[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

[[Page 6237]]

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