[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  

[[Page 57785]]


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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

[[Page 57787]]

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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