ML23153A045

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PRM-002-012 - 64FR59669 - Michael Stein; Receipt of Petition for Rulemaking - Important Safeguards Missing from 10 CFR
ML23153A045
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Issue date: 11/03/1999
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NRC/SECY
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References
PRM-002-012, 64FR59669
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ADAMS Template: SECY-067 DOCUMENT DATE: 11/03/1999 TITLE: PRM-002-012 - 64FR59669 - MICHAEL STEIN ; RECEIPT OF PETITION FOR RULEMAKING - IMPORTANT SAFEGUARDS MISSING FROM 10 CFR CASE

REFERENCE:

PRM-002-012 64FR59669 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

Docket No.: PRM-002-012 06/08/2001 FR Cite: 64FR59669 In the Matter of Michael Stein; Receipt of Petition for Rulemaklng Comment Comment Docket Document Miscellaneous Accession Number Submitted by Representing Date Date Description Number Michael Stein 07/28/1999 07/26/1999 Petition submitted by Michael Stein re important safeguards missing from 10 CFR 10/28/1999 10/23/1999 Federal Register Notice -

Petition for Rulemaking; Notice of receipt Robert Willis Bishop Nuclear Energy Institute 01/19/2000 01/18/2000 Vice President and General Counsel

- 2 Christine C. Stein Winston & Strawn 01/19/2000 01/18/2000 3 R. John Gianfrancesco, Jr. Aorida Power & light 01/21/2000 01/13/2000 Manager

  • Administrative Company Support and Special Projects I

Docket No.: PRM-002-012 06/08/2001 FR Cite: 64FR59669 In the Matter or Michael Stein; Receipt of Petition for Rulemaking Comment Comment Docket Document Miscellaneous Accession Number Submitted by Representing Date Date Description Number 4 Mark J. Burzynski Tennessee Valley 01/27/2000 01/19/2000 Manager, Nuclear Licensing Authority 5 James H. McCarthy Virginia Power 02/02/2000 01/18/2000 Manager 6 C. Lance Terry TXU Electric 02/08/2000 01/31/2000 Sr. Vice President & Principal Nuclear Officer 05/29/2001 05/25/2001 Federal Register Notice -

Petition for rulcmaking:

withdrawal 2

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'cw ({ 591,1;q) 1>1 MAY 29 A7 :16 NUCLEAR REGULATORY COMMISSION OFFICL uF SECf~ETARY RULt:M/\:(INGS AND 10 CFR Part 2 ADJUDICATIONS STAFF (Docket No. PRM-2-12)

Michael Stein; Withdrawal of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; withdrawal.

SUMMARY

The Nuclear Regulatory Commission (NRC) is withdrawing, at the petitioner's request, a petition for rulemaking (PRM-2-12) (64 FR 59669; November 3, 1999) filed by Michael Stein. In PRM-2-12, the petitioner requested that the Commission amend its regulations pertaining to deliberate misconduct and employee protection to ensure that all individuals are afforded the right to respond to an NRC determination that the individual has violated these regulations.

ADDRESSES: A copy of the petitioner's email submittal, dated May 15, 2001, requesting the withdrawal of the petition is available for public inspection, or copying for a fee, at the NRC's Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland.

Single copies of the petitioner's email submission may be obtained free of charge by writing to the Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

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2 Documents created or received at the NRC after November 1, 1999, are also available electronically at the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. For the petitioner's email, the accession number is ML011360325. From this site, the public can gain entry into the NRC's Agency wide Document Access and Management System (ADAMS) that provides text and image files of NRC's public documents. For more information, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, (301) 415-4737, or by email to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone: 301-415-7163 or Toll Free: 800-368-5642.

Dated at Rockville, Maryland this 25th day of May, 2001.

For the Nuclear Regulatory Commission.

Andrew L. Bates, Acting Secretary of the Commission.

TXU Electric C. Lance Terry Comanche Peak Senior Vice President & Principal Nuclear Officer Steam Electric Station P.O. Box 1002 Glen Rose, TX 76043 Tel: 254 897 8920 Fax:254 897 6652 lterry1 @txu.com Log# TXX-00029 File# 883 DOCKET NUMBER January 31, 2000 PETITION RULE PRM dl : I;;_

Annette L. Vietti-Cook

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Secretary of the Commission ATTN: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

SUBJECT:

COMANCHE PEAK STEAM ELECTRIC STATION (CPSES)

ENDORSEMENT OF NEI COMMENT LETTER on "Petition for Rulemaking to Require Increased Procedural Safeguards in Deliberate Misconduct and Employee Protection Cases" (64 Fed. Reg. 59669; November 3, 1999)

REF: 1) 64 Federal Register 59669; November 3, 1999

2) Nuclear Energy Institute (NEI) letter, addressed to Secretary, U. S. Nuclear Regulatory Commission, dated January 10, 2000

Dear Ms. Vietti-Cook:

This letter is in response to the request for comment (Reference 1) on the subject petition for rulemaking to require increased procedural safeguards in deliberate misconduct and employee protection cases.

NEI has established an Executive Task Force to gain valuable insight from its member nuclear utilities. The results of the NEI Executive Task Force review are being submitted per the NEI comment letter (Reference 2).

TXU Electric has reviewed and endorses the NEI comment letter. TXU Electric agrees with the NEI discussed issues, responses, and rationale.

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.-.:t4.S, TXU TXX-00029 Page 2 of2 This communication contains no new licensing basis commitments regarding CPSES Units 1 and 2.

Sincerely,

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C. L. Terry By:

Roger D. Walker Regulatory Affairs Manager RAS/grp c- Ellen Ginsberg, NEI

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U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Rulemakings and Adjudications Staff 10 CFR PART 2- MICHAEL STEIN; RECEIPT OF PETITION FOR RULEMAKING Virginia Power appreciates the opportunity to comment on the petition for rulemaking regarding NRC regulations pertaining to deliberate misconduct and employee protection. The petition is dated July 26, 1999, and has been assigned Docket No. PRM-2-12. Notice of the petition was published in the Federal Register (Vol. 64, No. 212) on Wednesday, November 3, 1999, and appeared on pages 59669-59670.

We endorse the comments submitted by the Nuclear Energy Institute (NEI) .

  • If you need further information, please contact:

Gwen Newman Respectfully, Gwen_Newman@vapower.com or (804) 273-4255 l ~ a r t h y, Manager Nuclear Licensing and Operations upport IP

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Secretary of the Commission ATTN: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Gentlemen:

NUCLEAR REGULATORY COMMISSION {NRC) - PETITION FOR RULEMAKING:

ENFORCEMENT PROCESS FOR ALLEGED VIOLATIONS OF THE DELIBERATE MISCONDUCT AND EMPLOYEE PROTECTION RULES {VOLUME 64 FEDERAL REGISTER 59669, NOVEMBER 3, 1999)

TVA appreciates the opportunity to review and comment on the subject petition for rulemaking published in the November 3, 1999 Federal Register. TVA participated in an industry effort with the Nuclear Energy Institute {NEI) to review the subject petition and endorses the comments transmitted to the NRC by NEI.

TVA believes that due process considerations weigh heavily in favor of granting the protections described in the subject petition. TVA supports the revisions to the NRC regulations recommended in the petition, and also believes that this rulemaking opportunity should be used to reconsider certain agency enforcement policies regarding, in particular, the policy not to release Office of Investigations {OI) Reports prior to the predecisional enforcement conference. Both NEI, and more recently TVA by letter dated October 12, 1999, have already addressed this ma tter. TVA strongly believes that NRC's policy of withholding OI reports is unfair and abusive o f a process which the NRC, itself, describes a s one aimed a t at a common understanding of the facts.

Fundamental fairness considerations are raised b y both the subject petition and in providing the subject{ s ) of e nforcement a full and fair opportunity to review all of the facts associated with any proposed violation. We urge the NRC to give serious consideration to the important is s ues ra i sed by the pet +/-tiort and its OI report policy. To that end, we offer our assistance-;--

along with NEI, to work with NRC and any other stakeholders in '

addressing these matters.

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U.S. Nuclear Regulatory Commission Page 2 January 19, 2000 If you have questions regarding this response, please contact me at (423) 751-2508.

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Mar~ ' f : r ~~vtA, Manager Nuclear Licensing cc: U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, D.C. 20555-0001

Florida Power & Light Company. P. 0. Box 14000, Juno Beach. FL 33408-0420

  • J J DOCKET NUMBER PETITION RULE PAM ;J-I :J..

('11/I=/? S't:/ '7l:.9} '00 JAN 21 P2 :58 JAN 1 3 2000 L-2000-014 Ms. Annette Vietti-Cook Secretary U.S. Nuclear Regulatory Commission Washington, D .C. 20555-0001 Re: Florida Power & Light Company Comments Petition for Rulemaking - Enforcement Process for Alleged Violations of the Deliberate Misconduct and Employee Protection Rules Docket No. PRM-2-12, 64 Fed. Reg. 59669 (November 3, 1999)

Dear Ms. Vietti-Cook:

  • Florida Power & Light Company (FPL), the owner and operator of the St. Lucie Nuclear Plant, Units 1 and 2, and the Turkey Point Nuclear Plant, Units 3 and 4, hereby submits the following comments in support of the above-referenced Petition for Rulemaking.

In order to ensure due process and fu ndamental fairness, an individual that is the subject of a potential enforcement action should have, as a minimum, an opportunity at a predecisional enforcement conference to provide information that will assist NRC in determining the appropriate enforcement action, if any. 1 Such a rule, if promulgated, is entirely consistent with the current Enforcement Policy, which states that an opportunity for a predecisional enforcement conference "will normally be provided before issuing an order based on a violation of the rule on Deliberate Misconduct or a civil penalty to an unlicensed person." 64 Fed. Reg. 61142, 61148 (Nov. 9, 1999).

Additionally, an individual that is the subject of an NRC enforcement action for which a Notice of Violation has been issued should be afforded an opportunity for a hearing. A hearing opportunity is required for licensed persons by Section 189(a) of the Atomic Energy Act, 42 USC 2239. For unlicensed persons, such a rule is mandated by the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution. Federal and NRC cases interpreting those amendments recognize a right to a hearing where liberty or property interests may be affected by the proposed agency action.2 An enforcement action against an individual can result in civil penalties and orders barring that individual from licensed activities clearly resulting in impacts to liberty and property. Even the issuance of a Notice of Violation without further sanction can significantly affect the ability of an individual to obtain employment. Therefore, such sanctions clearly implicate liberty and property interests, and therefore give rise to a right to a hearing. This right should be specifically codified in NRC regulations.

1 FPL questions whether NRC has the legal authority to pursue enforcement action against unlicensed individuals. In the interests of brevity, FPL will not address this issue at this time.

2 Sequoyah Fuels Corp. (Sequoyah UF6 to UF4 Facility), CLI-86-17, 24 NRC 489, 495 ( 1986); See City of West Chicago v. NRC, 70 I F.2d 632, 645 (7 th Cir. 1983).

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Ms. Vietti-Cook L-2000-014 Page2 FPL encourages the NRC to process this Petition for Rulemaking and provide notice of a proposed rulemaking in the Federal Register. We appreciate the opportunity to comment on this Petition for Rulemaking.

Sincerely yours, ff9~~-~

R. John Gianfrancesco, Jr.

Manager Administrative Support and Special Projects

WINSTON & STRAWN 35 WEST WACKER DRIVE 1400 L STREET, N.W. 21 AVENUE VICTOR HUGO CHICAGO, ILLINOIS 60601-9703 WASHINGTON, D.C. 20005-350 0 J~N 19 ~L :19 75116 PARIS, FRANCE 200 PARK AVENUE 43 RUE DU RHONE (202) 371-5700 NEW YORK, NY 10166-4193 v

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WRITER'S DIRECT DIAL NUMBER 202-371-5747 OCKET NUMBER January 18, 2000 PETITION RULE PAM d.- / :;i_

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BY HAND Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Rulemakings and Adjudication Staff Re: Rulemaking Petition of Michael Stein to Add Individual Safeguards to the NRC's Deliberate Misconduct, Employee Protection and Notice of Violation Regulations ( 64 Fed. Reg. 59669)

Dear Secretary:

Enclosed are the comments of Winston & Strawn on the Petition for Rulemaking filed by Michael Stein, as noticed in the Federal Register on November 3, 1999. Michael Stein petitions for an amendment to the NRC regulations to provide additional safeguards to individuals charged with violations of the deliberate misconduct and employee protection

  • provisions, and charged with a Notice of Violation. For the reasons set forth in the enclosed comments, we support the rulemaking petition.

Thank you for your attention to this matter.

Respectfully submitted, C/?iwlzne_ t [;~

Christine C. Stein Enclosure

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COMMENTS CONCERNING MICHAEL STEIN'S PETITION FOR RULEMAKING TO ADD PROCEDURAL SAFEGUARDS FOR INDIVIDUALS ACCUSED OF VIOLATING THE REGULATIONS January 18, 2000 Winston & Strawn submits the following comments on the petition for rulemaking filed with the NRC by NRC employee Michael Stein, in his capacity as a member of the public. 64 Fed. Reg. 59669 (Nov. 3, 1999). The petition requests that the NRC amend its regulations to provide additional safeguards to individuals charged with violations of the NRC's deliberate misconduct provisions or employee protection

  • provisions, and for individuals charged with a Notice of Violation. For the reasons that follow, Winston & Strawn fully supports the petition. In addition, we believe these proposed regulatory enhancements should be extended to licensees as well as individuals.

BACKGROUND As the regulations are currently written and have been interpreted, the NRC has the power to take adverse action against an individual or a licensee in the form of a Notice of Violation (NOV) without allowing for significant input from the individual or licensee prior to the action. Specifically, under 10 C.F.R. § 2.201, the NRC may issue an NOV to an individual or licensee, without any prior input whatsoever.

Thereafter, the NRC "may" require the respondent to file a written explanation within 20 days after the NOV. Presumably, the NRC can then retract or affirm the NOV.

However, in contrast to the NRC's regulations regarding the imposition of Orders and Civil Penalties (10 C.F.R. §§ 2.202, 2.205), there is no provision for an individual or licensee to request a hearing on an NOV.

The NRC does currently and typically offer both individuals and licensees an opportunity for a "predecisional enforcement conference" prior to an escalated enforcement action against a licensee or an individual. The opportunity for a predecisional enforcement conference flows as a matter of policy from the NRC's Enforcement Policy (NUREG-1600), not from the regulations. See 64 Fed. Reg.

61,142 at 61,148, col. 3 (1999). Although the NRC's Enforcement Policy clearly favors predecisional enforcement conferences, as pointed out by Mr. Stein the NRC has not always provided individuals charged with wrongdoing an opportunity to participate in such a conference. As alluded to in the NRC's notice, the NRC recently

failed to afford a former Northeast Utilities executive the right to a predecisional enforcement conference prior to the issuance and imposition of an NOV against him.

Mr. Stein's rulemaking petition focuses on individual rights, in cases involving alleged violations of the deliberate misconduct rules (e.g., IO C.F.R. § 50.5) and the employee protection rules (e.g., IO C.F.R. § 50.7). The proposed change would allow individuals charged with a violation of the NRC's deliberate misconduct rules to respond to the NOV through written correspondence. 64 Fed. Reg. at 59670. In addition, Mr. Stein's proposed change to the NRC's rules would allow individuals charged with an NOV to request a hearing on the NOV. In sum, the proposed amendment would make the process for imposition of NOVs involving individuals similar to the process for imposition of Orders and Civil Penalties under 10 C.F.R. § 2.202 and § 2.205. 1 Sections 2.202 and 2.205 allow licensees and other persons to request a hearing following Staff issuance/imposition of either an Order or Civil

  • Penalty. A hearing opportunity on an NOV would provide an individual with the same opportunity to respond and confront the evidence before him prior to final agency action on the adverse NOV.

COMMENTS I. An Opportunity for a Predecisional Enforcement Conference Prior to a Notice of Violation of the Deliberate Misconduct and Employee Protection Rules Should be Guaranteed.

First, the NRC Enforcement Policy clearly recognizes the importance of an opportunity to be heard prior to issuance of an enforcement sanction, including an escalated NOV. The importance of this policy is only increased for a sanction against

  • an individual or involving the employee protection rules.

The predecisional enforcement conference is the last, best opportunity for an individual or a licensee to confront evidence and to assure that the NRC has a full record on which to base an enforcement action. Predecisional enforcement conferences have long been recognized by licensees as the most effective way in which to respond to an allegation, prior to the sanction and adverse publicity. Although the issuance of an NOV is not final action by the NRC, it can still carry negative The language for IO C.F.R. § 2.20l(c)(2) as proposed is unclear regarding the precise timing of the hearing opportunity. If the rule is intended to be consistent with IO C.F.R. § 2.205, as the rule proposed in the petition in some respects appears to be, paragraph (c)(2) should specify that the hearing request is to be made within 20 days of the date of the order imposing the NOV, not 20 days of the date of the NOV. However, we do not believe an extra step of requiring imposition of an NOV prior to a hearing request is necessary. Where the subject of the NOV disagrees and will request a hearing, that process should proceed expeditiously.

COMMENTS OF WINSTON & STRAWN ON STEIN PETITION FOR SAFEGUARDS PAGE20F4

repercussions for individuals and licensees alike. An individual in particular may suffer adverse job action with his current employer or be hampered in finding future employment based on the negative implications surrounding the issuance of an NOV.

Despite the importance of predecisional enforcement conferences to the licensee and individuals, and the Enforcement Policy's recognition of such a measure, the NRC has not always held such conferences. The example cited by the petitioner was an egregious procedural deficiency, adversely impacting those involved. Regardless of any action on Mr. Stein's petition, the NRC's regulations and/or Enforcement Policy should unequivocally ensure that the NRC always allows individuals and licensees alike an opportunity to be heard prior to the issuance of an NOV or Order. For alleged violations of the deliberate misconduct rules and the employee protection rules, this opportunity should not be limited to NOVs of a certain severity level, but should apply in any case where the NRC proposed to issue more than a Non-cited Violation .

II. Due Process Dictates That Individuals and Licensees Should Have An Opportunity To Be Heard Before Adverse Action is Taken.

Once an NOV has been issued, basic notions of due process dictate that either an individual or a licensee should have a meaningful opportunity to respond in writing before the imposition of an NOV that could adversely affect their interests.

Moreover, in the case of an NOV, where there is no Order or Civil Penalty, there is still no reason to deny either an individual or a licensee an opportunity for an administrative hearing before an impartial tribunal, just as that right now exists for Orders and Civil Penalties. The right to this type of process is especially paramount when an individual is involved. An adverse finding against an individual may result

  • in negative job action, including termination and difficulty in being hired by other licensees. For this reason, individuals and licensees should have an opportunity to be fully heard, to examine the evidence against them, and to confront the persons recommending the adverse action prior to final agency action.

Accordingly, we support Mr. Stein's recommended amendment to Section 2.20 I.

Allowing individuals to request a hearing would make Section 2 .20 l generally consistent with Sections 2.202 and 2.205 , the provisions regarding Orders and Civil Penalties. Mr. Stein's petition is also reasonable when compared to similar processes in place in the judicial courts and other administrative proceedings. It is axiomatic that persons and entities are generally given a meaningful opportunity to respond and confront their accusers before adverse action is taken. Presumably, the NRC already recognized this principal when it provided for the right to hearing under Sections COMMENTS OF WINSTON & STRAWN ON STEIN PETITION FOR SAFEGUARDS PAGE3OF4

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2.202 and 2.205. An amendment to Section 2.201 would simply bring that provision into general conformity with Sections 2.202 and 2.205, while adequately securing an important right for individuals.

III. Individuals and Licensees Should be Treated Consistently Under the Regulations Although Mr. Stein's petition addresses individual rights, as opposed to licensee rights, we believe the same protections as proposed should be extended to licensees as well. In cases involving alleged deliberate misconduct or violations of the employee protection rules, a licensee may have an interest in protecting its own reputation as well as the interests of the managers or other employees. An NOV in these types of cases, even in the absence of an Order or a Civil Penalty, may involve important questions of law or fact. 2 Accordingly, both licensees and individuals should have the same right to respond in writing to an NOV and then, subsequent to the NRC Staffs issuance of the sanction, to request an administrative hearing. The latter could involve an important check or balance on the NRC Staffs enforcement decisionmak.ing. Moreover, extending the proposed amendments to licensees would make the affected provisions consistent with Sections 2.202 and 2.205, which give both a licensee and "other person" the same rights to respond and request a hearing.

WINSTON & STRAWN 2

In this regard, it is not at all clear that the proposed rule change should be limited to alleged violations of the deliberate misconduct rule or the employee protection rule. An NOV is a sanction, regardless of the regulation involved. An alleged violation of IO C.F.R. § 50.9, or a violation of Technical Specifications, for example, may also involve important issues of fact or law. We recommend extending the proposed changes to all escalated NOVs of regulations other than IO C.F.R. §§ 50.5 and 50.7.

COMMENTS OF WINSTON & STRAWN ON STEIN PETITION FOR SAFEGUARDS PAGE4OF4

I l CD NUCLEAR ENERG Y INSTITUTE

  • oo JM 19 A1 :1s January 18, 2000 Robert Willis Bishop VICE PRESIDENT &

GENERAL COUNSEL Ms. Annette Vietti-Cook ,A,C Secretary U.S. Nuclear Regulatory Commission Mail Stop 0-16 Cl OCKET BER One White Flint North P RULE PR ~-/;i.

11555 Rockville Pike 1'1t/F~,,fi:Z<;)

Rockville, MD 20852-2738

SUBJECT:

Petition for Rulemaking - Enforce ment Process for Alleged Violations of the Deliberate Misconduct and Employee Protection Rules (64 Fed. Reg. 59669; November 3, 1999)

Dear Ms. Vietti-Cook:

On behalf of the nuclear energy industry, the Nuclear Energy Institute 1 is pleased to submit comments on the petition for rulemaking filed by Michael Stein, published in the Federal Register November 3, 1999 (64 Fed. Reg. 59669). The petition requests that the NRC extend its procedures to allow for a hearing on a Notice of Violation (NOV) issued to an individual for a violation of the employee protection requirements (10 CFR 50.7; 10 CFR 50.5). 2 In sum, the nuclear energy industry supports the revisions to the NRC's regulations

  • recommended in the petition, but suggests that the NRC facilitate a fuller discussion of the proposal prior to making a decision on the petition. 3 The industry would be pleased to participate in such discussions or a stakeholder meeting held by the NRC. The industry also recommends that the NRC use this rulemaking, and 1

NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, nuclear materials licensees, and other organizations and individuals involved in the nuclear energy industry.

2 An opportunity for a hearing already exists for individuals issued orders and civil penalties under 10 C.F.R. 2.202 and 2.205.

3 For example, the industry recommends that the rulemaking be expanded to provide the same opportunity for a hearing to individuals and licensees issued a Notice of Violation based upon 10 CFR 50.5, regardless of whether the underlying regulation claimed to be violated is 10 CFR 50. 7 or some other 10 CFR 50. 7 and/or rule).

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Ms. Annette Vietti-Cook January 18, 2000 Page 2 stakeholder interactions on this topic, to reconsider additional administrative safeguards that could be provided to individuals and which would occur earlier in the process. 4 In particular, the industry believes there are compelling reasons to revise the NRC's current policy not to release Office of Investigations reports prior to the conference. We have stated the industry's views on this subject in previous communications with the NRC. 5 Turning first to the petition, adding an opportunity for a hearing would be consistent with the general dictates of due process and, as a practical matter, would provide an important check on NRC enforcement action. Given the gravity of proposed enforcement action against an individual, the opportunity for the accused individual to present his or her perspective to a neutral decision maker would seem to be a minimum procedural safeguard the NRC should provide in these circumstances. The impact on an individual of a NOV citing a willful violation of an NRC regulation, even in the absence of a civil monetary penalty or an action-forcing order, cannot be overstated. It unquestionably puts the individual's career in the nuclear industry at risk, markedly affects his or her status and reputation within his or her company and even within the local community and, in some cases, makes it difficult to obtain future employment.

Providing the individual with an opportunity for a hearing after a predecisional enforcement conference is appropriate because it serves both the individual's and the NRC's interest to have such severe enforcement action reviewed by an independent body. (Presumably, the petitioner envisions a hearing before an Atomic Safety and Licensing Board or a presiding officer chosen from the Board Panel). The hearing would allow a review by administrative judges who routinely make decisions on issues of evidence, witness credibility, and law. It would provide the agency with a means to ensure that, before severe governmental action becomes final, the individual has been offered a full opportunity to air his or her perspective regarding the facts and controlling legal principles.

Although the Enforcement Policy states a predecisional enforcement conference "will normally be provided before issuing an order based on a violation of the rule on Deliberate Misconduct or a civil penalty to an unlicensed person," 6 in those few 4

The additional administrative safeguards suggested herein do not require rulernaking.

5 Letter from Robert W. Bishop to James Lieberman, dated February 6, 1998.

6 64 Fed. Reg. 61142, 61148 (Nov. 9, 1999)

Ms. Annette Vietti-Cook January 18, 2000 Page 3 cases in which a conference is not held, it is even more imperative that the NRC provide an opportunity for hearing. Similarly, even where enforcement conferences are held, the facts and positions of each side are not fully aired or subject to cross examination, and in cases where the individual does not prevail in the conference, he or she now simply has no meaningful remedy in response to the NOV.

Several aspects related to implementation of the hearing opportunity have not been fully explained in the petition. For example, it is unclear whether the hearing as proposed in the petition is to be formal, with rights including cross examination and discovery. The industry believes that, as with any enforcement case, there should be an opportunity for a Subpart G, adjudicatory hearing before administrative judges.

Likewise, it is not clear from the petition when the hearing opportunity would be provided. Upon receipt of the NOV, or following a response to the NOV and the agency's imposition of the NOV? As the rule is proposed, it appears (in contrast to 10 C.F.R. 2.205) that the hearing opportunity would eliminate the need for an answer. The petitioner seems to have relied on procedures set out in 10 CFR 2.201, 2.202 and 2.205, but the differences have not been explained or justified. Moreover, the proposed regulation should clarified to prevent conflicts -- such as a case where an NOV and a civil penalty are involved. The hearing opportunity should not arise at different times on the NOV and the order imposing a civil penalty. These issues are ripe for discussion among the petitioner, NRC and stakeholders to ensure that there is a common understanding of how the opportunity for hearing would be implemented.

As noted above, given that the objective of the instant rulemaking is to ensure individuals are provided adequate safeguards before the NRC imposes severe enforcement action, the rulemaking also should prompt reconsideration of additional administrative safeguards to individuals earlier in the investigation-enforcement process. For example, during the investigative stage, individuals should be fully informed when they are the target of an investigation and not merely a fact witness. Individual targets should be made more aware of alleged facts supporting an alleged violation and given an opportunity to provide additional clarifying information. And, if the investigation results in a substantiated claim, we continue to believe it is critical for the NRC to release 01 reports in advance of the pre decisional enforcement conference.

Ms. Annette Vietti-Cook January 18, 2000 Page 4 Predecisional enforcement conferences are designed to permit the agency to obtain the following information: 7

  • a common understanding of the facts, root causes, and missed opportunities to identify the violation sooner,
  • a common understanding of corrective actions,
  • a common understanding of the significance of the issues and the need for lasting and effective corrective action.

In addition, NRC correspondence inviting licensees and individuals to predecisional enforcement conferences routinely describes the conference as an opportunity to point out any errors in the NRC's understanding of the apparent violation(s). Yet, the NRC routinely denies licensee and individual requests for copies of the relevant investigative report prior to the enforcement conference, despite some limited precedent for releasing this material after the NOV and before the required response.

The Enforcement Guidance Memorandum 99-007 permits the NRC staff to provide a mere summary of the facts that led the staff to conclude that a violation of a regulatory requirement may have occurred. The staff practice incorporated in EGM 99-007 does not adequately balance the agency's need to retain confidentiality during the pendency of an investigation with the accused individual's need to provide information relevant to the accusations prior to an enforcement decision being made.

We strongly believe that withholding OI reports does not further the stated fact-finding purpose of a predecisional enforcement conference . In our view, it has the opposite effect. The result is a less developed record upon which the NRC will base its decision. Issuing a mere summary does not provide the accused individual with a meaningful opportunity to address or refute the allegations contained in the report. Without the opportunity to review the investigative report, licensees and individuals are unable to point out errors in the NRC's understanding of the apparent violation or reach a common understanding of the facts . A clear record and sound decision making at the predecisional enforcement conference may 7

NUREG/BR-0195, NRC Enforcement Manual, Rev. 2, Section 5.3.

Ms. Annette Vietti-Cook January 18, 2000 Page 5 eliminate the need for a hearing down the road, resulting in greater agency efficiency in the long run.

Fundamental fairness also mandates that individuals potentially facing civil and criminal sanctions be given notice of the allegations against them at the earliest reasonable point in the process. Denying a witness the opportunity to review the contents of the 01 report prevents him or her from adequately preparing for the conference. The 01 report presumably will contain OI's credibility assessments. It would seem axiomatic that the accused should have an opportunity not only to evaluate OI's credibility assessment, but also to provide a response to it. Further, factors not mentioned in the summary often are used to form the basis for the investigative finding and tentative enforcement decision. In that situation, even if a licensee or individual were to persuasively refute the known bases for the allegation(s), the NRC still might take enforcement action based on undisclosed information contained in the investigative report.

The failure to release the 01 report prior to the enforcement conference is particularly disturbing because the 01 investigation does not provide the individual who is or becomes the focus of an 01 investigation an opportunity to address that which is alleged by others and captured in OI's report. The result is the accused's perspective is neither captured in the 01 report nor can the accused address the contents of the report prior to the enforcement conference because it is not released.

The need to avoid this result is compelling because, as noted above, the consequences are likely to be very severe for an individual in the nuclear industry who is involved in a situation for which enforcement action is being considered.

The fact that the investigation has been completed by the time of the predecisional enforcement conference also would seem to strongly favor releasing the 01 report to allow licensees and individuals to prepare adequately for the conference. When the conference takes place, the only remaining fact-finding is to obtain the licensee's or individual's view of the facts, which can be effective only if the accused has adequate notice of the bases for the charges.

Because a fair and timely enforcement process depends upon providing licensees and individuals a copy of investigative reports prior to the predecisional enforcement conference, the industry recommends that the NRC consider adding the following language (at the end of petitioner's suggested language) to the deliberate misconduct and employee protection rules:

Ms. Annette Vietti-Cook January 18, 2000 Page 6 In either case, when the alleged violation is based on a Report of Investigation issued by the NRC Office of Investigations (OI) or other investigative report relied on by the NRC, the individual charged with such a violation shall be provided a copy of the investigative report no later than fifteen business days prior to the time the individual must inform the NRC whether a written response or enforcement conference is requested.

In conclusion, we support the petition's request that the NRC provide an opportunity for hearing for individuals charged with violations of employee protection or deliberate misconduct regulations. We further request the NRC more fully consider the procedural details relevant to this petition. Finally, the industry also recommen ds that the NRC take this opportunity to consider implementing the additional procedural safeguards described herein. These additional procedural safeguards will help to ensure a fair, timely and meaningful opportunity for individuals to participate in the NRC investigation-enforcement process.

If you have questions regarding our views or would like to discuss them further, please contact me or Ellen Ginsberg, NEI Deputy General Counsel.

Sincerely,

~.

Robert W. Bishop c: David L. Meyer, Chief Rules and Directives Branch, NRC

DOCKET NUMBER PETITION RULE PAM ;l. ... I~ ;\ DOCKETED IP'/fRS'ft,t,'I; S~ ,-'. [7590-01-P}

NUCLEAR REGULATORY COMMISSION . OCT zg p ~ :33 99 10 CFR Part 2

[Docket No. PRM-2-12]

Michael Stein; Receipt of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission .

  • ACTION: Petition for rulemaking; Notice of receipt.

SUMMARY

The Nuclear Regulatory Commission (NRC) has received and requests public comment on a petition for rulemaking dated July 26, 1999, filed by Michael Stein (petitioner).

The petition has been docketed by the Commission and has been assigned Docket No. PRM 12. The petitioner believes that the NRC regulations pertaining to deliberate misconduct and employee protection do not contain certain needed safeguards. The petitioner is requesting that the NRC regulations pertaining to employee protection and deliberate misconduct be amended to ensure that all individuals are afforded the right to respond to an NRC determination that the individual has violated these regulations.

PtlA'W-LIVUf / ~ ~0 0 0 DATE: Submit comments by (~ '1aye fellewint11 puelieatio,, in tlile i:;ederol AegieleF~.

Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.

ADDRESSES: Submit comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Attention: Rulemakings and Adjudications staff.

2 Deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays.

For a copy of the petition, write: David L. Meyer, Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

You may also provide comments via the NRC's interactive rulemaking website (http://www.ruleforum.llnl.gov). This site provides the capability to upload comments as files (any format), if your web browser supports that function. For information about the interactive

  • rulemaking website, contact Ms. Carol Gallagher, (301) 415-5905 (e-mail: CAG@nrc.gov).

FOR FURTHER INFORMATION CONTACT: David L. Meyer, Office of Administration, U.S.

Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301-415-7162 or Toll Free: 1-800-368-5642 or E-mail: DLM1@NRC.GOV.

SUPPLEMENTARY INFORMATION:

  • Background On July 28, 1999, the Nuclear Regulatory Commission (NRC) received a petition for rulemaking submitted by Michael Stein (petitioner). Although Mr. Stein is an employee of the NRC, he submitted the petition as an individual member of the public. The NRC recently initiated an enforcement action involving a notice of violation against an individual without conducting a prior pre-decisional enforcement conference. As a result, the petitioner states that the NRC regulations pertaining to deliberate misconduct and employee protection do not contain certain important safeguards. The petitioner requests that the NRC regulations governing deliberate misconduct and employee protection be amended to ensure that all

3 individuals are afforded the right to respond to an NRC determination that the individual has violated these regulations before the NRC issues the action.

The NRC has determined that the petition meets the threshold sufficiency requirements for a petition for rulemaking under 10 CFR 2.802. The petition has been docketed as PRM-2-12. The NRC is soliciting public comment on the petition for rulemaking.

Discussion of the Petition The petitioner requests that the title of the NRC regulations codified at 10 CFR Part 2, Subpart B be amended to be the "Procedure for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License, or for Issuance of a Notice of Violation to an Individual, or for Imposing Civil Penalties." The petitioner also suggests amending 10 CFR 2.201 entitled, "Notice of Violation," by adding a new paragraph (b). In a meeting between the petitioner and the NRC staff on October 14, 1999, the language of suggested paragraph was modified by changing the word "order to "Notice of Violation" each time it appears in the second sentence of paragraph (b)(2) and to include Part 76 in the list of 10 CFR parts

  • presented in the introductory text of paragraph. The NRC notes that a paragraph (b) currently appears in the codified text of §2.201 . Therefore, the NRC is presenting the paragraph suggested by the petitioner as a new paragraph (c). The new paragraph suggested by the petitioner would read as follows:

§2.201 Notice of violation.

(c) In response to an alleged violation of the employee protection or deliberate misconduct regulations contained in 10 CFR Parts 19, 30, 40, 50, 60, 61, 70, 72, and 76 the Commission may serve on the individual a Notice of Violation as described in 10 CFR 2.201 (a). This Notice of Violation to the individual shall state that:

4 (1) The answer to the Notice of Violation shall state any facts, explanations, and arguments denying the charges of violation; (2) If the individual charged with the violation files an answer denying the violation, the Executive Director for Operations, or the Executive Director's designee, upon consideration of the answer, will issue an Order imposing, mitigating, or withdrawing the Notice of Violation to the individual. The individual charged with a violation of the employee protection or deliberate misconduct regulations may, within twenty (20) days of the date of the Notice of Violation or other time specified in the

  • Notice of Violation, request a hearing; (3) If the individual charged with an employee protection or deliberate misconduct violation requests a hearing, the Commission will issue an order designating the time and place of the hearing; (4) If a hearing is held, an order will be issued after the hearing by the presiding officer or the Commission dismissing the proceeding, or imposing, mitigating or withdrawing the Notice of Violation. This shall be considered the final NRC action with
  • regard to the Notice of Violation at issue in the proceeding.

The petitioner suggests that the current NRC regulations pertaining to employee protection be amended. Although the petitioner did not specifically identify the employee protection regulations to be amended, the NRC believes that these regulations are 10 CFR 30.7, 40.7, 50.7, 60.9, 61.9, 70.7, 72.10, and 76.7. The Commission specifically requests comments on whether this is a complete list of employee protection regulations that should be amended under the petition. The petitioner's suggested language reads as follows:

An individual charged with a violation of the employee protection regulations in Part X, has the right to a hearing pursuant to 10 CFR 2.201 (b). In addition, prior to the

5 issuance of a Notice of Violation pursuant to 10 CFR Part 2.201 or an Order pursuant to 10 CFR 2.202, the individual charged with such a violation shall have the right to inform the agency either by written correspondence or by a predecisional enforcement conference, regarding their involvement in the alleged violation of this section.

The petitioner also proposes that the current NRC regulations pertaining to deliberate misconduct be amended. Although the petitioner did not specifically identify the deliberate misconduct regulations to be amended, the NRC believes that these regulations are 10 CFR

  • 30.10, 40.10, 50.5, 52.9, 60.11, 61.9b, 70.10, 71.11, 72.12, 76.10, and 110.7b. The Commission specifically requests comments on whether this is a complete list of deliberate misconduct regulations that should be amended under the petition. The petitioner's suggested language reads as follows:

An individual charged with a violation of the deliberate misconduct regulations in Part X, has the right to a hearing pursuant to 10 CFR 2.201 (b). In addition, prior to the issuance of a Notice of Violation pursuant to 10 CFR 2.201 or an Order pursuant to 1O

  • CFR 2.202, the individual charged with such a violation shall have the right to inform the agency either by written correspondence or by a predecisional enforcement conference, regarding their involvement in the alleged violation of this section.

The petitioner contends that his proposed amendment would ensure that all individuals have the opportunity to address an NRC determination that the individual has violated either the deliberate misconduct or employee protection regulations before the NRC issues the action.

6 The Petitioner's Conclusions The petitioner concludes that the NRG regulations governing deliberate misconduct and employee protection are missing certain safeguards he believes are important. The petitioner requests that the NRG regulations pertaining to deliberate misconduct and employee protection be amended as discussed above to ensure that each individual has an opportunity to address an NRG determination that he or she has violated these regulations.

Dated at Rockville, Maryland, this .J. ~ day of October, 1999 .

  • For the Nuclear Regulatory Commission.

'\

{~J-o=c-~

Annette L. Vietti-Cook, Secretary of the Commission.

DOCKET NUMBER PETITION RULE 0 RM :l-1:i.

{t,'/ FR 5'/i,1,'I)

July 26, 1999 *99 JUL 28 P2 :58 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Attention: Rulemakings and Adjudications Staff

Dear Secretary:

On July 21, 1999, Chairman Dicus responded to my Differing Professional Opinion appeal and my related 10 CFR 2.206 Petition by denying both requests.. It is my professional opinion as an attorney and discrimination enforcement specialist that certain important safeguards are missing from the NRC's regulations codified in Title 1O of the Code of Federal Regulations. In order to ensure that all individuals are afforded the right to address the agency's position that they have violated either the deliberate misconduct or employee protection regulations, I have submitted the attached Petition for Rulemaking pursuant to 10 CFR 2.801.

Thank you for your time and energy with regard to this Petition for Rulemaking.

Sincerely,

~~

Michael Stein 9918 Edward Avenue Bethesda, Md. 20814

PETITION FOR RULEMAKING Amend 10 CFR Part 2, Subpart B to be the Procedure for Imposing Requirements by Order, or for Modification, Suspension, or Revocation of a License, or for issuance of a Notice of Violation to an individual, or for Imposing Civil Penalties.

Add 10 CFR 2.201 (b)- "In response to an alleged violation of the employee protection or deliberate misconduct regulations contained in 10 CFR Parts 19, 30, 40, 50, 60, 61, 70 and 72, the Commission may serve on the individual a Notice of Violation as described in 10 CFR 2.201 (a). This Notice of Violation to the individual shall state that:

1) The answer to the Notice of Violation shall state any facts, explanations, and arguments denying the charges of violation;
2) If the individual charged with the violation files an answer denying the violation, the Executive Director of Operations, or the Executive Director's designee, upon consideration of the answer, will issue an Order imposing, mitigating, or withdrawing the Notice of Violation to the individual.

The individual charged with a violation of the employee protection or deliberate misconduct regulations may, within twenty (20) days of the date of the order or other time specified in the order, request a hearing;

3) If the individual charged with an employee protection or deliberate misconduct violation requests a hearing, the Commission will issue an order designating the time and place of hearing;
4) If a hearing is held, an order will be issued after the hearing by the presiding officer or the Commission dismissing the proceeding, or imposing, mitigating or withdrawing the Notice of Violation. This shall be considered the final agency action with regard to the Notice of Violation at issue in the proceeding.

Amend all the employee protection regulations in 10 CFR to add the following:

(g) An individual charged with a violation of the employee protection regulations in Part X, has the right to a hearing pursuant to 10 CFR 2.201 (b). In addition, prior to the issuance of a Notice of Violation pursuant to 10 CFR 2.201 or an Order pursuant to 10 CFR 2.202, the individual charged with such a violation shall have the right to inform the agency either by written correspondence or by a predecisional enforcement conference, regarding their involvement in the alleged violation of this section.

Amend all the deliberate misconduct regulations in 10 CFR to add the following:

(d) An individual charged with a violation of the deliberate misconduct regulations in Part X, has the right to a hearing pursuant to 1o CFR 2.201 (b). In addition, prior to the issuance of a Notice of Violation pursuant to 10 CFR 2.201 or an Order pursuant to 10 CFR 2.202, the individual charged with such a violation shall have the right to inform the agency either by written correspondence or by a predecisional enforcement conference, regarding their involvement in the alleged violation of this section.

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