Re: other regulatory agencies

[RONALD GOODWIN <RONALD_GOODWIN@health.ohio.gov>]

     I discussed this yesterday with an NRC person and based it on various 
     audits and inspections I endured as Emergency Preparedness supervisor 
     at South Texas Project Electric Generating Station.  The condition 
     then and the condition now still exists, if the licensee has 
     identified a problem, recognized the root cause, and has proposed 
     methods to mitigate the situation and prevent its reoccurrence, and 
     the NRC discovers this via a paperwork review, no fines should be 
     issued and if so, then the fine could be appealed.  
     
     However, he also pointed out, if the licensee withholds documentation 
     for fear of revealing a problem and the NRC discovers the problem via 
     other review and inspection methodology, then if a fine is levied or 
     other NOV issued, it is not as readily appealable.
     
     Best regards, and peace,
     
     Ron Goodwin - Ohio


______________________________ Reply Separator _________________________________
Subject: other regulatory agencies
Author:  radsafe@romulus.ehs.uiuc.edu at Internet
Date:    4/18/96 12:28 PM


When I was an NRC inspector, I ran into this issue on a number of occasions. 
There about 4 avenues that NRC uses to get the information, and I've seen 
those cited.  I wanted to talk about the "other regulatory agencies" issue.
     
EPA has similar regulations regarding credit for self-identification.  I 
can't cite them right now, but I've read them and if you look through the 
last several issues of the journal "Environmental Protection," you'll find a 
good discussion of the issue.  The problem is twofold - first is that it 
isn't implemented the same way as NRC, and the second is that NRC exercises 
far more discretion as to classification and severity of violations (see 10 
CFR 2).  
     
Another issue I wanted to address is the "self-incrimination" thing.  I took 
a graduate course in  environmental law.  The crux of the matter is that the 
self-incrimination clause in the Constitution does not apply to civil 
matters, only criminal matters.  That's been resolved, and if EPA or NRC 
proposes to fine you, you'll see it says "Civil Penalty."  There are no 
cases pending - it's already gone to the Supreme Court.  What is working 
its' way through appeals, and will likely reach the Supreme Court is the 
issue of assigning criminal liability for willful violations of the 
regulations.  
     
The problem is that government agencies (more than one agency, but EPA 
especially) enforce regulations against corporations.  The prosecute the 
corporations in criminal court.  Corporations do not have 5th amendment 
protection.  The agencies argue that as a corporation, corporate officers do 
not have 5th amendment protection.  However, since you can't sentence the 
corporation to jail, you send the corporate officers to jail -- without the 
right to be silent.  What makes this even worse is that since it's a 
corporation, the burden of proof is not "beyond reasonable doubt," because 
they're "corporate officers," not persons.  The burden is only 
"preponderance of evidence," or >50-50 chance that it really happened.  This 
travesty has actually been invoked for people accused of hazardous waste 
dumping, and that's how the government is using the RICO laws in this and a 
number of other very public areas (see, I almost strayed off-topic, but I 
stopped myself).
     
While the above is my opinion, I would be happy to look up the references 
should anyone wish to challenge my assertions.  No flames, please - only 
serious objections.
     
Now I'll climb back off my soapbox.
     
V/R
George R. Cicotte
gcicotte@cbvcp.com
     
     
     
At some point this came from Jim Barnes: 
>{
>{I'm interested in hearing from any one on OFFICIAL company positions 
>{regarding:
>{
>{ Can a NRC or an Agreement State Inspector DEMAND to see your internal 
>{ Radiation Safety AUDITS conducted by your Company Staff ?
>{
>
>Date: Wed, 17 Apr 96 18:51:45 GMT
>From: "James G. Barnes" <mail15077@pop.net>
>Subject: Re: Review of Internal Company(Licensee)Audits by A Regulatory 
>
>Ms. Hamrick's reply reflects my understanding of the regulations.  It 
should be 
>noted, however, that NRC and Agreement State regulations are supportive of 
>"self-identified" violations, so one is encouraged to root out any 
programmatic 
>faults, note them in an audit process, and address them in a timely manner. 
By 
>doing so, one reduces the severity of a potential violation. 
>
>Other regulatory agencies (such as EPA) do not take this approach, thus 
>self-identifying a violation is tantamount to putting one's head in a noose 
and 
>inviting the agency to kick the ladder out.  This creates a problem, as it is 
>tantamount to self-incrimination.  I believe that this issue is being 
>adjudicated at the present in several court cases(???).