ML20217D536
| ML20217D536 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 09/24/1999 |
| From: | Merrifield J NRC COMMISSION (OCM) |
| To: | Vietticook A NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20217D392 | List: |
| References | |
| SECY-99-223-C, NUDOCS 9910150196 | |
| Download: ML20217D536 (2) | |
Text
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l NOTATION VOTE l
RESPONSE SHEET TO:
Annette Vietti-Cook, Secretary FROM:
COMMISSIONER MERRIFIELD
SUBJECT:
SECY-99-223 - MILLSTONE INDEPENDENT REVIEW TEAM MARCH 12,1999, REPORT ON ALLEGATIONS OF DISCRIMINATION IN NRC OFFICE OF INVESTIGATION CASES NDA: 1-96-002,1-96-007, AND 1-97-007, AND ASSOCIATED LESSONS LEARNED-RECOMMENDATION NO. 6 Approved
- Disapproved At> stain Not Participating COMMENTS:
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CORRESPONDENCE PDR Entered on "AS" Yes No
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Commissioner Merrifield's Comments on SECY-99-223 I'
For the reasons below, I would suggest the Commission approve a different approach than the four options proposed in the paper. Clearly, the need to have records of personnel actions that are necessary for the agency to sufficiently investigate allegations of discrimination is a serious issue. The MIRT team's report is useful in this context. However, it appears that the MIRT team found the evidence of record sufficient to determine whether discrimination occurred. The MIRT report questioned the available records in one case involving a large downsizing.
However, the report concluded that the record compiled by the Office of Investigation in that case " negated any suggestion" that the lower rankirg of those terminated had discriminatory underpinnings. Further, in making its recommendation, the MIRT report did not discuss our
!icensea's current record-keeping practices. For these reasons the Commission was not prepared to implement this recommendation, but directed the staff to further evaluate it.
The staff's current paper does not answer the questions left unanswered by the MIRT report.
The paper does not explore the degree of record-keeping that already is being undertaken by licensees in response to large layoffs or reorganizations. Licensees have an incentive to maintain records in a manner sufficient to respond to Equal Employment Opportuniy claims, Department of Labor discrimination claims, whistleblower protection claims, and other personnel matters. Although our focus is whistleblower protection, these other matters are significant. Given these unanswered questions, I cannot support either options 2 or 3, which would require licensees to retain certain records.
Based on the staff % current paper I also find it uiiiicult to approve an information notice encouraging licensees to " document and retain all records relevant to any large scale reorganization or downsizing effort." We are not prepared to answer questions from either sur licensees or the public regarding the specific records to be retained or the length of time we expect licensees to retain them because we have not focused on our IMensees current recort-keeping practices. If, at most we are intending to encourage licensees to retain records to demonstrate that their process was free of discrimination,. ogain have to question the usefulness of this reminder, since licensees already have
.cong incentive to do this. The staff concluded that "although the cost of adding records requirements may not be substantial, the benefits could be very limited." I would suggest that simply encouraging licensees to retain records, rather than requiring records be kept, would yield an even smaller benefit.
Therefore, I believe the Commission should direct the Office of Investigations (01) to consider this matter as it investigates future discrimination cases. If 01 believes that licensees are destroying or failing to generate records that are necessary for the NRC to determine whether a licensee has disparately treated whistleblowers,01 should immediately inform the Commission of this matter. In that event, Ol should work with the Office of the General Counsel to determine the legal and policy implications of requiring records to be " documented and retained."
Staff also ca) s that options 2 and 3 would be a backfit pursuant to 10 C.F.R. 50.109. THs conclusion i::, inconsistent with Commission policy and should not prevent the staff from pursuing the issue of records retention. As a policy matter, pure record-keeping and reporting requirements do not need to meet the requirements of the backfit rule to be justified. The backfit rule would require a showing of a " substantial increase in tafety" as a result of the new requirement to be imposed. The test for record keeping is different. Speci% ally, such rules are subject to the balancing in 10 C.F.R. 50.54(f), that "tne burden to be imposed on respondents is justified in view of the potential safety significance of the issue to be addressed in the requested information." The Commission recently reiterated this policy in the Statement of Considerations on a final rule amending 10 C.F.R. Part 72. See 64 Fed Reg 33,178; 33,181 (1999).
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'4 UNITED STATES f
NUCLEAR REGULATORv COMMISSION g
g WASHINGTON. D.C. 20555-0001 z
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october 13, 1999 SECR ETARY MEMORANDUM TO:
William D. Travers Execc ve Director for Operations o
FROM:
AnnLN Wetti-Cook, Secretary l[
SUBJECT:
STAFF REQUIREMENTS - SECY-99-223 -- MILLSTONE INDEPENDENT REVIEW TEAM MARCH 12,1999, REPOAT ON ALLEGATIONS OF DISCRIMINATION IN NRC OFFICE OF INVESTIGATION CASES NDA: 1-96-002,1-96-007, AND 1 007, AND ASSOCIATED LESSONS LEARNED -
RECOMMENDATION NO. 6 The Commission has disapproved the staff's recommendation (Option 4) to encourage licensees to document and retain records relevant to any large scale reorganization or downsizing effort.
The Office of Investigations (01) should consider this matter further as it investigates future discrimination cases. If Oi believes that licensees are destroying or failing to generate records that are necessary for the NRC to determine whether a licensee has disparately treated whistlebiowers, Ol should immediately inform the Commission of this matter. In that event, Ol should work with the Office of the General Counsel to determine the legal and policy implications of requiring records to be " documented and retained."
The staff noted that options 2 and 3 would be L backfit pursuant to 10 CFR 50.109. This conclusion is inconsistent with Commission policy and should not prevent the staff from pursuing the issue of records retention. As a policy matter, pure record-keeping and reporting requirements do not need to meet the requirements of the backfit rule to be justified. The backfit rule would require a showing of a "substantialincrease in safety" as a result of the new requirement to be imposed. The test for record keeping is different. Specifically, such rules are subject to the balancing in 10 CFR 50.54(f), that "the burden to be imposed on respondents is justified in view of the potential safety significance of the issue to be addressed in the requested information." The Commission recently reiterated this policy in the Statement of Considerations on a final rule amending 10 CFR Part 72 and in the statement of considerations for the proposed rules on reporting of reactor events. See 64 Fed Reg 33,1.M: 33,181 (1999) and 64 Fed Reg 36291, 36303 ( July 6,1999).
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