ML20136F254
| ML20136F254 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 10/11/1984 |
| From: | Davis P NRC COMMISSION (OCM) |
| To: | Clements W NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FOIA-85-584 NUDOCS 8511220077 | |
| Download: ML20136F254 (1) | |
Text
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Ql ococo ones oiTHa Octob2r 11, 1984 conessionen MEMORANDUM FOR:
William Clements, Chief Dock.eting and Service Branch FROM:
Patricia Davis, Legal Assistant Office of Comissioner Asselstine
SUBJECT:
ATTACHED MEM0 - Catawba OL Please serve the attached memo on the parties to the Catawba OL proceeding.
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October 11, 1984 oFFlcE OF THE COMMIS$10NER MEMORANDUM T0:
Files FROM:
Patricia Davis, Leoal Assistant Offi.ce of Comissioner Asselstine
SUBJECT:
COMMUNICATION ABOUT CATAWBA OL PROCEEDING On October 10, 1984, I received a phone call from Ms. Austin Sapp of Charlotte, N.C.
She said that she had complaints about Judge Kelley of the Catawba licensing board and about the NRC staff.
She told me that she was not a member of any of the intervenor or environmental groups, but that she lives close to the Catawba plant.
Her complaints were in the nature of a " citizen's complaint."
Ms. Sapp has three basic concerns about the way Judge Kelley is conducting the Catawba hearing.
She said that Judge Kelley told the parties that he wants to get the hearing completed in two or three days. He has set time limits on testimony to accomplish this purpose. Ms. Sapp also said that Judge Kelley had refused to allow intervenors access to Duke Power's personnel records so that intervenors could get information on foreman reprimands.
Her third complaint was that Judge Kelley had Jimited the number of witnesses intervenors could put on on certain issues.
Ms. Sapp's complaint about the NRC staff was that she says on one issue the staff did not do their own inspection or investigation, but instead relied on Duke Power's' work.
I told Ms. Sapp that there wasn't much the Comission could do about her concerns about Judge Kelley right now and that the intervenors always had the opportunity to appeal Judge Kelley's actic s and to show that they were harmed by them.
I suggested that she set out her concerns in writing and mail them to me, and I would see that they were placed in the docket and served on the parties.
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December 6,1984 3$ OEC -6 All:35 OII!EE.?~ SECA27./.,;:.v CCC.c,. q55p. ;g,
...-..h MEMORANDUM FOR:
William C. Clements, Chief Docketing & Services Branch FROM:
Patricia R. Davis, Legal Assistant TD Office of Comissioner Asselstine SERVED DEC 61984
SUBJECT:
.TAWBA ROCEEDING Please serve the attached documents on the parties to.the Catawba OL proceeding.
Attachments:
Ltr to Sharon Duggan tiemo to Files cc:
Chairman Palladino Comissioner Roberts Comissioner Bernthal Comissioner Zech I
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omca or Twa December 6,1984
--=sa C0 uirre J5:,R C 84 OIC -6 tJ1 :35 MEMORANDUM FOR:
Files Patricia P.. Davis, Legal Assistant M y!CE 0; SEtarmy FROM:
Cy{,fCk Office of Commissioner Asselstine
SUBJECT:
CATAWBA PP0CEECIt!G On December 5,1984, I spoke with residents of the Charlotte, North Carolina area who expressed concerns about the fact that the Catawba plant is scheduled to go critical on Saturday, December 8,1984:
Marjorie Welles - Charlotte, N.C.
Ms. Welles asked if I knew that the Catawba plant was scheduled to go critical and up to 5% power on Saturday.
She said she was very concerned about this because the plant is only 10 miles from Charlotte, N.C., where she lives.
Ms. Welles told me that Duke Power's own investigation had found four sensitized welds, and that there has been no independent study of this probleri.
She said that the Brookhaven study just relied on the report of the Duke Power metallurgist so that this could not be terr:ed an
" independent" study.
She said that Duke had explained that the sensitized welds were not a problem because they would leak before they would break and could be found and repaired.
Ms. Welles does not find this persuasive because leaks can go undetected and the pipe would break before anyone could do anything about it.
She said that should an accident occur and the wind blow toward Charlotte, which it does a large percentage of the time, by the NRC's estimates thousands of people could be affected.
Ms. Welles thinks there ought to be an independent study of the welds issue before the plant is allowed to start.
Ms. Welles also told me that the Catawba plant already hes 15 or 16 LER's, and it hasn't even started.
She expressed concern about the safety of the plant given this number of LER's.
Ms. Welles also told me that there are three nuclear plants in the Cha'rlotte area with a fourth scheduled.
She thinks that is an unreasonable concentration for a city the size of Charlotte.
She said that people in the area near Catawba are planning to move because Catawba is suspect and that people believe it to be especially hazardous.
I Ms. Welles said that the reason she called was
,e Comissioner Asselstine had shown~ some intelligence, and she h.--
onat he could help.
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I told h:;r that the Comission2r would be c:nsid: ring Catawba within the n:xt few weeks cnd that C' omissiencr Ascolstine would c:nsider objretivaly all of the infennaticn in the record in making his decision on whether to allow Catawba to operate above 57 power.
_Sharon Duggan - Charlotte, N.C.
Ms. Duggan told ne that she was concerned about the fact that the Catawba plant is scheduled to go critical on Saturday.
She said that during the licensing proceedino evidence was presented that there were suspect welds in the plant.
She said that after the plant goes critical that something should be done before the plant begins o independent study of the weld problera as GAP had request She said that the !!RC had merely accepted the Duke Power study, and had concluded there was no widespread problem.
She said that out of 25 welds'3-6 sensitized welds had been found.
She believes that there shouldn't be any sensitized welds because sensitization will lead to brittleness and cracking.
wants the Comission to conduct er arrange for an independent study before She Saturday or before criticality.
Ps. Duggan also wants the Comissiton to talk to Darrell Eisenhut about the problems with Catawba.
She thinks the Regional office has just been 1 coking the other way and not addressing the problems at the plant.
Ms. Duggan again requested that the Comissioners personally look into the matter and order an independent study before allowing the plant to go critical.
I told Ms. Duggan that I would put her concerns into a memorandum to be served on all the parties to the Catawba proceeding, to be placed in the public docket of the proceeding and to be circulated to all the Comissioners.
full power for Catawba within the next few weeks.I also told her that the I
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, comannessoman December 6, 1984 Ms. Sharon Duggan 1716 #1 Thomas Avenue Charlotte, N.C.
28205
Dear Ms. Duggan:
As you requested in your phone call of December 5,1984, I have enclosed a copy of my memorandum which memorializes our conversation about the Catawba plant.
This memorandum is being served on all the parties to the Catawba proceeding, placed in the docket of that proceeding, and circulated to all the Commi.ssioners. I hope the memorandum accurately reflects your concerns.
Sincerely, h 5 /k Patricia R. Davis Leoal Assistant to Comissioner Asselstine
Enclosure:
As Stated I
7, 7
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f IN THE UNITED STATES COURT OF APPEALS hp FOR THE TENTH CIRCUIT i
NO. 84-2114 KANSAS GAS AND ELECTRIC COMPANY, Petitioner, v.
RAYMOND J. DONOVAN,, SECRETARY OF LABOR, Respondent, and JAMES E. WELLS, JR.,
~
Intervenor.
ON PETITION FOR REVIEW OF AN ORDER OF THE SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR BRIEF OF THE UNITED STATES NUCLEAR REGULATORY COMMISSION AS AMICUS CURIAE
~.
Counsel for Amicus WILLIAM H.
BRIGGS, JR.
MARTIN G. MALSCH Solicitor Deputy General Counsel E. LEO SLAGGIE C.
SEBASTIAN ALOOT Deputy Solicitor Attorney U.S. Nuclear Regulatory Commission s'ashington,
D.C.
20555 (202) 634-3224 MARCH 1985 F
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A TABLE OF CONTENTS Page TABLE OF AUTHORITIES A.-
Judicial Decisions......................
ii B.
Administrative Proceedings..............ii,iii C.
Statutes................................
iii 1
D.
URC Regulations
.........................iii,1v E.
Miscellaneous...........................
iv STATEMENT OF INTEREST 1
STATFJ1ENT OF THE CASE............................
2 ARGUMENT 4
,I.
Recrulatorv Framework For Nuclear Safety 4
II.
A Narrow Construction Of Section 210 Could Cripole The Very Reculatory Program Section 210 Was Intended To Serve 11 CONCLUSION.......................................
15 s
e S
i
7 TABLE OF AUTHORITIES A.
Judicial Decisions Page Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1032-33 (5th Cir. 1984) 3 North Anna Environmental Coalition v. NRC, 533 F.2d 655, 658-59 (D.C. Cir. 1976) 4 Phillips v. Interior Board of Mine Operations Appeal, 500 F.2d 772, 778 ( D.1C. Cir. 1974) 15 Power Reactor Development Company v.
International Union of Electrical, Radio
& Machine Workers, AFL-CIO, 367 U.S. 396, 403, 407, 415 (1961) 6 Siecal v. AEC, 400 F.2d 778, 783 (D.C. Cir.
1968) 4 Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council, 435 U.S.
519, 525, 527 (1978) 5
- Westinghouse Electric Corp. v. NRC, 598, F.2d 759, 771 and n. 47 (3rd Cir. 1979) 4
'}
B.
Administrative Proceedings Cincinnati Gas & Electric Company (William E.
Zimmer) Nuclear Power Station, CLI-83-22, 16 NRC 1489 (1982) 9, 10 :,-
Consumer Power Company (Midland Plant, Units 1 and 2) CLI-74-3, 7 AEC 7 (1974) 4 Duke Power Company, et al (Catawba Nuclear Power Station, Units 1 and 2), DD-84-16, 20 NRC 161 (1984) 7, 8 Kansas Gas & Electric Company, et al. (Wolf Creek Generating Station, Unit No. 1),
LBP-77-3, 5 NRC 301 (1977) 5 Kansas Gas & Electric Company (Wolf Creek Generating Station), DD-80-3, 11 NRC 175 (1980) 5 ii
s.
3_
~
P.aSe Kansas Gas & Electric Comoany, et al (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53 (1984) 5 Long Island Lichtina Company (Nuclear Power Station, Unit 1) LBF-83-57, 18 NRC 445, 578, 622 (1983).......................
14, 15 Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-84-13, 20 NRC 267, 273-74 9
Texas Utilities Generatina Company, et al.
(Commanche Peak Steam Electric Station, Units 1 and 2), LBP-83-35,18 NRC 40, 41 (1983) 13 Union Electric Company (Calloway Plant, Units 1 and 2), ALAB-527, 9 NRC 126, 138 (1979)
..........v.............................
11, 14 C.
Statutes 42 U.S.C.
2011, et. sec.
passim 42 U.S.C.
- 2133, 5
42 U.S.C. 2133 (b) (2) 14 42 U.S.C.
2235 5,8 42 U.S.C.
2236 (a) 9 42 U.S.C.
2282 11 42 U.S.C.
5801 et. sec.
passim 42 U.S.C. 5814 (a)-(c) 5 42 U.S.C. 5841 (a) (1) and (f) 5 42 U.S.C.
5851, Section 210....................
passim Pub.
L.95-209, 91 Stat. 1482
'3" D.
NRC Reculations 10 C.F.R. 2.202 5
10 C.F.R. Part 50, Appendix B passim 10 C.F.R. Part 50, Appendix B, Criterion I.....
7 10 C.F.R. Part 50, Appendix B, Criterion XVII 8,10 10 C.F.R. 50.7 8
10 C.F.R. 50.10 (e) 8 10 C.F.R. 50.10 (e) (2) and (B) (ii) 8 10 C.F.R. 50.34 (a) 9 10 C.F.R. 50.34 (a) (7) 9 10 C.F.R. 50.34 (b) (6) (ii) 9 10 C.F.R. 50.34 (f) (3) 9 i
l iii
- j..
10 C.F.R.-50.40-9 10 C.F.R. 50.42 9
Miscellaneous 47 Fed. Reg. 30452 (July 14, 1982) 8 H.' R. Rpt.93-707, 93rd Cong., 1st Sess. 4 (1973).
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o IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
)
KANSAS GAS & ELECTRIC COMPANY,
)
)
Petitioner,
)
)
v.
)
)
RAYMOND J. DONOVAN, Secretary of
)
- Labor,
)
NO. 84-2114
)
Respondent,
)
)
and
)
)
JAMES E. WELLS, JR.,
)
)
Intervenor.
)
BRIEF OF NUCLEAR REGULATORY COMMISSION AS AMICUS CURIAE s
STATEMENT OF INTEREST The Nuclear Regulatory Commission ("NRC" or
" Commission") is the federal regulatory agency responsible for licensing, inter alia, the construction and operation of nuclear power plants.
While Section 210 of the Energy Reorganization Act of 1974, as ame.nded,.42 U.S.C. 5851, is administered by the Department of Labor, it is part of the Commission's organic statute.
Because the Commission regulatory program is the ultimate beneficiary of complaints filed by nuclear plant
employees with their employers regarding possible violations of Commission requirements, the construction of Section 210 in terms of its application to such internal complaints will affect the flow of such safety information to the Commission.
In light of this effect, the Commission believes that this case is highly significant and has a direct impact on the efficacy of its regulatory program.
STATEMENT OF THE CASE This case arises under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. S 5801 et sea., an act creating the Nuc5 ear Regulatory Commission and transferring to it the licensing and regulatory responsibilities of the former Atomic Energy Commission over, inter alia, the construction and operation of commercial nuclear power
. plants.
Specifically, petitioner seeks review of a decision by the Secretary of Labor under Sectica 210 of the Act, 42 U.S.C.
S 5851, which found that petitioner had illegally discharged intervenor James E. Wells, Jr. in retaliation for his filing internal reports of suspected violations of NRC requirements governing the construction of a nuclear power plant.
Among the issues presented by this case is whether an employee's filing, consistent with the procedures S
2
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required by the NRC under 10 C.F.R. Part 50, Appendix B, of internal reports of suspected construction or operation deficiencies with his or her employer is a protected activi-ty within the meaning of Section 210.1 In the administra-tive decision now before the Court, the Secretary of Labor answered the question in the affirmative.
In a recent case presenting the identical issue now before this Court, a panel of the Fifth Circuit Court of Appeals rejected the Secretary's construction of Section 210, noting that Section 210 was intended to further the goal of nuclear safety and that it was the IRC, not the Department of Libor,'which has special competence in the area of nuclear safety.
Brown &
~
Root, Inc. v. Donovan, 747 F.2d 1029, 1032-33 (5th Cir.
1984).
Based on its special competence in the area of nuclear safety, the NRC files this amicus brief in support of the reading of Section 210 which has been urged by the Secretary of Labor.
The broad remedial purposes of Section 210, its underlying legislative history, and the structure 1 In prior Congressional action, section designation 210 was used by Congress to require that the NRC include an unresolved Safety Issues Plan as part of its annual report to Congress.
Section 3 of Pub. L.95-209, 91, Stat. 1482.
When it subsequently added a provision on " Employee Protection" to. the Energy Reorganization Act of 1974, Congress inadvertently duplicated the section designation 210.
In the interests of simplicity, 5 U.S.C. S 5851 (Employee Protection) is unformly referred to in this memorandum as "Section 210."
m, of the regulatory program-it was intended to serve, all require ~that Section 210 be construed as encompassing the filing of internal reports of suspected NRC regulatory violations at nuclear power plants under construction or in operation.
Accordingly, the NRC respectfully submits this brief pursuant to Rule 29.of the Federal Rules of Appellate Procedure and urges this Court to sustain the Secretary's construction of Section 210 of the Energy Reorganization Act of 1974, as amended,.42 U.S.C. S 5851.
ARGUMENT I.
Reculatory Framework For Nuclear Safety The Atomic Energy Act of 1954, as amended, 42 U.S.C.
S 2011 et seq., gave the Atomic Energy Commission
("AEC") authority to regulate, inter alia, most of the activities related to the production of electricity by nuclear power.
The Energy Reorganization Act of 1974, 42 U.S.C.
SS 5801 gt seq., abolished the AEC and transferred m
2 In reviewing the NRC regulatory scheme, courts have found it "... virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close presumption in its charter as to how it shall proceed in achieving the statutory objectives."
North Anna Environmental Coalition v. NRC, 533 F.2d 655, 658-59 (D.C.
Cir. 1976) (quoting Siegal v. AEC,. 400 F.2d 778, 783 (D.C.
Cir. 1968).
See also, Westinghouse Electric Corp. v. NRC, 598 F.2d 759, 771 and n.
47 (3-d Cir. 1979).
I 4
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2-1 its licensing and regulatory functions to the NRC.
42 U.S.C. SS 5814 (a)-(c) and 5841(a) (1) and (f).
With respect to the construction and operation of nuclear power plants, the Act provides for a two-step licensing process whereby an applicant first obtains authority to construct a plant through a construction permit and then seeks a license to operate the plant as constructed.4 42 U.S.C. SS 2133 and 2235.
See generally, Vermont Yankee Nuclear Puwer Corp. v.
3The transfer was implemented in order "tc more effectively address the cocplicated, demanding task of licensing nuclear plants, materials, and activities."
H.
~
Rep'.. No.93-707, 93rd Cong., 1st Sess. 4 (1973).
4This case arose at the Wolf Creek Generating Station during the construct' ion phase of that plant.
Construction of Wolf Creek was authorized by and subject to the requirements of the NRC.
Kansas Gas & Electric Company, et al. (Wolf Creek Generating Station, Unit No. 1), 1BP-77-3, 5 NRC 301 (1977), supplemented by LBP-77-32, 5 NRC.125 (1977).
Among those requirements was the maintenance of an adequate onsite Quality Assurance ("0A") program in compliance with 10 C.F.R.
Part SC, Aroendix B.
Id. at 394-95.
A failure to i
maintain an adequate QA program could lead to a suspension or revocation of. the construction permit.
42 U.S.C.
S 2236; 10 C.F.R. 2.202.
In 1979, Kansas Gas & Electric and its general contractor committed to increase the onsite QA staff, to perform quarterly audits,.and to streamline the' lines of responsibility and authority of the onsite QA program in response to a formal petition to the NRC by several public interest groups requesting that the Wolf Creek Construction Permit be suspended or revoked due to l
questions regarding the adequacy of the onsite QA program.
.See, Kansas Gas & Electric (Wolf Creek Generating Station),
l l
DD-80-3, 11-NRC 175 (1980).
Recently, Kansas Gas & Electric was granted a conditional operating license by the NRC.
Kansas Gas & Electric Company, et al. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53 (1984), clarified,
-LBP-84-27, 20 NRC 125 (1984).
O I'
i 5
t
Natural Resources ~ Defense Council, 435 U.S.
519, 525-527 (1978); Power Reactor Development Co.
v.
International Union of Electrical, Radio & Machine Workers, AFL-CIO, 367 U.S.
396, 403, 407, 415 (1961).
In furtherance of its statutory responsibility, the NRC has promulgated detailed regulaticns governing the construction and operation of nuclear power plants.
- See, e.g.,
10 C.F.R. Parts 19, 20, 21 and 50, 55, and 73.
However, construction of a nuc' lear power plant requires millions of person-hours of engineering and construction effort.
Staffing and maintaining an operating plant also involves a signiIicant level of technical, operation and
~
engineering effort.
Thus, even with the naintenance of one s
or more onsite resident inspectors and the conduct of periodic inspections and audits, the NRC can only review a small fraction of nuclear power plant construction or operation activities.
Because of this, the NRC has adopted a regulatory scheme based on the existence of an onsite, licensee maintained, quality assurance ("QA") program.
See 10 C.F.R. Part 50, Appendix B.
10 C.F.R. Part 50, Appendix B sets cut eighteen criteria that are to govern.the organization and administration of any NRC-nandated progran of self-inspection.
Those criteria are as follows:
I.
Organization; II. Quality Assurance Program; III. Design
[ Footnote Continued)
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The NRC's QA regulations require licensees to, inter alia, establish and maintain a quality assurance organization for construction and operation of nuclear power plants.
Under 10 C.F.R. Part 50, Appendix B, Criterion I:
The quality assurance functions are those of (a) assur-ing that an appropriate quality assurance program is established and effectively executed and (b) verifying, such as by checking, auditing, and inspection, that activities affecting the safety-related functions have been correctly performed.
The persons and organiza-tions performing quality assurance functions shall have sufficient authority and organizational freedom to identify quality problems, to initiate, recommend, or provide solutions; and to verify implementation of solutions.
Such persons and organizations performing quality assurance functions shall report to a manage-ment level such tha+ this required authority and organizatiohal freetam, including sufficient indepen-dence from cost and schedule as opposed to safety, are provided.
Properly implemented', the onsite QA program is an integral part of NRC's overall regulatory program.
Further, licensee and licensee contractor employees assigned to the onsite QA program become, in a practical sense, a corps of regulators, i
independent of construction management,' assisting their
[ Footnote Continued)
Control; IV. Procurement Doculent Control; V.
Instruction, Procedures and Drawings; VI. Document Control; VII. Control of Purchased Material, Equipment, and Services; VIII. Identification and Control of Materials, Parts and Components; IX. Control of Special Procerses; X.
Inspection; XI. Test Control; XII. Control of Measuring and Test Equipment; XIII. Handling, Storage and Shipping; XIV. Inspection Test, and Operating Status; XV. Nonconforming Materials, Parts or Com mnents; XVI. Corrective Action; XVII. Quality Aso0fance Records and XVIII. Audits.
7
employer and the NRC in ensuring compliance with all rele-vant regulatory requirements.
See, Duke Power Company, et al. (Catawba Nuclear Power Station, Units 1 and 2),
DD-84-16, 20 NRC 161 (1984); Consumers Power Company (Midland Plant, Units 1 and 2), CLI-74-3, 7 AEC 7 (1974).
Their observations and judgments on potential construction or operation deficiencies are documented and that documentation is preserved to permit licensee mana'gement and NRC audit.
10 C.F.R. Part 50', Appendix B, Criterion XVII.
Moreover, the maintenance of an adequate QA program is an integral part of the NRC's licensing process.
As noted above, before construction of a nuclear power plant 6As a general rule, a licensee will employ, at any one time, more employees to build a nuclear power plant than then NRC has employees.
In addition, it is not unknown for a licensee to employ more QA personnel onsite than the NRC has inspectors available in the relevant Regional Office to inspect the construction site.
7NRC's regulations at 10 C.F.R. 50.7 prohibit licensees from discriminating against an employee for engaging in activities protected from reprisal under Section 210.
While keyed to the Secretary of Labor's present construction of Section 210, 10 C.F.R. 50.7 was promulgated under the Atomic Energy Act.
47 Fed. Reg. 30452 (July 14, 1982).
This regulation is intended to codplement the quality assurance regulation in 10 C.F.R. Part 50, Appendix B, Criterion I, which requires that quality assurance employees have
" sufficient authority and organizational freedom to identify quality problems."
8
.p.
may begin, the NRC must' issue a construction permit.
42 U.S.C. S 2235.
Under the Commission's regulations, each application for a construction permit must include a Prelim-inary Safety Analysis Report ("PSAR").
This document must at a minimum include, inter alia, a description of the proposed QA program and a discussion of how the requirements of 10 C.F.R. Part 50, Appendix B will be satisfied.
The NRC staff reviews the application against criteria for the protection of the public health and safety, the common defense and secur'ty, and the environment.
10 C.F.R. 50.35, 50.40, 50.42 and
-1 50.43.
Among those criteria is the maintenance of an adequate QA program., The obligation to maintain,an effective QA program does not terminate upon the completion of construction.
The NRC's OA program requirements are.
repeated with respect to the grant of operating licenses under'42'U.S.C. S 2133.
Thus, the Final Safety Analysis Report ("FSAR") required as part of an application for an operating license must include, inter alia, information on_
8 Prior to the grant of a construction permit, the Commission may issue a Limited Work Authorization (LWA) authorizing 1,imited, preliminary construction activities at the proposed site.
Such limited authorizations, however, may not be made absent appropriate and supporting findings by the presiding officer in the underlying licensing proceeding.
10 C.F.R. 50.10 (e) (2) and (B) (ii).
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managerial and administrative controls designed to satisfy all Appendix B requirements 10 C.F.R. 50.34 (b) (6) (ii).
Implementation of the operating license QA program as described in the-FSAR and approved by the NRC is a condition incorporated into the operating license itself.
Finally, the maintenance of a QA program at variance with the program approved by the NRC in granting the original license or the implementation of the l
approved program in a manner which defeats the purpose of 10 C.F.R. Part 50, Appendix B could lead to the suspension or revocation of the license.
42 U.S.C. S 2236 (a).
Recently, hundreds of allegations of construction deficiencies have been filed with NRC in the late stages of the operating license review for many plans.
See e.g.,
Pacific Gas &' Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-13, 20 NRC 267, 273-74)
I j
c-(1984), Cincinnati Gas & Electric Company (William H.
5 Zimmer, Nuclear Power Station), CLI-8 3-22, 16 NRC 14 89
-(1982).
Quality assurance program documentation is critical in resolving many of these allegations.
Moreover, NRC has l~
l
. encouraged its employees to inform license management initially of their safety concerns so that their concern can a
be resolved without the need* for extensive NRC involvement.
NRC involvement carries the potential for licensing delays 10
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- that can_ cost millions of dollars to utilities, their shareholders, and their customers per month.
As the' brief discussion above shows,' OA personnel such as intervenor Wells play an important role in the NRC's regulatory scheme.
Moreover, the clear purpose of the NRC's Appendix B~ requirements is to make the licensee's QA employ-ees.the " eyes and ears" of the NRC.
Their observations and judgments on potential' construction deficiencies are to be 1
documented and that documentation is to be periodically-l audited by the licensee's management to ensure that the OA-
. program is. effectively complying with NRC requirements.
10 C.F'.'R.
Part 50, Appendix B, Criterion XVII.
Under such a regulatory scheme, ihternal OA reports such as those under-lying the instant matter are prepared and maintained to meet NRC requirements.
This documentation, in turn, becomes one of the factual bases upon which the NRC relies in making the final operating license decision.and in taking appropriate.
enforcement action against a licensee for violations of the construction permit _ requirements.
C II.
A Narrow Construction Of Section 210 Could Cripole The Very Regulatory Program Section 210 Was Intended To Serve As presently enforced by the Secretary of Labor, the protections of Section 210 dovetail with the CA require-ments of the NRC.
The Secretary's enforcement of Section t
11
210 and the NRC's complementary QA requirements both encour-age the. identification and reporting of unsafe or improper practices at nuclear power plants under construction or in operation.
However, while Section 210 focuses on protecting the individual employees who identify and/or report such l
practices, the NRC's regulatory program focuses on protect-ing the public's health and safety by assuring that those safety concerns are freely raised and properly resolved.9 Union Electric Company (Callaway Plant, Units 1 and 2),
ALAB-527, 9 NRC 126, 138 (1979).
However, should Section i
210 be read narrowly to exclude the filing of internal reports of suspected violations of NRC requirements, at least three deleteri'ous consequences could result.
First, under the narrow reading urged by petition-er, licensee and contractor QA inspectors who report to their management on improper construction and quality assurance practice lose any protection from reprisal unless they also contact NRC.
This loss in protection will force 0'The NRC can take whatever action under the Atomic Energy Act that it deems necessary or appropriate to preserve the independence of quality assurance inspectors and to protect the general p)ublic health and safety.
42 U.S.C.
SS 2201(o), (p) and (x, 2236 and 2282.
However, the ability of the NRC to order, under the Atomic Energy Act, individual relief for an employee as part of any corrective action to ensure the general public health and safety is more problematic.
12 L.
such' employees to make a' difficult choice.
They can follow their employer's chain-of-command, which is the procedure contemplated by the present OA requirements, and raise their safety concerns initially to plant management.
Under this approach, however, the inspectors would not enjoy the protection of Section 210.
In the alternative, they can obtain the protections of Section 210 by ignoring the reporting procedures of the licensee quality assurance program and raise their safety concerns directly to the NRC.
The result of this alternative could be to flood the NRC with unnecessary or premature QA concerns.
Thus a narrow' reading of Section 210 creates an unfortunate dilemma for employees in the nuclear industry.
Quality assurance
-inspectors or other employees who fear possible retaliation must either refrain from making internal reports of ques-tionable construction or operation deficiencies or must prematurely involve the NRC in.the resolution of suspected deficiencies.
In our view, promotion of the public health and safety will be hindered by the creation of this a
O dilemma.
i 10 Some aspects of the nuclear industry itself have recognized the prophylactic effect of protecting employees who raise safety concerns from retaliatory job actions.
See Wargo, " Tracking Employee Concerns,"
82 Nuclear Industry 3 (1985).
Nuclear Industry is a publications of the Atomic
[ Footnote Continued]
[
13
Second, the NRC will become directly involved in employee-management disputes, a matter outside of NRC's traditional field of expertise.
Complaints of retaliation
.formerly investigated and adjudicated by DOL will be direct-ed to the NRC for action as part of complaints that NRC quality assurance requirements are not being followed.
The NRC may as a practical matter be forced to investigate and adjudicate each individual complaint instead of relying on DOL's expertise in this area.
See, Texas Utilities Generat-ing Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-35, 18 NRC 40, 41 (1983) (DOL deci-sion.under Section 210 given collateral estoppel effect).
One consequence of this re-direction of complaints from DOL and to the NRC would be the need to re-allocate the NRC's already limited resources away from inspecting and resolving significant construction or operation deficiencies in order
'I to investigate and resolve complaints of employer retalia-tion. 'Such a dilution of NRC resources would be inconsis-tent with one of the apparent goals of Section 210 0
itself=-- to augment the NRC's inspection and enforcement
[ Footnote Continued)
Industrial Forum, a industry group incorporated for the purpose of fostering the development and utilization of atomic energy for pe'aceful purposes.
4 14
.1 resources by encouraging non-NRC employees to identify and correct potential safety problems.11 Third, and closely related to the second deleteri-ous consequences of exclusing internal filings from protec-tion under Section 210, the maintenance of an effective quality assurance program is a condition to the continued validity of an NRC construction permit and is a critical element in any decision by the NRC to grant an operating license.
42 U.S.C. 2133 (b) (2).
See, Union Electric Company (Callaway-Plant, Units 1 and 2), ALAB-527, 9 NRC 126, 134 n.
27 (1979); Long Island Lichtinc Connany (Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 578-622 (1983).
Resolution of complaints of employer retaliation.is neces-sary to permit an evaluation of the adequacy of the onsite quality assurance program.
Because such an evaluation is 11It has been argued that' the Secretary's construction of Section 210 could radically restructure the employee-employer relationship, perhaps to the degree of insulating all employees whose action had some bearing on :-
nuclear safety from any form of adverse employment action on the part of an employer.
See e.c., Brown & Root, supra at 1034.
This argument is specious.
.Section 210 protects the act of raising safety concerns to an employer, consistent with the procedures of 10 C.F.R. Part 50, Appendix B.
Neither the Department of Labor nor the NRC has argued that Section 210 protects an-employee from conduct unrelated to the identification of suspected violations of NRC requirements.
Thus, even under an expansive reading of Section 210, an employer is free to exercise traditional management prerogatives so long as those actions are not predicated on an illegal basis.
15
material to the issuance and maintenance of nuclear power plant operating licenses, the diversion of scarce NRC
. resources to resolve such complaints could delay operating license proceedings or cause temporary suspensions of licenses at a cost of millions of dollars to utilities and ratepayers.
CONCLUSION The national interest in nuclear safety and the conduct of an efficient regulatory program require that an employee's filing.of internal safety reports with his or her employer be treated as protected activity under Section 210.
What the D.C.
Circuit stated with regard to an almost identical provision of the original Mine safety Act is equally true here:
Miners who insist on health and safety rules being followed, even at the cost of slowing down production,
'i are not likely to be popular with mine foreman or mine top management.
Only if the miners are given a realis-tically effective channel of communication re health and safety, and protection from reprisal after making.
complaints, can the Mine Safety Act be effectively enforced.
Phillips v.
Interior Board of Mine Operations Appeals, 500 l
l F.2d 772, 778 (D.C. Cir. 1974).
A narrow reading of Section 210 to exclude internal filipgs such as those underlying this case would undermine the NRC's regulatory framework and frustrate the broad remedial purposes of Congress in adopt-ing Section 210.
4 16
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m e-For these reasons, the NRC urges this Court to hold that the protections of section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. S 5851, apply to employees who file with their employer internal reports of suspected violations of NRC requirements.
Respectfully submitted, MnRTIN G.
MALSCH Deputy General Counsel i
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WILLIAM H. BR{Gg5( JR.'
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SEBASTIAN ALOOT Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (202) 634-3224 Dated:
March 13, 1985 17
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CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing "Brief of the United States Nuclear Regulatory Commission as Amicus Curiae" was, was the 13th day of March, served upon counsel for all the parties by sending said copies by DEL Courier-Express to the addresses listed below:
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Ralph P. Foster !
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g Mark A. Vining i, Kansas Gas & Electric Company 120 East First Street
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Wichita, Kansas 67201 Stanley E. Craven David L. Wing Spencer, Fane, Britt & Browne 1000 Power and Light Building 106 West 14th Street Kansas City, Missouri 64105 i
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Cornelius S. Donoghue, Jr.
U.S. Department of Labor Suite N-2620 200 Constitution Avenue, N.W.
Washington, D.C.
20210 Dale N. Bell Michael E. Hilbert Guy, Eilbert, Bell & Smith, Chartered 519 Commercial Street Emporia,~ Kansas 66801-0921 If 1
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SIBASTIAN ALOOT Office of the General Counsel U.S. Nuclear Regulatory Comm'n Washington, D.C.
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June 6, 1985 Alan S. Rosenthal, Chairman Thomas S. Moore Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Howard A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 In the Matter of DUKE POWER COMPANY, ET AL.
(Catawba Nuclear Station, Units 1 and 2)
Docket Nos. 50-413 and 50-414
Dear Appeal Board Members:
I am herewith forwarding to you for your information copies of Director's Decision DD-85-9 (In the Matter of the Duke Power Company (Catawba Nuclear Station Station, Units 1 & 2), Docket Nos. 50-413, 50-414) (10 CFR 2.206),
which was issued on June 4, 1985. The decision addresses requests by Robert Guild, counsel for Palmetto Alliance, and the Government Accountability Project for enforcement action under 10 CFR S 2.206 against Duke Power Company based on allegations of harassment and intimidation by Duke of employees at Catawba.
As indicated in the enclosure, counsel for both Duke Power Company and Palmetto Alliance have been provided with copies of the subject decision.
Sinc ely, s'
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George Joh on Counsel for NRC Staff
Enclosure:
As stated cc w/o enclosure: Service list 3&*
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0D-85-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF INSPECTION AND ENFORCEMENT James M. Taylor, Director In the Matter of the
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DUKE POWER COMPANY
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Docket Nos. 50-413
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50-414 (Catawba Nuclear Station,
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Units 1 & 2)
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DIRECTOR'S DECISION UNDER 10 CFR 2.206 I.
Introduction On June 27, 1984, Robert Guild, counsel for the Palmetto Alliance, filed a request for action pursuant to 10 CFR 2.206 with the Director of the Office of Inspection and Enforcement. The Palmetto Alliance asked the Director to institute proceedings pursuant to 10 CFR 2.202 to modify, suspend, or revoke the construction permits for Duke Power Company's (the licensee) Catawba Nuclear Station and to take other appropriate action on the basis of violations of Appendix B to 10 CFR Part 50 and instances of harassment and intimidation of quality control inspectors.
The Palmetto Alliance, which had intervened in the Catawba operating license proceeding, bases its request primarily on its disagreements with the Atomic Safety and Licensing Board's Partial Initial Decision in the proceeding. Although the Board found some problems in the licensee's implementation of its quality assurance program, the Board did not believe that these problems indicated a'" pervasive failure or breakdown" c} % tbL (h [m > 21 fA 11 o '~
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of the quality assurance program and, hence, the Board authorized issuance of an operating license for Catawba Unit 1.
See Duke Power Co.
(Catawba Nuclear Station, Units 1 & 2), LBP-84-24, 19 NRC 1418, 1434 (June 1984). The Board reaffirmed its view in a supplemental decision on other related quality assurance matters.
See Partial Init'ial Decision Resolving Foreman Override Concerns and Authorizing Issuance of Operating Licenses, LBP-84-52, 20 NRC 1484, 1506-08 (November 1984). An operating license for Catawba Unit 1, which limited operation initially to five percent of full power, war issued by the Commission on December 6,1984.
49 Fed. Reg. 48395 (December 12,1984). A full power license was issued on January 17, 1985. 50 Fed. Reg. 3435 (January 24,1985). Appeals from the Licensing Board's decision are currently pending before the Atomic Safety and Licensing Appeal Board.
A notice was published in the Federal Register indicating that the Palmetto Alliance's request was under consideration. 49 Fed. Reg. 30813 (August 1,1984). On September 27, 1984, the Government Accountability Project (GAP) filed an " Enforcement Action Request" with the Office of Inspection and Enforcement in which GAP asked that the Commission impose
$250,000 in civil penalties for alleged acts of harassment and intimidation ay Duke Power Company of employees at Catawba.
Because GAP's request concerns the same issue of enforcement action for discrimination and harassment as is raised in the Palmetto Alliance's
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request, this decision responds to both requests. 1/ Duke Power Company-filed a response to GAP's: request on April 22, 1985.
Letter to James M.
Taylor from W. H. Owen, Exec. Vice President (hereinafter "DPC
-Response").
My decision in this matter has been delayed by an intervening event.
On December 10, 1984,- the U.S. Court of Appeals for the Fifth Circuit overturned a Secretary of Labor determination concerning application of Section 210 of the Energy Reorganization Act of 1974, as amended (ERA).
Brown & Root, Inc..v. Donovan, 747 F.2d 1029 (5th Cir. 1984). Since the Commission's employee protection rule in 10 CFR 50.7 is derived from Section 210 of the ERA I elected to delay my decision until the staff a
could assess the effect, if any, of the Fifth Circuit's decision on the 1/-
In considering these petitions under 10 CFR 2.206, the issue-before the staff is not, of course, whether the Licensing Board's decision-l to authorize issuance of an operating license was a ' correct one. If that were the issue, the petitions could be dismissed without regard to their merits in view of the long-standing principle that 6 2.206 -
is not a permissible avenue for relief with respect to matters that may be raised appropriately before the presiding officer in a pending proceeding.
See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-6,13 NRC 443 (1981);
Consolidated Edison Co. (Indian Point Station, Units 1-3), CLI-75-8, i
2 NRC 173, 177 (1975); General Public Utilities Nuclear Corp. (Three
[-
Mile Island Nuclear Station, Units 1 & 2; Oyster Creek Nuclear Generating Station), DD-85-1, 21 NRC 263, 265 (1985), aff'd, CLI-85-4 (April 4, 1985).
The facts raised in the instant petitions, however, have a bearing not only on the question of whether operating licenses should have issued, but also on the question of whether the staff should exercise its independent responsibilities to enforce the conditions of the NRC's regulations and construction permits.
For this ~ reason, the staff has considered the substantive merit of the petitions to determine whether enforcement action is appropriate in accordance with Subpart B and Appendix C of 10 CFR Part 2.
See also infra text at 13-15.
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a+a 4-NRC's application of 10 CFR 50.7.
The results of that assessment are discussed in this decision.
For the reasons stated in this decision, I have determined that a violation of 10 CFR 50.7 has occurred. Thus, to the extent that GAP and the Palmetto Alliance ask that I find violations of NRC requirements on the basis of discrimination against Mr. Ross, their requests have been granted. To the extent that the Palmetto Alliance requests initiation of show-cause proceedings and GAP asks for imposition of a civil penalty in an amount of $250,000, their requests are denied.
I want to emphasize that my decision in this matter, including the severity level and proposed sanction for the violation involving the discrimination against Mr. Ross, are based on the findings of fact contained in the Atomic Safety and Licensing Board's Partial Initial Decision. The remainder af this decision details the particular facts on which the staff has relied.
II. The Violation of 10 CFR 50.7 On one matter the staff agrees with the petitioners that enforcement action should be taken.
In fact, even prior to receipt of the petition the staff was considering escalated enforcement based on the Board's decision.
The Palmetto Alliance and GAP contend that Duke Power Company violated 10 CFR 50.7 in its treatment of G. E. " Beau" Ross, a supervisor of welding inspectors. Mr. Ross claimed he was given a low performance rating by his supervisor for expressing safety concerns. This issue was explored in some
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5-detail during the operating license hearings and is described in the Board's Partial Initial Decision.
LBP-84-24, supra, 19 NRC at 1513-20. U On its consideration of the Ross matter, the Board concluded:
Based on our review of the testimony and exhibits, the setting in which the events occurred, and the credibility of the witnesses, the Board finds that the 1981-1982 evaluation, the November 1982 interim evaluation, and the 1982-1983 evaluation of Mr. Ross, all at the " fair" or "2" level, were unfair and in retaliation for Mr. Ross' and his crew's strict adherence to QA procedures and expression of safety concerns. The persons directly responsible for the discriminatory evaluations of Mr. Ross were Mr. Davison, Mr. Allum (as to the interim and 1982-1983 evaluations), and Mr. Grier (as to the 1982-1983 evaluation, which he should have overruled).
Mr..Grier and Mr. Davison occupy senior level supervisory positions. Therefore, these actions are fully attributable to the Duke Power Company.
LBP-84-24, supra 19 NRC at 1518-19 (footriote omitted). However, despite the urging of the Palmetto Alliance, the Licensing Board declined to find a violation of 10 CFR 50.7:
That provision prohibits discrimination against an employee for engaging in certain " protected activities,"
as defined in section 210 of the Energy Reorganization Act of 1974.
Since there is no clear evidence in the record indicating that Mr. Ross himself voiced concerns to the NRC prior to the evaluation in question, we find no violation of 10 CFR 50.7.
But see Ross, Tr. 6777.
However, the evaluations did constitute discrimination against Mr. Ross on account of his voicing safety concerns. They therefore violated the spirit of section 50.7, if not its letter.
LBP-84-24, supra, 19 NRC at 1518 n.27.
Under 10 CFR 50.7(a), the Commission has prohibited discrimination by a Commission licensee, permittee, applicant, or others against an 2]
The Board adopted the Staff's proposed findings of fact as a substantial part of its discussion of this incident.
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. employee for " engaging in certain protected activities."
Section 50.7(a) states, " Discrimination includes discharge and other actions that relate to compensation, terms, conditions, and privileges of employment."
Unfair performance evaluations for reporting safety concerns can constitute discrimination within the meaning of 9 50.7 because such evaluations constitute an adverse mark in the employee's personnel file and can be used as a basis for demoting or firing the employee.
In determining whether Duke Power Company violated 10 CFR 50.7 in giving Mr. Ross discriminatory performance ratings, the key question is whether Mr. Ross' activities were " protected." As noted above, the low performance ratings were in retaliation for Mr. Ross' strict adherence to procedures and expressions of safety concerns. Adherence to procedures and reporting of safety concerns to management can constitute protected activities within the meaning of Q 50.7.
The Commission's current employee protection rules, including 10 CFR 50.7, are derived'from Section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851.
Section 50.7 itself states, "The protected activities are established in Section 210."
Section 210 provides employees who have been the victims of impermissible discrimination with a direct means of obtaining a remedy against their employer, including obtaining job reinstatement and back pay.
The responsibility for administration of the employee remedies under Section 210 rests with the Secretary of the United States Department of Labor. See 42 U.S.C. 5851(b).
The Secretary has held consistently that employees are protected under Section 210 from retaliation and I
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The staff recognizes, of course, that the Secretary's construction of the remedial provisions of Section 210 is not accepted universally.
Notwithstanding the Ninth Circuit's opinion in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162-63 (9th Cir. 1984), the Fifth Circuit has held that, absent contact with the NRC, a quality control inspector has not engaged in a " protected activity" for purposes of Section 210 by identifying safety deficiencies to his management.
Brown
& Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).
The Fifth Cir-cuit decision is, however, at odds with the remedial purposes of Section 210. As the Ninth Circuit explained, Quality control inspectors play a crucial role in the NRC's regulatory scheme.
The NRC's regulations require licensees and their contractors and subcontractors to give inspectors the " authority and organizational freedom" required to fulfill their role as independent observers of the construction process.
10 CFR Part 50, Appendix B, at 413.
In a real sense, every action by quality control inspectors occurs "in an NRC proceeding,"
because of their duty to enforce NRC regulations.
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See Wells v. Kansas Gas & Electric Co., 83-ERA-12 (June 14, 1984)
ITiternal quality control complaints are protected), appeal pending sub nom. Kansas Gas & Electric Co. v. Donovan, No. 84-2114 (10th Cir.); Mackowiak v. University Nuclear Systems, Inc., 82-ERA-8
.(April 29, 1983), remanded on other grounds, 735 F.2d 1159 (9th Cir.
1984) (internal quality control complaints are protected); Pennsyl
- v. Catalytic, Inc., 83-ERA-2' (Jan.13,1984) (refusal to work can be a protected activity); Landers v. Commonwealth Lord Joint Venture, 83-ERA-4 (Sept. 9, 1983) (filing of nonconformance report is protected; no contact with NRC until after termination); Atchison v.
Brown & Root, Inc., 82-ERA-9 (June 10, 1983) (filing of noncon-formance report is protected), vacated and remanded sub nom. Brown &
Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984); Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982) (employee made complaints to plant management about safety conditions).
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At times, the inspector may come into conflict with his employer by identifying problems that might cause added expense and delay.
If the NRC's regulatory scheme is to function effectively, inspectors must be free from the threat of retaliatory discharge for identifying safety and quality problems.
Mackowiak, supra, 735 F.2d at 1163.
The rationale of Brown & Root could force quality control inspectors to make a difficult choice. They could follow their employer's chain-of-command and the procedures contemplated by the NRC's quality assurance and control requirements and raise their safety concerns initially to plant management. Under this approach, the inspectors essentially lose the protections of Section 210.
Alternatively, they can obtain the protections of Section 210 by ignoring management's reporting procedures and raising their safety concerns directly to the NRC. This dilemma does not enhance public health and sa fety. To ensure that public safety is served by encouraging the reporting of defects, an inspector should not be subject to discrimination for bringing safety issues to his employer's attention. S/
Thus, the Ninth Circuit has stated the better view of " protected activities" under Section 210 and this view, which is consistent with the words of the statute and congressional intent, should be followed in the application of the Commission's employee protection regulations, such as 4/
This is not to say that employees can expect adverse action for reporting safety matters or that employers routinely discriminate against employees in such a fashion, but, unfortunately, such discrimination does sometimes occur. Without the protection of Section 210, the incentive for empl'oyees to report defects is weakened.
__.~...m
. 10 CFR 50.7. F When it adopted 6 50.7, the Connission stated,
" Employees are an important source of such information [concerning regulated activities] and should be encouraged to come forth with any items of potential significance to safety without fear of retribution from their employers." 47 Fed. Reg. 30452 (July 14, 1982).
This same principle is equally valid whether employees raise safety concerns to the NRC or to their employers who are ultimately responsible for safe construction and operation of their facilities. The Commission recently endorsed this view when it authorized the filing of an amicus curiae
-5/
It should be noted that the Department of Labor continues to support the broad remedial construction of Section 210 in its brief before the Tenth Circuit in Kansas Gas & Electric Co. v. Donovan, No.
84-2114. Furthermore, Brown and Root is wrong as a matter of law.
In Mackowiak, the Ninth Circuit followed the reasoning of the District of Columbia Circuit in a case holding that the filing of internal safety complaints was a protected activity under the Federal Coal Mine Health and Safety Act.
Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 722 (D.C. Cir.1974),
cert. denied, 420 U.S. 938-(1975).
In Brown and Root, the Fifth Circuit rejected the Ninth Circuit's analysis on the ground that the Ninth Circuit's decision was predicated in part on provisions of the mine safety act that were substantially different from Section 210.
The Fifth Circuit found that the mine safety act, unlike Section 210, had express provisions protecting internal complaints.
However, the court failed to recognize that these provisions were from amendments to the Act enacted after the Phillips decision.
In fact, the original statutory language of the Federal Coal Mine Health and Safety Act construed by the D.C. Circuit in phillips and relied on by the Ninth Circuit in Mackowiak is virtually identical to Section 210.
In 1977, the Federal Coal Mine Health and Safety Act was amended to ensure the continued broad construction of the employee protection provisions.
See S. Rep. No. 181, 95th Cong.,
1st Sess. 36, reprinted in 1977 U.S. Code Cong. & Ad. News 3436.
The legislative history of Section 210 indicates that it was patterned after the original version of the Federal Coal Mine Health and Safety Act, Pub. L. No.91-173 $ 110, 83 Stat. 758 (1969).
See S. Rep. No. 848, 95th Cong. 2d Sess. 29 (1978).
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brief before the Tenth Circuit in support of the Department of Labor's position in the Kansas Gas & Electric Co. v. Donovan case. Accordingly, I find that discrimination against employees for voicing safety concerns internally is prohibited under 10 CFR 50.7(a) and subjects the licensee employer to the sanctions identified in 10 CFR 50.7(c).
In its response to GAP's " Enforcement Action Request," Duke Power Company suggests that "the Commission never intended to place itself in the position of determining in the first instance" whether a violation of 9 50.7 has occurred and, thus, the Commission would find a violation of 9 50.7 "only in consequence of findings adverse to an employer initially made by the Department of Labor." DPC Response at 17, 18. Duke Power Company bases its view on isolated sentences from the Statement of Considerations that accompanied issuance of 9 50.7 and on remarks in a staff paper to the Commission supporting provisions in legislation that ultimately evolved into Section 210 of the Energy Reorganization Act.
If I were to adopt Duke Power Company's view and apply it to this case I could not find a violation of 10 CFR 50.7 because the Department of Labor did not receive and then act favorably on a complaint from Mr. Ross under Section 210 of the Energy Reorganization Act.
Duke Power Company misperceives the complementary, yet independent, authorities and responsibilities of the Department of Labor and the Nuclear Regulatory Commission in protecting employees from discrimination and retaliation for raising matters pertaining to nuclear safety.
Although Section 210 assigns authority to grant employee remedies to the Department of Labor, enactment of that statute did not limit the Commission's pre-existing authority under the Atomic Energy Act to l
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investigate alleged discrimination and take appropriate action against its licensees to combat it. Union Electric Co. (Callaway Plant, Units,1,
,S :3-
& 2), ALA8-527, 9 NRC 126, 132-39 (1979).
In urging his colleagues to adopt Section 210, Senator Hart, the Senate floor manager, said
[Section 210] is not intended to in any way abridge the Commission's current authority to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license suspension or license revocation.
Further, the pendency of a proceeding before the Department of Labor pursuant to new Section 210 need not delay any action by the Commission to carry out the purpose of the Atomic Energy Act of 1954.
124 Cong. Rec. S15318 (daily ed. Sept. 18,1978). When the Commission amended its regulations in 1982 to expand the scope of its employee protection regulations (regulations which pre-dated enactment of Section 210) the regulations did not specify that findings by the Department of Labor were a prerequisite to finding a violation of $50.7.
The comments cited by Duke Power Company from the Statement of Considerations were made only in the context of (1) emphasizing that employee discrimination could result in Commission sanctions as well as the Department of Labor's award of a direct remedy to an employee and (2) rejecting a proposal that the Commission provide in its rules for imposition of civil penalties against individuals who made frivolous complaints to harass an employer.
To be sure, the Department of Labor and the Commission are aware of the need to coordinate their efforts and cooperate in the effective administration of employee protection provisions under Section 210 and the Commission's regulations and to this end the Department and Commission have entered into a Memorandum of Understanding. 47 Fed. Reg. 54585 (Dec. 3, 1982).
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Consnission's power in thel fashion Duke Power Company suggests overlooks the reality that an aggrieved employee may decline to file a complaint or maysettleacomplaintforpersonalreasons.
The Commission's responsibility goes beyond immediate remedial action to the person affected. The Commission must ensure that licensees correct conditions that have resulted in improper discrimination that could affect other employees and prevent the recurrence of such discrimination. This power
.must be available to the Commission whether or not a particular employee has exercised his or her rights under Section 210.
In view of the Board's finding that the November 1982 interim evaluation and 1982-83 evaluation of Mr. Ross' performance "were unfair and in retaliation for Mr. Ross' and his crew's strict adherence to QA procedures and expression of safety concerns," Duke Power Company violated 10 CFR 50.7. 6_/ The staff believes that the Board incorrectly included contact with the NRC as a necessary element of a " protected activity" under 10 CFR 50.7 and that the Board erred in finding no violation. Although Duke Power Company has sought reversal of the Board's findings regarding improper attempts by Mr. Grier to influence Mr. Ross' testimony, the licensee has not sought to reverse the Board's conclusions regarding the unfair performance evaluations and does not contest them in its response to GAP.
See DPC Response at 7, 13.
In light'of the Board's findings that the performance evaluations were 6/
See LBP-84-24, supra, 19 NRC at 1518. The Board also concluded that
~
the 1981-82 evaluation was unfair and retaliatory. This evaluation would not be covered by Section 50.7 because it occurred prior to October 14, 1982, the rule's effective date.
i
~
a.;,
. discriminatory, a violation of Section 50.7 has been established and enforcement action should be taken.
III. The Board's Decision Does Not Bar Enforcement Action for the Violation Although the Board said that it did not believe 9 50.7 had been violated, the Board's remarks on 5 50.7 are not binding and the staff is not estopped from taking enforcement action.
Under the doctrine of collateral estoppel, a prior determination in an adjudicatory proceeding will bar a party from further litigation of an issue if: (1) the issue was determined by a valid and final judgment; (2) the issue sought to be precluded is the same as that involved in the prior action; (3) the issue was actually litigated; and (4) the determination on the issue was essential to the prior judgment.
Houston Lighting & Power Co. (South Texas Project, Units 1 & 2) LBP-79-27,10 NRC 563, 566 (1979), aff'd, ALAB-575, 11 NRC 14 (1980). These criteria are not met here.
Apart from brief references in the parties' proposed findings of fact, the question of whether the discriminatory evaluations constituted l
a 5 50.7 violation was not briefed or litigated as a specific contention. 1/
The Board's decision is not, as yet, a " final l
l 7/
The staff's proposed findings suggested that the Board did not need to reach the question of whether s 50.7 had been violated.
See NRC Staff's Proposed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision, at 122 (March 8,1984).
r judgment," because an appeal has been taken in the case. 8/ But even if it were a final judgment, the Board's remarks regarding 9 50.7 were unnecessary to its decision in the operating ifcense proceeding and are not controlling here. The Board's primary responsibility was to determine whether the requisite " reasonable assurance" determinations could be made to permit licensing of the plant.
See 10 CFR 50.57(a).
For purposes of making these determinations, the underlying facts regarding the handling of Mr. Ross have significance in assessing the adequacy of the quality assurance program, whether or not they represent a specific violation of 9 50.7.
The Board seemed to acknowledge the collateral nature of the i 50.7 question by relegating its treatment of the issue to a brief footnote and by suggesting that the more important inquiry was whether Duke's conduct would preclude the " reasonable assurance determinations necessary for licensing." See LBP-84-24, supra, 19 NRC 1518 n.27; 10 CFR 50.57(a)(3).
Initiation of enforcement action here does not contradict the Commission's policy against initiating enforcement proceedings to grant relief on matters that are within the jurisdiction of the presiding
-8/
See 10 CFR 2.760(a). The staff has not appealed the Board's conclusion regarding 9 50.7 because it agrees with the Board's ultimate decision finding that the plant meets the licensing standards of the Atomic Energy Act and the Commission's regulations.
See Duke Power Co. (Cherokee Nuclear Station, Units 1-3), ALAB-478, 7 NRC 772, '73 (1978). As the staff has indicated in its brief (at l
26 n. 23) in the Catawba appeal before the Appeal Board, the correctness of the Board's interpretation of 10 CFR 50.7 does not bear on the correctness of its findings on the significance of the Ross incident.
. ~,.c.._
- 15 '-
officer in a licensing proceeding.
See Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-6, 13 NRC 443, 444 (1981).
Even if the Licensing Board had agreed in this case that the discrimination against Mr. Ross constituted a 9 50.7 violation, the Board was not empowered to impose civil penalties, suspend the construction permits, or apply any other sanction, except to deny or condition the grant of an operating license -- a step the Board did not find warranted here. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-82-31, 16 NRC 1236, 1238 (1982); Consumers Power Co.
(Midland Plant, Units 1 & 2), ALAB-674, 15 NRC 1101, 1102-03 (1982).
For the foregoing reasons, the staff is not barred from taking enforcement action here. The staff has concluded th'at a violation of 10 CFR 50.7 has occurred and enforcement action should be taken.
IV. Violations of 10 CFR Part 50, Appendix B Before turning to an analysis of the appropriate enforcement sanction for the 5 50.7 violation, the other violations alleged by the petitioners should be discussed.
Both GAP and the Palmetto Alliance l
argue that multiple instances of harassment and intimidation in violation i
of 10 CFR Part 50, Appendix B occurred that warrant enforcement action.
The Palmetto Alliance refers to "43 violations" of quality assurance I
requirements for which, it believes, the Board took no effective action.
Guild Letter at 2.
These 43 violations are derived from a report of the task force initiated by Duke Power Company to review the welding inspectors' concerns.
The welding inspector task force was the subject of substantial litigation before the Board.
See LBP-84-24, supra, 19 NRC m
.- 16 '
at 1446-1505. A few of the items identified by the task force had been previously identified by NRC Region II and were the subject of Notices of Violation.
The remainder, though they represented noncompliance with NRC requirements, were of Severity Level IV or V significance under the enforcement policy. In accordance with the policy, Region II did not formalize these noncompliances in a Notice of Violation because they were identified and corrected by the licensee.
See 10 CFR Part 2, Appendix C, 5 IV.A. (1984), as revised, 9 V.A., 49 Fed. Reg. 8583, 8589 (March 8, 1984); see LBP-84-24, supra,19 NRC at 1499. As the Licensing Board and the previous Director of this Office also concluded, the Region's actions appear to conform with the enforcement policy and no further action is warranted on my part to overturn the Region's judgment.
See LBP 84-24, supra, 19 NRC at 1498-99; D0-84-16, 20 NRC 161, 180-81 (July 1984).
The Palmetto Alliance and GAP also ask for enforcement action on the basis of certain harassment incidents. Not every harassment incident warrants the finding of a violation under Criterion I of Appendix B to 10 CFR Part 50. Whether a harassment incident constitutes a violation of the requirements in Criterion I to maintain sufficient authority and organizational freedom for quality assurance personnel depends on such factors as the nature of the incident, the persons involved in the incident, and the actions of management and supervisory personnel in response to the incident.
The available evidence does not suggest that the licensee condoned or encouraged intimidation or harassment of quality control supervisors or was irresponsible in reacting to such incidents.
As the Board noted, 19 NRC at 1444, "the cases of serious harassment were relatively few in number" and, in most cases, the licensee " acted in a
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, reasoned manner to. discourage repetition."
-Id. at 1532.
The Board did find that the licensee could have done more to publicize its actions or to communicate "in a'more supportive way" with the quality control inspectors, see M., but as described more fully in section V of this decision, these facts have been taken into account in determining the-appropriate enforcement sanction for the violation of 10 CFR 50.7.
In its " Enforcement Action Request" (at 8), GAP refers to reports by Duke Power Company and Region II as "new evidence of an atmosphere of harassment and intimidation." The references are apparently to reports concerning foreman overrides that were the focus of the " Welder B" issue that the Licensing Board had left open in its June 22nd Partial Initial Decision.
See L8P-84-24, supra, 19 NRC at 1585. Contrary to the implication in GAP's " Enforcement Action Request," few of the 200 persons interviewed during tire Duke investigation claimed harassment or intimidation. The reports and related information were the subject of further hearings that commenced on October 9, 1984, before the Licensing Board.
The Board recently issued its decision regarding this matter and concluded that instances of foreman overrides were isolated, did not compromise plant safety, did not indicate pervasive harassment and l
intimidation, and did not represent a significant breakdown in quality l
assurance at Catawba.
See LBP-84-52, supra, 20 NRC at 1506-07.
The i
i staff agrees with those findings.
Region II did issue a Notice of Violation to the licensee for failure to follow procedures related to the " Welder B" issue.
See NRC
' Inspection Report No. 50-413/84-88 & 50-414/84-39 (Aug. 31, 1984). No
-. m m-
. further enforcement action for violations of 10 CFR Part 50, Appendix B is appropriate.
V. Proposed Enforcement Action The Palmetto Alliance urges the staff to initiate show-cause proceedings to modify, suspend, or revoke the Catawba construction permits on the basis of the alleged violations of 10 CFR 50.7 and Appendix 8.
GAP contends that a civil penalty of $250,000 should be proposed and that civil penalties should be " automatic" in such cases to l
" punish" employers for harassment. However, not every violation of NRC requirements warrants initiation of show-cause proceedings or imposition of civil penalties.
See Petition for Emergency and Remedial Action, f
CLI-78-6, 7 NRC 400 (1978). Sanctions are not " automatic". The choice of enforcement sanctions for violations of NRC requirements rests within the L
sound discretion of the Commission based on consideration of such factors as the significance of the underlying violations and the effectiveness of the sanction in securing lasting corrective action.
See General Statement of Policy and Procedure for NRC Enforcement Actions,10 CFR Part 2. Appendix C, il I and VII (1985).
The Commission's policy on the application of enforcement sanctions, which was applicable at the time of the violation, is set forth in 10 CFR Part 2 Appendix., 47 Fed. Reg. 9989(March 9,1982). The policy classifies different types of violations by their relative severity and describes the circumstances in which formal sanctions, including orders, civil penalties, and notices of violation are appropriate.
. Under this policy, the violation fits most closely the example of a Severity Level II violation under the severity categories in Supplement VII because the discriminatory evaluations involved action by management above first-line supervision.
In its decision the Board found:
The persons directly responsible for the discriminatory evaluations of Mr. Ross were Mr. Davison, Mr. Allum (as to the interim and 1982-83 evaluations), and Mr. Grier (as to the 1982-83 evaluation, which he should have overruled). Mr. Grier and Mr. Davison occupy senior level supervisory positions.
Therefore, these actions are fully attributable to the Duke Power Company.
LBP-84-24, supra, 19 NRC at 1519.
Since Mr. Ross as a foreman was a first-line supervisor, the discriminatory action by Mr. Allum and Mr.
Grier involved management above first-line supervision.
It is recognized that the examples of severity levels in the supplements to Appendix C are just that and, therefore, neither controlling nor exhaustive.
However, in view of the Board's finding, a classification of the violation at Severity Level II appears appropriate and departure from the guidance of the policy is not warranted.
The base civil penalty for a Severity Level II violation was $64,000 at the time this violation occurred.
The enforcement policy then in l
effect, as well as the present policy, provides for mitigation or escalation of the base civil penalty on the basis of several factors including the adequacy of corrective actions, poor prior performance in an area of concern, prior notice of similar events, and multiple occurrences. Duke Power Company has removed the unsatisfactory performance appraisals from the Beau Ross personnel file and inserted a statement that his performance was satisfactory durirg those periods.
In addition, Duke has taken certain other corrective actions including 1)
...., =.,
establishment and implementation of a QA Department Harassment Resource Procedure; 2) retention of an employee relations specialist, 3) amplification of the construction department instructions involving
.s intimidation and coercion, and 4) implementation of a quality awareness program. Thus, escalation of the penalty for inadequate corrective actions does not seem appropriate.
However, Duke has maintained Mr.
Ross's adverse performance appraisals in a separate file and has included in that file a letter which states that they do not concur with the Board's findings. These actions indicate that Duke has not fully acknowledged the seriousness of this violation.
Furthermore, the Board identified additional corrective actions that Duke was required to take.
These circumstances suggest that mitigation of the civil penalty for unusually prompt and extensive corrective actions is not appropriate.
With regard to prior notice of similar events and multiple l
occurrences, the record did not contain evidence of prior notice of other l
l
. similar events or other violations of the same significance.
Thus, a civil' penalty of $64,000 will be proposed. El Initiation of further proceedings, as the Palmetto Alliance suggests, is not warranted. N The request stems primarily from their
-9/
Although Duke Power Company will have a full opportunity to contest the proposed civil penalty in accordance with 10 CFR 2.205, a brief response is warranted here to the licensee's arguments that civil penalties are not available or should not be used for violations of 6 50.7. As noted earlier, the legislative history of Section 210 provides no support for the suggestion that the Consnission lacks authority to impose civil penalties for violations of duly-promulgated regulations related to employee protection against discrimination. No such limitation exists in Section 210 of the Energy Reorganization Act or in Section 234 of the Atomic Energy Act.
The civil penalty provision " spurned" in the staff paper cited by the licensee referred to an extension of such sanctions to i
non-licensed employers.
The same staff paper acknowledges the Commission's existing authority to impose civil penalties on its licensees.
The licensee also suggests that the Commission should not impose civil penalties for violations of 5 50.7, at least where the Department of Labor.has awarded the employee a remedy, because the civil penalty would not likely have any additional remedial e ' lect.
However, the Commission expressly provided for possible imposition of civil penalties in 9 50.7(c) for violations of 6 50.7(a). Civil penalties for violations of 9 50.7, as well as for violations of other NRC requirements, are appropriate if a civil penalty may positively affect the conduct of the licensee or other similarly situated persons and are not grossly disproportionate to the gravity of the offense. Atlantic Research Corp., CLI-80-7, 11 NRC 413, 421 (1980).
10/ Because an operating license has been issued, suspension or revoca-
~~
tion of the construction permit for Unit I would be essentially meaningless.
Enforcement action may still be appropriate, however, for violations that occurred during construction even after an operating license has been issued. Quality assurance is important in both construction and operation of a nuclear plant.
The violation of 9 50.7 discussed in this decision can also occur during operation and, thus, enforcement action is appropriate to discourage similar violations by this licensee in the future as well as to discourage similar violations by other licensees.
See Atlantic Research Corp., CLI-80-6, 11 NRC 411, 420-21 (1980).
i l
4 E
'; apparent disagreement with the Board's conclusion with respect to the significance of instances of harassment of welding inspectors:
1.e.,
l
" harassment was not a widespread phenomenon at Catawba." L8P-84-24, supra,19 NRC at 1532. Although the Board found from the record that "some welding inspectors were subject to harassment by craft workers and craf t foreman for doing their jobs," the Board concluded that "[t]he few incidents described did not deter these inspectors from performing their duties, nor was the freedom of the QA program restricted." Id. at 1531.
The staff agraes with these conclusions and the petitioners have not provided any new information which would suggest a different result. b I
In his letter on behalf of the Palmetto Alliance, Mr. Guild also takes issue with the Licensing Board's conclusion that the evidence in the operating license proceeding did not demonstrate a pervasive quality assurance breakdown at Catawba. Mr. Guild's letter is little more than an appeal of the Licensing Board's adverse ruling on the Palmetto Alliance's quality assurance contention (Contention 6) in the operating license proceeding. Mr. Guild now wants the Director to initiate show-cause proceedings "to fully probe the significance of this serious misconduct by Duke Power Company and take needed remedial measures to insure that the full scope of Quality Assurance deficiencies are 11/ Mr. Guild points to the discussion of harassment incidents in the Licensing Board's decision as the basis for the Palmetto Alliance's i 2.205 request. Without specific attribution, GAP lists a number of alleged harassment incidents which, it believes, establishes "a pattern of harassment, intimidation and discrimination." GAP Enforcement Action Request at 5.
These incidents appear to be derived primarily from the incidents discussed in the Licensing Board's decision. Compare GAP Enforcement Action Request, at 3-5, with LBP-84-24, supra,19 NRC at 1479-92,1504-32,1541-48.
.~
I i
' identified and corrected prior to operation of the Catawba Nuclear Station." Guild Letter at 2.
The significance of quality assurance problems at Catawba on which Mr. Guild relies and their impact on plant operation have been fully examined by the Licensing Board and, unlike the Board's remarks about 9 50.7 discussed above, were a critical part of its inquiry to determine whether the requisite " reasonable assurance" determinations under 10 CFR 50.57 could be made to permit licensing.
See generally L8P-84-24, supra, 19 NRC at 1432-46.
If the Palmetto Alliance disagrees with the Licensing Board's decision to issue an operating license, it should pursue its appeal before the Appeal Board, not ask the stiff to institute show-cause proceedings to go over the same issues that were properly before the Licensing Board and which formed the basis for theBoard'sdecision.12/
10 CFR 2.762; see Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-6, 13 NRC 443 (1981); cf. Rockford League of Women Voters v. NRC, 679 F.2d 1218,1222 (7th Cir. 1982).
Moreover, the staff has considered the same basic allegations as were before the Licensing Board - in fact in response to a petition filed on behalf of the Palmetto Alliance - and determined that no enforcement action was warranted. At the time Mr. Guild's letter was received, the Director had just issued a decision under 10 CFR 2.206 that responded to an earlier petition filed on behalf of the Palmetto Alliance by GAP.
See Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 00-84-16, 20 NRC 161 l
12/ The Palmetto Alliance has in fact appealed the Board's June 22nd
~~
decision.
- 24 '
(1984).- That petition raised many of the same issues and relied substan-tially on much of the same evidence that was presented in the Catawba operating license proceeding.
In his decision on the petition, the Director concluded, as did the Licensing Board, that the problems at Catawba, including the violations of Appendix B to Part 50 that had been identified, did not represent a significant breakdown in quality assur-ance that would warrant initiation of show-cause proceedings to modify, suspend, or revoke the construction permits.
Id. at 181. Accordingly, the Palmetto Alliance's request for extraordinary relief in its earlier 6 2.206 petition was denied.
Mr. Guild's June 27th letter does not raise any new factual information regarding the matters covered in the July 6th Director's decision or, for that matter, in the Licensing Board's decision.
- Thus, as the Director informed Mr. Guild in a letter acknowledging receipt of Mr. Guild's request for action under 10 CFR 2.206 dated July 20, 1984, the problems identified at Cata*ba do not represent a massive or pervasive breakdown in the quality assurance program. No adequate reasons have been presented in Mr. Guild's letter, nor is there information of which the staff is aware from its inspections, to reverse the determination made on this point in the earlier Director's decision.
Accordingly, I have determined that a Notice of Violation and Proposed Imposition of Civil Penalty should be issued pursuant to 10 CFR 2.201 and 2.205 for the violation of 10 CFR 50.7 and that no further enforcement action.is warranted.
1
e-s 4
- 25 VI. Conclusion For the reasons stated in this decision, the requests of the Palmetto Alliance and GAP have been granted in part and denied in part.
A copy of this decision will be provided to the Secretary for the Commission's review in accordance with 10 CFR 2.206(c).
Unless the Comission otherwise directs, the staff will issue a Notice of Violation and Proposed Imposition of Civil Penalty as described in this decision after the conclusion of the period within which the Connission may review this decision.
/
s
?? [f ties M. Tay
, Director
,0ffice of Inspection and Enforcement
.' /
Dated at Bethesda, Maryland, this %dday of June 1985.
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[7590-01]
UNITED STATES NUCLEAR REGULATORY COMMISSION
[DocketNos.50-413and50-414]
DUKE POWER COMPANY (Catawba Nuclear Station, Units 1 and 2_)
Issuance of Director's Decision Under 10 CFR 2.2_06 (00-85-9 )
Notice is hereby given that the Director, Office of Inspection and Enforcement, has granted in part and denied in part a petition under 10 CFR 2.206 filed by Robert Gutid on behalf of the Palmetto Alliance and a request by the Government Accountability Project (GAP) for imposition of civil penalties.
In its petition, the Palmetto Alliancerasked the Director.
Office of Inspection and Enforcement, to suspend or revoke the construction permits for Duke Power Company's Catawba. Nuclear Station and to take other appropriate action on the basis of violations of Appendix B to 10 CFR Part 50 and instances of harassment and intimidation of quality control inspectors.
GAP requested imposition of $250,000 in civil penalties on the basis of the
, harassment and intimidation incidents.
The staff has determined that a violation of 10 CFR 50.7 occurred and that a $64,000 civil penalty should be proposed. However, the Palmetto Alliance request to suspend or revoke the construction permits for
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the Duke Power Company's Catawba Nuclear Station and GAP's request for larger civil penalties have been denied.
The reasons for this decision are fully described in the " Director's Decision Under 10 CFR 2.206" issued on i
this date, which is available for public inspection in the Commission's Public Document Room located at 1717 H Street, N.W., Washington, D.C. 20555, and in I
the local public document room for the Catawba Nuclear Station at the Yorx County Library,138 East Black Street, Rock Hill, South Carolina 29730.-
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JUN 041965 Docket Nos. 50-413 and 50-414 (10 CFR 2.206)
Robert Guild, Esq.
P.O. Box 12097 Charleston, South Carolina 29412
Dear Mr. Guild:
This is in response to p ur request for action filed pursuant to 10 CFR 2.206 on June 27, 1984, in which you asked the Director, Office of Inspection and Enforcement, to institute proceedings to modify, suspend, or revoke the construction permits for Duke Power Company's Catawba Nuclear Station and to take other appropriate action on the basis of violations of Appendix B to 10 CFR Part 50 and instances of harassment and intimidation of quality control inspectors.
My decision in this matter was delayed as a result of a decision by the U.S. Court of Appeals for the Fifth Circuit in Brown and Root, Inc. v. Donovan, which was directly related to some of the issues raised by My decision was then further delayed to allow time to evaluate a your request.
letter filed by Duke Power Company on April 22, 1985 in response to an
" Enforcement Action Request" which had previously been filed by the Government Accountability Project and which concerned the same issue of enforcement action raised in your request.
For the reasons stated in the enclosed " Director's Decision under 10 CFR 2.206," your request has been granted in part and denied in part.
A copy of this decision will be fiied with the Secretary of the Commission for its review in accordance with 10 CFR 2.206(c) of the Commission's regulations. As provided by this regulation, the dccision will constitute the final action of the Commission 25 days after the date of issuance of the decision unless the Consnission, on its own motion, institutes a review of the decision within that time.
A copy of the notice, which is being filed with the Office of the Federal Register for publication, is also enclosed.
Sincerely,
,., L J es M. Tay}', Director ffice of I pection and Enforcement Ericlosure: As stated cc: Duke Power Company J. Michael McGarry, III, Esq.
Bishop, Liberman, Cook, Purcell, and Reynolds T
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of June 1985.
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GOVERfMAENT ACCOUNTADILITY PROJECT 1555 Connecticut Avenue. N.W.. Suite 202 (202)232-8550 Washington. D.C. 20036 June 28, 1985 Mr. James M.
Taylor Director Office of Inspection and Enforcement U.S.
Nuclear Regulatory Commission Washington, D.C.
20558 Re:
Director's Decision under 10 C.F.R. 2.206 re: Catawba
Dear Mr. Taylor:
Your June 4, 1985 decision to propose a S64,000 civil penalty against Duke Power Company for violation of 10 C.F.R. 50.7 was a long awaited welcome. Your decision was laudatory eand we hope that the NRC will not waiver from the well documented decision.
The decision to~soley base the civil penalty on the findings of the Atomic Safety and Licensing Board panel was, however, unfortunate. The harassment and intimidation of Quality Control inspectors at Catawba was much more widespread than just the treatment of Mr. ' Bean' Ross.
The authority of the Director of Inspection and Enforcement-isano&.tonstrained by ASLB proceedings in matters of enforcement, as you wbli know'.
The weakness of the agency's decision to recognize only one incident of the harassment of Mr. Ross instead of looking to the real danger to the plant's Quality Assurance program as a result of the corporate attitude toward its conscientious Quality Control inspectors and managers is unacceptable.
Notwithstanding the debate on the proposed penalty, I must respond to your letter about Region II's handling of the Duke Catawba case.
Your letter was obviously written by Region II personnel, and as such was unabashedly self-serving. I understand that as a matter of practice the Director refers complaints such as those I made in my September 27, 1984 letter to the region in order to get "the other side of the story." However, I am disappointed that your response contained no analysis of the charges that I raised. I agree that the allegations made against Region II were serious, and I continue to regard the actions of Region II in this matter as conduct which your agency should be ashamed of,not defend. In fact, your personal inability to recognize the serious nature of the misconduct of regional personnel is very disconcerting.
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Mr. James M. Taylor Paga'Two June 18, 1985 Perhaps my letter wasn't clear enoungh. I would like to be able to present GAP's view on this to your staff, or to the Office of Inspector or Auditor (OIA) if you feel it appropriate.
I look forward to your response, which shouldn't be delayed by either DOL or Duke interferences.
Sincerely, Billie P. Garde
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