[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:
[email protected]).
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
[[Page 57786]]
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]
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