13906 Federal Register / Vol. 62, No. 56 / Monday, March 24, 1997 / Notices

[NUREG–1600]

Policy and Procedure for Enforcement

Actions; Policy Statement

AGENCY: Nuclear Regulatory

Commission.

ACTION: Policy statement amendment;

request for comments.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is amending its

General Statement of Policy and

Procedure for Enforcement Actions

(Enforcement Policy) regarding

predecisional enforcement conferences

that are based on findings of

discrimination. For appropriate cases,

this amendment will allow some degree

of participation by the complainant in

the predecisional enforcement

conference.

DATES: This amendment is effective on

March 24, 1997. Comments are due on

or before April 23, 1997.

ADDRESSES: Send written comments to:

The Secretary of the Commission, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555. ATTN:

Docketing and Service Branch. 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) 415–2741.

SUPPLEMENTARY INFORMATION: The

Commission’s Enforcement Policy was

first issued on September 4, 1980. The

Enforcement Policy is published as

NUREG–1600, ‘‘General Statement of

Policy and Procedure for NRC

Enforcement Actions (60 FR 34381; June

30, 1995).’’ Section V of the current

policy provides that, when the NRC

learns of a potential violation for which

escalated action may be warranted, the

NRC will normally provide the licensee

an opportunity for a predecisional

enforcement conference prior to taking

the enforcement action. These

predecisional enforcement conferences

are a means for the NRC to gain

additional information that will assist in

determining the appropriate course of

action.

The Commission is modifying its

Enforcement Policy for predecisional

enforcement conferences in which the

conference is based on an NRC Office of

Investigations (OI) report finding that

discrimination as defined under 10 CFR

50.7 (or similar provisions in Parts 30,

40, 60, 70, or 72) has occurred. In such

cases, the OI report will normally be

made public, subject to withholding

certain information (i.e., after

appropriate redaction), and any

resulting predecisional enforcement

conference will normally be open to

public observation. In a case where a

particular individual is being

considered potentially responsible for

the discrimination, the conference will

remain closed. In either case (i.e.,

whether the conference is open or

closed), the employee or former

employee who was the subject of the

alleged discrimination (hereafter

referred to as ‘‘complainant’’) will

normally be provided an opportunity to

participate in the predecisional

enforcement conference.

These enforcement conferences will

normally be held in the NRC’s regional

offices. Participation in the conference

in person will be at the complainant’s

own expense. This participation will

normally be in the form of a

complainant statement and presentation

in followup to the licensee’s

presentation, followed in turn by an

opportunity for the licensee to rebut the

complainant’s presentation. In cases

where the complainant is unable to

attend in person, arrangements will be

made for the complainant’s

participation by telephone or an

opportunity given for the complainant

to submit a written rebuttal to the

licensee’s presentation. If the licensee

chooses to forego an enforcement

conference and, instead, responds to the

NRC’s findings in writing, the

complainant will be provided the

opportunity to submit a written rebuttal

to the licensee’s response. For cases

involving potential discrimination by a

contractor or vendor to the licensee, any

associated predecisional enforcement

conference with the contractor or

vendor would be handled similarly.

These arrangements for complainant

participation in the predecisional

enforcement conference are not to be

conducted or viewed in any respect as

an adjudicatory hearing. As with any

NRC meeting, the presiding officer of

the conference may limit participation

as necessary to control the conduct of

the meeting.

This approach will give both the

complainant and the licensee (or

contractor) the opportunity to present

their positions on the discrimination

issue, and it should provide additional

information on which the staff may base

its initial enforcement decision. It may

serve to address past concerns that the

NRC bases its decision on enforcement

action solely on the licensee’s

presentation. At the same time, it could

lead to additional allegations and issues

concerning false or misleading

statements, and it could lengthen the

process. This approach may also raise

concerns that the licensee will have

more extensive resources than the

complainant, enabling it to better

present its position. In any event, these

enforcement conferences are not

adjudicatory forums, but rather a means

to obtain additional information from

the perspective of both the licensee and

the complainant. The Commission

intends, therefore, to limit both the

licensee and the complainant to simple

presentations and rebuttals without

allowing experts to testify on the issues

or allowing cross-examination of

witnesses by the licensee or

complainant. As with other

predecisional enforcement conferences,

the NRC staff will, where appropriate,

question licensee’s supervisors and their

representatives to understand as clearly

as possible the circumstances of the

case.

Finally, for cases in which there is a

full adjudicatory record before the

Department of Labor, the NRC may not

need to hold a predecisional

enforcement conference. If a conference

is held in such cases, generally the

conference will focus on the licensee’s

corrective action. As with

discrimination cases based on OI

investigations, the complainant may be

allowed to participate.

Paperwork Reduction Act Statement

This policy statement does not

contain a new or amended information

collection requirement subject to the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.). Existing

requirements were approved by the

Office of Management and Budget,

approval number 3150–0136. The

approved information collection

requirements contained in this policy

statement appear in Section VII.C.

Public Protection Notification

The NRC may not conduct or sponsor,

and a person is not required to respond

to, a collection of information unless it

displays a currently valid OMB control

number.

Small Business Regulatory Enforcement

Fairness Act

In accordance with the Small

Business Regulatory Enforcement

Fairness Act of 1996, the NRC has

determined that this action is not a

‘‘major rule’’ and has verified this

determination with the Office of

Information and Regulatory Affairs,

Office of Management and Budget.
Federal Register / Vol. 62, No. 56 / Monday, March 24, 1997 / Notices 13907

Accordingly, the NRC Enforcement

Policy, Section V, ‘‘Predecisional

Enforcement Conferences,’’ is amended

as follows:

General Statement of Policy and

Procedure for NRC Enforcement

Actions

* * * * *

V. Predecisional Enforcement

Conferences

Whenever the NRC has learned of the

existence of a potential violation for

which escalated enforcement action

appears to be warranted, or recurring

nonconformance on the part of a

vendor, the NRC may provide an

opportunity for a predecisional

enforcement conference with the

licensee, vendor, or other person before

taking enforcement action. The purpose

of the conference is to obtain

information that will assist the NRC in

determining the appropriate

enforcement action, such as: (1) A

common understanding of facts, root

causes and missed opportunities

associated with the apparent violations,

(2) a common understanding of

corrective actions taken or planned, and

(3) a common understanding of the

significance of issues and the need for

lasting comprehensive corrective action.

If the NRC concludes that it has

sufficient information to make an

informed enforcement decision, a

conference will not normally be held

unless the licensee requests it. However,

an opportunity for a conference will

normally be provided before issuing an

order based on a violation of the rule on

Deliberate Misconduct or a civil penalty

to an unlicensed person. If a conference

is not held, the licensee will normally

be requested to provide a written

response to an inspection report, if

issued, as to the licensee’s views on the

apparent violations and their root

causes and a description of planned or

implemented corrective actions.

During the predecisional enforcement

conference, the licensee, vendor, or

other persons will be given an

opportunity to provide information

consistent with the purpose of the

conference, including an explanation to

the NRC of the immediate corrective

actions (if any) that were taken

following identification of the potential

violation or nonconformance and the

long-term comprehensive actions that

were taken or will be taken to prevent

recurrence. Licensees, vendors, or other

persons will be told when a meeting is

a predecisional enforcement conference.

A predecisional enforcement

conference is a meeting between the

NRC and the licensee. Conferences are

normally held in the regional offices

and are normally open to public

observation. Conferences will not

normally be open to the public if the

enforcement action being contemplated:

(1) Would be taken against an

individual, or if the action, though not

taken against an individual, turns on

whether an individual has committed

wrongdoing;

(2) Involves significant personnel

failures where the NRC has requested

that the individual(s) involved be

present at the conference;

(3) Is based on the findings of an NRC

Office of Investigations report that has

not been publicly disclosed; or

(4) Involves safeguards information,

Privacy Act information, or information

which could be considered proprietary;

In addition, conferences will not

normally be open to the public if:

(5) The conference involves medical

misadministrations or overexposures

and the conference cannot be conducted

without disclosing the exposed

individual’s name; or

(6) The conference will be conducted

by telephone or the conference will be

conducted at a relatively small

licensee’s facility.

Notwithstanding meeting any of these

criteria, a conference may still be open

if the conference involves issues related

to an ongoing adjudicatory proceeding

with one or more intervenors or where

the evidentiary basis for the conference

is a matter of public record, such as an

adjudicatory decision by the

Department of Labor. In addition,

notwithstanding the above normal

criteria for opening or closing

conferences, with the approval of the

Executive Director for Operations,

conferences may either be open or

closed to the public after balancing the

benefit of the public’s observation

against the potential impact on the

agency’s decision-making process in a

particular case.

The NRC will notify the licensee that

the conference will be open to public

observation. Consistent with the

agency’s policy on open meetings, ‘‘Staff

Meetings Open to Public,’’ published

September 20, 1994 (59 FR 48340), the

NRC intends to announce open

conferences normally at least 10

working days in advance of conferences

through (1) notices posted in the Public

Document Room, (2) a toll-free

telephone recording at 800–952–9674,

(3) a toll-free electronic bulletin board at

800–952–9676, and on the World Wide

Web at the NRC Office of Enforcement

homepage (www.nrc.gov/OE). In

addition, the NRC will also issue a press

release and notify appropriate State

liaison officers that a predecisional

enforcement conference has been

scheduled and that it is open to public

observation.

The public attending open

conferences may observe but may not

participate in the conference. It is noted

that the purpose of conducting open

conferences is not to maximize public

attendance, but rather to provide the

public with opportunities to be

informed of NRC activities consistent

with the NRC’s ability to exercise its

regulatory and safety responsibilities.

Therefore, members of the public will

be allowed access to the NRC regional

offices to attend open enforcement

conferences in accordance with the

‘‘Standard Operating Procedures For

Providing Security Support For NRC

Hearings and Meetings,’’ published

November 1, 1991 (56 FR 56251). These

procedures provide that visitors may be

subject to personnel screening, that

signs, banners, posters, etc., not larger

than 18′′ be permitted, and that

disruptive persons may be removed.

The open conferences will be

terminated if disruption interferes with

a successful conference. NRC’s

Predecisional Enforcement Conferences

(whether open or closed) normally will

be held at the NRC’s regional offices or

in NRC Headquarters Offices and not in

the vicinity of the licensee’s facility.

For a case in which an NRC Office of

Investigations (OI) report finds that

discrimination as defined under 10 CFR

50.7 (or similar provisions in Parts 30,

40, 60, 70, or 72) has occurred, the OI

report will be made public, subject to

withholding certain information (i.e.,

after appropriate redaction), and any

resulting predecisional enforcement

conference will normally be open to

public observation. In a conference

where a particular individual is being

considered potentially responsible for

the discrimination, the conference will

remain closed. In either case (i.e.,

whether the conference is open or

closed), the employee or former

employee who was the subject of the

alleged discrimination (hereafter

referred to as ‘‘complainant’’) will

normally be provided an opportunity to

participate in the predecisional

enforcement conference. This

participation will normally be in the

form of a complainant statement and

presentation in followup to the

licensee’s presentation, followed in turn

by an opportunity for the licensee to

rebut the complainant’s presentation. In

cases where the complainant is unable

to attend in person, arrangements will

be made for the complainant’s

participation by telephone or an

opportunity given for the complainant

to submit a written rebuttal to the
13908 Federal Register / Vol. 62, No. 56 / Monday, March 24, 1997 / Notices

licensee’s presentation. If the licensee

chooses to forego an enforcement

conference and, instead, responds to the

NRC’s findings in writing, the

complainant will be provided the

opportunity to submit a written rebuttal

to the licensee’s response. For cases

involving potential discrimination by a

contractor or vendor to the licensee, any

associated predecisional enforcement

conference with the contractor or

vendor would be handled similarly.

These arrangements for complainant

participation in the predecisional

enforcement conference are not to be

conducted or viewed in any respect as

an adjudicatory hearing.

A predecisional enforcement

conference may not need to be held in

cases where there is a full adjudicatory

record before the Department of Labor.

If a conference is held in such cases,

generally the conference will focus on

the licensee’s corrective action. As with

discrimination cases based on OI

investigations, the complainant may be

allowed to participate.

Members of the public attending open

conferences will be reminded that (1)

the apparent violations discussed at

predecisional enforcement conferences

are subject to further review and may be

subject to change prior to any resulting

enforcement action and (2) the

statements of views or expressions of

opinion made by NRC employees at

predecisional enforcement conferences,

or the lack thereof, are not intended to

represent final determinations or beliefs.

When needed to protect the public

health and safety or common defense

and security, escalated enforcement

action, such as the issuance of an

immediately effective order, will be

taken before the conference. In these

cases, a conference may be held after the

escalated enforcement action is taken.

* * * * *

Dated at Rockville, Maryland, this 17th day

of March, 1997.

For the Nuclear Regulatory Commission.

John C. Hoyle,

Secretary of the Commission.

[FR Doc. 97–7315 Filed 3–21–97; 8:45 am]

BILLING CODE 7590–01–P

[Docket Nos. 50–424 and 50–425]

Georgia Power Company, et al. Vogtle

Electric Generating Plant, Units 1 and

2; Issuance of Director’s Decision

Under 10 CFR 2.206

Notice is hereby given that the Acting

Director, Office of Nuclear Reactor

Regulation, has taken action with regard

to a Petition dated September 11, 1990,

by Michael D. Kohn, Esquire, on behalf

of Messrs. Marvin Hobby and Allen

Mosbaugh (Petitioners), pursuant to

Section 2.206 of Title 10 of the Code of

Federal Regulations (10 CFR 2.206). The

Petition was supplemented by

submittals made on September 21 and

October 1, 1990, and July 8, 1991. The

Petition pertains the Vogtle Electric

Generating Plant, Units 1 and 2.

The Petition contained allegations

regarding: the management of the

Georgia Power Company (GPC) nuclear

facilities; illegal transfer of GPC

operating licenses to Southern Nuclear

Operating Company (SONOPCO);

intentional false statements to the NRC

regarding GPC’s organizational chain of

command and the reliability of a diesel

generator; perjured testimony submitted

by a GPC executive during a DOL

proceeding under Section 210 of the

Energy Reorganization Act; repeated

abuse at the Vogtle facility of Technical

Specification 3.0.3; repeated willful

technical specification violations at the

Vogtle facility; repeated concealment of

safeguards problems from the NRC;

operation of radioactive waste systems

and facilities at Vogtle in gross violation

of NRC requirements; routine

nonconservative and questionable

management practices; and retaliation

by GPC against managers who make

their regulatory concerns known to GPC

or SONOPCO management. The

supplements to the Petition of

September 21 and October 1, 1990,

forwarded exhibits and provided

additional information regarding the

alleged illegal transfer of operating

licenses. Based on these allegations,

Petitioners requested that the NRC

institute proceedings and take swift and

immediate action.

The July 8, 1991, supplement to the

Petition repeated several of the earlier

allegations, and also alleged that GPC’s

Executive Vice President made material

false statements in GPC’s April 1, 1991,

submittal to the NRC that responded to

allegations in the original Petition. The

supplement also alleged that false

statements had been made to the NRC

by the same individual during a

transcribed meeting on January 11,

1991, to discuss the formation and

operation of SONOPCO. Based on these

allegations, Petitioners requested the

NRC to take immediate steps to

determine if GPC’s current management

has the requisite character, competence,

fundamental trustworthiness, and

commitment to safety to continue

operating a nuclear facility.

Several issues in the Petition were

further defined and reviewed in

connection with the licensing

proceeding before the Atomic Safety

and Licensing Board (Docket Nos. 50–

424–OLA–3; 50–425–OLA–3) regarding

GPC’s application for license

amendments to transfer operating

authority of the Vogtle facility to

Southern Nuclear Operating Company

(SONOPCO), and proceedings before the

U.S. Department of Labor (DOL) as a

result of separate discrimination suites

filed by Messrs. Hobby (DOL Case No.

90–ERA–30) and Mosbaugh (DOL Case

Nos. 91–ERA–001 and 91–ER–A–011).

Although the licensing proceeding

concluded without a final Board

decision when the parties settled and

Mr. Mosbaugh withdrew as sole

intervenor, the NRC staff has considered

the evidence for the common issues in

reaching decisions on the 10 CFR 2.206

Petition. The NRC staff recognizes that

Mr. Mosbaugh has withdrawn his

interest in the Petition. Nevertheless,

the interest of Mr. Hobby in the joint

Petition remains and is the purpose for

the Acting Director’s action to address

the Petition. The decisions of the

Secretary of Labor regarding the

discrimination suites of Messrs. Hobby

and Mosbaugh have been addressed by

the NRC by means of enforcement

action.

As discussed in the Director’s

Decision, certain concerns raised by the

Petitioners are partially substantiated.

Violations of regulatory requirements

have occurred in the operation of the

Vogtle facility. A number of violations

were identified and three civil penalties

have been issued to GPC for certain of

these violations. The three civil

penalties resulted from (1) opening a

valve when it was required to be closed

by the Vogtle Technical Specifications

to protect against a potential ‘‘boron

dilution’’ event (2) providing inaccurate

and incomplete information to the NRC

regarding diesel generator testing, and

(3) violating 10 CFR 50.7, ‘‘Employee

Protection,’’ by discriminating against

Messrs. Hobby and Mosbaugh for

engaging in protected activities. The

NRC has issued letters to GPC and to

several GPC and SONOPCO individuals

reminding them of their obligations to

provide information to the NRC that is

complete and accurate in all material

respects, and of the need to ensure a

proper environment in which

employees can express regulatory

concerns without fear of retaliation,

harassment, intimidation, or

discrimination. The licensee has

committed to provide special training

and notify the NRC before the

individual who in 1990 was the Vogtle

General Manager will be permitted to

participate in licensed activities. As

previously mentioned, Petitioner’s

request for proceedings has been