NRC, Safety-Conscious Work Environment, Request for public comment

[Federal Register: February 26, 1997 (Volume 62, Number 38)]
[Notices]
[Page 8785-8790]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe97-124]

-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

Safety-Conscious Work Environment

AGENCY: Nuclear Regulatory Commission.

ACTION: Request for public comment.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is considering several
strategies in addressing the need for its licensees to establish and
maintain a safety-conscious work environment. As discussed herein, the
Commission is evaluating the development of a standardized approach
that would (1) require licensees to establish and maintain a safety-
conscious work environment with clearly defined attributes; (2)
establish certain indicators that may be monitored and that, when
considered collectively, may provide evidence of an emerging adverse
trend; and (3) outline specific remedial actions that the Commission
may require when it determines that a particular licensee has failed to
establish or maintain a safety-conscious work environment. Before
proceeding further, the NRC is seeking comments and suggestions on the
various strategies being considered.

DATES: The comment period expires May 27, 1997. 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: David Meyer, Chief, Rules Review
and Directives Branch, Division of

[[Page 8786]]

Freedom of Information and Publication Services, Office of
Administration, Mail Stop: T6D59, U. S. Nuclear Regulatory Commission,
Washington, DC 20555. Hand deliver comments to: 11555 Rockville Pike,
Rockville, Maryland, between 7:45 am and 4:15 pm, Federal workdays.
Copies of comments received may be examined at the NRC Public Document
Room, 2120 L Street, NW, (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
(301) 504-2741.

SUPPLEMENTARY INFORMATION:

I. Background

    In May 1996, the Commission issued a policy statement on the
"Freedom of Employees in the Nuclear Industry to Raise Safety Concerns
Without Fear of Retaliation" [FR 24336]. This policy statement had
first been published in draft in February 1995 [FR 7592], and was based
on modified recommendations of the Allegation Review Team report
published as NUREG-1499. The basic thrust of the policy statement was
to clarify the

* * * Commission's expectation that licensees and other employers
subject to NRC authority will establish and maintain a safety-
conscious work environment in which employees feel free to raise
concerns both to their management and the NRC without fear of
retaliation.

    The Commission emphasized that problems in the work environment are
most effectively prevented, identified, and resolved from within the
licensee's organization, rather than by government or other outside
involvement. The points of focus in the policy statement--effective
processes for identifying and resolving concerns, improvements in
contractor awareness, senior licensee management involvement in
resolving allegations of harassment and intimidation (H&I), and
employees' responsibilities in raising safety concerns--were considered
generally applicable to all licensees and contractors.
    While the philosophy and message of the policy statement continue
to be appropriate, the findings of the Millstone Independent Review
Group (MIRG) and compilation of industry-wide allegation data suggest
that not all licensees are successful in maintaining a safety-conscious
work environment as described in the policy statement. As discussed in
NUREG-1499,

the perception of discrimination, as viewed by those involved and
other employees, may be more important than whether discrimination
actually occurred in setting the tone for the work environment.

    When this perception becomes widespread in a licensee's
organization, it becomes exceedingly difficult for licensee management
(1) to obtain the cooperation of their employees in identifying and
eliminating problems adversely affecting the safety-conscious work
environment, (2) to reverse the perception that raising safety concerns
may cause retaliation (or that management does not welcome concerns
being raised), and (3) to regain the trust and confidence of the
workforce. Experience at several NRC licensed facilities suggests that
additional regulatory actions may be warranted when there is evidence
that the licensee may not be maintaining a safety-conscious work
environment.

II. Discussion of Using a Standardized Approach to This Issue

    The Commission believes that the NRC should focus more attention
on, and, if possible, devise additional mechanisms to identify, the
emergence of adverse trends in licensees' abilities to maintain a
safety-conscious work environment.<sup>1 While identifying these
emerging trends is a difficult task, the Commission believes that the
effort required will be much less than that required in "turning
around" a facility where the safety-conscious work environment has
already deteriorated. Moreover, if indicators can be identified that,
when monitored, will provide a more timely, reliable alert to the NRC
of emerging problems in a licensee's safety-conscious work environment,
the Commission believes that appropriate intervention will result in a
significant contribution to safety and will be well worth the effort.
---------------------------------------------------------------------------

    \1\ In NUREG-1499, the Allegation Review Team provided an
analysis of indications that a licensee's safety-conscious work
environment may be deteriorating. Similar discussions and additional
analysis appear in the September 1996 report of the Millstone
Independent Review Group (MIRG).
---------------------------------------------------------------------------

    Evaluating the safety consciousness of a licensee's work
environment is highly subjective, and achieving reliability in such an
evaluation requires careful judgment. Any one piece of data (e.g., a
relatively high number of allegations made to the NRC from a given
facility) can be ambiguously interpreted, and focusing on individual
data to the exclusion of other information can be misleading. As
discussed below, the Commission believes that judgments made in this
area should be the result of periodic reviews by senior NRC management.
In addition, the analyses made in this area may become more reliable
and consistent if the Commission clarifies and promotes (1) a standard
definition and attributes of a safety-conscious work environment; (2)
criteria to be considered as indicators that a licensee's safety-
conscious work environment may be deteriorating; and (3) NRC actions to
be considered in dealing with situations where these criteria are not
met (i.e., where signs indicate the emergence of an adverse trend).
    As used in this context, a safety-conscious work environment is
defined in the Commission's May 1996 Policy Statement as a work
environment in which employees are encouraged to raise concerns and
where such concerns are promptly reviewed, given the proper priority
based on their potential safety significance, and appropriately
resolved with timely feedback to employees. Attributes of a safety-
conscious work environment include (1) a management attitude that
promotes employee involvement and confidence in raising and resolving
concerns; (2) a clearly communicated management policy that safety has
the utmost priority, overriding, if necessary, the demands of
production and project schedules; (3) a strong, independent quality
assurance organization and program; (4) a training program that
encourages a positive attitude toward safety; and (5) a safety ethic at
all levels that is characterized by an inherently questioning attitude,
attention to detail, prevention of complacency, a commitment to
excellence, and personal accountability in safety matters.
    Departures from such a safety-conscious work environment are not
always easy to detect. However, certain indicators, particularly when
considered collectively, may be viewed as providing evidence of an
emerging adverse trend. These include: (1) Adverse findings by the
Department of Labor (DOL) or NRC's Office of Investigation (OI)
concluding that discrimination has occurred against employees for
engaging in protected activity; (2) in particular, a DOL or OI finding
that a hostile work environment existed for a licensee employee, or
that senior licensee management was involved in the discrimination; (3)
a significant increase in the rate (or a sustained high number) of
complaints to the NRC that licensee employees are being subjected to
harassment and intimidation (H&I); (4) a significant increase (or a
sustained high number) of technical allegations made to the NRC,
particularly if accompanied by low usage or a decrease in use of the
licensee's employee concern program or other licensee channels for
reporting concerns; and (5) other indications that

[[Page 8787]]

the licensee's employee concerns program or other programs for
identifying and resolving problems are ineffective. Such indications
might include: delays in or absence of feedback for concerns raised to
the ECP; breaches of confidentiality for concerns raised to the ECP;
the lack of effective evaluation, follow-up, or corrective action for
concerns raised to the ECP or findings made by the licensee's QA
organization; overall licensee ineffectiveness in identifying safety
issues; the occurrence of repetitive or willful violations; a licensee
emphasis on cost-cutting measures at the expense of safety
considerations; and/or poor communication mechanisms within or among
licensee groups. In some cases, these indications may be identified
during routine inspections.
    The licensee's departure from a safety-conscious work environment
can develop gradually over a period of years and with varying degrees
of licensee management awareness. As stated above, any one of the
symptoms given in the preceding paragraph, taken by itself, may not
indicate deterioration in the licensee's overall safety-conscious work
environment, particularly if not accompanied by overall problems in
operational or safety performance.<sup>2 Related judgments as to the
need for NRC intervention should not be made in isolation. The
Commission believes that such judgments, as well as the ensuing
decisions on what action would be appropriate in a given situation,
would be appropriate topics of discussion at the NRC's periodic Senior
anagement Meetings.
---------------------------------------------------------------------------

    \2\ However, these symptoms may be advance indications, and any
resulting decline in operational or safety performance may not
emerge immediately. For this reason, the absence of operational or
safety performance problems should not, by itself, be taken as
assurance that the safety-conscious work environment has not
deteriorated.
---------------------------------------------------------------------------

    Once the judgment is made that a licensee's safety-conscious work
environment has deteriorated, the Commission's choice of action would
be based on the symptoms that led to that judgment. Under this
approach, however, the Commission would identify and promote standard
options for agency action rather than treating each licensee situation
on a case-by-case basis. Those options might include (but would not be
limited to): (1) Requiring the licensee to establish a formal employee
concerns program (if one does not already exist); (2) ordering the
licensee to conduct an independent survey of the environment for
raising concerns, with periodic follow-up surveys to monitor progress;
(3) ordering the licensee to establish an independent group for
oversight of maintaining a safety-conscious work environment (similar
to that prescribed by the October 24, 1996, Millstone order); or (4)
mandating that the licensee establish a "holding period" policy to be
applied in cases where an employee complains of being discriminated
against for engaging in protected activity (additional discussion of
the holding period concept is given below).

III. Establishing a Regulation on Safety-Conscious Work Environment

    One strategy to standardizing the Commission's approach to this
area would be to initiate a rulemaking process, in which the
regulations of 10 CFR Part 50, "Domestic Licensing of Production and
Utilization Facilities," would be amended. The possible value of
promulgating this strategy as a regulation is as follows. First, it
would codify the safety-conscious work environment as a requirement,
clearly linked to the licensee's safety ethic and to the overall
fitness of the licensee to operate the facility. Second, such a
regulation could successfully differentiate between licensees who
perform well in this area and those who are cause for concern, in that
prescriptive requirements would only be remedial (i.e., prescribed for
those licensees who fail to establish and maintain a sufficiently
safety-conscious work environment on their own efforts). Third, for
those cases requiring Commission intervention in the form of issuing
orders, the presence of a standardized process (i.e., as codified in a
regulation or suggested in a policy statement) may result in less
litigation than would result if such orders were devised and issued
case by case in the absence of such a standardized approach.<sup>3
---------------------------------------------------------------------------

    \3\ Establishing and publishing a standardized approach
clarifies the Commission's intention to respond to particular
situations with particular actions. As a result of this
clarification, any subsequent actions the Commission takes that are
consistent with this expressed intention are less likely to be seen
as arbitrary or prejudicially motivated, and therefore are less
likely to be challenged. This logic is consistent with previous
Commission experience in promulgating and implementing the NRC
Enforcement Policy (NUREG 1600).
---------------------------------------------------------------------------

    The Commission's experience indicates that licensees may
successfully use differing methods in achieving a safety-conscious work
environment, and what may be necessary for some licensees is
unnecessary for others. Under the approach discussed herein, however, a
regulation could be written such that, while the Commission is prepared
to take decisive action where licensees have been unsuccessful, these
actions are not invoked so long as licensees meet the basic criteria of
a safety-conscious work environment.
    Finally, while such a regulation might provide additional
standardization and consistency where Commission action is necessary,
the primary purpose would be to focus the licensee's attention in this
area and reduce the need for Commission involvement in directing
licensees' actions in this area. The intended effect of this rule would
be for licensees (1) to become more aware of the importance the
Commission places on establishing and maintaining a safety-conscious
work environment, (2) to become more sensitive to indications of
adverse trends emerging at their own facilities, and (3) to become more
effective in taking actions to correct such trends and preserve the
safety-conscious work environment before it deteriorates to a point
that demands Commission intervention. This intention is consistent with
the Commission's recognition, as presented in the May 1996 Policy
Statement, that departures from a safety-conscious work environment are
much more effectively corrected from within a licensee's organization
than by the intervention of government or another outside agency.

IV. Inclusion in the NRC Enforcement Policy or Issuance of a Separate
Policy Statement

    Another strategy toward standardizing the Commission's approach to
this area would be to revise NUREG-1600, "General Statement of Policy
and Procedures for NRC Actions" (generally known as the NRC
Enforcement Policy), to include this standardized approach. While this
strategy would not be binding on licensees in the sense of requiring,
by regulation, a safety-conscious work environment, it would retain
most of the other advantages of codification described above. This
strategy would still successfully differentiate between licensees who
perform well in this area and licensees who give cause for concern; it
should heighten licensee awareness of the Commission's approach to
evaluating licensee performance in this area; it should make licensees
more sensitive to indicators of emerging adverse trends at their
facilities; and it would provide licensees the opportunity to correct
such trends before the safety-conscious work environment deteriorates
to a point requiring Commission intervention.
    The logic of including such an approach in the NRC Enforcement
Policy is that it would contain standard criteria that, after
consideration, could

[[Page 8788]]

result in issuing orders to licensees. An alternative, however, would
be to issue this approach in a separate Commission policy statement, to
ensure that NRC monitoring of licensee performance in this area is
separately administered and evaluated.

V. Explanation of the "Holding Period" Concept

    Within the strategies being evaluated and discussed herein, the
concept of a "holding period" warrants additional clarification. The
holding period concept (sometimes also referred to as a "safe harbor"
provision) was first introduced by the Allegation Review Team as a
recommendation of NUREG-1499. Among other aspects, the Allegation
Review Team recommended that, in applicable cases, the NRC Executive
Director for Operations (or other senior NRC management) send a letter
to senior licensee management reminding them of the Commission's
policies on discrimination and the use of the holding period, and
requesting a report to the NRC detailing the licensee's course of
action. The holding period concept was carried forward to the
Commission's May 1996 Policy Statement as a policy or action that a
licensee might voluntarily choose to introduce; however, the Commission
rejected the provision of sending a letter encouraging the licensee's
use of the holding period in applicable cases. The Commission believes
that several alternative strategies for mandating use of a holding
period policy may merit reconsideration, particularly as an option for
dealing with specific cases where a licensee's environment for raising
safety concerns has significantly deteriorated.
    In general, a licensee's holding period policy would provide that,
when an employee complains 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. After the
employee has been notified of the licensee's decision, the holding
period would continue for an additional 2 weeks to allow a reasonable
time for the employee to file with the DOL. If the employee files
within that time, the licensee would continue the holding period until
the DOL Area Office Director has made a finding based on the Area
Office investigation.<sup>4
---------------------------------------------------------------------------

    \4\ In other words, the holding period would be in effect at
least until the initial decision made under the DOL process. Under
Section 211 of the Energy Reorganization Act, the DOL only provides
a temporarily effective remedy to the complainant (i.e., a
reinstatement of pay and benefits) after an Administrative Law
Judge's (ALJ's) adverse finding that discrimination has occurred.
Based on a NUREG 1499 recommendation, the Commission is considering
legislation, to be developed in coordination with the DOL, in which
certain adjustments would be made to the current DOL process, in
that the DOL would be provided additional time to conduct a more in-
depth initial investigation, and a temporarily effective remedy
could be provided to the complainant based on the initial
investigation. Thus, if the holding period were extended to the
conclusion of the initial DOL investigation, an employee who alleged
discrimination for engaging in protected activity would not be
removed from pay and benefits at any point in the subsequent
investigation and adjudication process, so long as the DOL continued
to find in the employee's favor.
    It is important to explain that the Commission is not attempting
to preempt the DOL's role in providing a remedy to the complainant.
The purpose of the holding period is to neutralize the conflict in
the workplace until the dispute is resolved without presumption as
to the outcome, thereby minimizing the chilling effect on the rest
of the workforce. The chilling effect can arise, in this situation,
when other employees perceive that a fellow worker has been
allegedly discriminated against for engaging in protected activity,
and immediately placed at a disadvantage in pursuing a resolution by
the loss of pay and benefits.
---------------------------------------------------------------------------

    As discussed in NUREG-1499, the holding period is designed to
minimize onsite conflict (and any associated chilling effect) generated
by the perception that an employee may have been retaliated against for
raising concerns. In addition, the holding period may be used to
demonstrate management support for maintaining a safety-conscious work
environment. As stated in the Commission's May 1996 Policy Statement:

    By this approach, management would be acknowledging that
although a dispute exists as to whether discrimination occurred, in
the interest of not discouraging other employees from raising
concerns, the employee involved in the dispute will not lose pay and
benefits while the action is being reconsidered or the dispute is
being resolved.

    In the past, both the staff recommendations and the Commission's
policy have been to make the use of a holding period entirely
voluntary. Even under the regulation or policy statement strategies
discussed in Sections III and IV above, the use of a holding period (as
well as other measures designed to promote a safety-conscious work
environment) would be entirely voluntary for most licensees. However,
in cases where the Commission determined that the licensee's safety-
conscious work environment was deteriorating to the point of warranting
additional NRC intervention, such a regulation or policy would provide
that ordering the licensee's establishment of a holding period policy
would be one of the options available at the discretion of the
Commission.
    Nothing in the application of such a Commission order or the
resulting licensee holding period policy would mandate that a licensee
employee must participate in or agree to the use of a holding period in
a given case. In addition, for any case in which the Commission ordered
the licensee to establish such a holding period policy, the licensee
would continue to have the option as to whether a given complainant
should be restored to his or her previous position, be assigned a new
position, or be given administrative leave with pay and benefits.
Furthermore, the Commission would continue to hold that, when a holding
period policy has been established, the employer's action of not
restoring a complainant to his or her previous position would not be
considered an additional act of discrimination if the DOL AOD or
Administrative Law Judge (ALJ) subsequently found in favor of the
complainant, provided that (1) the employee had agreed to the
provisions of the holding period, (2) pay and benefits were maintained,
and (3) the employer restored the employee to the previous position
without career prejudice upon a DOL finding of discrimination. Finally,
the licensee bears responsibility for making legitimate personnel
decisions, including termination or reassignment of an employee whose
presence in the workplace could adversely affect safety. Neither the
use of a holding period policy nor any other licensee action required
by NRC order would relieve the licensee of this responsibility.<sup>5
The function of the holding period is to counteract the chilling effect
that may result when employees perceive that a fellow employee may have
been terminated as the result of raising safety concerns, and thus
placed at a financial disadvantage while seeking redress.
---------------------------------------------------------------------------

    \5\ However, if a dispute arose as to whether the licensee had a
legitimate purpose (i.e., the employee maintained that the action
was based on engaging in protected activity), the licensee would
still be required to maintain pay and benefits. In such a case,
administrative leave with pay and benefits might be the best option.
---------------------------------------------------------------------------

    The Commission recognizes that the holding period concept has
certain perceived drawbacks, as discussed by the Allegation Review Team
in NUREG-1499. Some potential exists for abuse of a holding period
policy, and it may be viewed as unfair to ask licensees to continue pay
and benefits for employees whom the licensee believes are
undeserving.<sup>6 In addition, other factors

[[Page 8789]]

(such as licensee down-sizing actions) may contribute to the occurrence
of a significant increase in complaints of discrimination. The
Commission would give these and other factors careful consideration
before requiring this approach for any specific licensee.<sup>7
However, the Commission believes that where there has been a
significant failure to maintain a safety-conscious work environment,
these drawbacks, including any financial burden incurred by the
licensee, would be clearly offset by the benefits of instilling a
general perception that senior licensee management is serious about
becoming involved, reconsidering the facts, finding a resolution, and
minimizing the adverse impact on the complainant during these
deliberations. Where a chilling effect would otherwise have resulted
from a more confrontational licensee approach, these benefits are
clear; in addition, the willingness of licensee management to work
toward internal resolution of such a conflict may result in financial
savings (1) by avoiding lengthy, expensive litigation in the case at
hand and (2) by offsetting the possibility of additional cases that may
result from a chilling effect. Most importantly, the avoidance of a
chilling effect may result in having safety issues identified that
might not otherwise have been raised.
---------------------------------------------------------------------------

    \6\ As discussed in Sections III and IV, the holding period
would only be one of several options that the NRC would have at its
disposal under such a regulation or policy. Based on considering the
specific attributes of a particular licensee's environment, the NRC
might decide that requiring the use of a site-wide employee survey,
an independent third-party oversight of the licensee's employee
concern program, or some other measure should be required before,
after, instead of, or in conjunction with a holding period policy.
    \7\ To be effective, the complainant should not be required to
forfeit any pay or benefits received during the holding period if
the DOL subsequently found that the licensee did not discriminate
against the complainant. While such an approach could be perceived
as unfair to the licensee, the Commission believes that such a
burden is warranted in view of the benefit to the workplace
environment.
---------------------------------------------------------------------------

VI. Discussion of Alternative Strategy in Requiring a Holding Period
Policy and Periodic Site Surveys

    The Commission has considered an alternative strategy, in which all
licensees would be required to institute a holding period policy and
periodic site surveys, rather than only those licensees who perform
poorly in this area. This approach would not differentiate to the same
extent between those licensees who perform well in this area and those
who give cause for concern. However, this approach would ensure that
all licensees periodically monitor their work environments to assess
the degree to which employees feel free to raise safety concerns. In
addition, this approach would ensure that, for any situation in which
an employee believes that he or she has been discriminated against for
raising safety concerns, that employee would not be placed at a
financial disadvantage (i.e., by the loss of pay and benefits) while
pursuing a resolution. Under this approach, such an employee would
continue to receive pay and benefits under the holding period even if
the licensee had never before had such a complaint.
    As stated earlier, the purpose of the holding period is to
neutralize the conflict in the work environment until the dispute is
resolved without presumption as to the outcome, thereby minimizing the
chilling effect on the rest of the workforce. The chilling effect can
arise when other employees perceive that a fellow worker has been
discriminated against for engaging in protected activity, and then
immediately placed at a disadvantage in pursuing a resolution by the
loss of pay and benefits. By requiring all licensees to establish and
implement a holding period policy, this alternative approach would
attempt to offset this potential chilling effect on an industry-wide
basis. Arguably, the benefits may not outweigh the costs in this
approach, particularly in cases where the discrimination issue is a
relatively isolated occurrence in an otherwise safety-conscious
environment.

VII. Requests for Comments on the Approaches Discussed Herein

    The Commission is considering various strategies that would clarify
the responsibility of licensees to establish and maintain a safety-
conscious work environment. The purpose of describing these strategies
and posing certain questions is to illustrate the evaluation that has
occurred to date, and to request public comment on the potential
effectiveness of such actions, the advantages and disadvantages of the
strategies described, and any suggestions on additions or deletions
that would make these strategies more effective in achieving their
stated purpose. Commenters should feel free to submit their responses
to these questions anonymously; however, any information provided as to
a commenter's background or degree of experience in this area will be
helpful in analyzing and understanding the comments.
    1. Should the Commission Proceed with Establishing a Standardized
Approach to Ensuring That Licensees Establish and Maintain a Safety-
Conscious Work Environment?
    2. If Such an Approach Were Adopted, Would It Be Most Effective as:
(a) A Proposed Rulemaking that Would Amend Part 50; (b) a revision to
the NRC Enforcement Policy; or (c) a separately issued Commission
policy statement?
    3. What Additions or Deletions to the Draft Language of Such a
Regulation or Policy, as Presented in Section IX, Below, Would Increase
Its Effectiveness?
    4. What Are the Advantages or Disadvantages of Implementing Such a
Standardized Approach? (Comments are specifically requested as to
whether the use of a holding period would achieve the objective of
reducing the potential for a chilling effect in the work environment.)
    5. What other means or indicators might the NRC use to evaluate
licensee performance in this area other than the indicators mentioned
in the language of Section IX, below?
    6. What Would Be the Advantages or Disadvantages of Implementing
the Alternative Approach to Requiring the Holding Period, as Described
in Section VI, Above?
    7. What Other Approaches Not Considered Here Would Be More
Effective in Ensuring That Licensees Establish and Maintain a Safety-
Conscious Work Environment?

VIII. Request for Regulatory Analysis Information

    If a change of requirements is needed, the NRC will prepare a
regulatory analysis to support any proposed or final rule. The analysis
will examine the costs and benefits of regulatory alternatives
available to the Commission.
    The NRC requests public comment on the costs and benefits, normal
business practices, new trends, and other information that should be
considered in any such regulatory analysis. Comments may be submitted
as indicated in the ADDRESSES heading.

IX. Specific Examples of Possible Language for a Regulation or
Commission Policy

    The NRC has developed language that may be applicable to a revision
of Part 50 or (with necessary modifications) to a policy statement.
This draft text reflects many of the issues as described. The NRC
solicits comments on the following text, including the extent to which
the text addresses the issues described. The NRC also solicits
suggestions of alternative text that would address these issues.

[[Page 8790]]

Proposed Language: Safety-Conscious Work Environment

    (a) Licensees shall establish and maintain a safety-conscious work
environment in which employees are encouraged to raise safety and
regulatory concerns, and where such concerns are promptly reviewed,
given priority based on their potential safety significance, and
appropriately resolved with timely feedback to the originator of the
concern. Attributes of a safety-conscious work environment include:
    (1) A management attitude that promotes employee involvement and
confidence in raising and resolving concerns;
    (2) A clearly communicated management policy that safety has the
utmost priority, overriding, if necessary, the demands of production
and project schedules;
    (3) A strong, independent quality assurance organization and
program;
    (4) A training program that encourages a positive attitude toward
safety;
    (5) A safety ethic at all levels that is characterized by an
inherently questioning attitude, attention to detail, prevention of
complacency, a commitment to excellence, and personal accountability in
safety matters.
    (b) When circumstances occur that could adversely impact the
safety-conscious environment, or when conditions arise that indicate
the potential emergence of an adverse trend in the safety-conscious
work environment, the licensee shall take action as required to ensure
that the safety-conscious environment is preserved. Indicators that may
be considered as possible evidence of an emerging adverse trend
include, but are not limited to:
    (1) Adverse findings by the Department of Labor or the NRC Office
of Investigation (OI) concluding that discrimination has occurred
against employees for engaging in protected activity, including a
finding of the existence of a hostile work environment;
    (2) A significant increase in the rate (or a sustained high number)
of allegations made to the NRC that licensee employees are being
subjected to harassment and intimidation for engaging in protected
activity;
    (3) A significant increase in the rate (or a sustained high number)
of allegations made to the NRC concerning matters of safety or
regulatory concern, particularly if accompanied by low usage or a
decrease in use of the licensee's employee concern program (ECP) or
other licensee channels for reporting safety and regulatory concerns;
    (4) Other indications that the licensee's ECP or other programs for
identifying and resolving safety and regulatory concerns are
ineffective. Such indications might include: delays in or absence of
feedback for concerns raised to the ECP; breaches of confidentiality
for concerns raised to the ECP; the lack of effective evaluation,
follow-up, or corrective action for concerns raised to the ECP or
findings made by the licensee's QA organization; overall licensee
ineffectiveness in identifying safety issues; the occurrence of
repetitive or willful violations; a licensee emphasis on cost-cutting
measures at the expense of safety considerations; and/or poor
communication mechanisms within or among licensee groups.
    (c) The presence of one or more of the indicators discussed in
paragraph (b) of this section may or may not, in isolation, be
considered evidence of deterioration in the licensee's safety-conscious
work environment. Evaluation of the licensee's safety-conscious work
environment should consider these indicators in the context of the
overall work environment, including the presence or absence of other
indicators, and the presence or absence of related licensee safety and
performance issues.
    (d) If, based on a review of indicators as discussed in paragraphs
(b) and (c) of this section, the Executive Director for Operations
determines that the licensee has failed to establish and maintain a
safety-conscious work environment as discussed in paragraph (a) of this
section, the NRC at its discretion may require the licensee to take
action. This action may include (but is not limited to) ordering one or
more of the following:
    (1) Establishment of a formal employee concerns program (if one
does not already exist);
    (2) Performance of an independent survey of the licensee's
environment for raising safety and regulatory concerns, with periodic
follow-up surveys to monitor change;
    (3) Establishment of an independent group for oversight of licensee
performance in establishing and maintaining a safety-conscious work
environment;
    (4) Establishment of a "holding period" policy, to be applied in
cases where an employee of the licensee or its contractor registers a
complaint of having been discriminated against for engaging in
protected activity. The holding period policy requires that, when such
an employee submits to the licensee a complaint 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.
After the licensee has informed the employee of its final decision, the
holding period of continued pay and benefits will continue for an
additional 2 weeks to allow a reasonable time for the employee to file
a complaint of discrimination with the DOL. If, by the end of that 2-
week period, the employee has filed with the DOL a complaint of
discrimination for engaging in protected activity, the licensee will
maintain the holding period of continued pay and benefits until the DOL
has made a finding based on its initial investigation of the employee's
complaint.
    (5) Additional enforcement action pursuant to Subpart B of Part 2,
including civil penalties.

    Dated at Rockville, Maryland, this 19th day of February, 1996.

    For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 97-4702 Filed 2-25-97; 8:45 am]
BILLING CODE 7590-01-P