ENDORSED STAFF'S 8 WEEK G0AL FOR ISSUING ENFORCEMENT ACTIONS
- ESCALATED CASES NOW BEING ISSUED ON THE AVERAGE 10.5 WEEKS AFTER COMPLETION OF THE INSPECTION (EXCLUDING A CASES REQUIRING COMMISSION REVIEW AND ONE UNUSUALLY COMPLEX CASE) 4
(
l COMMITTEE RECOMMENDED STAFF EXPEDITE THE PROCESS OF PREPARING AND OBTAINING CONCURRENCES ON PAPERS REFERRING ESCALATED ENFORCEMENT ACTIONS TO THE COMMISSION.
STAFF WILL TRY TO EXPEDITE THE PROCESS.
O e
1
INVESTIGATIONS (RECOMMENDATIONS 4, 5, AND 6)
COMMITTEE RECOMMENDED THAT STAFF REDUCE THE NUMBER OF REQUESTS FOR INVESTIGATION BY SCREENING AND ASSIGNING PRIORITIES.
STAFF AGREES 1
THIS ISSUE WAS ADDRESSED IN SECY-85-369 WHICH WAS APPROVED WITH
-REVISIONS ON JANUARY 10, 1986.
.{
1 i
m.
m.
m m
i ENFORCEMENT CONFERENCES (RECOMMENDATIONS 7, 8, AND 21)
ADVISORY COMMITTEE RECOMMENDED THAT ENFORCEMENT CONFERENCES BE SERIOUS EXCHANGES OF VIEWS BETWEEN THE STAFF AND THE LICENSEE.
STAFF AGREES.
ADVISORY COMMITTEE RECOMMENDED THREE WORKING DAYS-NOTICE IN WRITING THAT AN ENFORCEMENT CONFERENCE WILL BE HELD.
STAFF AGREES TO PROVIDE THREE DAYS NOTICE UNLESS LICENSEE-AGREES TO LESS.
ADVISORY COMMITTEE RECOMMENDED THAT LICENSEES BE PROVIDED THE INSPECTION REPORT IN ADVANCE OF.THE ENFORCEMENT CONFERENCE.
- STAFF AGREES THAT IT WOULD ENHANCE THE DISCUSSION AND SHOULD BE PROVIDED UNLESS AWAITING THE REPORT WOULD DELAY THE ENFORCEMENT CONFERENCE.
- STAFF WILL PROVIDE GUIDANCE TO-THE REGIONS THAT THE G0AL SHOULD BE TO PROVIDE THE REPORT IN ADVANCE OF THE CONFERENCE AND THAT THE CONFERENCE SHOULD BE SCHEDULED IN EN0 UGH TIME TO COMPLETE THE. ENFORCEMENT ACTION WITHIN THE TARGET OF 8 WEEKS,
PRESS RELEASES (RECOMMENDATIONS 9 AND 10)
COMMITTEE RECOMMENDED ONE WORKING DAY GRACE PERIOD BETWEEN VERIFICATION THAT LICENSEE RECEIVED COPY OF NOTICE OF VIOLATION AND ISSUANCE OF PRESS RELEASE OPA AGREES THAT 24-H0VR WAITING PERIOD IS APPROPRIATE EXCEPT IF INF0 LEAKED OR COMPANY DECIDES TO ISSUE PRESS RELEASE.
IN SUCH CASES, OPA SHOULD BE DIRECTED TO OBTAIN CONCURRENCE OF DIRECTOR, IE BEFORE EARLY ISSUANCE OF RELEASE COMMITTEE RECOMMENDED PRESS RELEASES INCLUDE INF0 ON THE INITIATION AND PROGRESS OF CORRECTIVE ACTIONS, PLANT OPERATING STATUS, AND RECENT OPERATING HISTORY TO PRESENT A MORE COMPLETE AND BALANCED ACCOUNT TO THE PUBLIC.
STAFF AGREEb IF FACTS WARRANT IT.
REGIONAL INCONSISTENCIES (RECOMMENDATIONS 11 AfiD 13)
COMMITTEE RECOMMENDED THE STAFF CONSIDER WAYS OF REDUCING REGIONAL INCONSISTENCIES SUCH AS BY IMPROVED TRAINING AND STANDARD OPERATING PRACTICES COMMITTEE ALSO RECOMMENDED THE STAFF ACCELERATE ITS EFFORTS TO l
BETTER DEFINE THE CRITERIA FOR CLASSIFYING VIOLATIONS BY SEVERITY LEVEL STAFF AGREES WITH THIS RECOMMENDATION STAFF PROVIDES TRAINING IN EACH REGION ONCE A YEAR STAFF HOLDS MONTHLY CONFERENCE CALLS AND QUARTERLY COUNTERPART 3
MEETINGS DETAILED GUIDANCE ON SEVERITY LEVELS BEING PREPARED 4
TO BE ISSUED IN MARCH 1986 STAFF ASSESSES REGIONAL IMPLEMENTATION OF POLICY; SAMPLES SEVERITY LEVEL IV AND V VIOLATIONS
--e
INSPECTION PROGRAM (RECOMMENDATIONS 12, 20, 22, AND 23) 9 COMMITTEE RECOMMENDS FREQUENCY OF INSPECTION BE BASED ON LICENSEE PERFORMANCE.
STAFF AGREES.
PROCEDURES ARE IN PREPARATION.
i COMMITTEE RECOMMENDS STAFF INCREASE ITS EMPHASIS ON IDENTIFICATION AND CORRECTION OF ROOT CAUSES OF VIOLATIONS WITH PARTICULAR EMPHASIS ON HUMAN ERROR.
INSPECTION PROCEDURE UNDER DEVELOPMENT, COMMITTEE URGED NRC TO INCREASE EFFORTS TO ISSUE TIMELY EVALUATIONS OF INCIDENTS AND THEIR CAUSES WITH RECOMMENDED EXPLICIT CORRECTIVE ACTIONS.
INCIDENT INVESTIGATION PROGRAM BEING IMPLEMENTED.
NRC MANUAL CHAPTER UNDER DEVELOPMENT.
COMMITTEE RECOMMENDED THAT THE RATIONALE FOR THE USE OF BOARDS TO EVALUATE PROSPECTIVE INSPECTORS BE EXAMINED WITH THE OBJECTIVE OF ESTABLISHING STANDARDIZATION THROUGHOUT THE FIVE REGIONS. ALTHOUGH WE BELIEVE THE QUALIFICATIONS OF INSPECTORS ARE STANDARDIZED, WE WILL REQUIRE THE USE OF BOARDS IN ALL REGIONS
=
f ENFORCEMENT ~ POLICY WORDING t
(RECOMMENDATIONS 14 AND 15)-
COMMITTEE RECOMMENDED LANGUAGE RE ECONOMIC BENEFIT OF NONCOMPLIANCE-BE CHANGED.
v ORIGINAL LANGUAGE: " NONCOMPLIANCE SHOULD BE MORE. EXPENSIVE THAN COMPLIANCE."
POLICY CHANGED IN 1984 TO READ: "IT IS THE COMMISSION'S INTENT THAT SANCTIONS SHOULD BE DESIGNED TO ENSURE THAT A LICENSEE DOES NOT DELIBERATELY PROFIT FROM VIOLATIONS OF NRC REQUIREMENTS."
i REASON FOR CHANGE WAS THAT LANGUAGE COULD NOT BE APPLIED' LITERALL AND SHOULD ONLY BE APPLIED IN RARE INSTANCES IN WHICH A VIOLATION
)
WAS DELIBERATE.
LANGUAGE HAS NEVER BEEN USED IN THIS MANNER, s
)
IN VIEW 0F CONTROVERSY OVER THE YEARS AND FACT.THAT ENFORCEMENT
]
FOR DELIBERATE VIOLATIONS IS DEALT WITH ELSEWHERE, STAFF ~
j RECOMMENDS IT BE DELETED.
I COMMITTEE RECOMMENDS POLICY ALLOW MITIGATION FOR SEVERITY LEVEL I'S
{
STAFF AGREES.
JUSTIFICATIONS FOR MITIGATION FOR SEVERITY LEVEL II'S AND III'S APPLY EQUALLY TO SEVERITY LEVEL I'S,
ACTIONS AGAINST INDIVIDUALS l
l (RECOMMENDATIONS 16 AND 17)
COMMITTEE RECOMMENDED THAT ENFORCEMENT ACTIONS BE TAKEN AGAINST INDIVIDUALS ONLY IN THE CASE OF LICENSED OPERATORS WHO EXHIBIT A SERIOUS INCAPACITY TO DISCHARGE THEIR LICENSED FUNCTIONS. IN
~
NO CASE SHOULD CIVIL PENALTIES BE ISSUED.
i i
STAFF HAS DEVELOPED GUIDELINES AND REQUESTS COMMISSION APPROVAL TO ISSUE THEM TO REGIONS.
d GUIDELINES STATE THAT ENFORCEMENT ACTION AGAINST INDIVIDUAL LICENSED OPERATORS SHOULD BE CONSIDERED WHERE MISCONDUCT INVOLVING SIGNIFICANT VIOLATIONS OF NRC REQUIREMENTS CAUSED BY INCOMPdTENCE OR WILLFULNESS OCCUR OR WHERE IT APPEARS THAT OPERATORS ARE NOT COMPETENT TO PERFORM THEIR DUTIES SAFELY.
ACTIONS AGAINST INDIVIDUALS SHOULD NOT BE TAKEN IF IMPROPER l
ACTIONS BY INDIVIDUAL WERE CAUSED BY MANAGEMENT FAILURES.
5
r s
INDIVIDUALS (CONT)
FOR UNLICENSED OPERATORS, ORDERS NAY BE DIRECTED TO FACILITY LICENSEE TO REMOVE INDIVIDUAL IF CONTINUED PARTICIPATION BY I
THE INDIVIDUAL COULD JEOPARDIZE CONTINUED SAFE OPERATION OF THE PLANT.
CIVIL PENALTIES SHOULD NOT BE IMPOSED ON INDIVIDUALS.
LETTERS l
OF REPRIMAND AND POSSIBLE SUSPENSION OR REVOCATION OF LICENSE PROVIDE ADEQUATE MECHANISMS TO ENCOURAGE INDIVIDUAL RESPONSIBILITY FOR COMPLIANCE WITH NRC REQUIREMENTS.
t l
l l
l l
i l
[,
TECHNICAL SPECIFICATIONS j
(RECOMMENDATION 18)
L COMMISSION SHOULD ESTABLISH A PRIORITY AND ACCELERATE A PROGRAM j
TO REFORM TECHNICAL SPECIFICATIONS.
i l
COMMISSION WAS BRIEFED ON THIS ISSUE ON JANUARY 21, 1986.
]
i 4
1 1
a 1
t l
i f
DATA COLLECTION 4
(RECOMMENDATION 19)
STAFF SHOULD STUDY MEANS TO COLLECT DATA ON PREVENTABLE SAFETY-i SIGNIFICANT VIOLATIONS INCLUDING SOURCE 0F IDENTIFICATION, SEVERITY LEVEL, AND CONTRIBUTING ROOT CAUSE FACTORS.
THE STAFF DOES NOT HAVE THE RESOURCES TO SIGNIFICANTLY EXPAND ITS EFFORTS IN THIS AREA, 1
e a
4 J
r 1
i i
1
i ISSUES RAISED BY THE COMMISSION A CIVIL PENALTY POINT SYSTEM HAS BEEN TRIED BEFORE AND REJECTED BECAUSE REDUCED FLEXIBILITY TO TAILOR SANCTION TO CIRCUMSTANCES AND FOCUS ON UNDERLYING CAUSES.
WAS RELIED ON BY THE STAFF AND TENDED TO BE APPLIED MECHANISTICALLY UNRELATED VIOLATIONS COULD BE GROUPED TOGETHER TO ACCUMULATE POINTS WHEN N0 SIGNIFICANT REGULATORY CONCERN JUSTIFYED A PENALTY.
LED TO INCONSISTENT TREATMENT OF LICENSEES BECAUSE OF DIFFERENT LEVEL OF DETAIL IN LICENSES.
WOULD NOT PROMOTE GREATER DEGREE OF UNIFORMITY OR PREDICTABILITY EFFECT OF CURRENT POLICY ON NUMBER OF SMALL FINES IS SAME AS POINT SYSTEM BUT-ALLOWS MORE FLEXIBILITY.
SMALL FINES SHOULD NOT BE ABOLISHED.
WARNS LICENSEE OF PATTERN THAT COULD LEAD TO MORE SERIOUS PROBLEMS.
COULD COMPLICATE THE HEARING PROCESS
TABLE 3 REACTOR CIVIL PENALTIES BY AMOUNT AMOUNT 1983 1984 1985
$50,000 OR LESS 32 21 16
>$50,000 - $100,000 9
10 7
>$100,000 8
7 3
e k
-p 3
COMMISSION ISSUES (CONT) i f
REOPENING OF PREVIOUSLY' CLOSED ENFORCEMENT ACTIONS LEGALLY PEP,MISSIBLE IF WOULD NOT UNDULY PREJUDICE RECIPIENT
- - GOOD REGULATORY POLICY SHOULD FAVOR TAKING APPROPRIATE ENFORCEMENT ACTION EVEN IF THAT MEANS REOPENING AND CORRECTING THE RECORD IN A PREVIOUSLY CLOSED CASE.
HAS DETERRENT EFFECT ON RECIPIENT AND ON OTHERS O
SHOULD RE0 PEN UNLESS DETERRENT BENEFITS ASSOCIATED WITH RE0PENING ARE OUTWEIGHED BY PREJUDICE TO RECIPIENT i
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i
SUMMARY
OF STAFF POSITIONS STAFF RECOMMENDS THAT COMMISSION:
ISSUE PROPOSED RULE ON MATERIAL FALSE STATEMENTS DIRECT OPA TO OBTAIN CONCURRENCE OF DIRECTOR, IE BEFORE ISSUING PRESS RELEASE IF LESS THAN 24 HOURS AFTER RELEASE OF ENFORCEMENT ACTION.
IF COMMISSION APPROVES, STAFF WILL:
CONTINUE TO STRIVE TO MEET 8 WEEK GOAL FOR ISSUANCE OF ENFORCEMENT ACTIONS SCREEN AND ASSIGN PRIORITIES TO REQUESTS FOR INVESTIGATIONS PROVIDE GUIDANCE TO REGIONS 1) TO PROVIDE THREE WORKING. DAYS NOTICE OF ENFORCEMENT CONFERENCES UNLESS LICENSEE AGREES TO LESS; AND
- 2) ESTABLISH GOAL OF ISSUANCE OF INSPECTION REPORT IN ADVANCE OF ENFORCEMENT CONFERENCE AND SCHEDULE CONFERENCE WITHIN SUFFICIENT TIME TO MEET TARGET DATE OF 8 WEEKS REVISE IE MANUAL CHAPTER TO PROVIDE FOR ISSUANCE OF PRESS RELEASE 24 HOURS AFTER VERIFICATION THAT LICENSEE HAS RECEIVED THE ENFORCEMENT ACTION.
DIRECT THAT BOARDS BE USED TO DETERMINE IF INSPECTORS ARE QUALIFIED ISSUE GUIDANCE TO REGIONS FOR ACTIONS AGAINST INDIVIDUALS JV I
SUMMARY
(CONT.)
DURING NEXT REVISION OF POLICY:
DELETE WORDING REGARDING PROFITING FROM. SANCTIONS CHANGE WORDING TO ALLOW FOR MITIGATION FOR SEVERITY LEVEL-I VIOLATIONS INCLUDE WORDING ENDORSING RE0PENING OF PREVIOUSLY CLOSED ENFORCEMENT ACTIONS IF RECIPIENT WOULD NOT BE UNDULY PREJUDICED 4
9
v.
SUMMARY
OF ENFORCEMENT ACTIVITIES-NUMBER OF ENFORCEMENT CASES SUBMITTED TO IE FOR REVIEW HAS REMAINED STABLE CHARACTER OF CASES HAS CHANGED - NUMBER OF REACTOR CASES HAS DROPPED SUBSTANTIALLY SINCE 1983 WHILE NUMBER OF MATERIALS CASES HAS INCREASED INCREASE IN MATERIALS CASES IS THE RESULT OF MORE AGGRESSIVE ENFORCEMENT PROGRAM IN THIS AREA REASON FOR DECREASE IN REACTOR CASES NOT AS OBVIOUS,.
MAY BE THE RESULT OF IMPROVED PERFORMANCE PARTICULARLY IN THE AREA 0F TECH SPEC LCOs MAY BE THAT REACTOR VIOLATIONS ARE BEING CITED AT LOWER LEVELS AND THEREFORE NOT SUBMITTED TO IE FOR REVIEW, WE ARE EXAMINING THE DATA TO IDENTIFY THE CAUSE OF THE SHIFT,
Y TABLE l1-ENFORCEMENT ACTIONS J981 1/
1984 2/
1985 3/
CIVIL PENALTIES 73 72 63 SEVERITY LEVEL III 16 30 31 NO CIVIL PENALTY SEVERITY LEVEL IV OR V 37 18 23 ORDERS 9
13 h/
9 VIOLATION - SEVERITY LEVEL 1
0 0
NOT SPECIFIED 5/
NO ACTION 3
2 3
PENDING E/
1 2
0 0
OTAL CASES 143 137 138 NOTICES OF VIOLATION INVOLVING SEVERITY LEVEL IV AND V VIOLATIONS NOT SU3MITTED TO IE 2000 2000 2000 1/ CASES RECEIVED IN IE BETWEEN JANUARY 1, 1983 AND DECEMBER 31, 1983.
2/ CASES RECEIVED IN IE BETWEEN JANUARY 1, 1984 AND-DECEMBER 31, 1984.
J/ CASES RECEIVED IN IE BETWEEN JANUARY-1, 1985'AND DECEMBER 31,-1985.
A/ THREE ADDITIONAL ORDERS WERE-ISSUED IN CONNECTION WITH CIVIL PENALTY CASES 1/ ISSUED UNDER OLD POLICY 5/ AS OF FEBRUARY 1,1986 (1983 AND 1984 CASES INVOLVE FIRE PROTECTIONL
8 t
O TABLE 2 ESCALATED ENFORCEMENT ACTION 2 - BY TYPE 1983 1984 1985 CIVIL PENALTIES REACTORS 49 38 26 MATERIALS 24 34 37 TOTAL 73 72 63 SEVERITY LEVEL III, NO CIVIL PENALTY REACTORS 14 17 19 MATERIALS 2
13 12 TOTAL 16 30 31 ORDERS REACTORS 2
5 1
MATERIALS 7
8 8
TOTAL 9
13 9
OTHER REACTOR 31 16 21 MATERIALS 14 6
14 TOTAL 45 22 35 TOTAL CASES REACTORS 100 79 66 MATERIALS 43 58 72 TOTAL 143 137 138
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