IR 05000424/1985053
| ML20210K521 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 01/02/1986 |
| From: | Harris J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | Uryc B NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| Shared Package | |
| ML20210K456 | List: |
| References | |
| FOIA-86-43 NUDOCS 8604280352 | |
| Download: ML20210K521 (13) | |
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t ga atis, UNITED STATES
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jo NUCLEAR REGULA Y COMMISSION j
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j 101 MARIETTA STREET, N.W.
g ATLANTA, GEORGI A 30323 S.,...../
REcb J AN 0 N 32 g MEMORANDUM FOR: Bruno Uryc, Investigation / Allegation Coordinator THRU:
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AbR.Herdt, Chief,EngineeringBranch T. E. Conlon, Chief. Plant Systems Section, PSS FROM:
John R. Harris, Civil Construction Inspector, PSS SUBJECT:
ALLEGED BACKFILL DEFICIENCIES CASE N0:
RII-85-A-0016 The enclosed inspection report (Nos. 424-85/53 and 425/85-38) discusses investigation of concerns expressed in the above case number.
If you have any further questions regarding these concerns please contact me at extension 5576.
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John R. Harris Enclosure:
Report Nos.. 424/85-53 and 425/85-38 cc:
A. Herdt T. Conlon J. " 'ris
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e 8604250352 860328 A-)0 PDR FOIA FDWLER86-43 PDR
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UNITED STATES OF AMERICA DEPARTMENT OF LABOR
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OFFICE OF ADMINISTRATIVE LAW JUDGES In the Matters of:
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STEVE McNALLY
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Case No. 85-ERA-;17
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BILLY'WEATHERFORD
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Case No. 85-ERA-29
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JAMES REGISTER
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Case No. 85-ERA-30
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SUSAN REGISTER
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Case No. 85-ERA-31
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LESLIE PRICE
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Ease No. 85-ERA-32
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Plaintiffs,
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v.
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GEORGIA POWER COMPANY
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Respondent.
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BRIEF IN SUPPORT OF
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GOERGIA POWER COMPANY'S PETITION TO THIS COURT
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TO REQUEST A SUPPLEMENTAL AFFIDAVIT FROM
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NRC INVESTIGATOR BRUNO URHLICH
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Defendant has petitioned this Court to request a
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Supplemental Affidavit from NRC Investigator Urhlich because
- of the apparent mischaracterizations by Plaintiffs Susan Tiller Register and Leslie Price in their testimony before this Court on August 20, 1985.
Their testimony is contained
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in pages 40-46, 60-61, and 71 of the record of hearing
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before this Court.
Register and Price have used this testimony in an effort to toll the thirty (30) day limitation on filing complaints with the Department of Labor, and the other Plaintiffs to this action have used the confusion that Register and Price claim to bootstrap their arguments that the entire NRC Form-3 is unclear and misleading.
However, the case support offered for this proposition is as mis-leading as the testimony offered by, Register and Price.
The sole issue before this Court is whether Plaintiffs submitted complaints to the Department of Labor within
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thirty (30) days of the alleged acts of discrimination and, if not, are there circumstances of fact or law to allow the tolling of the thirty (30) day period.
Plaintiffs cite the decision of In the Matter of Duke Power Co., 19 NRC 1418 (1984) to show that one judge found the overall NRC notice to be somewhat legalistic, but he was not specifically
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addressing the clarity, vel non, of the thirty (30) day provision in the notice.
The issue in this case is not the clarity of the entire NRC Form-3, but whether Plaintiffs had actual or constructive notice of the thirty (30) day limita-tion. Since the required notices were posted prominently in areas where the Plaintiffs could view them.on a daily basis, in the absence of any evidence to suggest that the thirty L
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(30) day provision itself is unclear, Plaintiffs should not
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be allowed to proc,eed with the instant acti m.
Similarly, in arguing that Plaintiffs ' cot.cacts with Mr. Urhlich support the principle of equitable tolling, Plaintiffs presuppose the credibility of the testimony of Ms. Price and Ms. Register.
Their citation to Dartey v. Zach
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Company, 82-ERA-2, 5 and 6, and Thomas v. E.I. DuPont Nemours, 81 TSCA 1, 4 and 5 has limited application under the factual scenario they present.
But if the facts regarding contact with the NRC are different from those presented by the Plaintiffs, then there is absolutel'y no legal justification for Plaintiffs' claims, and the cases they cite will be rendered wholly inapposite.
Even under the facts alleged by
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Plaintiffs, their examples of equitable tolling offer little support because none of them include facts where notices of rights under the pertinent statute were prominently dis-played by the employer and the employees had opportunity to learn of their rights and obligations.
Plaintiffs have accused the NRC of lulling them into
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inaction because of the words of Bruno Urhlich, and flatly stated they were " actively misled" by the NRC.
Before this Court accepts this harsh premise, it should conduct appro-priate inquiry into the issue of NRC conduct.
All of the
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cases cited at pages 10-11 of Plaintiffs' Brief assume a factual finding that Plaintiffs were misled by the NRC.
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this Court receives an Affidavit from the NRC that presents conclusive contrary evidence 1I then Plaintiffs will be left without case support for their proposition and jurisdiction over this matter should be properly denied.
Defendant submits that the information Mr. Urhlich can provide would be directly relevant to the credibility of the Plaintiffs, would show that Plaintiffs' complaints of retali-ation for engaging in protected activity are wholly misplaced, and would provide some insight into the relationship between NRC and Department of Labor proceedings.
The Memorandum of Understanding between these two age'ncies states that "[e]ach agency agrees to share and promote access to all information it obtains concerning a particular allegation..."
Defendant is simply asking for the fulfillment of this commitment.
A Supplemental Affidavit from Bruno Urhlich is of fundamental importance to the determination of the issues
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To the extent that an affidavit from the NRC may
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present a credibility issue, reference to labor arbi-trations where discharged employees dispute their supervisors' versions of events may be helpful.
As summarized by Arbitrator Roumell, in resolving credibility resolutions between an employee... and the employee's accuser, weight may be given to the fact that the accused employee has an incentive for denying the charges against her and that she stands immediately to lose or gain in the case This recognition is especially
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cogent when the accusers have nothing to gain by their adverse testimony or when there is no demonstration of ill-will toward the accused.
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s before this Court and, in keeping with the spirit and intent of the Memorandum between these agencies, and as allowed by procedures under the Administrative Procedure Act, Defendant hereby petitions this Court to request the submission of a Supplemental Affidavit from NRC Investigator Bruno Urhlich
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on the issues as stated herein.
Respectfully submitted,
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Charles W. Whitney
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Jesse P. Schaudies, Jr.
o Attorneys for Defendant
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Georgia Power Company TROUTMAN, SANDERS, LOCKERMAN
& ASHMORE 1400 Candler Building
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Atlanta, Georgia 30043 (404) 658-8000
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UNITED STATES OF AMERICA DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES In the Matters of:
STEVE McNALLY
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Case No. 85-ERA-27
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BILLY WEATHERFORD
)
Case No. 85-ERA-29
)
JAMES REGISTER
)
Case No. 85-ERA-30
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SUSAN REGISTER
)
Case No. 85-ERA-31
)
LESLIE PRICE
)
Case No. 85-ERA-32
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Plaintiffs,
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v.
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GEORGIA POWER COMPANY
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Respondent.
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GEORGIA POWER COMPANY'S PETITION TO THIS COURT TO REQUEST A SUPPLEMENTAL AFFIDAVIT FROM NRC-INVESTIGATOR BRUNO URHLICH COMES NOW DEFENDANT GEORGIA POWER COMPANY and petitions this Court to request a Supplemental Affidavit in this action from NRC Investigator Bruno Urhlich.
In testimony l
before this Court on August 20, 1985, Plaintiffs Susan Register and Leslie Price made certain allegations with regard to conversations and contact they had with Mr. Urhlich.
I Plaintiffs have placed primary emphasis u1on their character-
ization of Mr. Urblich's actions and conversations in their
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effort to toll the statutory thirty (30) day provision for
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reporting to the Department of Labor allegedly illegal activity under the Energy Reorganization Act.
This was a new and unexpected issue at the time of the hearing and in subsequent conversations with NRC officials, Defendant has learned that Plaintiffs have greatly mis-characterized Mr. Urhlich's statements and actions.
Plain-tiffs alleged in their post-hearing brief that they were
" actively misled" by the NRC, b~ut it appears from conversa-tion with the NRC that Plaintiffs h, ave actively misled this Court in their characterization of Mr. Urhlich's conduct and statements.
Defendant has been informed by NRC officials o
that Mr. Urhlich would be permitted to give to this Court a Supplemental Affidavit on these issues in response to a direct request from the Administrative Law Judge.
Plaintiffs have placed the facts surrounding Mr. Urhlich's actions and conversations in a pivotal position in this case. Defendant submits it is incumbent upon this Court to
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invoke its powers under the Administrative Procedure Act and the " Memorandum of Understanding Between the NRC and the Department of Labor" by requesting a Supplemental Affidavit from NRC Investigator Bruno Urhlich on the issue of his
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conversations and contacts with Plaintiffs Susan Register and Leslie Price and any actions taken by him as 2 result of those conversations and contacts.
For this reason, and the
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reasons stated in Defendant's "BRIEF IN SUPPORT OF GEORGIA POWER COMPANY'S PETITION TO THIS COURT TO REQUEST A SUPPLE-MENTAL AFFIDAVIT FROM NRC INVESTIGATOR BRUNO URHLICH",
Defendant hereby petitions this Court to request the necessary Supplemental Affidavit by contacting NRC Regional Counsel at the following address:
Mr. Bradley Jones USNRC Region II Suite 3100 101 Marietta Street Atlanta, Georgia 30303
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Respectfully submitted,
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Charles W. Whitney Jesse P. Schaudies, Jr.
Attorneys for Defendant Georgia Power Company
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TROUTMAN, SANDERS, LOCKERMAN
& ASHMORE 1400 Candler Building Atlanta, Georgia 30043 (404) 658-8000
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Plant Vogtle, Georgia Power
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mw.2 6 31 ems at the nuclear facility and t
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use to go along, according to former
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nment Accountability Project (GAP)
the whistleblowers and investigate
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terramed*at thesisJtt y1gne*ttihsetM-iiargQQ@ek,y inprof1t 1aw firm establistied to ta's tikl6g'his c! ribe tb reach,an erations.
enforcement decisles,cogcerning.
Grace sad.
mbqrs", of[ialp his the letimidallon and karasament af"" staff 6et'W
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quality control inspectors at th'e. from the
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.ribed at an Atlanta press conferenice Vogtle nuclear power plant, cernQM NRC Gon Intsj
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. Nelsou@ race,;admkristrator of allegations thstTcanstruction,syt :
in the Rotunda of the State the AtlaataJtegional Office of the pervisors' harassed ind'intiinidhiled NRC,'said that the~ problema at. ' quality.catrol inspidtofs&Vod.:-
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"d by Educational Campaign for a s
l Vogtle bad.been corrected, howev-tie, in an attempt to manipolite:
, er, and vehemency dealed charges
'4 Plant)' the ACLU of Georgia (which them?
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that -hisistaff is. allowing nuclear '
.The invesugation was began la :
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power plants to. be built in the 1983 and completed %:risg:the Southeast without proper regard summer of 1984.with1NRC inves..
Labor Department) and GAP-Another
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for saf'ety.
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tigators reaching'the conclusioit :
l Mernwhile, a Washington-that employees of Puuman Power office in Augusta at 3:00 Wednesday
basedspublic interest organization Products-Inc., which is inst &Iling.
charged Wednesday that inspectors pipes at Vogtle.-were intimidatmg :
at Vogtle are continuing to be ha-and harassing some of theft 'o
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l rassed and iatimidated The group,- employees, who were responsi
on attitude among workers at the (
th2 Government. Accesatability.for.qu:;11ty and safe-y
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Project, hatopened assegusta of-at the plant.
A 1 car, they would not feel safe rice to-invesugate allesations.thatq Pumman transferred its pri
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Jubcontractors are punishing work-managerlo a new issignmenk ans'
yers who repore anaaman.orhtheiMRC' Investigation ladiested'
t is now being built.
. apection: practices thaft.coeld!begtSat1he actiedWra'ikstifittedt {
lems, coyer 145 and harrassment o_f r
compterpsing Vogtle's:selety. -
correct the problem, Grace said. +.
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ThE nuclear plant is being' 's But the NRC has ~yet.to. decide
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ballt'nelir" Augusta. It's~ current whether;'jo,tal% enforcement aq, shocking,u said Tim Johnson,
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projected cost is $8.4 billion.
tion againstl Georgia Power as a-
.or a Prosperaus Georgia, o-nonprofit
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Since last November, the Gov-result of the sifaation. J: fixed /'.
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ernm:nt Accountpbility Project
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' m*e-beest his laterviewed more than 80 Crace
"For some reason, en/,
s statewide.
"It is becoming workers at Plant Vogtle who have forcement action as de sn-
- charged $ hat quality. control
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foi-3gtle an economic disaster we cannot sp6ctors who crte' safety'
op sooner sa
.' e at the? plant often end up i timeUness of our enforcement ac-PG has called for cancel 1ation of
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fired, demoted or tra tionis embarrassing? : 9
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cos' ding to Billie Garde.
. denied that barassment ever took Georgia Power officials have clinic disector for the Projet$MD.
She said that instead.W.te-c plaes at Vogtle, s'contandon tom-4pending to the complaints,the ild investigate the workers'
' NRC has ignored thesn. Ms. Garde party officiale repeated'Wednesda7
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rny Laude Mer', & j s beibre the MMCF -
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charged that the NRCs Atlanta of-Ms. Garde 'said the Gover$-
fiee has tospoeded to worker corn-ment
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Accountabilitt Pro %.-
Irinalysis program which is being plaints.about noclear power plant which is 10 years 'old.dtdeWp6f chss construction.practites&ontact-viewed the way in whici ing the utilities beilding tiie plaats, the:NRC's five r,eglenaroffleds rm.
plaints should be abandoncd,
Instead of initiating NRC investi-spends to workers' conebrnFabsit
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gatioubat anispasul6dn puni-nueleer power plant t P "' '
rence wilI be Bi11ie Garduif the D.C.
The response from Itig:ioni.trihl-Live bei=g faben agatast
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.or Gene Guerrero.
P1 ant Vogtle
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isters NRC functions-iW%dBooth-said Grace.:"libbre never done seast; has been ' "absolutelf s conference.
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h"}3 that, and if they ces find evidence terrible," she said. '
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CLOSE SAFETY V10LATIONS
. a _v Durwood McAr,a.g, %
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Edisonal Pooe.E%M Monoging Editor x
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Nucleari tib6 system
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a guaranteett' harassment oblems at the nuclear facility and
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fuse to go along, according to former W hy is it so important that the construction of nuclearpower plants b Because the nature of the atomic energy heat source used m, the plants means the consequences of sloppy work t the whistleblowers and investigate ensure that the strict standards are met? nonprofit law firm esta'blistled to II w <
on Not by taking the builder's word for it, or even the owning utility 5, but by watching the construction like a hawk and in-s specting each part of the work'as it is done.
scribed at an Atlanta press conference
~ And how does one ensure that the inspectors themselves have-the independence and opportimity to do their vital job '5 in the Rotunda of the State correctly? Afost of us would say by using people from an ap _
propriate regulatory agency, or at least by hiring reputable r:ed by Educational Campaign for a
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and qualified people who aren't connected to any of the par-ties involved, right?
he plant), the ACLU of Georgia (which Incredibly, the Nuclear Regulatory Commission and the American nuclear power industry don't see it that way. They Labor Department) and GAP.
Another think it's perfectly all richt to use inspectors who are employ P office in Augusta at 3:00 Wednesdey ces of the very company wase work they are supposed to be inspecting - and blowing the whistle on if they find mistakes or sh<xldy work.
Not many people have the nerve to bite the hand that mon attitude among workers at the feesls them like that, even if the employing company behaves
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impeccably. In the real world it's even worse, as NRC investi-clear, they would not feel safe gators have found out at Georgia Power's Plant Vogtle con-struction site. There, inspectors working for Pullman Power it is now being built.
Products Inc. charge, construction bosses - also employees of Pullman - have threatened their jobs and salaries if-they did alems, coverups and harrassment o_f their job too well and slowed down the project.
We're not surprised at the. allegations that construction shocking," said Tim Johnsun,
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Imple under tremendous pressure to meet hurried schedules might be tempted to pass on some of that pressure to anyone for a Prospercus Georgia, a nonprofit who gets in their way over such minor details as safety.
rs statewide.
"It is becoming
% hat we are surprised at is a system m which the inspec-tors - the people whose first and only interest is supposed to ogtle an economic disaster we cannot he safeguarding the public - are employed by the very peo-pie they are supposed to be inspecting. Ilow can they serve :PG has called for cancellation of their employers and the public at the same time, when the two-interests directly conflict any time there is a question about quality?
' The NRC is going to have to do something about the spe.
sid investigate the workers'
cific allegations of harassment at the Plant Vogtle site, and'
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Geo'rgia Power ought to do something other than try to deny. rney Latfrie Fowler, who is that it has occurs. But more importar>t than incidents at one
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plant is the foolishness of perpetuating an arrangement that irinalysis program which is being virtually guarantees harassment - when the inmectors and plaints sh~ould be abandoned.[
the mspectee are paid with the same checks. That i a problem
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that could be resolved byJIye exertiog4a little ccumnogsense rence will be Billie Gard:6f the D.C.
and a modicum of regulatory authority, and we ejlk's th'.seejt.
done fast.
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Plant Vogtle whistleblowers will attend the Augusta press conference.
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FOP. RELEASE WEDhES' Y, SEPTENDER 25
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1) 404-724-4900 t.. Augusta, G675 son 404-659-5 Tim Press contact 03 Ten A 3 Augusta GAP, 3 WORKERS AT PLANT V0GTLE DISCLOSE SAFETY VIOLATIONS In a no-holds-barred effort to complete Plant Vogtle, Georgia Power officials are covering up serious safety problems at the nuclear facility and
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harrass, intimidate and fire workers who refuse to go along, according to former The Government Accountability Project (GAP)
workers at the construction site.
has opened an office in Augusta to represent the whistleblowers and investigate s
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GAP is a D.C.-based, nonprofit law firm esta'blistted to
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the safety problems.
supportStorkers' rights.
This and other information will be described at an Atlanta press confere Ice
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at 9:30 a.m. Wednesday morning, September 25 in the Rotunda of the State i
ducational Campaign for a Capitol. The orets ennference-is tos ous Georgia (an intervenor against the plant), the ACLU of Georgia (which
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Pro Another is representing the workers before the U.S. Labor Department) and GAP.
press conference will be held at the new GAP office in Augusta at 3:00 Wednesdn afternoon.
According to the whistleblowers, a common attitude among workers at the plant is that, while they are usually pronuclear, they would not feel safe living near Plant Vogtle if it operates as it is now being built.
"The disclosures concerning safety problems, coverups and harrassment 0.f workers who are trying to do their jobs are shocking," said Tim Johnsun,, /-
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Executive Director of Educational Campaign for a Prospercus Georgia, a nonprofit
"It is becoming consumers' group with more than 1,500 members statewide.
clearer and clearer that not only is Plant Vogtle an economic disaster we cannot afford, but it is being built unsafely." ECPG has called for cancellation of the project.
"The Nuclear Regulatory Commission should investigate the workers'
complaints promptly," said Atlanta ACLU attorney Laurie Fowle ',' who is
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"And the urinalysis program which is being representing the whistleblowers.
used to harrass workers who make safety complaints'should be abandoned.[
Also attending the Atlanta press conference will be Billie Gardt<if the D.C.
Plant Vogtle GAP office and Georgia ACLU Executive Director Gene Guerrero.
whistleblowers will attend the Augusta press conference.
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PcETl.II,'.I P.ECPPT P.EC' JESTED Atlanta, CA f0'303
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