3F1094-04, Ack Receipt of Re 931122 Enforcement Conference Held in Region II & Expresses Disappointment in NRC Apparent Policy Decision Not to Review Matl & Credible New Info Provided at 931122 Enforcement Conference

Ack Receipt of Re 931122 Enforcement Conference Held in Region II & Expresses Disappointment in NRC Apparent Policy Decision Not to Review Matl & Credible New Info Provided at 931122 Enforcement Conference

ML20149J152
Person / Time
Site:	Crystal River
Issue date:	10/03/1994
From:	Beard P FLORIDA POWER CORP.
To:	Ebneter S NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
Shared Package
ML20149H858	List: 3F1094-04, Ack Receipt of Re 931122 Enforcement Conference Held in Region II & Expresses Disappointment in NRC Apparent Policy Decision Not to Review Matl & Credible New Info Provided at 931122 Enforcement Conference IA-97-223, Notice of Violation & Proposed Imposition of Civil Penalties in Amount of $220,000.Violation Noted:Licensee Failed to Take Action to Address Condition Until 891117,when FWCI Was Inoperable L-96-317, Informs That DOL Adminstrative Review Board Has Issued Order Approving Settlement & Dismissing Complaint in DOL Case 92-ERA-101.Corrective Actions:Senior Mgt Will Continue to Communicate Expectations to Levels of FPL Nuclear Div ML20149H855 ML20149J100 ML20149J179 ML20149J203 ML20149J263 ML20149J278 ML20149J287 ML20149K733 ML20149L679 ML20149L681
References
FOIA-97-223 3F1094-04, 3F1094-4, EA-93-226, NUDOCS 9707280077
Download: ML20149J152 (3)

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? CEDTED n GION II 3Y: .

ex1ET 2 61994 V

Florida p (e .m 3 Power 0 C M P O A A 7 iO N Ocmber 3,1994 Docket No. 50-302 3F109404 Mr. Stewart D. Ebneter, Regional Administrator USNRC, Region 11 101 Marietta Street, N.W., Suite 2900 Atlanta, Georgia 30303-0199

Subject:

NRC Notice of Violation (EA 93-226); U.S. Department of Labor Case No. 88-ERA-29

References:

1. NRC to FPC letter, 3N0294-09, dated February 16,1994

2. FPC to NRC letter, 3F0394-10, dated March 10,1994

3. FPC to NRC letter, 3F0394-15, dated March 31,1994

4. NRC to FPC letter,3N0894-21, dated August 19,1994

Dear Mr. Ebneter:

Florida Power Corporation (FPC) has received your August 19,1994 letter (Reference 4) concerning the  ;

November 22,1993 enforcement conference held in Region II at which the U.S. Department of Labor

-(DOL) proceeding referenced above was discussed. The Notice of Violation issued February 16, 1994 i (Reference 1), relates to elleged discrimination by Fluor Constructors International (Fluor) at Crystal l

River Unit 3 (CR-3) in early December,1987 against a Fluor employee in violation of the Energy Reorganization Act. )

The purpose of this letter is to keep you abreast of the DOL proceeding and to express FPC's disappointment in the NRC's apparent policy decision not to review the material and credible new information provided at the November 22, 1993 enforcement conference. With respect to the DOL proceeding, the record was reopened on May 11,1994 for a hearing on the quantification of damages incurred by the former employee. The testimony of the former employee at the hearing raises serious doubt, once again, as to the " good faith" nature of his 1987 refusal to work in radiological controlled areas in the plant's reactor building. As you may recall, the DOL administrative law judge who presided over the initial hearing in the proceeding found the employee to be a credible witness, but questioned the employee's testimony, which he found the employee had " embellished" in order to attempt to carry his l burden of proof. Moreover, he found the employee's refusal to work unreasonable under the circumstances. In a Recommended Decision on Remand, dated August 29,1994, the same administrative law judge again expressed concern with the truthfulocss of the employee's testimony:

7 GENERA 1. OFFICE: 3201 Thirty fourth Street South

• P.O. Box 14042

• St. Petersburg, Florida 33733 * (813) 815 5151 9707280077 970723 Florida Progress Company PDR FOIA HAVENST97-223 PDR '

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U.'S, Nuclear Regulatory Commission 3F109444 -

Page 2 l

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' At the time of the second hearing on damages in this case, I once again listened carefully to the testimony of. . . [the employee]. Concerning his decision on the damage issues, I found it be truthful when dealing with basic facts but to be simply untruthful in large measure in the areas concerning the impact of his discharge by Fluor on his personal life. In

' view of that finding, I give little credibility to. . . [the employee's]

overall testimony on the damage issues. His recollection of events

!. related to the damage issue is highly convenient, particularly as it relates to the back pay and compensatory damage issues. DOL Case No. 88-l ERA-29, recommended decision at 3. [ emphasis added]

7 ' A copy of the recommended decision is attached for your convenience. In contrast to the testimony of this former employee, the administrative law judge found the testimony of two former FPC employees, James Brown and Richard Brown, "to have been entirely credible." Affidavits of these now-retired FPC employees were provided to the NRC at the enforcement conference. In addition, Richard Brown attended that enforcement conference.

With respect to the NRC's enforcement decision, FPC is aware of other enforcement action finalized by letters (also dated August 19,1994) which also summarily conclude that an opportunity to present facts relevant to the enforcement action was given to licensees and their contractors, but that "no additional Information was provided which was not available to the NRC at the time the violation was issued" (e.g.,

EA 93-200). In the case of FPC, we believe an enforcement decision founded on this rationale is incorrect, and FPC continues to disagree with the Notice of Violation. He NRC was provided additional i factual information including the two affidavits of the retired FPC employees who did not testify at the original DOL hearing,' concerning the lawfulness of the employee's discharge. Furthermore, the DOL record was silent on their efforts to investigate the concerns of the employee and to assure the Fluor j employee of a safe working environment.

As FPC views the total evidence now before the NRC, the Fluor supervisor who was directly responsible for the employee's termination had the distinct impression that the employee desired to avoid any I

radiological exposure and to be terminated so that the employee could draw his full pay instead of waiting for his last paycheck to be mailed. In fact, the May 11,1994 testimony of the employee is supportive of the notion that cash flow considerations was a major issue for the employee at the time. In addition, the

Fluor supervisor was unaware of any underlying Health Physics (HP) conm>versy. We also agree with Fluor's legal position that the Secretary inappropriately made his own credibility determinations when he rejected the administrative law judge's conclusion that Fluor had no knowledge of any safety concern and when, instead, he concluded that the employee testified " convincingly" that FPC supervision informed

~ Fluor supervision that the employee had an HP concern. Here is simply no reliable, credible evidence to support this analysis in either the DOL or NRC records.

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. l U. S. Nuclear Regulatory Commission 1 3F1094-04 Page 3 1

1 We will keep you informed of the Secretary of Labor's further review of the Recommended Decision on Remand and any appeal filed with the U.S. Court of Appeals for the Eleventh Circuit. We appreciate your position that the NRC will reconsider the enforcement decision in the event the case is successfully appealed at a later date. Please feel free to call me if you have any questions concerning these matters.

Sincetely, P.M. Beard, Jr.

Senior Vice President Nuclear Operations PMB:svg Attachment xc: Document Control Desk NRR Project Manager Senior Resident Inspector O

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