ML20206R334

Informs Commission of Staff Intention to Publish Encl MD with Revs Addressing Concerns of 2 Staff Members & to Retain Established Policy of Decentralized Administration & Processing of Dpvs

ML20206R334
Person / Time
Issue date:	03/02/1999
From:	Travers W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
SECY-99-065, SECY-99-065-01, SECY-99-065-R, SECY-99-65, SECY-99-65-1, SECY-99-65-R, NUDOCS 9905200086
Download: ML20206R334 (43)

Text

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POLICY ISSUE (NEGATIVE CONSENT)

March 2.1999 SECY-99-065 FOR: The Commissioners FROM: William D. Travers Executive Director for Operations

SUBJECT:

REVISION OF MANAGEMENT DIRECTIVE 10.159, OlFFER/NG PROFESSIONAL VIEWS OR OPINIONS PURPOSE:

To inform the Commission of the staff's intention (1) to publish the attached management directive with revisions addressing the concerns of two staff members; and (2) to retain the established policy of decentralized administration and processing of Differing Professional V;ews (DPVs).

BACKGROUND:

The revisions to Management Directive 10.159 (Attachment 1), address the concerns expressed in an employee's April 21,1998, memorandum to Ashok C. Thadani responding to a request for comments regarding the employee's differing professional opinion (Attachment 2),

and those expressed in item 4 of Attachment 2 of another employee's August 5,1998, memorandum to the EDO, Request for Review of Concerns Related to Technical Specification

, Setpoints and Allowable Values for instrumentation Under Formal Differing Professional Opinion (DPO) Procedures (Attachment 3). The revised directive also retains decentralized tracking of DPVs. A summary of these issues was provided in Mr. Blaha's note (Attachment 4).

DISCUSSION 1 '

The first employee's concerns about the follow-up of actions identified in DPV close-out j memoranda were addressed by assigning an oversight function to the Secretary of the 1 g

SECY NOTE: In the absence of instructions to 9

Contact.

J. David Woodend, HR the contrary, SECY will notify the staff on ,

Friday, March 19, 1999, that the Commission, (301) 415-7102 by negative consent, assents to the action proposed in this paper.

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9905200006 990302 PDR SECY ('),J r/ - (, {N g [cl 99-065 R PDR .

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O l 2-Commission, the Deputy Executive Director for Regulatory Effectiveness, the Chief Financial Officer, the Chief Information Officer, Office Directors, and Regional Administrators; and through the addition of paragraph (B)(5) in the handbook. These changes, coupled with the EDO's memorandum dated July 22,1998 DPV/DPO Process (Attachment 5), should provide the '

guidance necessary to adequately address the employee's concerns. We deemed it inappropriate to add language to the directive or handbook regarding follow-up actions on DPOs because DPOs are processed at the Commission and EDO levels, and those responsibilities are integral to and implicit in the functions of those organizations.

The second employee's concems that DPV and DPO reviews and decisions should not involve individuals who have directly participated in the formulation of the agency position that is at issue are addressed by adding that idea to paragraphs (B)(3)(a) and (C)(2)(a) of the handbook.

The changes to those paragraphs, in effect, reiterate an idea already contained in paragraphs (B)(4)(a) and (C)(3)(a) of the handbook. Although these changes cannot fail-safe against actions similar to those of concern to the employee, they reinforce the principle of independent and impartial review, and remind those who seek to address and resolve DPVs and DPOs of the importance of ensuring not only the reality, but the perception of an independent and impartial review.

We feel that these changes to the management directive, and the memorandum from the EDO, should adequately reinforce the agency policy to conduct timely, independent, and impartial reviews and actions on issues raised under the DPV/DPO process.

, We also feel that it is in the best interests of the program and the agency to continue with the long established policy of decentralized DPV administration and processing. Meeting deadlines in a timely manner is an inherent part of the job for every office director and regional administrator. A centralized tracking system may, at the margin, save a few processing slippages, but on balance, the potential chilling effect that such a centralized tracking system may have on employees' willingness to submit DPVs significantly outweighs the possible benefits thet may be derived.

Although the adoption of a centralized method for tracking the progress of DPVs could, in theory, help offices and regions more consistently meet processing deadlines, the chilling effect such tracking may have on employees' willingness to submit DPVs may be significant. The historical purpose of DPVs is to provide employees with a nonthreatening way to raise their concerns to management's attention. By its nature, the trust factor in the DPV/DPO arena is fragile and tenuous at best. Some employees who may be willing to raise issues at the office or regional level may not be willing to raise those same issues at the agency level. In the highly sensitive area of DPV/DPO, a centralized tracking system could easily be perceived as bringing DPVs to the attention of a higher level of management than the employee is comfortable with.

That perception could result in some employees not submitting DPVs. The DPV framework contained in the directive was developed, and has been maintained, by a sometimes hard fought consensus between management and employee representatives. A unilateral action by management to alter that framework could have a deleterious effect on the overall program effectiveness.

F- 1 l-i

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,b

! RECOMMENDATION:

Staff requests action within 10 days. Action will not be taken until the SRM is received. We consider this action to be within the delegated authority of the EDO. The Office of the General Counsel has no legal objection to the publication of this management directive.

Q) . . , w- ,

William D. Travers Executive Director for Operations Attachments: As stated DISTRIBUTION:

Commissioners {

OGC OCAA OIG OPA OCA CIO CFO EDO REGIONS SECY l

Differing Professional Views or Opinions Directive 10.159 s

Attachment 1

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Directive 10.159 Contents Policy ................................................................. 1 O bj e c t i ve s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Organizational Responsibilities and Delegations of Authority . . . . . . . . . . . 2 Th e Co m miss io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Secretary of the Commission (SECY) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Executive Director for Operations (EDO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Chief Information Officer (CIO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Deputy Executive Director for Regulatory Effectiveness (DEDE) . . . . . . . . . . . . . 4 Director, Office of Human Resources (HR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Chief Financial Officer, Chief Information Officer, Office Directors, and Regional Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... . ...... 5 D e fi n i t i o n s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Ap p li ca b ili ty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Handbook......................................... ................. 6

'Re fe re n c e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 l

Approved: August 15,1997 (Revised: DRAFT 8/18/98) iii

i

["ppKtty\ U. S. Nuclear Regulatory Commission g ,

}g Volume: 10 Personnel Management l

% e/ Part: 7 General Personnel Management j

• • • o Provisions HR ,

J j

Differing Professional Views or Opinions l Directive 10.159  !

Policy  !

(10.159 -01)  !

It is the policy of the U.S. Nuclear Regulatory Commission to maintain )

a working environment that encourages employees to make known their best professional judgments even though they may differ from a prevailing staff view, disagree with a management decision or policy 3

position, or take issue with proposed or established agency practices.  !

Objectives l (10.159 - 02) e To establish an informal process for expressing differing professional views (DPVs) and a formal process for expressing differing professional opinions (DPOs) concerning issues directly related to the mission of the NRC. (021) e To ensure the full consideration and prompt disposition of DPVs and DPOs by affording an independent, impartial Teview by qualified personnel. (022) e To ensure that all employees have the opportunity to express DPVs  ;

and DPOs in good faith, have these views heard and considered by NRC management, and, to the extent practicable, participate fully l' in the process from beginning to end. (023)

. To protect employees from retaliation in any form for expressing a j differing viewpoint. (024) i e To recognize submitters of DPVs and DPOs when they have  :

contributed significantly to the mission of the agency. (025) l e To provide for periodic assessment, as necessary, to ensure that l implementation of these procedures accomplishes the stated objectives and to recommend appropriate changes. (026) l l

Approved: August 15,1997 I

(Revised: DRAFT 8/18/98)

1 Volume 16, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Directive 10.159 Organizational Responsibilities and Delegations of Authority (10.159 - 03)

The Commission (031)

. Notifies the Director, Office of Human Resources (HR), that a DPO has been received. (a)

Convenes an ad hoc review panel for the review of a DPO. (See Handbook 10.159(C)(2) for more information on the panel.) (b)

. Determines the disposition of DPOs submitted by employees in offices reporting directly to the Chairman or Commission and informs the DPO submitter of the final decision and the rationale for it. (c)

. Takes action, as appropriate, on matters that appear to be of immediate health or safety significance. (d) e Utilizes appropriate and qualified sources inside and outside the NRC to assist in reviewing a DPO. (e) e Provides to the Office of the Executive Director for Operations (EDO) a summary of the issue and its disposition for the Weekly Information Report. (f) e Reviews applicable portions of DPV/DPO files for.information exempt under the Freedom of Information Act (FOIA), and identifies such information, if any, to the Information Services I Branch (ISB), Office of the ChiefInformation Officer (OCIO). (g) e Sends all completed DPO case files to HR in accordance with Handbook 10.159(C)(4). (h) e Periodically reviews and modifies the DPV and DPO process based on recommendations from the EDO and the special review pane 1. (i)

Approved: August 15,1998 2 (Revised: DRAFF 8/18/98)

l Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Directive 10.159 I

l l

(032) 1 I Secretary of the Comm J...._., as  !

Reviews reports from office directors = n;;!:n' :.d:c appropriate, on any delays in followup actions on DPVs after the final decision memorandum has been given to the submitter, the reason for the delay (s), and revised schedules for the completion of the action (s).

Executive Director for Operations (EDO)

(033) e Notifies the Director, HR, that a DPO has been received. (a) e Convenes an ad hoc review panel for the review of a DPO (see Handbook 10.159 (C)(2) for more information on the panel). (b) (

e .

Determines the disposition of DPOs submitted by employees in offices reporting directly to the EDO and informs the DPO N submitter of the f'mal decision and the rationale for it. (c) e Takes action, as appropriate, on matters that appear to be of immediate health or safety significance. (d) e Utilizes appropriate and qualified sources inside and outside the q NRC to assist in reviewing a DPO. (e) e Provides a summary of the issue and its disposition in the Weekly Information Report (NRCweekly memorandum from the Office of the EDO to the Commissioners). (f) ,,

e Reviews applicable portions of DPV/DPO files for information exempt under FOI A regulations, and identifies such information, if I any, to the ISB, OCIO. (g)

• Sends all completed DPO case files to HR in accordance with Handbook 10.159(C)(4). (h) e Periodically appoints members to a special review panel to review the effectiveness of the DPV and DPO process. (i) e Reviews the special review panel's report and makes l recommendations to the Commission, as necessary. (j) e Publishes periodic announcements declaring that diversity of viewpoints is a strength and a potential source of valuable ideas. (k)

Approved: August 15,1998 3

(Revised: DRAFT 8/18/98)

L

h Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Directive 10.159 ChiefInformation Officer (CIO)

(034)

• Establishes recoros disposition schedules for DPVs and DPOs in accordance with regulations of the National Archives and Records Administration. (a)

• Maintains at the NRC File Center all completed DPOs according to the authorized disposition contained in NUREG 0910, "NRC Comprehensive Records Disposition Schedule." (b)

I Deputy Regulatory$xecutive EffectivenessDirector (DEDE) for (034)

Reviews reports from office directors or regional administrators, as appropriate, on any delays in followup actions on DPVs after the final IN decision memorandum has been given to the submitter, the reason for the delay (s), and revised schedules for the completion of the action (s).

Director, Office of Human Resources (HR)

(035)

. Monitors the number of DPO submittals being processed in the agency. (a)

. Transmits all completed DPO case files for review and disposition in accordance with Handbook 10.159(C)(4). (b) e Ensures that appropriate parts of DPOs and their dispositions are disseminated or made available to the public in accordance with the provisions of the FOIA. (c) e Provides administrative support to the Commission, EDO, office directors, regional administrators, and the special review panel in carrying out their responsibilities for DPV and DPO processing. (d)

Approved: August 15,1998 u .

l Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Directive 10.159 l

Chief Financial Officer, Chief Information Officer, Office Directors, and Regional Administrators (036)

. Inform SECY for Commission offices or DEDE for EDO offices, as appropriate, of any delays in followup actions on DPVs after the final decision memorandum has been given to the submitter, the reason for the delay (s), and a revised schedule for the completion of the action (s). (a) e Determine the disposition of a DPV submitted by an employee within their office or region and inform the DPV submitter of the decision and its rationale. (b) l

• Appoint an ad hoc review panel when a DPV is submitted by an employee assigned to their office or region, and include an i employee designated by the Office of Enforcement to be a fourth member of a review panelwhen the subject of the DPV involves an enforcement issue. (See Handbook 10.159 (B)(3)(b) for more information about the panel.)(c) e Take action on and advise the EDO or Commission of submittals that appear to be of immediate health or safety significance. (d) e Utilize technical assistance from other NRC offices and regions or from outside the agency, as necessary, to address a highly specialized issue. (e) ,

e Provide a summary of the issue and its disposition in the Weekly Information Report. (f) e Submit a completed DPV (or applicable portions of DPV) through the Director, HR, to the PDR when the submitter requests in writing that the DPV be made public in accordance with Handbook 10.159(B)(4)(e). (g)

• Maintain documentation necessary to preserve an accurate record of the DPV proceedings in accordance with Handbook 10.159(B)(5). (h) e Review applicable portions of DPV/DPO files for information exempt under FOIA regulations, and identify such information, if I any, to the ISB, OCIO. (i)

Approved: August 15,1998 5

(Revised: DRAFT 8/18/98)

I Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Directive 10.159 ChiefInformation Officer, I Chief Financial Officer, Office Directors, and Regional Administrators (036)(continued)

• When an employee chooses to continue the issue through the formal DPO process, a copy of the DPV records should be provided to the EDO or Commission, as appropriate. (j)

Definitions l (10.159 - 04)

Confidential Submittal. A DPV or DPO that is submitted by an l employee through an NRC manager who knows that the submitter is an  ;

agency employee.

I Differing Professional Opinion. A DPV becomes a DPO after it has N been processed and decided and the submitter requests that the matter be considered further by the EDO or Commission.

Differing Professional View. A conscientious expression of a professional judgment that differs from the prevailing staff view, disagrees with a management decision or policy position, or takes issue with a proposed or an established agency practice involving technical, legal, or policy issues.

Retaliation. Personnel action that is taken (or not taken in the case of a personnel benefit), recommended, or threatened becaQse of the expression or support of a DPV or DPO (see " Prohibited Personnel Practices").

Applicability (10.159 - 05)

The policy and guidance in this directive and handbook apply to all NRC employees, including supervisors and managers.

Handbook (10.159- 06)

The handbook provides procedures for the expression and disposition of DPVs or DPOs.

Approved: August 15,1998 6 (Revised: DRAFT 8/18/98)

• f Volume 10, Part 7 - General Personnel Management Provisions

. Differing Professional Views or Opinions Directive 10.159 i

References (10.159 - 07)

Federal Advisory Committee Act (5 U.S.C. App. I).

Freedom of Information Act (5 U.S.C. 552).

Management Directive 10.72," Incentive Awards."

-10.99," Discipline, Adverse Actions, and Separations." l l

. - 10.101," Employee Grievances."

NUREG-0910, "NRC Comprehensive Records Disposition ,

Schedule." l

'" Prohibited Personnel Practices," Merit System Principles (5 U.S.C.

2302(a)(2)(A)).

s Approved: August 15,1998 7

(Revised: DRAFr 8/18/98)

l. .

Differing Professional Views or Opinions 1

Handbook 10.159

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions  !

Handbook 10.159 l l

l Contents Procedures for the Expression and Disposition of Differing Professional Views and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1

I n t rod uc ti o n (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Informal Process for Expressing Differing Professional Views (B) . . . . . . . . . . . . . 3 3

S ub mi t t als (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Co nfide n ti ali ty (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4

DPV Ad Hoc Review Panel (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

...................... 5 Review and Decision (4) . . . . . . . . . . . . . . . . . . . .

Followup Actions (5) . . . . . . . . . . . . . . . . . . . . . . ....................... 6

..................... 7 Re co rds (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Formal Process for Expressing Differing Professional Opinions (C) . . . . . . . . . . . 7 7

S ub m i t t a ls (1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

s 8 DPO Ad Hoc Review Panel (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 Review and Decision (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 Re co r d s (4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Resources To Assist Originators of Differing Professional Views 10 o r O p inio ns (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 Special Review Panel (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 Prevention of Retaliation (F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exhibit -

Processing Differing Professional Views or Opinions . . . . . . . . . . . . . . . . . . . . 12 Approved: August 15,1997 iii (Revised: DRAFT 8/18/98)

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions IIandbook 10.159 Procedures for the Expression and Disposition of Differing Professional Views and Opinions Introduction (A)

In the free and open discussion of agency issues, professional differences of opinion are common. Employees normally try, and are encouraged, to resolve their concerns through discussions with their 3 co-workers and immediate supervisors. Individual employees are permitted to document their differing professional viewpoints and attach them to proposed staff positions or other documents, to be forwarded with the position as it moves through the management approval chain. Individual employees are strongly encouraged to discuss their differing professional viewpoints within the chain of command, especially with their immediate supervisors, as a first step towards resolution of the issue. No recordkeeping or documentation of this discussion is required. (1)

A difference of opinion, developed in the free and open discussion of work matters, only becomes a differing professional view (DPV) or a differing professional opinion (DPO) when the employee brings it to management's attention in accordance with these procedures. (2)

In some cases, informal discussions may not resolve the matter and an employee may be convinced that the agency and the public wo,uld be better served if another opinion prevailed. To file a differing professional view, an employee must submit a written statement to his or her supervisor,line management official, office director, or regional administrator using the procedures in this handbook. Anonymous submittals will not be considered under the provisions of this process. (3)

Approved: August 15,1997 1

(Revised: DRAFT 8/18/98)

l, Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions IIandbook 10.159 Introduction (A)(continued)

Issues that do not qualify as differing professional views or opinions j include issues that are or could have been appropriately addressed under grievance procedures, personnel appeal procedures, or are governed by law or Governmentwide regulation; issues that are subject to collective bargaining; issues involving allegations of wrongdoing that are appropriately addressed by the Office of the Inspector General; issues submitted anonymously ~ which, if safety significant, are appropriately addressed under NRC's Allegation Program; issues that

. are deemed to be frivolous or otherwise not in accordance with the policy underlying these procedures; and issues raised by an employee that already have been considered, addressed, or rejected pursuant to I

this directive absent significant new information. (4)

Issues raised through the informal process are called DPVs.

Responsibility for ensuring review of the DPV and making and communicating a decision on the issue rests within the office or region i

of the submitter.This office or region may utilize expertise elsewhere in the agency to assess or resolve the issue. Although the informal process may appear to be structured, it is intended to be a vehicle for -the prompt, nonconfrontational consideration of issues by an impartial review panel, independent of an employee's direct supervisors, with a minimum of documentation. (5)

If the employee is not satisfied with the disposition of the i.ssue through the informal process of a DPV, the employee may file a DPO. The DPO would be filed with the Executive Director for Operations (EDO) if working in a region or an office reporting to the EDO; or with the Commission if working in an office reporting to the Chairman or Commission. If an issue is submitted directly to the EDO or Commission before consideration as a DPV, it is immediately forwarded to the submitter's office or region for review as a DPV through the informal process before action is considered through the formal DPO process. (6)

The exhibit to this handbook provides a quick-reference guide for processing DPVs and DPOs. (7)

Approved: August 15,1997 2 (Revised: DRAFT 8/18/98)

Volunic 10, Part 7 - General Personnel Managentent Provisions Differing Professional Views or Opinions Handbook 10.159 Informal Process for Expressing Differing Professional Views (a)

Submittals (1)

The DPV process is initiated by a written statement submitted by an employee of NRC either through the management chain or directly to the office director or regional administratorwho will then fonvard it to a specially convened ad hoc review panel within 5 calendar days.

Employees who are contemplating the submittalof a DPV and officials who receive a DPV are encouraged to contact the Director, Office of Human Resources (HR), for guidance on the process. (a)

The written statement, while being brief, must in all cases include-(b)

. A summary of the prevailing staff view, existing management decision or stated position, or the proposed or established agency 3

practice (i)

. A description of the submitter's views and how they differ from any issues discussed in item (i) above (ii)

. An assessment of the consequences should the submitter's position not be adopted by the agency (iii)

All submittals must go through the DPV process before they can be processed as a DPO. (c)

Certain types of issues are excluded from this process and may be rejected by the office director or regional administrator. These include those issues that do not qualify as a DPV as stated in Section (A)(4) of this handbook. (d)

Confidentiality (2)

If an employee wishes to submit a DPV but desires confidentiality, the employee may submit an unsigned DPV to an NRC manager who agrees to act as a surrogate submitter. Disposition of the DPV will then be completed in accordance with these procedures. To protect the employee's confidentiality in such cases, it may not be possible to provide acknowledgment of receipt of the statement or disposition directly to the submitter. In these cases, the manager who fonvarded the DPV shall relay to the originator both the acknowledgment of receipt and all reports received by that manager concerning disposition or resolution of the DPV. (a)

Approved: August 15,1997 (Revised: DRAFT 8/18/98) 3

i 1

J Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Handbook 10.159 Informal Process for Expressing Differing Professional Views (s)(continued)

Confidentiality (2)(continued)

Anonymously submitted DPVs are not covered by the provisions of this directive and handbook. Anonymous submissions will be referred to the Office ofInvestigations, the Office of the Inspector General, or the appropriate Allegation Program Manager. (b) i DPV Ad Hoc Review Panel (3)

An ad hoc review panel will be established on a case-by-case basis in each office and region to review each DPV. The panelis appointed in writing by the regional administrator or office director. To the extent possible, DPV panels should not involve individuals who have directly I i participated in the formulation of the agency position that is at issue. (a)

The panel should include-(b)

. A chairperson and one member appointed by management who is technically qualified in the subject area being reviewed (i)

. A third panel member chosen by the ad hoc panel chairperson from a list proposed by the employee submitting the DPV (The submitter may consult with the exclusive bargaining unit representative to nominate qualified individuals who are willing to serve as a third panel member.)(ii)

. A fourth panel member chosen by the Director," Office of Enforcement (OE), when the subject of the DPV involves an enforcement issue (iii)  ;

e When deemed appropriate by the office director or regional administrator, one member of the Atomic Safety and Licensing Board Panel may be appointed as an additional member of the ad hoc panel (iv)

The panel shall-(c) e Review the DPV and make recommendations to the office director or regional administrator (i)

. Determine whether sufficient documentation was provided by the DPV submitter for the panel to undertake a detailed review (ii)

Approved: August 15,1997 4

(Revised: DRAFT 8/18/98)

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Handbook 10.159 Infornial Process for Expressing Differing Professional Views (B)(continued)'

DPV Ad Hoc Review Panel (3)(continued) e Request technical assistance through the submitter's office director or regional administrator, if necessary (iii)

The panel should normally review the DPV within 7 calendar days of receipt to determine if enough information has been supplied to undertake a detailed review of the issue. The panel should informally contact the employee or the manager who forwarded the DPV to discuss the information provided and request any additional information,if needed. (d)

Those involved in the informal review process shall give priority handling to an issue that may involve immediate or significant health and safety concerns. This includes calling the issue to the immediate N attention of higher management. (e) l Review and Decision (4)

To the extent possible, DPV reviews should be conducted i independently and not involve individuals who have directly participated in the formulation of the agency position that is at issue.

The review should include communication with submitters (or their representative) to provide them with the opportunity to further clarify their views. (a)

Office directors or regional administrators may utilize technically qualified sources inside and outside the NRC to assist in reviewing the DPV. If assistance from outside the agency is required, the requirements of the Federal Advisory Committee Act must be considered. (b)

Once the panel has received the necessary information to begin a review, the panel normally should take no more than 30 calendar days to make a recommendation to the office director or regional administrator. (c) l The office director or regional administrator should review the panel's recommendations and provide the employee or manager who submitted the DPV with a decision and rationale for that decision.

Normally, this should occur within 7 calendar days after receipt of the panel's recommendations. (d)

Approved: August 15,1997 (Revised: DRAFT 8/18/98) 5

E i

l 9

l Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Handbook 10.159 1 a

Infornial Process for Expressing i Differing Professional views (B)(continued) -

Review and Decision (4)(continued) i A summary of the issue and its disposition should be included in the Weekly Information Report to advise interested employees of the {

outcome. If the submitter indicates in writing a desire to have his or her  ;

DPV made available to the public, with or without release of his or her j name, the appropriate office director or regional administrator should send the completed DPV case file to the Information Services Branch i (ISB), Office of the Chief Information Officer (OCIO). ISB, OCIO, will coordinate the review of the records in the DPV case file with the q

originating offices / regions for a releasability determination. When the l review is complete, ISB, OCIO, will return the DPV case file to the -

appropriate director or regional administrator. The office director or regional administrator will send the releasable portions of the DPV s case file to the Public Document Room (PDR). (e)

I Extenuating circumstances may cause delays in concluding the DPV process. Notice of delays should be communicated to the submitter or, in the event of a confidential statement, communicated to the manager who forwarded the DPV. If the review and disposition of the DPV does not occur within 60 calendar days from the date of receipt by the office

. director or regional administrator, the reason for delay should be reported to the for employees of these offices reporting directly to the EDO or to t e ommission for employees in offices reporting directly to the Com ission. -

Followup Actions (5) S'*h'1 k

• If followup items or additionalinformation needs are recommended by the panel and agreed to by the office director or regional administrator, completion dates for those actions are to be established and communicated to the submitter, or in the event of a confidential statement, to the manager who forwarded the DPV, and to the Secretary of the Commission (SECY) for employees in offices reporting directly to the Commission, or to the Deputy Executive Director for Regulatory Effectiveness (DEDE) for employees in offices reporting directly to the EDO. In establishing completion dates, consideration should be given to the safety significance of the issue, the f age of the issue, and the priority of other work in the office. If the

! schedule for the followup items is not met, the reason for the delay, and Approved: August 15,1997 6 (Revised: DRAFI'8/18/98)

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Handbook 10.159 l

l Followup Actions (5)(continued) a revised schedule for the completion of the action (s) should be l communicated to the submitter, or in the event of a confidential statement, to the manager who forwarded the DPV, and reported to I SECY for employees in offices reporting directly to the Commission, or to the DEDE for employees in offices reporting directly to the EDO.

Records (6)

DPV records should be maintained and available only within the region or office unless the DPV was sent to the PDR,where it also will be available. A copy of the panel report and decision memorandum should be sent to the Director, OE, whenever a DPV ad hoc review

'panelincludes a member chosen by OE. (a)

If the DPV is not settled to the satisfaction of the submitter and the submitter requests in writing that the issue be further reviewed under 3

formal DPO procedures, the office director or regional administrator will forward the original case file along with a statement of views on the unresolved issue (s) to the EDO or Commission, as appropriate, for consideration as a formal DPO. (b)

Offices and regions shall maintain files of resolved DPVs for 2 years after a special review panel has published the report of its review. Then the DPV files shall be retired to the NRC Archival Facility through the OCIO for a 10-year retention in accordance with NRC Schedute 1-2.2.b. (c)

~

Formal Process for Expressing ,

Differing Professional Opinions (C)

Submittals (1)

The formal DPO review process may be initiated by an employee, after the DPV process has been completed, by submitting a written statement to the EDO, for employees in offices reporting to the EDO, or to the Commission, for employees in offices reporting to the Chairman or Commission. (a)

Written DPO submittals must meet the same criteria established for the submittals of a DPV. Certain types of issues are excluded from this process and may be rejected by the EDO or Commission. lssues that do not qualify as a DPO are stated in Section (A)(4) of this handbook. (b)

Approved: August 15,1997 (Revised: DRAFT 8/18/98) 7

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Handbook 10.159 i

Formal Process for Expressing Differing Professional Opinions (C)(continued)

Submittals (1)(continued)

If the EDO or Commission receives a DPO that has not been considered through the DPV process, the EDO or Commission shall forward it within 5 calendar days to the appropriate office director or regional administrator for processing as a DPV. Offices and regions will then operate under the provisions of Section (B) of this handbook. (c)

DPO Ad Hoc Review Panel (2)

The EDO or Commission will convene an ad hoc review panel and appoint a chairperson and second technically qualified panel member.

The submitter of the DPO may submit names for the chairperson to select a third panel member. Also, when deemed appropriate by the '

EDO or Commission, one member of the Atomic Safety and Licensing s

Board Panel may be appointed as an additional member of the ad hoc panel. To the extent possible, DPO panels should not involve individuals who have directly participated in the formulation of the I agency position that is at issue. (a)

The panel-(b)

• Reviews the DPO and makes recommendations to the EDO or Commission (i) e Determines whether sufficient documentation was provided by the DPO submitter for the panel to complete a detailed review (ii) e Requests technical assistance from appropriate source (s) within or outside the agency, as necessary (iii)

Any NRC employee or manager involved in the DPO process shall give immediate priority attention to issues involving significant health and safety concerns. This includes advising the office director, regional administrator, or the EDO or Commission, as appropriate, of any immediate safety concerns. (c)

Review and Decision (3)

To the extent possible, DPO reviews should be conducted independently and not involve individuals who have directly participated in the formulation of the agency position that is at issue. (a)

Approved: August 15,1997 8

(Revised: DRAFT 8/18/98)

Volume 10, Part 7 - General Personnel Management Provisions l

Differing Professional Views or Opinions {

Handbook 10.159 )

i i'

1 1

l l

Formal Process for Expressing ,

l oltrering Professional Opinions (C)(continued) '

l Review and Decision (3)(continued) l The EDO or Commission may utilize technically qualified sources inside and outside the NRC to assist in reviewing the DPO. In

! considering the DPO, the EDO or Commission should review the l decision of the office director or regional administrator as well as the ad hoc review panel's recommendations and any other source who has

, reviewed the issue. (b) l The EDO or the Commission will provide the submitterwith a decision j 1

and rationale for that decision. Normally, this should occur within 30 calendar days after receipt of all solicited views requested by the EDO '

or Commission. (c)

Extenuating circumstances may cause the EDO or Commission to s delay in making a final decision. In such cases, the submitter should be advised of the timeframe for considering the issue. (d)

After the EDO or Commission makes a decision on a DPO and l communicates the outcome to the submitter (or to the manager who forwarded the DPO), the matter is considered closed and will not be l considered further absent significant new information. (e)

Records (4)

The EDO and Commission will send all completed DPO case files to HR. Normally, the case file will include, at a minimum, the DPVs and DPOs submitted by the filer, the DPV and DPO panel reports, and the DPV and DPO decision memoranda. Any other documents, such as

! other correspondence related to the DPV and DPO between the submitter and the EDO or the Commission, deemed by the EDO or Commission to be essential to an understanding of the case also may be l forwarded as a part of the case file.The memorandum transmitting the i file to HR should include a list of documents contained in the file and a statement indicating which documents, or portions of documents, may be released to the public, subject to a routine Freedom ofInformation Act review. (a)

HR will make the file, or appropriate portion' cf the file, available to the public in accordance with the provisions of the Freedom of l Information Act. To accomplish this, HR will request the ISB, OCIO to initiate a review of the documents identified by the EDO or Approved: August 15,1997

. (Revised: DRAFT 8/18/98) 9 L

l ,

j Volume 10, Part 7 - General Personnel Management Provisions i Differing Professional Views or Opinions i Handbook 10.159 Formal Process for Expressing I l Differing Professional Opinions (C)(continued)  ;

1 l Records (4)(continued)

Commission as releasable to ascertain which portions of the record,if l any, are exempt from disclosure to the public. The Freedom of l Information (FOI) staff will request offices and regions to review the  ;

l documents to determine which documents or portions of documents l

should or should not be released to the public. The offices and regions conducting the reviews should then advise FOI staff of those  ;

documents or portions of documents that should or should not be released to the public. FOI staff will then resolve any discrepancies and return the case file to HR, indicating which documents or portions of  ;

documents the reviewers have identified as releasable to the public. (b)  :

HR will transmit a copy of the releasable portions of the file to the s Document Control Desk, OCIO, for Nuclear Documents System I processing and distribution to the PDR. PDR staff will maintain the j sanitized copy consistent with the retention of the official record. HR j i T i also will transmit the original DPO file to the NRC File Center, OCIO, i

for retention. DPO files are not currently scheduled and must be  !

retained by the NRC File Center until a records disposition schedule for this materialis approved by the National Archives and Records Administration. (c)

Resources To Assist Originators of -

1 i

Differing Professional Views or Opinions (D)

To assist submitters in preparing adequate written DPV or DPO 4 statements, the submitter's immediate supervisor,in consultation with i other management officials, will determine the amount of the employee's work time and administrative support to be provided in  ;

response to the employee's request for assistance. If called to testify 1 before a licensing board or presiding officer, the employee may receive, upon request, assistance from the legal staff to prepare testimony or other documents to be filed with the board. Such assistance will be solely for the purpose of facilitating the filing of the necessary documents and will not constitute legal representation of the employee by the legal staff.

Approved: August 15,1997  ;

10 (Revistd: DRAFI' 8/18/98)

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Handbook 10.159 Special Review Panel (E) l A special review panel periodically assesses the DPV and DPO .

process, including its effectiveness, how well it is understood by l employees, and the organizational climate for having such views aired i and properly decided. Members of the special review panel are {

appointed by the EDO after consultation with the Chairman. (1) i I

The special review panel will prepare a report on the basis of its  !

assessment and submit it to the EDO for consideration. The EDO will forward the report with any comments or recommendations to the  !

Commission for approval. The report or its executive summary also will j be distributed to all employees. (2) {

i In addition, the special review panel will review DPVs and DPOs  ;

completed since the last review to identify employees who have made j significant contributions to the agency or to public health and safety but j have not been adequately recognized for this contribution. When s award recommendations have not been made, they may be made by the special review panel in accordance with provisions of NRC's j

" Incentive Awards Program" (Management Directive (MD) 10.72). t Recommendations for awards will be included in the special review  ;

panel's report. (3)  :

l Prevention of Retaliation (F)

Any NRC employee who retaliates against another employee for i submitting or supporting a DPV or DPO is subject to disciplinary l action in accordance with MD 10.99," Discipline, Adverse Actions, and Separations." This applies to retaliatory actions as defined in the directive and to all prohibited personnel practices specified in the Civil Service Reform Act of 1978, as amended. (1)

Employees who allege that retaliatory actions have been taken because j of their submittal or support of a DPV or DPO may seek redress through the negotiated grievance procedure or through the grievance procedure described in MD 10.101," Employee Grievances." (2)

Approved: August 15,1997 11 (Revised: DRAFT 8/18/98)

1 1

- 1 Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Exhibit 10.159 Exhibit Processing Differing Professional Views or Opinions INFORMAL (DPV) PROCESS g DPV SUBMTTER OFFICE /REGONAL

@ MANAGEMENT OFFICE /REGON

@ AD HOC REVIEW PANEL O4 OFFICE DIRECTOR OR N v REGIONAL ADMISTRATOR b DPV SUBMITTER FORMAL (DPO) PROCESS

~

DPO SUBMTTER ,

EXECLAVE DtRECTOR FOR oPEFMT10NS OR h COMMSSION O @

U AD HOC REVIEW AD HOC REVIEW PANEL PANEL

= @

Approved: August 15,1997 12 (Revised: DRAFT 8/18/98)

i l

Volume 10, Part 7 - General Personnel Management Provisions Differing Professional Views or Opinions Exhibit 10.159 l

Exhibit (continued)

Key:

@ Employee writes a differing professional view (DPV).

fm The DPV should be submitted directly or through line management to the employee's W office director or regional administrator. If submitted to another NRC organization, it is forwarded to the employee's office director or regional administrator for processing through the informal DPV process. The employee's office director or regional i administrator acknowledges receipt and forwards the submittal to the ad hoc review panel for action within 5 days. The office director or the regional administrator appoints l the panel chairperson and a technically qualified panel member. The submitter may l provide a list of qualified individuals to the panel chairperson who selects one of them to serve as a third member of the ad hoc review panel. l l m The ad hoc review panel considers the DPV and provides the submitter's office director W or regional administrator a report of the findings and a recommended course of action, l usually within 7 calendar days. '

m The office director or the regional administrator considers the ad hoc review panel's W report, makes a decision on the DPV, provides a written decision to the submitter, and )

, includes a summary of the issue and its disposition in the NRC Weekly Information Report, usuallywithin 30 calendar days. The DPV file is retained in the office or region. If the submitter has indicated in writing a desire to have his or her DPV made available to the public, with or without release of his or her name, portions of the DPV releasable under the Freedom of Information Act will be submitted through the Director, HR, to the Public Document Room by the office director or regional administrator at that time.

@ On the basis of the office director's report, the submitter may consider the matter closed.

If the submitter does not consider the matter closed, a written differing professional

@ opinion (,DPO) statement expressing continuing omcerns may be submitted to the Commission, for offices reporting directly to the Chairman or Commission, or to the Executive Director for Operations (EDO), for offices reporting to the EDO.

Upon receipt of a formal DPO and after making sure that the issues contained therein have first been processed as a DPV, the Commissica or the EDO contacts HR and matj contact the submitter's office director or regional administrator to obtain all records that may aid in the formal DPO review process. The Commission or EDO convenes an ad hoc review panel and appoints a chairperson and second technically qualified panel member.

The submitter of the DPO submits names for the chairperson to select a third panel member.

@ The adofhoc report review findings andpanel considerscourse a recommended the DPO and provides the Commission or EDO a of action.

@ The Commission or EDO considers the ad hocreviewpanel's report, makes a decision on the DPO, and provides a written decision to the submitter within 30 days of receipt of the

. panel's recommendation. The case file is then forwarded to HR.

Upon the submitter's receipt of a decision from the Commission or EDO, the DPO

@ process is concluded.

Approved: August 15,1997 (Revised: DRAFT 8/18/98) 13

l '. ,

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I i h *pa arcg\ UNITED STATES

[g ,j g

NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 205SM001 {

, g o,...

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i April 21, 1998 1

i MEMORANDUM TO: Ashok C. Thadani, Acting I  !

Deputy Executive Director for Regulatory Executiveness

! Executive Director for Operations FROM: Joram Hopenfeld, Task Manager .  !

Generic Safety issues Branch Division of Engineering Technology Office of Nuclear Regulatory Research j

SUBJECT:

A RESPONSE TO A REQUEST FOR COMMENTS REGARDING

• J. HOPENFELD's DPO RELATING MATTERS Your memorandum of April 9,1998 indicates that you have been inidrmed that I have concerns regarding the DPO issue response document beyond those which I have already provided to the ACRS last October. Your information is incorrect. I do not have any new concerns regarding the DPO issue response document. I do however, have very serious concerns regarding the GL98 xx package as it relates to the DPO. These concerns have not yet been finalized because the GL is stillin a draft form and is constantly being revised. At this time therefore, I can only provide a draft summary of my concerns; of course I shall provide my final comments on the GL and the DPO response document as soon as I see the Commission ready package. The following summary of my concerns is limited only to concerns beyond those ciready presented to the ACRS.

Because your memo points out the opportunity to express opinions freely under the agency's DPO policy, I am also including comments regarding this policy. -

A.

COMMENTS BEYOND THOSE PROVIDED AT THE ACRS FALL MEETING

1. By stating that the risk remains at acceptable level for plants which operate under GL-95 05 the last GL draft implies that a complete risk analysis was performed for these plants. This is misleading and is incorrect for the following reason. Only a partial risk analysis (DBA) was performed for the interim plugging criteria under GL-95; that part of the analysis is at issue, because the DPO is still unresolved. Several years after GL 95 was issued, the remaining part of the risk analysis (Severe Accidents) was performed.

it was then concluded that plants using alternate repair criteria, ARC, may increase public risk. It was only recently that the Commission was informed of these findings (COMSECY-97-013) but the issue of what to do about present plants and those in the pipeline for ARC was not discussed. The Commission paper correctly implied that the relaxation of existing tube repair criteria to all type of tube degradations could result in increased risk; it did not exclude any specific degradation types from increasing public risk. It should be noted that in 1992, five years earlier, the DPV/DPO identified the Attachrnent C 9% T% A OObb

,. Q * ,, -

4C Ashok C. Thadani . potential problem, which 1s discussed in the Commission paper. As with the rest of the DPV/DPO no action was taken to address these issues in a timely manner, d The GL provides no evidence that the staff performed a risk analysis on a' plant-by-plant basis to support its conclusion that the ARC plants are safe under GL-95. The proposed GL correctly requires that a risk analysis be performed for ARC plants but meanwhite several plants are still operating outside Commission safety guidelines. To include the public in the new risk informed approach, the NRC should be transparent and provide specific references to .dsk analysis or other evaluations which support important safety

. conclusions.

2.

Licensees' will not be able to meet the conflicting requirements imposed by using (a) the model technical s'pecification of Attachment A, (b) the DG-1074 C.4.1.2  ;

conservative bounding model approach and (c) the maximum allowable leakage of 100 gpm.

3.

The GL states that licensees can apply Attachment A methodology to any type of tube

. degradation. Since different degradations will produce different accidentalleakages, they will affect operator's response to the accident. The GL does not discuss nor does it cite any references to analysis, which supports the premise that voltage or defect

. geometry based leakage predictions based on bench tests "can be adapted to any new and unexpected degradation mechanism." -

4.

The GL should include an in depth discussions of the following. What are the major ,

.lssues in predicting accidentalleakage, source of uncertainties, the scope of the supporting analysis, the required skill and independence of the responsible parties, role <

of cost benefits, balance between bench testing and field data, the role of sensitivity studies, role of industry standards, incentives for creative approaches (public  !

recognition, NRC's R&D support). The GL does not provide guidelines in these area.

Instead, the GL is too prescriptive and too detailed in describing how licensees should perform NDE, leakage analysis, and dose calculations. Any discussions of how to conduct accident leakage should at the least be based on strong science. Following are some examples:

, (a) The GL states that in situ pressure tests could be used to mitigate excessive model conservatism. How will the licensee know that the model contains excessive conservatism? The GL should identify allleakage related causes and Indicate what licensees are expected to consider to establish and monitor conservative margins. Static pressure tests can not be used to mitigate conservatism because those temperature effects which affect leakage can not be simulated by increase in pressure.

(b) The GL states that Operational Assessment should " account for all significant uncertainties" with respect to the performance criteria. This guidance is too general; instead, the GL should specify the parameters ,to be included in the assessment of active defects, e.g. local stresses, anticipated chemical e

l... ..

e1' Ashok C. Thadani,- -

transients. The GL should also list minimum requirements for qualification of Accident Leakage Assessment personnelincluding specification that at least one person on'the team must not be involved in plant operation to insure impartiality.

Also,it can be expected that Leakage Assessments will be very costly, it maybe therefore, necessary to couple cost to the corrective action; the GL should indicate the scope of such a cost benefit analysis (qualitative, quantitative, etc).

5. Last fall a member of the NRR management urged me to provide written comments regarding the DPO document by November 1997 when the package was scheduled to go to the Commission. He was concerned that delays in issuing the Gl: may have safety consequences, because a large number of plants use technical specifications which do not reflect the type of aging which has been discovered relatively recently. I worked very hard to prepare comments for the November 1997 submittal, only to learn that the issuance of the Commission package was postponed to January, then it was postponed again to early March, again to late April and again'to September 1998.

.These' postponements come on the heels of four years of scheduling and rescheduling the now defunct steam generator rufemaking activities. Considering that the successive GL drafts do not contain any new materialinformation and given the importance of steam generator issues one must be concerned about a process which tolerates such delays.

This exposes the agency to claims that the goal of the staffis to perpetuate activities instead of seeking closure. -

1

6. 'GSI 163

• Multiple Steam Generator Tube Leakage" prioritized as HIGH is still unresolve after seven years; contrary to agency policy the progress on its resolution is not reported to the public in the GIMCS. GSI 163 is not the only HIGH priority issue which has .

been open for a long time, GSI 23 has been open for 15 years. I believe that a culture which allows important safety issues to linger must be changed; at the least the public should be kept informed of progress towards safety issue resolution. The GL should state that GSI-163, which closely relates to the GL issues has not yet been resolved.

7. The ACRS refused to endorse the staff response to the DPO. Instead,it requested that the staff obtain comments from the public regarding the DPO and then reevaluate their response to the DPO issues.- Since not all the DPO documents are available in the PDR the staff should arrange for public access to all relevant DPO documents.

8. The GL states that " guidelines for submitting CLB change, which is risk-informed are under development." This reason for not providing risk-informed guidelines is unacceptable as it shows that after seven years of rulemaking activities, the staff still has not come to grips with the risk-informed approach.

,.[. ,

's Ashok C. Thadani B. COMMENTS REGARDING OPPORTUNITIES TO EXPRESS OPINIONS

1. The NRC environment is not conducive to differing views.

Based on seven years experience with the DPV/DPO process, I find it now very difficult to express my views freely. In the past, I have actively participated in steam generator meetings believing that I could contribute to the agency's mission in this area. I have now stopped attending all such meetings, because of the realization that the resentment towards views which do not agree with those of the management are deeply rooted in this agency. ~This belief was not developed suddenly: -

1. When i found and reported that aging steam generators increase the risk of containment by pass and that a dedicated facility should be built to generato the required data, I also discovered that funds to study this issue further were discontinued.

2' When I was invited to present a paper at an international technical conference on steam generators, the Division Director indicated that he would like to send instead someone who represents the agency's view on the subject.

3. On two separate occasions NRC management alleged to the IG that I have conducted myselfimproperly and that I leaked certain material to the Union of Concern Scientists.

I believe that these untrue and very serious allegations were brought against me only because of the DPO. '

4. Besides the official DPO documents and several ACRS presentations, I have also provided written comments to management on steam generator related issues. I have not received any feedback in response.

i

2. The need for impartiality.

A meaningful resolution of the DPO can bc reached only by persons who are independent of the decision to delay the resolution of the DPO and the related GSI-163. I believe that considerable money could have been saved, if the DPO and the GSI were resolved in an ordinary rnanner before the rulemaking activities had begun.

Since after seven years, the DPO ls still not resolved, further efforts in this regard should be conducted by a peer review panel from outside the agency by a party with no significant ties to the NRC. The intent of Directive 10.159 is to resolve differing views in a timely manner and by an impartial evaluation panel.

l Starting January 1992, the NRC ~ management has first discouraged the issuance of the DPO and then continued to postpone its resolution. While the DPO and the GSI were lingering. relax repair criteria were being granted to several plants and the issuance of a steam generator rule was continuously delayed and finally cancelled. I strongly disagreed with the reasons, which were provided by the staff for the failure of these activities. I find it difficult to believe that an 1

F L , . . c.1. . _ . . _ . . . . . . ~ . . . . . . . . . . = . . .- . - - . . - . . . -

- 'a ,

~.

. Ashok C. Thadani NRC panel can act now in an objective and impartial manner to resolve the DPO issues. The DPO response ~ document is an example of how the staff trivializes and addresses the DPO issues in a non-objective manner.

Therefore, I believe that the'only practical way of resolving the DPO is to seek a review panel outside the agency, it will be a mistake to set-up an internal panelin accordance to 10.159 solely for the sake of meeting procedural requirements.

3. The need for DPO resolution.

The DPO contains important issues because it deals with a subject where there is very little

' data to define a baseline for accidentalleakage. Without the ability to define a baseline for i performance measurements, the implementation of a risk informed management for steam l

generators will not be possible. Since the lack of data is not unique to steam generators, the DPO provides an opportunity to develop a methodology for dealiri'g with such issues, one approach for example could be to analyze precurses and relevant industrial accidents in greater details.

4. The need to reevaluate the DPO process -

The long delay in resolving the DPO raises serious questions regarding the effectiveness of the DPO process. The small and diminishing number of DPO submittals demonstrates that management attention in this area is badly needed. A DPO may have both positive and negative outcomes. When this DPO started, both the staff and the ACRS have incorrectly identified the issues which were raised by the new type of tube degradations; the focus then was on potential tube ruptures. Consistent with the DPO, the GL now focuses on accidental leakage which is not restricted to leakages from ruptured tubes only. The negative side of the DPO is that the staff may become overly sensitive to criticism; the DPO response document is an example, where attention is focused on deflecting critical comments instead of examining them on their merit.

I was mislead by Management Directive 10.159 that the agency is interested in differing views.

Instead,1 found that measures were taken, which prevented me from meaningfully participating in the resolution of the related issues, i

cc. L. Callan

L H. Thompson 1

l

$n arog\ UNITED STATES l g j' NUCLEAR REGULATORY COMMISSION I e WASHINGTON, D.C. 20555-0001

%*****/ August 5, 1998

\

MEMORANDUM TO: L. Joseph Callan, Executive Director for Operation Nuclear Regulatory Commission FROM: Frederick H. Burrows, Electrical Engineer ,

Electrical Engineering Branch Division of Engineering 4

Office of Nuclear Reactor Regulation

SUBJECT:

REQUEST FOR REVIEW OF CONCERNS RELATED TO TECHNICAL SPECIFICATION SETPOINTS AND ALLOWABLE VALUES FOR INSTRUMENTATION UNDER FORMAL DIFFERING PROFESSIONAL OPINION (DPO) PROCEDURES In a memorandum dated March 17,1997, I expressed a Differing Professional View (DPV) concerning the use of allowable values to determine operability for safety-related instrum@ntation channels in lieu of channel trip setpoints in technical specifications (TS).

Specifically, I expressed my view that the staff's practice of approving the removal of trip setpoints from technical specifications was deviating from the requirements of 10 CFR 50.36, " Technical Specifications." In an October 31,1997, memorandum, Samuel J. Collins, Director, NRR, provided me with the NRR Ad-Hoc Review Panel findings and recommendations for my concerns, in a memorandum dated July 24,1998, Mr. Collins has now stated that it is not an appropriate use of either NRC or industry resources to implement the DPV panel's recommendations. That is, Mr. Collins believes that allowable values, by themselves, satisfy the 10 CFR 50.36 requirement that the technical specifications include limiting safety system settings and that trip setpoints at not required.

Since the staff action discussed above concerns me and represents an unsatisfactory disposition of my DPV, I therefore now request that this issue be further reviewed under formal DPO procedures.

Much has been already written about the issues associated with the DPV. I am perplexed over the things that have been written. To spare myself from further frustration,I will not address all the shortcomings I see in the staff's responses to my concerns. Instead, I will try to support (in Attachment 1 hereto) my opinion by providing my view of the historical basis for requiring the trip setpoint and not the allowable value as the limiting safety system setting to satisfy 10 CFR 50.36. In doing this, I will try to focus only on the words and actions associated with the original development of the term " limiting safety system setting" as contained in the AEC references used by the staff during the DPV process.

CONTACT: Frederick H. Burrows, EELB/DE/NRR 415-2901 Attachment 3

r-L. J. Callan 2 Additionally,I have expressed (in Attachment 2 hereto) some of my concerns over areas associated with the overall resolution of my DPV. Finally, I would like to recommend Mr.

Rick Tuley, Fellow Engineer, of Westinghouse Electric Company as a DPO panel member should you so chose to accept my expression of a differing opinion as suitable for the formal NRC DPO process.

Attachments: As stated l

I l

e 1

l t i

i l

i 1

l I

l )

i

) .. .

L VIEWS ON THE HISTORICAL BASIS t FOR REQUIRING TRIP SETPOINTS AS l LIMITING SAFETY SYSTEM SETTINGS l

Currently,10 CFR 50.36 (ii)(A) states:

Limiting safety system settings for nuclear reactors are settings for automatic protective devices related to those variables having significant safety functions.

Where a limiting safety system setting is specified for a variable on which a safety limit has been placed, the setting must be so chosen that automatic protective action will correct the abnormal situation before a safety limit is exceeded.

My opinion, stated briefly, is that an instrument channel's trip setpoint is the limiting safety system setting (LSSS) because:

1. The trip setpoint is the only setting to which an instrumentation technician

' adjusts the channel. It is the " leave alone" or "as-left" setting. An allowable 3

value is not a setting, it is the measured "as-found" trip value for a given test of the channel's setpoint. Typical, there are no plant procedures requiring the channel to be set to the allowable value; plant procedures normally require the channel to be set at the trip setpoint within a small calibration tolerance.

2. The trip setpoint is the only setting that accounts for all the instrumentation l uncertainties in associated setpoint methodology. Therefore, it is the only i setting that is chosen (by the setpoint methodology) such that the automatic protective action corrects the abnormal situation before a safety limit is i

exceeded. The allowable value does not account for uncertainties encountered during testing such as drift and calibration tolerances.

Therefore, a channel with an "as-left" setting at the allowable value will not correct (within the probability assumption of the setpoint methodology) the abnormal situation because it does not account for errors such as drift.

To establish my views on the historical basis for the trip setpoint as the LSSS that satisfies the above quote from 10 CFR 50.36, I reviewed the Atomic Energy Commission (AEC) documents (referenced by Geary Mizuno (OGC)in his March 16,1998, memo to file and listed at the end of this attachment under references) which addressed proposed amendments to 10 CFR 50 pertaining to Technical Specifications. Specifically, the AEC stated in Appendix "B" to Reference 1 (which proposed a revision to 10 CFR 50.36) that:

Technical specifications will include items in the following categories:

(ii) Maximum safety system settings are settings for automatic protective devices related to the variables on which safety limits have been placed pursuant to subdivision (i) of this subparagraph (1). A'

l. maximum safety system setting shall be so chosen that automatic l

2 protective action will correct the most severe abnormal situation anticipated before a safety limit is exceeded.

Also in a note serving as a cover letter to Reference 1, the Director of Regulation for the AEC stated that the attached, proposed revisions to 10 CFR 50.36 would accommodate the previous ACRS suggestions pertaining to trip settings for safety systems by adding safety limits and maximum safety system settings.10 CFR 50.36 was further revised in accordance with Reference 2. Specifically, safety system settings with significant safety functions were also required and in Appendix "A" of Reference 2 " limiting" was to be substituted for " maximum" and " minimum"in describing safety system settings. A quick comparison of these proposed revisions to 10 CFR 50.36 and the current version shows no difference as f ar as relating to my proposed differing opinion.

In Ap'pendix "D" to Reference 2, the AEC staff discusses the content of technical specifications. Specifically,in the Section IV entitled " Development of Technical Specifications," the development of technical specifications encompassing limiting safety system settings is discussed. Included was a figure (see the left portion of Figure 1 included herein) which illustrated the concept of limits such as the LSSS. As can be seen from Figure 1, the LSSS was selected "on the safe side of the safety limit" and:

The region between this setting and the safety limit should be sufficient to allow for corrective action by the safety (protection) system to return the situation to normal or to shut the reactor down before the safety limit would be reached for the most severe abnormal situation anticipated during the life of the plant. This means that circuit response times and transient characteristics, including overshoot, must be taken fully into account. Also, included must be an allowance for calibration uncertainties and instrument inaccuracies.

In Appendix "D" immediately following the above quote is the statement "The licensee is free to operate with any safety system setting within the limiting value. Now the statement appears difficult to understand because how can you have any setting within one value without a specified range unless your setting is the value itself? Therein lies the problem which is the heart of my differing opinion.

Appendix "D" goes on to say:

On the safe side of the limiting safety system setting lies the zone of normal

- operations. Allowance must be made for the possibility that the value of the variable may transgress the normal zone occasionally due to instrument drift, minor operational errors and normal fluctuations in process or control characteristics.

Therefore, a margin should be left between the normal operating zone and the safety system setting because of these factors.

Appendix "D" also listed specific examples of technical specifications that had been  !

developed under the system discussed therein. Among the plant-specific technical specifications listed were those for San Onofre Generating Station, Unit 1. These were also included in Reference 2 as Appendix "G." In Section 2.1 of SONGS 1 Technical Specifications, there was included a table entitled " Maximum Safety System Settings"

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3 which listed'" maximum safety system trip settings" for several parameters such as pressurizer pressure: high. The value listed (also depicted in Figure 1) was s 2220 psig.

-The associated discussion goes on to say, "The maximum settings of the pressurizer high level trip and the pressurizer high pressure trip are established to maintain the DNB ratio . . .

~ Further, Section 6.1 states that "When Maximum Safety Setting is violated, the incident will be reviewed and acted upon . . . "

The above discussion represents the historical basis for the inclusion and description of

- LSSS's in technical specifications. About 13 years after the AEC referenced documents were issued,1 Joined the NRC as an instrumentation and controls reviewer. One of the first issues l struggled with was the s and 2 contained in limiting safety system setting in technical specifications because sometimes they were listed as a minimum value for a high level trip instead of a maximum value for example. Also I realized that there had to be some .

limiting setting to keep from encroaching too far into the normal range. As a result, for the last 17 years I have.been a proponent of a setpoint with a i calibration tolerance as the i limiting safety system setting (shown on Figure 1). It should be noted that the DPV panel disagreed with this format for an LSSS in their report dated October 31,1998, although my position appears to me to be consistent with the intended LSSS of 10 CFR 50.36 and any confusion could have been easily remedied in the technical specifications.

For combleteness, I have added graphically to Figure 1 the staff's position which is attempting to establish the allowable value as an LSSS. I disagree with those staff and industry efforts and believe they are not consistent with an LSSS originally included in technical specifications as required by 10 CFR 50.36. As I noted above Appendix "D" stated that "The licensee is free to operate with any safety system setting within the limiting value." I take this to mean (based on the SONGS 1 Technical Specifications) that any value more conservative than the LSSS is acceptable as a final channel "as left" setting which the allowable value does not satisfy. I also believe the staff has been remiss in not following appropriate proposed rulemaking procedures since it appears they are revising 10 CFR 50.36 by now establishing a new,less conservative LSSS. Ultimately, the judgement should be based on an understanding of the quotes from the two AEC references and a study of Figure 1 herein.

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REFERENCES

1. Atomic Energy Commission, AEC R 2/50, " Proposed Amendments to 10 CFR 50:

Technical Specifications: Technical information Required of Applicants," dated June 30,1966.

2. Atomic Energy Commission, AEC-R 2/67, " Amendments to 10 CFR 50 - Technical Specifications: Technical Information Required of Applicants," dated October 16, 1968.

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ATTACHMENT 2 CONCERNS PERTAINING TO THE RESOLUTION 3

_Of THE DPV REGARDING SETPOINTS AND ALLOWABLE VALUES

1. First, it is my opinion that the DPV panel did an outstanding job in documenting the history of setpoints, allowable values, and limiting safety system settings (LSSS) as contained in 10 CFR 50.36. This effort was further supported by a March 16,1998, note to file written by Geary S. Mizuno (OGC). Samuel Collins in the July 24,1998; DPV disposition memorandum and the staff in the June 22,1998, DPV follow-up action memo have chosen to set this information aside and act against the DPV panel recommendations, the OGC " written position," and my written view. The basis for the staff's action is "the regulations are not clear in this area, and that precedence on how the regulations have been implemented support the view that the AV satisfies the requirement that the TS include the LSSS."

I do not agree that the regulations are not clear in this area. My review of the documents associated with original AEC/ACRS efforts for esta.blishing limiting safety system settings in 10 CFR 50.36 and technic.al specifications indicate to me that they dhalt solely with trip setpoints. Allowable values were never mentioned and, in fact, were not even developed as a concept until years later. What is obvious to me is that allowable values were developed as a joint venture with industry to encompass issues such as drift, operability, and reportability-not to serve as an LSSS. Although the technical specifications were changed and the associated industry standard and regulatory guides have been revised to emphasize allowable values, I am not aware of any effort to change 10 CFR 50.36 to encompass allowable values as the LSSS. I believe items can be added to the standard technical specifications without being required by 10 CFR 50.36. But should the things that have been added now be used to interpret what was originally intended as an LSSS? I think notl Shouldn't the staff have changed 10 CFR 50.36 first before going down a new road with industry where original staff intentions and interpretations have now been changed via revised industry standards, regulatory guides, and standard technical specifications? I think sol Instead of admitting our mistakes associated with standard technical specifications, we are admitting that our regulations are unclear and that they do not readily encompass the actions we have already taken.

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2. The DPV panel and the staff have agreed that removing trip setpoints from technical specifications is not a safety issue. I do not agree. I have stated repeatedly that technical specifications without trip setpoints included as the limiting safety system settings do not meet the requirements of 10 CFR 50.36.. Is compliance /non-compliance with 10 CFR 50.36 a safety issue? As can be seen from review of the Figure 1 in Attachment 1, the allowable value is closer to the safety limit than the trip setpoint. Is this reduction in " safety margin" related to an LSSS a safety issue? The staff's fundamental basis for there not being a safety issue is reliance on plant procedures to control trip setpoints. Is there a safety issue when plant procedures and not technical specifications control setpoints (the most critical adjustment in an instrument channel)? Technical specifications give the impression that it is acceptable

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i 2 t to remain at the allowable value and not adjust the channel to its setpoint following periodic surveillance because in some cases the standard technical specification bases are vague and misleading in the area of instrument channel operability and the role of the allowable value. Is this a safety issue? j

3. Samuel Collins memorandum of October 31,1997, requested the staff to review and provide a response to eight DPV panel recommendations. The June 22,1998, staff response is silent on several of those as is Samuel Collins' DPV disposition memo dated July 24,1998. -

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4. In an October 31,1998, memorandum Samuel Collins requested the staff to provide l the actions proposed to address the DPV panel's recommendations and a schedule. In .

l a June 22,1998, memo the staff stated it was inappropriate to implement the panel's j recommendations. Mr. Collins agreed with the staff's determination in his July 24, j 1998 memo. Per NRC Directive 10.159, " Differing Professional Management Provisions,"it is an objective of the NRC DPV/DPO policy "to ensure the full -

consideration and prompt disposition of DPVs and DPOs by affording an independent, j impartial review by qualified personnel." As noted in my previous May 21,1998, memo to you, I expressed my belief that Mr. Collins actions were not prompt. Now I would like to add that I believe his dispositioning of my DPV appears not to reflex an independent and impartial review. That is, while it is true that the DPV panel I performed a nonconfrontational, impartial review of the issues I raised, Samuel Collins 1 did not in that he involved individuals in his decision-making process who have directly participated in the staff position which I disagreed with in my DPV. In other words, the staff had two chances to present their argument - once to the DPV panel and once to Mr. Collins - while I had but one (except for a brief meeting I had with Mr. Collins to complain about the DPV process and some participation in discussions with OGC). ,

Also it should be noted that one of the individuals who signed the staff's June 22  !

memo was a member of the DPV panel and that the June 22 memo was not dispatched until Mr. Collins' July 24 decision was final thereby eliminating any chance for a rebuttal from me.

a. 32 @ 99 16:53 NO.038 902

,,e- I Wee %

y k . UNITED STATES l 3 NUCLEAR REGULATORY COMMISSION I

• WAsMINGToN. D.C. 31686 0001

• • • .* Novamher 18.1998 NOTE TO COMMJEiSIONER ASSISTANTS QQfddlM QCM/GJD OCM/NQ X Marty Virgilio E Brad Jones & Maria Lopez OtIn l Brian Holian _ Terence Chan ._ Roger Davis '

_ Jackie Silber _ JoelLubenau _ TonyHsia

_ Karla Smith _ Keith McDaniel _ Pat Castleman

_ JamesJohnson _ Donna Smith _ VickiBolling

_ Regia Boyle _ Joanne Field _ Libby Perch

_ Clare Kaspotys

_ Dan Gillen

_ Mary Miller

,,,,, Jim Smith OCM/EM OCM/JM

_ LabanCoblentz

_ Mark Miller & Steve Crockett X Lynne Stauss

_ EvelynWilliams _ Janet Schlueter _ Lorna Pini

_ Gladys Ordaz _ James Bea!! _ Tojuana Fortune l

_ Judy Ledbetter _ Jeffry Sharkey

_ Leslie Hill _ Cathy Grimes

_ Frances 3 Marek _ Linda Lewis FROM: .

James L. Blahn Assistant for Operations, OEDO

{

SUBJECT:

DIFFERING PROFESSIONAL OPINIONS At the request of the Chairman's Office, attached is a concise discussion of the two active l Differing Prufessional Opinions (DPOs).

The Chairman's Office also requested a listing of the active Differing Professional Views  !

(DPVs). In keeping with the philosophy in Management Directive 10.159, the DPV process i does not include a contral listing of DPVs. The Directive states: "Although the informal process  !

may appear to be structured, it is intended to be a vehicle for the prompt. nonconfrontational consideration of lesues by an impartial review panel, independent of an employee's direct i supervisora, with a minimum of documentation." However, in view of recent recognition that i some DPV resolutions may have been unduly delayed, some central control of DPVs is being j reoonaldered. In keeping with tho Dircotivo's provision that the Commiselon would periodically  ;

I review and modify the DPV and DPO process, any recommended changes will be brought to j 4 the Commission for its decielon. The review proowww is exuweted to tav vumpleted um.1 l recommendations formulated in Januaiy 1999.

77gjy g

Attachment:

I As statad oc W.Travsrs, EDO (w/o attachment) SECY (w/ attachment) i M. Knapp. DEDE (w/ attachment) OGC w/ attachment)

H. Thompson, DEDR (w/o attachment) OCA w/o attachment)  :

P. Norry, DEDM (w/o attachment) OPA w/o attachment) 3 J. Blaha, AO (w/attacnment) t:DO F (w/ attachment) '

J. Mitchell, OEDO (w/ attachment)

Attachraent 4 4

E l 0 MEMORANDUM TO: All Office Directors and Regional Administrators July 22, 1998 FROM: L. Joseph Callan O$iBd t M9 Executive Director for Operations M,CMb

SUBJECT:

DPV/DPO PROCESS It has recently come to my attention that follow-up actions on some issues that have been raised within the Differing Professional Views and Differing Professional Opinions (DPV/DPO) process i may not be getting timely attention. Our DPV/DPO process is an important part of our safety-conscious work environment, and I want to ensure that the NRC holds itself to a standard in this area that is as high as that we expect from our licensees. Just as it is important for our licensees to listen carefully to those who raise concerns and to resolve issues with dispatch, so too can we benefit from careful response to issues raised by our employees. I expect all NRC managers and supervisors to ensure that any differences of views are treated professionally and with respect and that actions agreed to in the process are carried out expeditiously.

Each Office / Region should carefully review the NRC policy and procedures for considering a DPV/DPO (Management Directive 10.159) and take appropriate action to ensure that these provisions are carried out within your Office / Region in a timely manner. 'This should include revising your intemal office practices as necessary to facilitate this process. Completion dates should be clearly established and communicated to the submitter, considering the safety significance of the issue, the age of the issue, and the priority of other work in the Office.

I have asked the Office of Human Resources to revise MD 10.159 on this subject to help ensure that the Offices / Regions considering a Differing Professional View adhere more closely to established DPV processing deadlines, and complete in a timely fashion any follow-on actions after the final decision memorandum has been sent to the submitter In that regard, I have  !

asked the Secretary of the Commission for Commission offices and the Deputy Executive Director for Regulatory Effectiveness for EDO offices to monitor the timely completion of follow-on actions associated with DPVs and DPOs. Appropriate revisions to the management directive reflecting these changes are attached for your information and will be published soon.

Attachment:

As stated DISTRIBUTION:

" EDO r/f - KGreene l v DEDM r/f PBird I

HR r/f JMcDermott HRPP r/f CSwanson LJCallan DWoodend l

. PNorry J DIRECTORY / SUBDIRECTORY: H:\PLR\DPO\

DOCUMENT NAME  : DPODPV7. FIN I WITS /EDO/HR TICKET NO. :

SUBJECT FILE FOLDER NAME: DPO/DPV PROCESS

• See previous concurrence HR/HRPP HR/HRPP HR/OD HR/OD DEDM EDO 55cy DWoodend* CSwanson* JMcDermott* PBird' PNorry* LJhn @

07/17/98 07/17/98 07/17/98 07/17/98 07/20/98 07/8398 7/zJ/ f/

/

OFFICIAL RECORD COPY Attachment 5