[Federal Register Volume 63, Number 25 (Friday, February 6, 1998)]
[Notices]
[Pages 6235-6237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2993]
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NUCLEAR REGULATORY COMMISSION
Safety-Conscious Work Environment; Withdrawal of Proposal
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice.
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SUMMARY: The Nuclear Regulatory Commission (NRC) has considered several
strategies in addressing the need for its licensees to establish and
maintain a safety-conscious work environment. The NRC described these
strategies and requested public comment in a document published on
February 26, 1997 (62 FR 8785). The Commission evaluated the public
comments submitted in response to its request and is withdrawing the
proposal outlined in the February 26, 1997, document.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
(301) 415-2741.
SUPPLEMENTARY INFORMATION: The NRC published in the Federal Register,
(62 FR 8785; February 26, 1997), a request for public comment on the
implementation of a standardized approach to ensuring that licensees
establish and maintain a safety-conscious work environment 1
with clearly defined attributes; the establishment of certain potential
indicators that may be monitored and, when considered collectively, may
provide evidence of an emerging adverse trend; and the establishment of
certain remedial actions that the Commission may require when it
determines that a particular licensee has failed to establish and
maintain a safety-conscious work environment. In its discussion of the
feasibility of using a standardized approach to this issue, the NRC
described the attributes of a safety-conscious work environment;
criteria to be considered as possible indicators that a licensee's
safety-conscious work environment may be deteriorating; and standard
options for dealing with situations where these criteria are not met.
The NRC included draft language that could be used in a future
rulemaking, new policy statement, or amendment to the NRC's Enforcement
Policy.
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\1\ The Commission's May 1996 Policy Statement on the ``Freedom
of Employees in the Nuclear Industry to Raise Safety Concerns
Without Fear of Retaliation'' (61 FR 24336; May 14, 1996), defined a
``safety-conscious work environment'' as a work environment in which
employees are encouraged to raise safety concerns and where concerns
are promptly reviewed, given the proper priority based on their
potential safety significance, and appropriately resolved with
timely feedback to the originator of the concerns and to other
employees.
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The Notice requested public comments on various strategies for
establishing and maintaining a safety-conscious work environment
including where warranted the use of a holding period.2 The
NRC also sought comments on an alternate strategy in which all
licensees would be required to institute
[[Page 6236]]
a holding period policy and periodic site surveys, rather than only
those licensees who performed poorly in this area. The NRC received a
total of 31 comments in response to its request.
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\2\ In general, a holding period as described in the February
26, 1997, document would provide that, when an employee asserts that
he or she has been discriminated against for engaging in protected
activity, the licensee will maintain that employee's pay and
benefits until the licensee has investigated the complaint,
reconsidered the facts, negotiated with the employee, and informed
the employee of a final decision on the matter. The holding period
would continue for an additional two weeks to permit the employee to
file a complaint under Section 211 of the Energy Reorganization Act
of 1974, as amended (ERA), with the Department of Labor (DOL), and,
should the employee file, the holding period would continue until
the DOL has made a finding based upon its investigation.
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Generally stated, the Nuclear Energy Institute (NEI),3
as well as the Union of Concerned Scientists (UCS), while supporting
the importance of establishing and maintaining a safety-conscious work
environment at nuclear facilities, opposed proceeding with establishing
a standardized approach for licensees who had failed to establish and
maintain a safety-conscious work environment. Almost all commenters
agreed that existing requirements and regulatory options available to
the Commission are sufficient to meet expectations in this area and
that new requirements and policies were not needed.
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\3\ The majority of the commenters supported the Nuclear Energy
Institute's (NEI) comments.
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Briefly summarized, the NEI comments noted that: (1) the NRC's
current processes effectively focus licensee attention on the need to
maintain a safety-conscious work environment; (2) the standardized
approach proposal is an ``unjustified radical departure from existing
policy and may result in adverse safety consequences''; (3) the
proposed indicators would result in a subjective evaluation by the NRC;
and (4) the standard options, especially mandating a holding period,
constitute inappropriate regulatory action and are likely to be found
legally insupportable. Among other things, NEI maintained that
mandating such a holding period is an action outside the jurisdiction
of the NRC and is an inappropriate regulatory action based upon its
direct intrusion on management's ability to address its own workforce
issues. NEI urged the Commission to let stand the May 1996 Policy
Statement as an affirmation of its focus on a safety-conscious work
environment without implementing the strategies outlined in the
February 26 request for comment.
The Department of Nuclear Safety, State of Illinois, did not
support a formal rule. In its view, less formal guidance or a policy
directive seemed more appropriate.
UCS, in comments dated April 25, 1997, also opposed the NRC's
proposed standardized approach for a safety-conscious work environment.
UCS stated that it believes that the May 1996 Policy Statement, as well
as rigorous and consistent enforcement of existing regulations, is
sufficient to achieve the NRC's objectives.
One commenter (International Brotherhood of Electrical Workers,
Local 97) supported the NRC's proposal as presented in the February 26,
1997, document, stating that it did not believe that the current
regulations were adequate. In addition, one commenter (Cheney &
Associates) indicated that, while the mechanisms prescribed might work
to some extent, they were not fundamentally different from past
strategies which failed because neither the government nor the
responsible corporation respected the strategy. Cheney proposed its own
solution to the problem, which was to reinforce the strategy by such
methods as certifying the competence of all workers in nuclear
environments to identify safety problems in areas under their
responsibilities; imposing sanctions for failure to identify a safety
problem; and imposing criminal sanctions for failure to report an
identified problem.
After considering all the submitted comments and further evaluating
the proposal to standardize the NRC approach to a safety-conscious work
environment, the Commission agrees with the commenters that the
standardized approach set forth in the request for comment is not
warranted. There needs to be flexibility in considering appropriate
regulatory action to address each situation on a case by case basis.
These appropriate actions include options such as Orders, Civil
Penalties, Demands for Information, additional inspections and
investigations, Chilling Effect Letters, and Management Meetings.
The Commission also agrees that sufficient requirements and
policies are in place. The May 1996 Policy Statement clearly provides
the Commission's expectations on achieving safety-conscious work
environments. This Policy Statement and its basis in NUREG-1499,
``Reassessment of the NRC's Program for Protecting Allegers Against
Retaliation,'' provides insights and guidance on steps that can be
taken by licensees. The Commission's regulations prohibiting
discrimination, e.g., 10 CFR 50.7, provide the basis for enforcement
action where discrimination occurs. When a licensee fails to achieve a
safety-conscious environment, there may be violations of other NRC
requirements such as 10 CFR Part 50, Appendix B, Criterion XVI. The
Commission also has the necessary authority to issue orders to
licensees and orders against individuals involved in discrimination to
address regulatory issues associated with safety-conscious work
environments. Therefore, a rulemaking, initiation of an additional
policy statement, or an amendment of the NRC's Enforcement Policy to
address the safety-conscious work environment is unwarranted at this
time.
However, the Commission concludes that NRC should consider the
emergence of adverse trends in licensees' abilities to maintain a
safety-conscious work environment. Appropriate early intervention may
result in a significant contribution to safety as a reluctance on the
part of nuclear employees to raise safety concerns is detrimental to
nuclear safety. Giving consideration to potential indicators of a
deteriorating work environment may alert the NRC of emerging problems
in a licensee's safety-conscious work environment that warrants NRC
involvement to encourage licensee management to address the environment
for raising concerns. The Commission recognizes that there are no
singular indicators to judge that a safety-conscious work environment
is deteriorating at a licensed facility.4 Evaluating the
safety consciousness of a licensee's work environment will require
careful judgments. The effort to identify emerging trends at a licensed
facility, while difficult, would be less than the regulatory effort
required in responding to a licensed facility where the safety-
conscious work environment has already deteriorated.5
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\4\ Many of the commenters appear to have interpreted the
contemplated use of ``indicators'' to mean fixed indicators
demonstrating a deteriorating safety-conscious work environment.
This was not NRC's intent. It was recognized that any one piece of
data can be ambiguously interpreted, and focusing on individual data
to the exclusion of other information can be misleading. The request
for comment explained that these indicators in isolation may not be
indicative of an actual overall deterioration of a safety-conscious
work environment, particularly if not accompanied by overall
problems in operational or safety performance. While each of the
indicators described in the request for comment may individually be
ambiguous, an evaluation of the totality of indications may indicate
a deteriorating safety-conscious work environment.
\5\ As stated in the request for comment, when the perception of
retaliation for raising safety concerns is widespread, a licensee
may find it exceedingly difficult to obtain cooperation from their
employees in identifying and eliminating problems adversely
affecting the safety-conscious work environment; to reverse this
perception of this retaliation; and to regain the trust and
confidence of their workforce.
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As to the holding period concept, in light of the potential legal
issues, the potential for abuse by employees, as well as the comments
received on the establishment of a formal holding period as an option
to address a deteriorated safety-conscious work environment, the
Commission believes that the holding period option should not be
required by the NRC. Nevertheless, a holding period is clearly an
option that licensees should consider
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to reduce chilling effects arising out of issues of discrimination
pending investigations. Thus, the Commission continues to support the
voluntary use of a holding period as described in the May 1996 Policy
Statement.
Consistent with this discussion, the February 26, 1997, document is
being withdrawn.
Dated at Rockville, Maryland, this 30th day of January 1998.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Acting Secretary of the Commission.
[FR Doc. 98-2993 Filed 2-5-98; 8:45 am]
BILLING CODE 7590-01-P
