ML20248F671
| ML20248F671 | |
| Person / Time | |
|---|---|
| Issue date: | 05/28/1998 |
| From: | Winsberg K NRC |
| To: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| Shared Package | |
| ML20248F498 | List: |
| References | |
| FOIA-COR98-114 NUDOCS 9806040380 | |
| Download: ML20248F671 (2) | |
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Note to:
Chairman Jackson From:
Kathryn Winsber Coordinated with:Annette, Marylee
Subject:
Paul Blanch's request See attached E-mail message: Paul Blanch is requesting that the Commission got; act on the policy statement " Freedom of Employeesj' o
in the Nuclear Industry to Raise Safety and Compliance Concerns k,g e-s W(
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Without Fear of Retaliation" (which is currently before the j
Commission) until after your April 9, 1996 meeting with him.
He is also asking that his organization, the National Nuclear Safety Network (NNSN) have the opportunity to review and comment upon the final policy statement before its issuance.
SECY is polling the Commissioners on whether they are willing to have another round of public comment on the policy statement or d egarding this question' f.[2) whether they wish to go ahead without further public comment.
R i f This draft policy statement was published for a 60 day commen period in February 1995, so has been pending for over a year, while NRC staff tried to resolve Department of Labor concerns.
The NNSN did submit comments, and the main thrust was that there was no necessity for j
a policy statement, but that instead the NRC should enforce its j
regulations against discrimination, and should conduct its own l
investigate ns rather than relyi.ng on the lengthy DOL process.
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April 30, 1995 W -1 Pd.G oJs f
0 Mr. John Noyle, Secretary D C '
j office of the secretary i
U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 j
SECYONRC.GOT l
I SUBJECTS Draft Policy Statement, Freedom of Employees in the l
Nuclear Industry to Raise Safety Concerns Without Fear I
of Retaliation, (6J Federal Register. 7592 -- February 8, 1995) l Dear Mr. Noyles l
On behalf of many concerned citizens from within the nuclear industry, the National Nuclear Eafety Network (NNSN) hereby submits comments on the NRC's recently published draft statement of policy, Freedom of Employees in the Nuclear Industry to Raise safety Concerns Without Fear of Retaliation (60 Fed. 7592 --
February 8, 1995).
NRC staff agreed with NNSN that comments will be accepted until April 30,1995 in consideration of meetings between the NRC Staff and NNsN on April 22, 1995 and the NRC's Inspector General's staff and NNSM on April 23, 1995.
NNSN is a coalition of many private citizens, nuclear safety organizations, and past and present nuclear workera concerned with the overall safety of nuclear energy.
Our primary concern is that the NRC continues to allow many nuclear power plants in the United states to continue to operate in clear violation of NRC regulations.
When significant concerns are brought to the attention of the NRC or licensees, technical issues are frequently ignored 1, retaliation frequently occurs and the NRC takes no meaningful action to either resolve these safety issues or take substantial enforcement action for clear violation of NRC Regulations.
The NRC appears to abrogate its responsibilities l
back to the licensees, the Department of Labor and the Courts.
Through our membership, we have been instrumental in gaining national attention to the plight of concerned employees who, after raising significant nuclear safety concerns, have found themselves removed from the. nuclear industry, with the apparent silent endorsement of the Nuclear Regulatory Commission.
On september 29, 1993, we met with NRC members of the team to reassess the NRC's Program for Protecting Allegers against Retaliation.
We believed this meeting was very productive and assumed that our concerns would be considered during the implementation of the prcgram.
Contrary to our beliefs, the NRC Ir.fwn..:n.; O _ r; y.g;g f.33 CCi&3.';3 ':ll lhc ((ggkn d lgo7m3tj39 ua, c=.m b
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l issued an Enforcement Policy for comment on November 28, 1994 (59 FR 60697) a.3d failed.to inform any members of NNsN that this proposed change to the Enforcement Policy was available for comment 2.
After review of this proposed policy, we strongly believe this policy is in conflict with the intent of the NRC's program and will further increase the " chilling effect" at licensed facilities.
NNsN members specific comments on the draft policy statement are provided in Attachment 1.
some comments may appear repetitive as they were Essembled aftar our meeting with the NRC staff and proper secretarial services are not available to properly organise all of out thoughts in a logical and consistent format.
While there is significant diversity of comments from our members, there is one area of common agreement ---- The NRC refuses to enforce its own safety regulations and endorses retaliation against those individuals requesting compliance of these regulations by its inaction.
This inaction is further solidified by this new proposed NRC Policy.
As is evident from the discussion contained therein, we do not believe that a policy statement is necessary to foster an environment whereby employees in the nuclear industry feel free to raise safety conce ns without fear of retaliation.
The only change required is the will of the NRC to enforce the present regulations.
We appreciate the opportunity to comment on the draft policy statement and would like to meet with NRC staff or the commission to discuss our comments. We also appreciate the time given to us by the NRC's staff and the Inspector General's staff on the weekend of April 22 & 23, 1995.
If you have any questions regarding our comments please contact me at (203) 236-0326.
sincerely, Paul N. Blanch CC INGFND9aol.com,
PART 2 ATTACENENT 1 General Comments A policy statement is an inappropriate regulatory vehicle to make known the NRC's views regarding the relative roles and responsibilities of licensees and employees to ensure safe plant operation.
The regulations are very clear in that retaliation against individuals for raising safety concerns to either their employers or the NE'c is a clear violation of 10 CFR 30.7 and 50.7. What is needed is the will of the NRC to enforce these regulations.
The NRC's' Inspector General reported in July 1993 that out of about 609 allegations of retaliation, the NRC only investigated 44 of these claims of violation of NRC Regulations.
NN8N does not believe that a policy statement is necessary to ensure that licensees understand the NRC'r interest in fostering quality-conscious work environments.
We need and agency willing to investigate all allegations of retaliation and take prompt and a
vigorous enforcement action.
If the NRC continues to ignore valid claims of retaliation, supports the removal of safety conscious individuals, and further refuses to enforce those regulations having a significant impact on nuclear safety, the operational safety of the nuclear industry will continue to degrade while the " chilling effect" increases.
Partially due to the efforts of NNSN, the NRC established a review team in 1993 to reassess the NRC's program for pro';ecting allegers against retaliation.
The review team published its report (NUREG-1499) on January 7, 1994.
We were very encsuraged by this report and even complimented the NRC 1 for their efforts.
Our primary concern was that the NRC only investigated about 5%
of the allegations received related to retaliation.
Itan II. C-7 of this NUREG stated the NRC will reprioritise its criteria for investigating claims of retaliation.
It was assumed that the NRC would not only reprioritise their investigations but also make a commitment to investigate all claims of retaliation.
Again the NRC has made no c6mmitment to the public to investigate any wrongdoing by licensees for alleged discrimination and until this commitment is made, the " chilling effect" will increase.
It is the consensus of our organisat2^m that many thousands of person-hours and millions of rate payer and tax payer dollars are wasted annually by the utilities and the NRC to solve a significant problem that has a very simple and cost effective solution.
The NRC needs to " step kack" and objectively assess the root cause of tho apparent " chilling effect" so pronounced at most nuclear plant sites.
Rather than always looking at the i
licensees as the potential cause of a problem, the NP ' needs to l
take a careful look at its own actions, or inactions, that foster the immense chilling effect in the industry.
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For the past five or more years the public and the industry have l
participated in numerous NRC and Commission meetings related to the lack of employee protection.
There have been United States supreme Court decisions, United states senate hearings, new state laws enacted and hundreds of Court cases attempting to resolve a j
simple issue that is the clear responsibility of the Nuclear Regulatory Commission.
All of these efforts have been in vain as the number of safety allegations and allegations of discrimination for raising safety concerns has not significantly decreased over the years.
l If there has been any statistical i
decrease in the number of allegations, this is likely attributable to the number of allegers ne longer employed within the nuclear industry.
The "ohilling effect" has not significantly decreased from all of these efforts.
Neither this proposed " hands off" policy or the recently issued Enforcement Policy (59 FR 60697) encouraging employee settlements (irrespective of the coercion methods employed) or "buyouts,"
will change the general public opinion that the NRC does not want to hear about safety concerns and by its inactions will continue a
to endorse persecution of those individuals identifying these concerns.
Rather than more band-aid fixes as proposed by this policy, the NRC needs to consider some simple, major surgery.
This " surgery" will require no changes to the existing Regulations, no new policies and no changes to the present enforcement policy with the possible exception of withdrawing the recently issued changes (59 FR 60697) to the enforcement policy.
The only potential t
policy change required may be to inform licensees that the NRC intends to enforce its regulations concerning 10 CFR 30.7/50.7 and no longer rely on the Department of Labor or the state and Federal Courts to interpret and enforce NRC regulations.
These proposed changes in NRC attitude will assure the " chilling effect" is eliminated at most licensed facilities and additionally, public health and safety will be enhanced by enforcement of existing NRC Regulations.
These proposed changes are simply outlined as follows:
- When a safety or discrimination allegation is received by the NRC it will be investigated by the NRC within a specified time.
(30 days for most allegations)
- Nost safety allegations relate to violations of NRC Regulations and a finding by the NRC can therefore be made promptly.
The Courts an.d the DOL are not capable of interpreting the complex NRC Regulations, Policies, Technical specifications, Management Direa'.ives, NURRGs, Regulatory Guides, etc.
If the licensee is in non-compliance with the regulations, the licensee must be compelled to comply with the regulations and the requirements of the Technical specifications.
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- If the safety allegation is not substantiated, the alleger will be informed within 30 days with an explanation why his/her concern was found not to be valid.
If the NRC declines to investigate the safety allegation, the NRC will provide the alleger the bases for not investigating the allegation.
- When allegations of discrimination for participating in protooted activities are brought to the MRC, the 3RC must promptly investigate these allegs3 violations of 10 CFR 30.7/50.7.
The significance of the safety issue is not a factor, only that the individual was involved in a protected activity as defined by 10 CFR 30.7/50.7.. The NRC must investigate these allegations within the same time required for DOL investigations (30 days).
These investigations must be pursued with the same vigor as allegations of Drug or Alcohol abuse (10 CFR 26) by a licensee employee.
If the participation in protected activities is determined to be a contributing factor in the discrimination, a
then " Prompt and Vigorous" enforcement action must be taken against the licensee and those individuals involved.
Criminal prosecution must be considered for willful violations of these regulations.
Personal sanctions must be similar to those required by 10 CFR 26.27 (b) (3) for any violations of discrimination.
- For those rare cases where an amployee has been discharged or l
other adverse employment action is alleged to have been a result of involvement in protected activities, the NRC must investigate this allegation promptly.
Enforcement action must be taken promptly and the results of the investigation made available to the Department of Labor for use in its determination of alleged discrimination.
As above, MRC enforcement actions mus be separate and independent of any actions taken by the Department of Labor.
I When the NRC finds a licensed individual selling drugs within the I
protected area of~the plant in violation of 10 CFR 26, the MRC doesn't wait years to take action against the employee until the courts find against the employee.
Why should a crime of discrimination be handled differently when the safety impact could be even more significant?
The only apparent difference is that claims of discrimination usually involve activities of management whereas violations of 10 CFR 26 usually involve only lower level plant employees.
It is our collective belief that if these actions are implemented I
and visible action is taken against those individuals violating l
10 CFR 30.7/50.7, the " chilling effect" will disappear in the nuclear industry.
We fully recognise the present personnel constraints on the NRC.
If the NRC sends a clear message that
4 retaliation will not be tolerated and safety issues will be promptly addressad, the " chilling effect" will disappear resulting in a significant decrease in NRC personnel required for investigations.
Another ooneern is that many individuals believe that if they are retaliated against by the licensee for raising safety concerns, the NRC will protect them and their positions in the industry.
This proposed policy, in combination with the recently published revision to the Enforcement Policy (59 FR 60697) actually increases the " chilling effect" already prevalent at most nuclear plant sites.
For example, the proposed policy actively discourages individuals from reporting safety concerns directly l
to the NRC.
The statement in the proposed policy: "If disciplinary action is found to have occurred solely (emphasf.s l
added) because the person came to the NRC, enforcement action l'
will be taken against the licensee" is contrary to the intent of i
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the ERA Sectica 211.
Hypothetically, if a licensee admits that a
retaliation was the result of an individual raising a safety g
concern to the NRC and this was a contributing factor however, the individual also removed a pencil for the workplace, the NRC will take no enforcement action.
This statement is totally inconsistent with the intent of 10 CFR 50.7 and 30 7 in that most l
i interpretations are based on the raising concerns being a i
contributing factor in the retaliatory action against the i
employee.
According to this proposed policy, if licensees can demonstrate the existence of any other minor contributing factors that lead to employee dismissal, then the NRC will take no enforcement action.
Does the NRC truly believe this type of statement will reduce the " chilling effect"?
j comments From Persons Residing in Region 1 several years ago, the NRC determined that a drug-free workplace l
was highly desirable and thus required licensees to institute l
Fitness for Duty. programs.
By Federal law, any individual t
testing positive t' ice for drugs or alcohol is removed from the I
w workplace for several years -- whether or not that person's performance was adversely affected by such usage.
NRC Fitness for Duty studies have concluded that these programs effectively i
provide workplaces that are essentially drug-free.
The use or possession of drugs within the protected area results in five year sanctions of the individual involved.
Is retaliation against an individual identifying a safety concern any less significant, especially considering the level of management involvement?
Does the NRC wait five years for the courts to determine guilt while this individual continues working in protected areas?
We need consistency in the application of NRC
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regulations and prompt enforcement when these regulations are violated.
The NRC can not delegate its responsibilities to other l
5 agencies and/or to the courts.
The NRC can't ignore enforcement of one regulation (10 CFR 50/30.7) while vigorously enforcing othere (10 CFR 26)-
The whistle-blower protection policy as described in the Federal Register indicates that the NBC desires a workplace in which workers feel free tc identity and raise nuclear safety concerns without fear of retaliation.
Any individual who harasses or intimidates subordinates and/or co-workers must be removed by Federal law, backed by the NRC's will, from the workplace for several years -- whetner or not that person's behavior adversely affected nuclear safety.
All issues such as due process have been previously addressed by the Fitness for Duty programs.
Any whistle-blower protection policy that does not include personal l
accountability will be hindered by focusing on the symptoms of l
retaliation rather thma its cause.
If the NRC adopts whistle-blower protection policy without strong enforcement and personal accountability provisions, then one must seriously question why the NRC would not want to take the same measures to provide a retaliation-free workplace as it has taken to provide a drug-free workplace.
Claims of retaliation must be pursued with the same vigor as claims of drug of alcohol abuse.
By simply looking at the past experience with regard to licensees, and the regulations to prohibit discrimination, the Commission is only fooling itself if it believes that the most i
effective improvement to the environment for raising concerns j
comes from within a licensee's organization.
Concerning the effective process for problem identification and resolution, the commission must require that as employee have unfettered access to the NRC about bringing forward concerns.
A requirement for an employee to ff;st bring the concern to his i
i employer assumes that an open, and free environment exists i
without fear of retaliation or discriminatory practices.
In l
general, if this, atmosphere existed there would be no need for an l
employee to be concerned about coming forward with concerns.
It is apparent however by the " draft statement of policy," that the
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commission has made the asLumption that employees will be able to raise concerns in an environment free of retaliation or discrimination automatically because the Commission has
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required its licensee's to provide that environment.
There are no provisions within the " draft statement of policy" l
that indicates the Commission will aggressively prosecute i
licensees when the commission's policies are violated.
There are no provisions within the " draft statement of policy" i
that require the Commission to respond to harassment, intimidation, retaliation, and discrimination within some
6 prescribed time.
Furthermore, when an saployee files a of. harassment, intimidation, retaliation, and discriminacomplaint tion the Commission provides no employee review policies that allow the employee to adequately review the licensee's responses to the employee's allegations.
The current process is a complete one way street whereby the NRC staff ourrently accepts and requires statements by the employee and provides nothing in return to the employee for rebuttal purposes.
In'the " draft statement of policy" no mention is made of an administrative review or appeal process that would enable the employee to have a decision rendered by the Commission or the NRC staff to be reviewed, as provided in all other administrative l
processes.
An employee is not necessarily required to file a l
civil suit or a DOL complaint when seeking relief, and may only require such relief from the Commission.
In such cases he would l
not receive proper adjudication from barasament, intimidation, i
retaliation, and discrimination by the process currently provided l
by the Commission and NRC staff.
10 CFR 30.7 and 50.7 state the an employee may seek a remedy by going to the Department of Labor.
There is no requirement for that individual to file a complaint with the DOL unless he is seeking redress from adverse employment action.
In most cases of alleged retaliation, the resident NRC inspectors require the individual to file a complaint with the DOL and state the NRC will take no action and that the DOL has total responsibility.
This is yet another way the NRC intentionally fosters the l
" chilling effect."
By filing a complaint with the DOL, the complaint automatically is forwarded to the licensee and the individual is further " chilled" along with his co-workers.
This t
i is but one more reason the NRC aust enforce its regulations if it ever expects to quell the " Chilling Effect" Comments From Persons Residing in Region 2 The Tennessee valley Authority is a perfect example of where all the Reployee concerns Programs in the world have not saved a utility from the horrors of a system gone bad.
In fact, it is a very good example of where the employee concerns programs were used by management to take further actions against employees that i
raised issues.
The NRC's position that these programs are I
useful and should be mandatory is pure fabrication and is nothing more than a smoke screen for the NRC to hine behind to keep from performing its job as mandated by Congress and law.
The idea that the NRC should get involved and makes the determination of a " reasonable offer" to settle a complaint is further evidence that money is driving the NRC and not publio l
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health and safety.
The settlement between the employee and employer is in no way a part of the NRC's business or area of regulation.
l The use of ambiguous words, such as "might, reasonable, expectation, highly visible, reasonable offer" must be removed if the policy is to be any thing more than as unenforceable I
statement of policy.
We understood that Congress had requested l
that a program be put in place by the NBC.
This is not a program.
It is policy ONLYI This policy does not have the teeth of a program and therefore is simply an attempt to seemingly provide Congress a piece of paper that amounts to nothing.
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The reference to people coming forth with issues and concerns that are not "significant" and may not be valid is pure hyperbole and must be taken out.
Any time that the concern is a safety related issue it is significant!
The IRA does not differentiate between the two, and the employee does not have to be the one to i
raise an issue to be protected under the status.
On page, 7593 column one, first paragraph, last sentence of the 0/l Federal Register Notice:
avoided..." is an admission by the NRC that the utilities are"To the extent that retali b#^}MS (4Wu retaliating against the employees and the NRC is doing nothing.
Above that sentence at the beginning of the paragraph the NRC i
4 acknowledges that it has the authority to act and take enforcement actions and sanctions where discrimination is substantiated so why put this policy on the books?
This is clearly mandated by Congress and the IRA 210/211 law and appears to make the NRC look like it does not know what is required of them by law.
This continuous " flag waving" by the NRC is another attempt to remove itself from its mandated regulatory j
responsibilities. This is yet another example of why the industry j
needs these employees as a safeguard for public health and safety.
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The idea of self assessments by the utilities to justify a position has not worked and will continue to work against the utility because the ERA 211 law is specifically written to recognise three (3) things ONLYs 1--if an employer is subject to the IRA 211 law 2--if an employee engaged in a protected activity, and 3--if the employer took an adverse action against the employee.
(Dean, Lamb v. Nouston Lighting and Power Company, 93-IRA-7,8.
E.T. Miller, ALJ, DOL, 4-15-9595) s
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The WRC waited Two (2) years to investigate or inspect Dean's or Lamb's issues.
The wait for ILP to do any internal assessment has notonly cost the utility millions of dollars, public embarrassment but har also fostered an atmosphere of distrust within the utility th: t probably will never be reclaimed because the NRC refused to go la and perform its duties as mandated by law.
This continuing attitude by the Mac of attempting to appear to be performing a duty while not doing anything is one more reason for employees of a utility to not some forth will issues and have them dealt with.
This is how the NRC is putting a chilling effect on industry employees themselves.
When the draft statement refers to " operating and maintenance costs" the NRC in dealing with money and the NRC has constantly stated that money is not an issue in regulating the nuclear industry.
This is a contradictory statement.
Page 7594, last column, last sentence, is the key to how this policy is going to effect employees-- when the commission gives this last regulatory function to ths utility BEFORE the NRC addresses the problem why bother with the problem?
Giving the advantage to the side with the. greater advantage now is contradictory to the intent of the IRA, which is protection of the amployee from the actions of the employer.
This is not fostering a working relationship but is creating that chilling effect so that employees will not come forth with these issues.
Just because the industry has not had thousands of people die as in Russia does not mean that the industry is safe with the actions of the NRC and the utilities. The industry is safer because amployser have come forth regardless of the trauma inflicted by the NRC and the utilities.
The attitude that the NRC is to be viewed as a " safety valve" is far removed as to how they are viewed.
This " policy" is far removed from the report (NUREG 1499) given to the Commission and will foster a chilling effect on employees in the industry because it is much less than the Atomic Energy Act requires of the NRCI Throw it outt 1
Letter from Paul M. Blanch to Mr. John Evolinski dated March 29, 1995.
2 Letter from Paul M. Blanch to Chairman selin dated February 21, 1995, l
1 Letter to Senator Lieberman from Paul M. Blanch dated January 24, 1994
1 these deficiencies. It was determined that this modification would result m an
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unreviewed safety question, and NU has now decided not to replace the deficient Qg
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NL NU now has filed a response to the Section 2.206 petition of We the People and Mr. Galatis in which it admits essentially every documentation and equipment error alleged in the d l, petition. Given the numerous enurs which NU has been forced to admit exist in the design and construction of the SFP,it would be improper to assume that other representations M
i about the design and construction of the pool are accurate. At the very least, a finding of no l
significant safety considerations by the NRC would be both negligent and premature.
Given the number of deficiencies and allegations related to the spent fuel pool, the NRC must order NU not to commence the next refueling presently scheduled for October 27, 1995, until all of these issues are addressed and properly resolved and all investigations completed by the NRC Staff, NRC Office of Investigation and the NRC Office of the inspector General.
I formally request the NRC provide me with an analysis of both the probability and the l
consequences of all spent fuel pool accidents including loss of cooling, and loss of spent fuel pool water. This information is requested prior to the commencement of the next refueling of Millstone Unit 1.
1 Sincerely, I
cc:
Emest Hadley SenatorLieberman Senator Dodd Representative Gejdenson Mr. Leo Norton h) i L 49
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