99-28050. Employee Protection Training; Receipt of Petition for Rulemaking  

  • [Federal Register Volume 64, Number 207 (Wednesday, October 27, 1999)]
    [Proposed Rules]
    [Pages 57785-57787]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-28050]
    
    
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    Proposed Rules
                                                    Federal Register
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    This section of the FEDERAL REGISTER contains notices to the public of 
    the proposed issuance of rules and regulations. The purpose of these 
    notices is to give interested persons an opportunity to participate in 
    the rule making prior to the adoption of the final rules.
    
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    Federal Register / Vol. 64, No. 207 / Wednesday, October 27, 1999 / 
    Proposed Rules
    
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    NUCLEAR REGULATORY COMMISSION
    
    10 CFR Part 30
    
    [Docket No. PRM-30-62]
    
    
    Employee Protection Training; Receipt of Petition for Rulemaking
    
    AGENCY: Nuclear Regulatory Commission.
    
    ACTION: Petition for rulemaking; notice of receipt.
    
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    SUMMARY: The Nuclear Regulatory Commission (NRC) is publishing for 
    public comment a notice of receipt of a petition for rulemaking dated 
    August 13, 1999, that was filed with the Commission by the Union of 
    Concerned Scientists. The petition was docketed by the NRC on August 
    18, 1999, and has been assigned Docket No. PRM-30-62. The petitioner 
    requests that the NRC amend its regulations concerning deliberate 
    misconduct to require licensees to provide specific training to 
    management, i.e., first line supervisors, managers, directors, and 
    officers, on their obligations under the employee protection 
    regulations. The petitioner believes that the amendment would prevent 
    nuclear energy management from using ``ignorance of the law'' as an 
    excuse for a violation and allow the NRC to take enforcement actions 
    against individuals who violate the employee protection regulations.
    
    DATES: Submit comments by January 10, 2000. Comments received after 
    this date will be considered if it is practical to do so, but the 
    Commission is able to assure consideration only for comments received 
    on or before this date.
    
    ADDRESSES: Submit written comments to the Secretary of the Commission, 
    U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
    Attention: Rulemakings and Adjudications Staff. Hand deliver comments 
    to: 11555 Rockville Pike, Rockville, Maryland between 7:30 a.m. and 
    4:15 p.m. Federal workdays.
        For a copy of the petition, write to David L. Meyer, Chief, Rules 
    and Directives Branch, Division of Administrative Services, Office of 
    Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
    20555-0001.
        You may also provide comments via the NRC's interactive rulemaking 
    website at http://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).
        The Petition and copies of comments received may be inspected and 
    copied for a fee at the NRC Public Document Room, 2120 L Street, NW. 
    (Lower Level), Washington, DC.
    
    FOR FURTHER INFORMATION CONTACT: David L. Meyer, Chief, Rules and 
    Directives Branch, Division of Administrative Services, Office of 
    Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
    20555-0001, Telephone: 301-415-7162 or Toll Free: 1-800-368-5642.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
    The Petitioner
    
        The Union of Concerned Scientists (UCS) has had a nuclear safety 
    program for over two decades and continue to work with nuclear 
    workers--including employees of the Nuclear Regulatory Commission--who 
    raise safety concerns. The UCS notes examples of anonymous concerns 
    received by its organization that have led to significant improvements 
    in safety levels, e.g., concerns that UCS forwarded to the State of 
    Maine in December 1996 that led to the identification of faults in the 
    safety analyses for the Maine Yankee plant. Other concerns received by 
    UCS and presented to the NRC in January 1998 led to the discovery of 
    serious defects in the ice condenser containment at the Donald C. Cook 
    nuclear plant.
    
    Grounds for Interest
    
        The petitioner states that on May 14, 1996 (61 FR 24336) the NRC 
    issued a policy statement that set forth its expectation that licensees 
    and other employers subject to NRC authority will establish and 
    maintain a safety-conscious environment in which employees feel free to 
    raise safety concerns, both to their management and to the NRC, without 
    fear of retaliation. The responsibility for maintaining such an 
    environment rests with each NRC licensee, as well as with contractors, 
    subcontractors and employees in the nuclear industry. This policy 
    statement is applicable to NRC regulated activities of all NRC 
    licensees and their contractors and subcontractors.
        The petitioner also notes that Title 10 of the Code of Federal 
    Regulations contains regulations to protect such conscientious workers 
    from discrimination. The petitioner asserts that these regulations are 
    frequently violated, yet the individuals determined by the NRC staff as 
    being responsible for these illegal activities are seldom held 
    accountable.
    
    Fitness-for-Duty Rule
    
        The petitioner states that 10 CFR Part 26 that contains the 
    ``Fitness-For-Duty'' regulations requires nuclear workers to be free 
    from impairment by drugs and alcohol. The petitioner states that of the 
    111 individual enforcement actions listed in Attachment 1 to the 
    petition, 17 involved violation of the fitness-for-duty rule. The 
    petitioner stated that the NRC did not take actions against the 
    licensees for these cases, but limited its sanctions to those 
    individuals responsible for the violations.
        To the contrary, the petitioner states that NRC treats violations 
    of employee protection regulations differently. As an example, in 
    Attachment 2 to the petition, the petitioner states that when the NRC 
    establishes that a violation of an employee protection regulation has 
    occurred such as the May 20, 1999, enforcement action that the NRC 
    imposed against FirstEnergy, the NRC seldom takes enforcement action 
    against the individuals responsible for the violations, but limits its 
    enforcement actions to the licensees.
        The petitioner believes that nuclear safety demands that workers 
    not be impaired by drug and alcohol and that when any worker violates 
    the fitness-for-duty rule, that individual should be held accountable. 
    The petitioner believes it is equally important that nuclear workers 
    feel free to raise safety issues without fear of discrimination and 
    believes that when a nuclear worker violates the employee protection
    
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    regulations, that individual should be held accountable.
        The petitioner offers that the NRC holds individuals who violate 
    the fitness-for-duty rule accountable. However, the agency is not 
    holding individuals who violate the employee protection regulations 
    accountable. The petitioner is attempting to remedy this inequity by 
    this petition for rulemaking. The petitioner believes that by requiring 
    licensees to train management on their obligations under the employee 
    protection regulations, the NRC staff would no longer be able to claim 
    that individuals were unaware that their actions were illegal.
    
    Supporting Information
    
        The petitioner states that ``10 CFR Parts 30, 32, 40, 50, 52, 60, 
    61, 70, 71, 72, 110, and 150 each contain a regulation against 
    deliberate misconduct by employees and/or contractors of NRC 
    licensees.'' The petitioner specifically set out in the petition the 
    text from 10 CFR 50.5 to reflect the scope and content of the 
    deliberate misconduct regulations.
        The petitioner included three attachments to the petition that 
    summarize the enforcement actions that NRC imposed against individuals, 
    nuclear power plant owners, and non-nuclear power plant licensees 
    between March 1996 and August 5, 1999. The enforcement data contained 
    in the attachments were obtained from the website of the NRC Office of 
    Enforcement, http://nrc.gov.OE/.
    
    Sanctions Against Individuals
    
        Attachment 1 to the petition indicates that NRC took enforcement 
    action against individuals 111 times between March 1996 and August 5, 
    1999. The petitioner notes that only four cases involved enforcement 
    actions taken by the NRC because the individual discriminated against 
    nuclear workers raising safety concerns. The petitioner states that 
    Federal regulations protect nuclear workers from being discriminated 
    against for raising safety concerns and cites as an example the text of 
    10 CFR 50.7, Employee Protection, that applies to workers at nuclear 
    power plants. The petitioner further states that 10 CFR contains 
    equivalent regulations that apply to workers at non-power nuclear 
    facilities.
        The petitioner specifies that the four cases listed in Attachment 1 
    to the petition where NRC imposed enforcement action against 
    individuals for their discriminatory actions against nuclear workers 
    clearly demonstrate that the NRC can take such actions. However, 
    according to the petitioner, the evidence is just as clear that the NRC 
    seldom imposes enforcement actions against individuals even when it 
    concludes that individuals were responsible for illegal discriminatory 
    actions.
    
    Sanctions Against Nuclear and Non-Nuclear Licensees
    
        Attachment 2 to the petition lists eighteen enforcement actions 
    imposed against nuclear power plant owners for discrimination against 
    nuclear power plant workers. The petitioner states that in 12 of the 18 
    enforcement actions against the owners, the NRC also imposed a civil 
    penalty. The penalties ranged between $55,000 and $200,000 with the 
    average being $104,417.
        Attachment 3 to the petition lists five enforcement actions imposed 
    against non-nuclear power plant licensees for discrimination against 
    workers. The petitioner states that in four of the five enforcement 
    actions against non-nuclear plant licensees, the NRC also imposed a 
    civil penalty. The penalties ranged between $4,400 and $10,000 with the 
    average being $7,800.
        The petitioner states that from March 1996 to August 5, 1999, the 
    NRC took 23 enforcement actions against licensees for discriminating 
    against nuclear workers. The petitioner notes that before taking the 
    enforcement actions and imposing the fines, the NRC staff's 
    investigations determined who did what to whom. According to the 
    petitioner, the NRC concluded that the ``what'' violated the employee 
    protection regulations of 10 CFR.
        The petitioner states that despite identifying ``who'' was 
    responsible for violating Federal regulations in the 23 cases, the NRC 
    staff only took enforcement action against individuals on four 
    occasions. The petitioner further adds that the fact that the NRC took 
    actions against four individuals demonstrates that it has the statutory 
    authority to do so and in fact revised its regulations on January 13, 
    1998 (63 FR 1890) to extend the Deliberate Misconduct Rule to six 
    categories of persons. These categories included applicants for NRC 
    licenses; applicants for, or holders of, certificates of compliance; 
    applicants for, or holders of, early site permits, standard design 
    certifications, or combined licenses for nuclear power plants; 
    applicants for, or holders of, certificates of registration; applicants 
    for, or holders of, quality assurance program approvals; and the 
    employees, contractors, subcontractors and consultants of the above 
    five categories of persons.
    
    10 CFR 2.206 Petition
    
        On May 25, 1999, the petitioner filed a petition with the NRC under 
    10 CFR 2.206. The petition requested that the individual who was the 
    Radiation Protection Manager at the Perry Nuclear Power Plant be banned 
    by the NRC from participation in licensed activities at and for any 
    nuclear power plant for a period of at least five years.
        An NRC News Announcement RIII-99-31 dated May 24, 1999, stated that 
    an NRC investigation found that the Radiation Protection Manager at the 
    Perry Nuclear Power Plant discriminated against a supervisor in 1997 
    for testifying in a United States Department of Labor hearing involving 
    possible discrimination against another plant worker. The Announcement 
    stated that the NRC has banned individuals in the recent past for five 
    years for retaliation.
        By letter dated June 23, 1999, the NRC denied the petition. 
    According to the letter, the NRC stated that while consideration was 
    given to taking enforcement action against the manager, it determined 
    that the manager was not familiar with the requirements of 10 CFR 50.7. 
    The NRC issued the manager a letter stating that the manager's actions 
    contributed to the enforcement action against FirstEnergy. 
    Additionally, the letter informed the manager that involvement in a 
    future discrimination violation could result in enforcement action 
    against the manager. The NRC proposed a $110,000 fine against 
    FirstEnergy Nuclear Operating Company, for violation of the employee 
    protection requirements of 10 CFR 50.7.
    
    Conclusion
    
        The petitioner states NRC's decision regarding its 2.206 petition 
    makes little sense. The petitioner asserts that NRC inaction endorses 
    the view that ignorance of the law is an excuse--at least when it comes 
    to violating regulations promulgated to protect nuclear workers from 
    discrimination. The petitioner noted that when the NRC revised the 
    Deliberate Misconduct rule in January, 1998, it stated--
    
        The objective of the rule is to explicitly put those persons 
    encompassed by this modification of the Deliberate Misconduct Rule 
    on notice that enforcement action may be taken against them for 
    deliberate misconduct or deliberate submission of incomplete or 
    inaccurate information, in relation to NRC licensed activities. 
    Under Section 234 of the Atomic Energy Act, the Commission may 
    impose civil penalties on any person who violates any rule, 
    regulation, or order issued under any one of the enumerated 
    provisions of the Act, or who commits a violation for which a 
    license may
    
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    be revoked. The enforcement actions that may be taken, including 
    orders limiting activities of wrongdoers in the future and civil 
    penalties, will serve as a deterrent to others throughout the 
    industry. [emphasis added by Petitioner]
    
        The petitioner states that the NRC staff believes that people will 
    be aware that the deliberate misconduct regulation was expanded to 
    apply to them, but that these same people will be oblivious to all of 
    the other regulations that define proper conduct. Further, the 
    petitioner believes that rather than debating whether the NRC staff can 
    really excuse illegal activities of nuclear industry management based 
    on their ignorance of Federal regulations, UCS, the petitioner, is 
    opting for this petition for rulemaking change to disallow the 
    ignorance excuse.
    
        Dated at Rockville, Maryland, this 21st day of October, 1999.
    
        For the Nuclear Regulatory Commission.
    Annette L. Vietti-Cook,
    Secretary of the Commission.
    [FR Doc. 99-28050 Filed 10-26-99; 8:45 am]
    BILLING CODE 7590-01-P
    
    
    

Document Information

Published:
10/27/1999
Department:
Nuclear Regulatory Commission
Entry Type:
Proposed Rule
Action:
Petition for rulemaking; notice of receipt.
Document Number:
99-28050
Dates:
Submit comments by January 10, 2000. Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date.
Pages:
57785-57787 (3 pages)
Docket Numbers:
Docket No. PRM-30-62
PDF File:
99-28050.pdf
CFR: (1)
10 CFR 30