ML20236Q827
| ML20236Q827 | |
| Person / Time | |
|---|---|
| Issue date: | 07/07/1998 |
| From: | Winsberg K NRC |
| To: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| Shared Package | |
| ML20236Q781 | List: |
| References | |
| FOIA-CO98-A-11, FOIA-COR98-114 NUDOCS 9807210070 | |
| Download: ML20236Q827 (3) | |
Text
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Wjftlik f'jr by C n-Note to:
Chairman Jackson From:
Kathryn Winsber Coordinated with:Annette, Marylee
Subject:
Paul Blanch's request See attached E-mail message: Paul Blanch is requesting that the commission 321; act on the policy statement " Freedom of Employees y-in the Nuclear Industry to Raise Safety'and Compliance Concerns yM Without Pear of Retaliation" (which is currently before the Commission) until after your April 9, 1996 meeting with him.
He is also asking that his organization, the National Nuclear Safety Network (NNSN) have the opportunity to review and comment upon the final policy statement before its issuance.
SECY is polling the Commissioners on whether they are willing to have another round of public comment on the policy statement or whether they wish to go ahead without further lic ent.
Regarding this estion statement was published for a 60 day commen riod in February 1995, so has been pending for over a year, while NRC staff tried to resolve Department of Labor concerns.
The NNSN did submit comments, and the main thrust was that there was no necessity for a policy statement, but that instead the NRC should enforce its regulations against discrimination, and should conduct its own investigate ns rather than rel ing on DOL rocess.
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DCC' Mr. John Noyle, Secretary Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 SECYSNRC.OOT SUBJECT Draft Policy Statement, Freedom of Employees in the Nuclear Industry to Raise safety Concerns Without Fear of Retaliation, (60 Federal Register. 7592 -- February i
8, 1995)
Dear Mr. Noyle:
on behalf of many concerned citisens from within the nuclear industry, the National Nuclear Safety Network (NN8N) hereby submits comments on the NRC's recently published draft statement of policy, Freedom of Employees in the Nuclear Industry to Raise Safety concerns Without Fear of Retaliation (60 Fed. 7592 --
February 8, 1995).
NRC Staff agreed with NNSW that comments will be accepted until April 30,1995 in consideration of meetings between the NRC Staff and NMSN on April 22, 1995 and the NRC's Inspector General's Staff and NNSN on April 23, 1995.
NNSN is a coalition of many private citisens, nuclear safety organizations, and.past and present nuclear workers concerned with the overall safety of nuclear energy.
Our primary concern is that the NRC continues to allow many nuclear power plants in the United States to continue to operate in clear violation of NRC regulations.
When significant concerns are brought to the attention of the NRC or licensees, technical issues are frequently ignored 1, retaliation frequently occurs and the NRC takes no meaningful action to either resolve these safety issues or take substantial enforcement action for clear violation of NRC Regulations.
The'NRC appears to abrogate its responsibilities back to the licensees, the n9partment of Labor and the Courts.
Through our membership, we have been instrumental in gaining national attention to the plight of concerned employees wk.o, after raising significant nuclear safety concerns, have found themselves removed from the nuclear industry, with the apparent silent endorsement of the Nuclear Regulatory Commission.
On September 29, 1993, we met with MRC members of the team to reassess the NRC's Program for Protecting Allegers against Retaliation.
We believed this meeting was very productive and assumed that our concerns would be considered during the implementation of the program.
Contrary to our beliefs, the NRC kh
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issued an Enforcement Policy for comment on November 28, 1994 (59 FR 60697) and failed,to inform any members of NNsN that this proposed change to the Enforcement Policy was available for comment 2.
After review of this proposed policy, we strongly believe this policy is la conflict with the intent of the MRC's program and will further_ increase the "okilling effect" at liosased facilities.
NNsN members specific osaments on the draft policy stateneat are provided in Attaohnent 1.
some comments may appear repetitive as they were assembled after our meeting with the NRC staff and proper secretarial servioes are not available to properly organise all of out thoughts in a logical and consistaat format.
While there is significant diversity of oomments from our members, there is one area of common agreement ---- The NRC refuses to enforce its own safety regulations and endorses retaliation against those individuals requesting compliance of these regulations by its inaction.
This inaction is further solidified by this new proposed Mac Policy.
As is evident from the discussion contained therein, we do not believe that a policy statement is necessary to foster an environment whereby employees in the nuclear industry feel free to raise safety concerns without fear of retaliation.
The only change required is the will of the NRC to enforce the present regulations.
We appreciate the. opportunity to comment on the draft policy statement and would like to meet with NRC staff or the Commission to discuss our comments. We also appreciate the time givaa to us by the NRc's staff and the Inspector General's staff on the weekend of April as t as, 1995.
If you have any questions regarding our cosasats please contact me at (203) 235-0326.
sincerely, Paul M. 31 amok ke a for NNs3 CC:
INGFE 4aol.com, 4
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PART 2 ATTACEMENT 1 General Comments A policy statement is an inappropriate regulatory vehicle to make known the NRC's views regarding the relative roles and responsibilities of licensees and employees to ensure safe plant operation.
The regulations are very olear is that retaliation against individuals for raising safety comoeras to either their employers or the NRC is a olear violation of 10 CFR 30.7 and 50.7. What is needed is the will of the NRC to enforce these regulations.
The N2C's* Inspector General reported in Fuly 1993 that out of about 609 allegations of retaliation, the NRC only investigated 44 of these claims of violation of NRC Regulations.
I NNSM does not believe that a policy statement is necessary to ensure that licensees understand the NRC's interest in fostering f
quality-conscious work environments.
We need and agency willing
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to investigate all allegations of retaliation and take prompt and vigorous enforcement action.
If the NRC continues to ignore valid claims of retaliation, supports the removal of safety
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conscious individuals, and further refuses to enforce those l
l regulations having a significant impact on nuclear safety, the l
operational safety of the tvolear industry will continue to degrade while the " chilling effect" increases.
Partially due to the efforts of NNSW, the NRC established a l
review team in 1993 to reassess the NRC's program for protecting l
allegers against retaliation.
The review team published its report (NUREG-1499) on Jaa q 7, 1994.
We were very encouraged by this report and even compluented the NRC 1 for their efforts.
Our primary concern was that the NRC only investigated about 5%
of the allegations received related to retaliation.
Item II. C-7 of this NUREG stated the NRC will reprioritise its criteria for investigating claims of retaliation.
It was assumed that the NRC would not only reprioritise their investigations but also make a commitment to investigate all claims of retaliation.
& gain the NRC has made ao cuanitaant to the public to investigate any wrongdoing by licensees for alleged disoriaination and until this commitment is made, the " chilling effect" will increase.
It is the consensus of our organization that many thousands of person-hours and millions of rate payer and tax payer dollars are i
vasted annually by the utilities and the NRC to solve a
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significant problem that has a very simple and oost effective l
solution.
The NRC asede to " step back" and objectively assess the root cause of the apparent " chilling effect" so prononaced at most nuclear plant sites.
Rather than always looking at the licensees as the potential cause of a problem, the NRC aseds to take a careful look at its own actions, or inactions, that foster the immense chilling effect in the industry.
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For the past five or nore years the public and the industry have participated in ausarous MRC and Commission meetings related to the lack of employee protection.
There have been United states supreme Court decisions, United states senate hearings, new state laws enacted and hundreds of court cases attempting to resolve a slaple issue that is the clear responsibility of the Nuclear Regulatory Commission.
All of these efforts have been la vala as the number of safety allegations and allegations of discrimination for raising safety conceras has act significantly dooreased over the years.
If there has been any statistical doorease in the number of allegations, this is likely attributable to the number of allegers me longer employed within the analear industry.
The " chilling effect" has not significantly dooreased from all of these efforts.
Neither this l
proposed " hands off" policy or the recently issued enforcement l
Policy (59 FR 60697) ens.wuraging employee settlements l
(irrespective of the coercion asiAods employed) or "buyouts,"
will change the general public opinion that the NRC does not want to hear about safety concerns and by its inactions will continue to endorse persecution of those individuals identifying these Concerns.
Rather than more band-aid fixes as proposed by this policy, the NRC moods to consider some simple, major surgery.
This " surgery" will require no changes to the existing Regulations, no new policies and no changes to the present enforcement policy with i
the possible exception of withdrawing the recently issued changes (59 FR 60697) to the enforcement policy.
The only potential l
policy change required may be to inform liosasses that the NRC intends to enforce its regulati,ons concerning 10 CFR 30.7/50.7 and no longer rely on the Department of Labor or the state and Federal Courts to interpret and enforce MEC regulations.
These proposed changes in MRC attitude will assure the " chilling effect" is eliminated at most licensed facilities and additionally, public health and safety will be enhanced,by enforcement of existing MRC Regulations.
These proposed changes are simply outlined as follows:
e When a safety or discrimination allegation.is received by the NRC it will be investigated by the NRC within a specified time.
(30 days for most allegations) e Most safety allegations relate to violations of MRC Regulations and a finding by the NRC oma therefore be made promptly.
The Courts and the DOL are not onpable of interpreting the complex MRC Regulations, Policies, Technical specificatf.ons, Management Directives, NUREGs, Regulatory guides, etc.
If the licensee is in aca-compliance with the regulations, the licensee must be compelled to ocaply with the regulations and the requirements of the Technical specifications.
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- If the safety allegation is not substantiated, the alleger will be informed within 30 days with an applanation why his/her concern was found not to be valid.
If the NRC declines to investigate the safety allegation, the NRC will provide the alleger the bases for not investigating the allegation.
- When allegations of discrimination for participating in protected activities are brought to the MRC, the MRC must promptly investigate these alleged violations of 10 CFR
'30.7/50.7.
The significance of the safety issue is not a factor, only that the individuai was involved in a protected activity as defined by 10 CFR 10.7/50.7.. The MEC must investigate these allegations within the same time required for DOL investigations (30 days).
These investigations must be pursued with the same vigor as allegations of Drug or 11ochol abuse (10 CFR 26) by a licensee employee.
If the participation in protected activities is determined to be a contributing factor in the disoriaination, then " Prompt and Vigorous" enforcement action must be taken against the licensee and those individuals involved.
Criminal prosecution must be considered for willful violations of these regulations.
Personal sanctions must be sLmilar to those required by 10 CFR 26.27 (b) (3) for any violations of disoriaination.
- For those rare cases where an employee has been discharged or other adverse employment action is alleged to have been a result of involvement in protected activities, the NRC must investigate this allegation promptly.
Raforcement action must be taken promptly and the results of the. investigation made available to the Department of Labor for use la its determination of alleged discrimination.
As above, MRC enforoenent actions mus: be s
separate and independent of any actions taken by the Department of Labor.
When the MRC finds a liosased individual selling drugs within the protected area of_"the plaat in violation of 10 CFR 26, the MRC doesn't wait years to take action against the employee until the courts find against the nyloyee.
Why should a crias of discrimination be hand 1 9 differently when the safety impact could be even more signitionat?
The only apparent difference is that claims of discrimination usually involve activities of annagement whereas violations of 10 CFR as usually involve only lower level plant employees.
It is our collective belief that if thase actions are Laplemented and visible action is taken against those individuals violating 14 CFR 30.7/50.7, the " chilling effect" will disappear in the nuclear industry.
We fully recognise the present personnel constraints on the MRC.
If the NRC sends a clear message that
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4 retaliation will not be tolerated and safety issues will be promptly addressed, the " chilling effect" will disappear resulting in a significant decrease is MRC personnel required for investigations.
Another conoesa is that many individuals believe that if they are retaliated against by the liosases for raising safety conceras, the MRC will protect them and their positions in the industry.
This proposed policy, la ocabiaation with the recently published revision to the Enforcement Policy (59 FR 60697) actually increases the " chilling effect" already prevalent at most nuclear plant sites.
For exemple, the proposhe policy actively discourages individuals from reporting safety concerns directly to the MRC.
The statement in the proposed policy: "If disciplinary action is found to have occurred solely [eaphasis added] beoeuse the person came to the MRC, enforcement action j
vill be taken against the licensee" is contrary to the intent of the ERA Section 211.
Hypothetically, if a licensee admits that retaliation was the rsault of an individual raisiug a safety concern to the NRC and this was a contributing factor however, the individual also removed a pencil for the workplace, the MRC will take no enforcement action.
This statement is totally inconsistent with the intent of 10 CFR 50.7 and 30.7 in that most interpretations are based on the raising concerns being a contributing factor in the retaliatory action against the employee.
According to this proposed policy, if licensees can demonstrate the existence of any other minor contributing factors that lead to employee dismissal, them the MRC will take no enforcement action.-
Does the MRC truly believe this type of statement will reduce the " chilling effect"?
Comments From Persons Residing in Region 1 Several years ago, the MRC determined that a drug-free workplace was highly desirable and thus required licensees to institute Fitness for Duty, programs.
By Federal law, any individual testing positive-itrice for drugs or aloohol is removed from the workplace for several years -- whether or act that person's performance was adversely affected by such usage.
MEC Fitness for Duty studies have ocaeluded that these programs effectively provide workplaces that are essentially drug-free.
The use or possession of drugs within the protected area results in five year sanctions of the individual involved.
Is retaliation against an individual identifyi a safety ooneera any less n gnificant, especially consider the level of amangement involvement?
Does the MRC wait five years for the courts to determine guilt while this individttal continues working in protected areas?
We need consistency in the application of MRC regulations and prompt enforcement when these, regulations are violated.
The NRC osa not delegate its responsibilities to other
agencies and/or t'o the courts.
The NRC can't ignore enforcement of one regulation (10 CFR 50/30.7) while vigorously enforcing others (10 CFR 26).
The whistle-blower protection policy as described in the Federal Register indicates that the NRC desires a workplace in whiok workers feel free to identity and raise muolear s.fety conseras without fear of retaliation.
Any individual who harasses or intimidates subordinates and/or oo-workers must be removed by Federal law, backed by the Mac's will, from the workpleos for several years -- whether or not that person's behavior adversely affected anolear safety.
All issues such as due process have been previously address 44 by the Fitanse for Duty programs.
Any whistle-blower protection policy that does not include personal accountability wili be hindered by focusing on the symptoms of retaliation rather than its cause.
If the NRC adopts whistle-blower protection policy without strong enforcement and personal accountability provisions, then one must seriously question why the NRC would not want to take the same measures to provide a retaliation-free workplace as it has taken to provide a drug-free workplace.
Claims of retaliation must be pursued with the same vigor as claims of drug of alcohol abuse.
By simply looking at the past experience with regar( to licensees, and the regulations to prohibit discrimination, the commission is only fooling itself if it believes that the most effective improvement to the environment for raising concerns comes from withia a licensee's orquaisation.
concerning the effective process for problem identification and resolution, the commission must' require that an employee have unfettered access to the NRC about bringing forward concerns.
A requirement for an employee to first bring the concern to his employer assumes that sa opea, and free environment exists without fear of retaliation or discriminatory practices.
In general, if this,staosphere existed there would be ao need for an employee to be concerned annut oosting forward with oono' eras.
It is apparaat however by the " draft statement of policy," that the commission has made the assumption that employees will be able to raise comoeras in an environment free of retaliation or disoriaination automatically because the commission has required its liosasee's to provide that environment.
There are no provisions within'the " draft statement of policy" that indicates the commission will aggressively prosecute licensees when the commission's policies are violated.
There are no provisions within the " draft statement of policy" that require the commission to respond to harassment, intimidation, retaliation, and discrimination'within some
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6 prescribed time.
Furthermore, when an employee files a, complaint of harassment, intimidation, retaliation, and discrimination the connission provides no employee review policies that allow the employee to adequately review ths licensee's responses to the employee's allegations.
The current process is a complete one way street whereby the MRC staff currently mooepts and requires statements by the employee and provides mothing in return to the employee for rebuttal purposes.
In the " draft statement of policy" as samtion is made of an administrative review or appeal process that would enabla the employee to have a deciision readored by the commission or the NRC staff to 1,e reviewed, as provided is all other administrative processes.
An employee is not necessarily required to file a oivil suit or a dol complaint when seeking relief, and any only l
require such relief from the commission.
In such cares he would not receive proper adjudication from harassment, intimidation, retaliation, and discrimination by the process currently provided by the commission and MRC staff.
10 cFR 30.7 and 50.7 state the an employee may seek a remedy by going to the Department of Labor.
There is no requirement for that individual to file a complaint with the DOL unless he is seeking redress from adverse employment action.
In most cases of alleged retaliation, the resident Mac inspectors require the individual to file a complaint with the DOL and state the MRc will take no action and that the DOL has total responsibility.
This is yet another way the MRC intentionally fosters the
" chilling affect.M.By filing a complaint with the dol, the complaint automatically is forwarded to the licensee and the individual is further " chilled"'along with his oo-workers.
This is but one more reassa the MRC aust enforce its regulations if it ever expects to quell the " chilling Effect" Comments From Persons Residing in Region 3 The Tennessee Valley Authority is a perfect example of where all the Employee concerns Programs in the world have not saved a utility from the horrors of a system gone bad.
In fact, it is a very good example of where the.employt,e oomoeras programs were used by management to take further actions against employees that raised issues.
The MRC's position that these programs are useful and should be manantory is pure fabrication sad is nothing more than a smoke scream for the MRc to hide behind to keep from performing its job as mandated by congress and law.
t The idea that the NRC should get involved and makes the determination of a " reasonable offer" to settle a complaint is further evidence that money is driving the NRC and not publio
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health and safety.
The settlement between the employee and employer is in ::.,way a part of the NRC's business or area of regulation.
The use of ambiguous words, such as "might, reasonable, expectation, highly visible, reasonable offer" must be removed if the policy is to be any thing more than an unenforocable statement of policy.
We understood that Congress had requested that a program be put in place by the MRC.
This is not a program.
It is policy CELYI This policy does not have the teeth of a program and therefore is simply an attempt to l
seemingly provide Congress a piece of~ paper that amounts to l
nothing.
The reference to people coming forth with issues and concerns that are not "significant" and may not be valid is pure hyperbole and must be taken out.
Any time that the concern is a safety related issue it is significant!
The NRA does not differentiate between the two, and the employee does not have to be the one to raise an issue to be protected under the statue.
On page, 7593 column one, first paragraph, last sentence of the Federal Register Motice: "To the extent that retaliation can be -
Ej avoided..." is an admission by the NRC that the utilities are ce retaliating against the employees and the NRC is doing nothing.
Above that sentence at the beginning of the paragraph the NRC acknowledges that it has the authority to act and take enforcement actions and sanctions where discrimination is substantiated so wliy put this policy on the books?
This is clearly mandated by Congress and the IRA 210/211 law and appears to make the MRC look like it does not know what is required of them by law.
This continuous " flag waving" by the NRC is another attempt to remove itself from its mandated regulatory responsibilities. This is yet another example of why the industry needs these employees as a safeguard for public health and safety.
The idea of self assessments by che utilities to justify a position has not worked and will continue to work against the utility because the ERA 211 law is specifically written to recognise three (3) things ONLTs 1--if an employer is subject to the ERE 211 law 2--if an employee engaged in a protected activity, and 3--if the employer took an adverse action against the employee.
(Dean, Lamb v. Nouston Lighting and Power Company, 93-ER&-7,8.
E.T. Miller, AM, DOL, 4-15-9595)
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The WRC waited TWO' (2) years to investigate or inspect Dean's or Lamb's issues.
The wait for MLP to do any internal assessment has motonly cost the utility millions of dollars, public embarrassment but has also fostered an atmosphere of distrust within the utility that probably will mover be reclaimed because
,the NRC refused to go in and perform its duties as mandated by law.
This continuing attitude by the NBC of attempting to appear to be performing a duty while mot doing anything is one acre reason for employees of a utility te not some forth will issues and have them dealt with.
This is how the ERC is putting a chilling effect on industry say16yees themselves.
When the draft statement refers to " operating and maintenance costs" the NRC in dealing with money and the NRC has constantly stated that money is not an issue in regulating the nuclear industry.
This is a contradictory statement.
Page 7594, last column, last sentence, is the key to how this policy is going to effect employees-- when the commission gives this last regulatory function to the utility BEFORE the NRc addresses the problem why bother with the problem?
Giving the advantage to the side with the. greater advantage now is contradictory to the intent of the IRA, which is protection of the employee from the sotions of the employer.
This is not fostering a working relationship but is creating that chilling effect so that employees will not come forth with these issues.
Just because the industry has not had thousands of people die as in Russia does not mean that the industry is safe with the actions of the NRc*and the utilities. The industry is safer because employees have oome forth regardless of the trauma inflicted by the MRC and the utilities.
The attitude that the NRC is to be viewed as a " safety valve" is far removed as to how they are viewed.
This " policy" is far removed from the r rt (MUREG 1499) given to the Commission and will foster a chill effect om employees in the indust;ry because it is auck'less than the Atonio Energy Act requires of the MRCl Throw it outt 1
Letter from Paul M. Blanok to Mr. John swolinski dated March 29, 1995.
2 Letter from Faul M. Blanah to Chairman Selim dated February 21, 1995, 1
Letter to senator Lieberman from Paul M. Blanch dated January 24, 1994 I
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