ML062790430

Letter from Cross Law Firm, S. C. Nuclear Access Authorization Denial Appeal

ML062790430
Person / Time
Site:	Kewaunee
Issue date:	03/14/2002
From:	Hitchcock N Cross Law Firm, SC
To:	Cleveland R Office of Nuclear Reactor Regulation, Nuclear Management Co
References
FOIA/PA-2006-0113
Download: ML062790430 (9)

Text

CROSS LAW FIRM, S.C.

CROSS LAW FIRM, S.C.

March 1 4 th 2002 EMPLO YMENT &

BUSINESS LA FW Mr. Randall D. Cleveland Access Manager Nuclear Management Company Lawyers' Building 700 First Street 845 North 11th Street Hudson, WI 54016 Milwaukee, WI 53233 (414) 224-0000 RE: Nuclear Access Authorization Denial Appeal Telephone

Dear Mr. Cleveland:

(414) 273-7055 Facsimile

-Please i nclosed a completed appeal for the denial of security access for Mr.

The Cross Law Firm has been retained to represerJ_ in the above referenced matter. All further communication on this matter should be made directly to our office and please call if there is anything else required.

Nola J. Hitchcock Cross Very truly yours, Aitorney

• Tricia L. Knight CROý3SSJ 'A FIRM, SY..

A torney Keith O'Donnell Altorney o ross nai*1:,crosslawfirm.com NJHC/mnw Allison M. Palozzolo Enclosure Office Manager/Paralega!

Chandra D. Mosley Paralegal 7z(0)

Ben Hilchcock Cross Paralegal informaion Ini iis record was deleted inaccodance wth the Freedom of Information

/12 Act, exemptionls 7-a o ,--1_

NMV Committed to Nuclear Excellenc*;r REQUEST FOR REVIEW OF NUCLEAR ACCESS AUTHORIZATION DENIAL BASED ON BACKGROUND INFORMATION INSTRUCTIONS FOR REQUEST FOR REVIEW APPLICATION (Read this page before completing application.)

1.The reason for your access authorization denial is given in Section I of this form. If you want to request a review of this decision, you must complete this form.

2. -Your review will be conducted by an NMC entity independent of NMC Security.

3. You should be notified in writing of the disposition of your review withlin 30 days following receipt by NMC of all information supporting your review request. Pending the disposition of your review request, your access authorization will remain denied

4. This form must be completed in ink or typed. Please print or write legibly. You must cbmplete Sections 1I and III.Section IV is for NMC use only. If you need additional space, please put your name on each extra page used and indicate the section number to which your are responding.

5. If you have questions while completing this form, please contact the NMC Access Manager for help at (715) 377-3402. Incomplete forms cannot be processed and will be returned for corrections.

Improperly completed forms only delay your request for review of access authorization denial.

6. Pursuant to the Fair Credit Reporting Act, a copy of the consumer investigative report (CIR) which was

-obtained by Nuclear Management Company in support of your request for a Nuclear Security Clearance is enclosed. -4,fthis box is checked, NMC did not request a CIR.

7. After comnpleting the request for review, please make sure that you sign the certification provided below and that your signature has been witnessed. Once completed, the request for review is considered to be CONFIDENTIAL.

CERTIFICATION I certify that the information I have provided in completing this application for review of access authorization denial is true, complete andaccurate to the best of my knowledge and beliefs, and is made in good faith. I authorize NMC and its agents to review the information I have provided in this applicaiion in reviewing my access authorization denial.

SIGNATU ATE WITNESS- __C J:

NMC Security Form 4G-20 Rev 00 Page I of 5

SECTION 1: REASON FOR DENIAL I. a NMC SECURITY PROCEDURE CITATION NMC Security Procedure 4G Section 16.4.4.b.2.ii & 3 (NUMARC 89-01, Section 7.1 item H).

I.b PROCEDURE TEXT (paraphrase)

Individuals are denied access where background information is developed adversely reflecting on trustworthiness and reliability.

T.c CASE FACTS

a. On December 10, 2001 you acknowledge to an NMC investigator that while working at Kewaunee you smelled alcohol on a co-worker and did not report the observation to either Kewaunee supervision or security. When asked why you did not report the smell of alcohol, you stated you "feared union reprisal".

NMC security Form 4G-20 Rev 00 Page 2 of 5

SECTION II: APPLICANT RESPONSE g m 7(c)

IN THE SPACE BELOW, PLEASE PROVIDE THE REASON (S) WHY YOU BELIEVE THE DENIAL OF YOUR NUCLEAR ACCESS AUTHORIZATION (AS STATED IN SECTION I IS NOT WARRANTED)

The information stated as the reason for denial in Section I.c of this form is incorrect, apparently as a resultso a misunderstand inof the December 10, 2001 phone conversation between Investigator Walkeland Mr.VThe investigator contends that there is reason to believe that Mr.

"trustworthiness and reliability" is compromised. The facts show the ppposite . did not make the statements in the manner suggested and, additionally, the underlying information is untrue in any case.

'0611 bhas been a steamfitter/welder and a welding consultant since the 1960's. He has written welding procedure and quality control manuals, has worked as a welding superintendent as well as a weldin consultant in several settings. __ eceived his FBI clearance in 1968. Since about 1981, MrfM has worked primarily in nuclear plants as a welder instructor, trainer, inspector and troubleshooter. He is highly respected welding consultant in his field.

The investigator states that during the subject phone conversation, Mr cknowlddged that "while working at Kewaunee (he) smelled alcoh co-worker and did not report the observation to either Kewaunn fact make such an a owledgement. Indeed, Acri t D snopttnmea longa e' inaiity to smell due to this problem." (See elr.

diagnosedMrih f agClini, iHe states that this condition led to "decreased ability t mell all various

• o ors:.. (See Exhibit B.) Mr. vas recently examined-on Januay 7, 2002 for his Occupational Health Screening. RN Julie Peterson noted at that time that Mr. suffered from "decrease(d) sense of smell." (See Exhibit short, Mr.W as physically unable to detect the smell of alcohol on his co-worker. And Mr. ertainly did not state otherwise. His was present during the entire phone conversation. She attests to the fact that MrOever stated that he smelled alcohol on the co:worker's breath. (See Exhibit;D.) M pecifically recalls stating that he had only "incidental" contact with the co-worker and that he had a hard time smelling anything because of sinus problems since he was a young child. (Again, see Exhibit D.)

Accordin to the investigator, Mr. , tated that the reason he did not report the smell of alcohol was that Mr.W "feared union reprisal" It is now clear that Mr. 09did not, indeed could notsmell alcohol on the co-worker. Mr. nd the investigator did discuss union reprisal. Apparently, this was in the context of why people did not report employees in the plant, not why Mr.- himself did not report people in he lant. Indeed, Mr. as previously reported co-workers to supervision or security, What Mr. meant to explain and in fact did explain was that if he could not actually smell alcohol on someone's breath, as he cannot, he would fear union reprisal if he turned someone in without any basis for doing so. Fearing union reprisal and failing to act as a result are two different things. Mr.

.*~as never failed to act. He explained to the investigator that he has previously reported a co-worker when he observed staggered walking slurred speak, bloodshot eyes, etc., since he cannot detect a person who has been drinking by smell. Mr."id not observe the co-worker in question exhibiting any of those non-olfactory symptoms. Hence, there was no t report. There was no more than a misunderstanding by the investigator about what Mr. as trying to convey. Again confirms this. (See Exhibit D.)

Mr.3 is entirely trustworthy and reliable, as any of his prior supervisors will confirm.

NMC Security Fornn 4G-20 Rev 00 Page 3 0of.

-- 7 SECTION III: APPLICANT DOCUMENTATION IF YOU ARE SUBMITTING ADDITIONAL INFORMATION IN SUPPORT OF YOUR REQUEST FOR REVIEW, PLEASE LIST AND IDENTIFY EACH DOCUMENT BELOW:

Document Title Author Date A. Medical Report Dr.ason Hopp6, M.D. February 8, 2002 jrtemal Medicine revea Clini-B. Medical Report Steven L. Kag M.D. March 7, 2002

",*agen.llergy Clinic C. Occupational Health tjuiie Petersol, R.N. January 7, 2002 Screening Report D. Witness Statement March 13, 2002 NMC security Form 4G-20 Rev 00 Page 4 of 5

SECTION IV: NUCLEAR ACCESS AUTHORIZATION REVIEW DISPOSITION NMC Senior Site Operations Officer Referral: Yes No NMC Senior Site Operations Officer:

RECOMMENDATION (X CHOICE):

Uphold action.

Reverse action (e.g., denial, suspension). Basis for reversal is given below.

Continue review process pending receipt of additional information.

REVERSAL BASIS:

Name Signature - Date NMC security Form 4G-20 Rev 00 Page 5 of 5

tP R E -' V E A CL I N I Cý February 8, 2002 RE:

To Whom It May Concern:

I am the primary. carer for. havin last seen the 1

patient in my office January 22, 2001.. Mr.ý carries the diagnosis of "6'OS 69alMA O a a longstanding impaired ability to smell due to this problem. If you have any further questions or concerns, please do not hesitate to contact my office.

tlE t26 7(c)

EXHIBIT bA R( ). I'-llx 1!)(1711, (arvii flay. Wisromiii 5 1:10-90711 1 9211 196- 171111 1 920 VIG-17111

.0j3t 00/ 4CU ý U. WA C L .1 N I C 5to en L. Kage~MdKE.

Ame,&Af 9*ad knaamfle Uadkino American boardfAfiervy~mmru)OOV March 7, 2002 IIIseph Zond=i0.M.D.

Ame¶rican6Po#rdof Ps~Iurk$

Alig and hma,reci__ _

Dear M,

I have received yet request for medical records pertaining to you here at theiagen lergy-Clinic. This letter uinarizes your care with us.

You were seen at tl e a e years in June of 1991 at thctimrnpvpresented with classic of these conditions directly affected your ability to breathe nai y t orlh the nose. This led to symptoms of na al obstruction, decreased ability to smell all various odors, as well as excessive mucus p oduction, sneezing and itching.

We found you to b allergic OW" I

You were last exa ilned on May 28, 1998, at which tim As I have not exaz ined you in the past 4 years, I am unable to provide any more current information to yo . I trust that this information will prove useful'to you. If any questions arise, please feel free to -ontact me.

Sincerely yours, 4teven Kagen M.

mew 00 W. Lawrence St. WI 54911 E,2,333 Riverside Dr. Green Bay, WI 54301 920-432-880..'

March 13 '1, 2002 STATEMENT 0O I. I.I residing at i phone

2. On Decemb, 10,2001, l w s present in our home during a phone conversation between NMC Investigatorflarold Walk'*J I heard all of the statements made b*7during that conversation.

3. During the said conversation,M ri 1id not state Ihat lie had smelled alcohol on a co-woiker's breath.

4. During the said conversation, M4IN did state that he feared union reprisal, but he also stated that he

. would and had reported people who exhibited definito signs of alcohol or drug abuse (e.g., slurred speech, staggering, redness of eyes, etc.)

5. 1 heard Mr. ate that his contact with the co-worker, was "incidental" and that he, (Mr.4 , has had problems with his sense of smell since he was a young child.

6. Mr.W has in the past discussed with mte reporting co-workers' misconduct and even firing an employee despite concerns of union reprisal. He stated that hi could not live with himself if anything was to happen to anyone because he did not report an-employce. Therefore, 17v did in fact rcportffire them.

7. Mr.I most oeten works as a consultant rather tlhman union hiring halljobs and he is therefor' less dependant on the union than his co-workers. O,¶iL.

EXHIBIT A_