ML14188A686
| ML14188A686 | |
| Person / Time | |
|---|---|
| Site: | Robinson  |
| Issue date: | 05/04/1989 |
| From: | Ebneter S NRC/IE, NRC/RGN-II |
| To: | Eury L Carolina Power & Light Co |
| References | |
| NUDOCS 8905300221 | |
| Download: ML14188A686 (24) | |
Text
MY0 4 1989A Docket No. 50-261 License No. DPR-23 Carolina Power and Light Company ATTN:
Mr. Lynn W. Eury Executive Vice President Power Supply P. 0. Box 1551 Raleigh, NC 27602 Gentlemen:
SUBJECT:
ENFORCEMENT CONFERENCE
SUMMARY
- H. B. ROBINSON This refers to the enforcement conference held at our request in the Region II office on April 27, 1989.
This conference concerned a 10 CFR 50.7 issue involving the termination of a contractor employee.
A list of attendees, a summary of the conference, and a copy of your handouts are enclosed.
We are continuing our review of this issue to determine the appropriate enforcement action.
In accordance with Section 2.790 of the NRC's "Rules of Practice," Part 2, Title 10, Code of Federal Regulations, a copy of this letter and its enclosures will be placed in the NRC Public Document Room.
Should you have any questions concerning this letter, please contact us.
Sincerely, (Original signed by JPStohr/for)
Stewart D. Ebneter Regional Administrator
Enclosures:
- 1. List of Attendees
- 2.
Enforcement Conference Summary
- 3.
Licensee Handouts cc w/encls:
C. R. Dietz, Manager Robinson Nuclear Project Department R. E. Morgan, Plant General Manager State of South Carolina bcc w/encls:
(See page 2)
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NRC Resident Inspector DRS Technical Assistant Document Control Desk J. Lieberman, OE RI RII RH RH RCarrol :ser HDanc DVerrelli BHe' L
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ENCLOSURE 1 LIST OF ATTENDEES Carolina Power and Light R. A. Watson, Senior Vice President For Nuclear Operations C. R. Dietz, Manager, Robinson Nuclear Project Department L. I. Loflin, Manager, Nuclear Licensing J. M. Curley, Director, Regulatory Compliance D. E. Hollar, Associate General Counsel B. Meyer, Principal Health Physics Specialist R. Anoba, Project Engineer, Nuclear Safety R. E. Oliver, Principal Engineer, Nuclear Safety Nuclear Regulatory Commission, RII M. L. Ernst, Deputy Regional Administrator C. W. Hehl, Deputy Director, Division of Reactor Projects (DRP)
G. R. Jenkins, Director, Enforcement and Investigation Coordination Staff (EICS)
D. M. Verrelli, Chief, Reactor Projects Branch 1, DRP D. M. Collins, Chief, Emergency Preparedness and Radiological Protection Branch, Division of Radiation Safety and Safeguards H. C. Dance, Chief, Reactor Projects Section 1A (RPS-1A), DRP L. W. Garner, Senior Resident Inspector R. E. Carroll, Project Engineer, RPS-1A, DRP B. Uryc, Senior Enforcement Coordinator, EICS Nuclear Regulatory Commission, Headquarters R. Lo, Senior Project Manager, NRR
ENCLOSURE 2 ENFORCEMENT CONFERENCE
SUMMARY
The Deputy Regional Administrator opened the meeting by stating its purpose was to discuss the Secretary of Labor's (SOL) decision of June 21,
- 1988, involving the September 5, 1984 termination of Mr. P. A. Blackburn by Metric Constructors, Inc. (a contractor for Carolina Power and Light Company) while working at the H. B. Robinson Nuclear Plant.
Since the SOL considered Mr. Blackburn's termination to be the result of his engaging in protected activity (i.e., refusing to go inside containment because of concerns over removal of some lead shielding), Metric Constructors, Inc. was found to be in violation of the employee protection provisions of the Energy Reorganization Act (ERA) of 1974, Section 210.
The Deputy Regional Administrator explained to Carolina Power and Light Company (CP&L) that the NRC will normally initiate enforcement action against the licensee under 10 CFR 50.7 when the SOL finds that such discrimination has occurred.
He further pointed out that although NRC inspections confirmed that there were no "actual" health physics concerns, the true bearing on this case was whether or not the employee was reasonable in his apprehension of the radiological situation at the time he raised his concern.
CP&L acknowledged their responsibility under 10 CFR 50.7, but stated that they felt in this case they were in compliance.
To further demonstrate their
- position, CP&L presented a sequence of events, discussing the radiation protection training received by Mr. Blackburn while at H. B. Robinson; his previous radiation protection experience; excerpts from his testimony before the Department of Labor Administrative Law Judge illustrating knowledge that CP&L's established radiation exposure limits were below NRC limits, and therefore safe; weekly safety meetings held prior to September 5, 1984, addressing the shielding removal; and the June 13,
- 1986, Department of Labor Administrative Law Judge's recommendation in favor of Metric Constructors, Inc.
which was subsequently not accepted by the SOL.
The licensee then indicated that under the literal interpretation of Section 210 of the ERA/10 CFR 50.7, as well as the findings in the "Brown and Root" case, Mr. Blackburn did not engage in "protected activity" since there was no contact or attempted contact with NRC or any other governmental agency prior to his discharge.
In response, NRC pointed out that there have been cases subsequent to "Brown and Root" which established the policy that the reporting of safety concerns by an employee to his management is also considered "protected activity."
Still contending that Mr. Blackburn was not involved in "protected activity,"
CP&L cited the case of "Pensyl v. Catalytic" - a worker has a right to refuse to work when he has a good faith, reasonable belief, that working conditions are unsafe or unhealthful.
Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience.
CP&L stated that based on their earlier discussion of Mr. Blackburn's training, previous experience, and testimony, along with the weekly safety meetings and the Administrative Law Judge's decision, they considered that Mr. Blackburn's refusal to work was unreasonable 2
(i.e.,
he had sufficient training and experience to know that his work assignment would not result in excessive exposure nor violate NRC regulations).
CP&L concluded their presentation by indicating that NRC should exercise discretion and not pursue enforcement since:
(1) no radiation protection violation occurred; (2) there was no threat to public health and safety as a result of the contractor's action, (3) CP&L was not made aware of the concern and does not get involved with labor relation actions of independent contractors without notification/cause; (4) CP&L never denied Mr. Blackburn access (i.e., he subsequently worked at Brunswick); (5) many avenues existed to report the concern to CP&L, as required in general employee training (i.e.,
health physics technicians); and (6) CP&L's record at H. B. Robinson shows this to be an isolated incident.
In addition, CP&L indicated that their Quality Check program, instituted in March 1987, should help detect/prevent similar type occurrences.
The Deputy Regional Administrator closed the conference with encouraging words for CP&L's Quality Check program and thanked them for their time.
0 0
ENCLOSURE 3 CAROLINA POWER & LIGHT COMPANY PRESENTATION TO NRC REGION II ATLANTA, GEORGIA APRIL 27, 1989 ENFORCEMENT CONFERENCE KBW:89-lII(I)
EVENT ON SEPTEMBER 5, 1984, ONE OF CP&L'S CONTRACTORS TERMINATED ONE OF ITS EMPLOYEES FOR REFUSING A WORK ASSIGNMENT IN THE REACTOR CONTAINMENT BUILDING. HIS REFUSAL WAS EXPRESSED TO BE BASED ON CONCERN FOR REMOVAL OF TEMPORARY SHIELDING WHICH HAD OCCURRED NEAR THE END OF THE STEAM GENERATOR REPLACEMENT OUTAGE AT ROBINSON.
ON JUNE 13, 1986, FOLLOWING AN INVESTIGATION AND FORMAL HEARING, A DEPARTMENT OF LABOR ADMINISTRATIVE LAW JUDGE (ALJ) ISSUED A "RECOMMENDED DECISION AND ORDER" FINDING THAT THE EMPLOYEE'S REFUSAL TO WORK WAS UNREASONABLE BASED ON SUFFICIENT TRAINING AND EXPERIENCE TO KNOW THAT HIS WORK ASSIGNMENT WOULD NOT RESULT IN EXCESSIVE EXPOSURE NOR VIOLATE NRC REGULATIONS.
ON JUNE 21, 1988, THE SECRETARY OF LABOR OVERTURNED THE ALJ RECOMMENDATION AND JUDGED THAT THE TERMINATION REPRESENTED DISCRIMINATION UNDER THE ENERGY REORGANIZATION ACT OF 1974, SECTION 210.
KBW:89-111(2)
CP&L'S POSITION RELATIVE TO ERA SECTION 210/10CFR50.7 TERMINATION DID NOT CONSTITUTE DISCRIMINATION SINCE EMPLOYEE WAS NOT ENGAGED IN PROTECTED ACTIVITY, AND EMPLOYEE'S REFUSAL TO WORK WAS UNREASONABLE BASED ON HIS TRAINING, KNOWLEDGE AND EXPERIENCE AT THE TIME, EVEN IF YOU ASSUMED THAT DISCRIMINATION ON PART OF EMPLOYEE'S MANAGEMENT HAD OCCURRED, CIRCUMSTANCES SURROUNDING THE EVENT RELATIVE TO CP&L'S INVOLVEMENT AND ITS RELATIONSHIP WITH AN INDEPENDENT CONTRACTOR ARE SUCH THAT NRC SHOULD EXERCISE DISCRETION AND NOT PURSUE ENFORCEMENT.
KBW:89-14i1(3)
AGENDA INTRODUCTION C. R. DIETZ SEQUENCE OF EVENTS J. M. CURLEY CP&L'S POSITION - SECTION 210/10CFR50.7 D. E. HOLLAR RADIATION PROTECTION B. MEYER CP&L/CONTRACTOR RELATIONSHIP AND COMMUNICATIONS J. M. CURLEY CONCLUSION C. R. DIETZ KBW:89-1411(4)
SEQUENCE OF EVENTS EMPLOYEE:
MARCH 28, 1984 HIRED BY CONTRACTOR APRIL 4, 1984 COMPLETED G.E.T.
APRIL 19, 1984 COMPLETED BADGING APRIL 19 - SEPTEMBER 5, 1984 RCA ENTRIES:
60 (19-CV)
EXPOSURE:
944 MREM (886 MREM - CV)
SEPTEMBER 4, 1984 AWARE TEMPORARY SHIELDING BEING REMOVED FROM CV SEPTEMBER 5, 1984 TERMINATED FOR REFUSING A WORK ASSIGNMENT IN CV KBW:89-111(5)
SEQUENCE OF EVENTS EMPLOYEE'S COMPLAINT SEPTEMBER 5, 1984 TERMINATED SEPTEMBER 12, 1984 CONTACTED NRC AND SC DOL SEPTEMBER 19, 1984 S.C. DOL RECEIVES LETTER DECEMBER 28, 1984 NRC ADVISED EMPLOYEE OF OCTOBER 29 - NOVEMBER 2, 1984 INSPECTION RESULTS
"...INSPECTION COULD NOT SUBSTANTIATE YOUR CONCERNS" DECEMBER 16, 1985-DOL HEARING (CP&L PARTICIPATED BY PROVIDING WITNESS)
JUNE 13, 1986 DOL ADMINISTRATIVE LAW JUDGE (ALJ) CONCLUDED NO DISCRIMINATION OCCURRED JUNE 21, 1988 SECRETARY OF LABOR OVERTURNED ALJ'S RECOMMENDED DECISION MARCH 24, 1989 CP&L INVITED TO ENFORCEMENT CONFERENCE RELATED TO 10CFR50.7.
KBW:89-1411(6)
ERA SECTION 210/10 CFR 50.7 I.
SECTION 210 OF THE ENERGY REORGANIZATION ACT MAKES IT UNLAWFUL FOR AN EMPLOYER TO DISCHARGE AN EMPLOYEE WHO:
- 1. COMMENCED, CAUSED TO BE COMMENCED, OR IS ABOUT TO COMMENCE A PROCEEDING UNDER SECTION 210 OR THE ATOMIC ENERGY ACT OF 1954, OR A PROCEEDING FOR THE ADMINISTRATION OR ENFORCEMENT OF ANY REQUIREMENT IMPOSED UNDER SECTION 210 OR THE AEA;
- 3.
ASSISTED OR PARTICIPATED OR IS ABOUT TO ASSIST OR PARTICIPATE IN ANY MANNER IN SUCH A PROCEEDING OR IN ANY OTHER ACTION TO CARRY OUT THE PURPOSES OF SECTION 210 OR THE AEA.
KBW:89-111(7)
ERA SECTION 210/10 CFR 50.7 II, 10 C.F.R. 50.7 PROVIDES, IN PERTINENT PART, THAT A VIOLATION OF THE EMPLOYEE PROTECTION PROVISIONS OF SECTION 210 BY A LICENSEE, CONTRACTOR OR SUBCONTRACTOR "MAY BE" GROUNDS FOR ENFORCEMENT ACTION BY NRC.
KBW:89-1411(8)
ERA SECTION 210/10 CFR 50.7 III, EMPLOYEE DID NOT ENGAGE IN "PROTECTED ACTIVITY" WITHIN MEANING OF SECTION 210:
A. NO EVIDENCE HE PARTICIPATED IN OR ATTEMPTED TO PARTICIPATE IN A "PROCEEDING," OR IN ANY OTHER ACTION TO CARRY OUT THE PURPOSES OF SECTION 210 OR THE AEA PRIOR TO HIS DISCHARGE:
- ONLY INTERNAL COMPLAINT ABOUT PERSONAL SAFETY.
- BROWN & ROOT STANDARD:
CONTACT WITH "COMPETENT ORGAN OF GOVERNMENT."
KBW:89-1411(9)
EXCERPTS FROM TESTIMONY PG 40 LN 20-24 Q
ARE YOU SAYING THAT METRIC WAS ASSIGNING YOU TO A JOB THAT WAS GOING TO REQUIRE YOU TO EXPOSE YOURSELF TO RADIATION DOSES BEYOND THOSE THAT WERE PERMITTED THE CP&L REQUIREMENTS?
A NO, SIR.
PG 46 LN 15-21 O
MR. BLACKBURN, IF YOU HAD REPORTED FOR WORK THAT DAY, YOU HAD METHODS FOR DETERMINING THE AMOUNT OF RADIATION DOSAGE THAT YOU WERE EXPOSED TO, IS THAT NOT CORRECT?
A RIGHT 0
WAS THERE ANY REQUIREMENT OR INSTRUCTION BY ANYONE THAT YOU WERE TO EXCEED THOSE LIMITS?
A NO, NOBODY TOLD US THAT.
KBW:89-1411(11)
0 0
EXCERPTS FROM TESTIMONY PG 54 LN 5-15 Q
THEIR SIDE OF THE SAFETY AND NRC'S SIDE OF THE SAFETY WAS THAT WHEN YOU ACCEPTED THIS EMPLOYMENT TO WORK IN A RADIATION OR NUCLEAR FACILITY, YOU WOULD BE EXPOSED TO SOME RADIATION. IS THAT NOT CORRECT?
A THAT'S TRUE Q
THEY ESTABLISHED LIMITS TO THAT RADIATION THAT ARE DETERMINED TO BE SAFE LIMITS, ISN'T THAT RIGHT?
A I WOULD SAY SO, SAFE LIMITS.
Q YOU HAVE INDICATED THAT YOU WOULD NOT HAVE BEEN EXPOSED TO ANYWHERE NEAR THOSE SAFE LIMITS. IS THAT CORRECT?
A
- RIGHT, KBW:89-1411(10)
ERA SECTION 210/10 CFR 50.7 B. EVEN UNDER THE DEPARTMENT OF LABOR'S PENSYL V.
CATALYTIC DECISION, EMPLOYEE'S REFUSAL TO WORK WAS NOT PROTECTED ACTIVITY:
- BELIEF THAT WORK CONDITIONS ARE UNSAFE MUST BE REASONABLE BASED ON "KNOWLEDGE AVAILABLE TO A REASONABLE MAN IN THE CIRCUMSTANCES WITH THE EMPLOYEE'S TRAINING AND EXPERIENCE."
- HEARING RECORD SHOWS THAT EMPLOYEE HAD TRAINING, EXPERIENCE AND INFORMATION AVAILABLE TO KNOW THAT UNSAFE RADIOLOGICAL CONDITION DID NOT EXIST.
- SECRETARY'S REVERSAL OF ALJ'S FINDINGS OF FACT IS HIGHLY UNUSUAL AND QUESTIONABLE.
KBW:89-1 11(12)
CP&L/CONTRACTOR RELATIONSHIP AND COMMUNICATIONS
- INDEPENDENT CONTRACTOR
- OBLIGATED TO COMPLY WITH REGULATIONS GOVERNING CP&L
- RESPONSIBLE FOR LABOR RELATIONS
- WAGE/BENEFITS
- HIRING/FIRING
- CP&L NOT NOTIFIED BY CONTRACTOR NOR EMPLOYEE OF CONCERN PRIOR TO TERMINATION CP&L NEVER DENIED EMPLOYEE ACCESS (WORKED AT BSEP, 1985)
KBW:89-111(13)
0 0
CP&L/CONTRACTOR RELATIONSHIP AND COMMUNICATIONS QUALITY CHECK (SINCE MARCH 1987)
- EXIT INTERVIEWS (CONTRACT REQUIREMENT)
- QUALITY CHECK REPORTS KBW:89-1411(14)
CAROLINA POWER & LIGHT COMPANY QUALITY CHECK PROGRAM IMPLEMENTED:
SHEARON HARRIS APRIL, 1984 ROBINSON MARCH, 1987 RESULTS:
INTERVIEWS/REPORTS CP&L 21,305 ROBINSON 1,702 FOLLOWUP ITEMS CP&L 1,437 ROBINSON 115 ITEMS OPEN CP&L 10 ROBINSON 0
KBW:89-141(15)
RADIATION PROTECTION RADIATION PROTECTION KNOWLEDGE SUCCESSFULLY COMPLETED GET I & II EMPLOYEE'S TESTIMONY WEEKLY SAFETY MEETINGS ADMINISTRATIVE LAW JUDGE'S DECISION
- RADIATION PROTECTION EXPERIENCE PREVIOUSLY WORKED IN RADIATION CONTROL AREA PREVIOUSLY WORKED IN CONTAINMENT KBW:89-1411(16)
1984 G.E.T. LESSON PLAN "WORKER'S RIGHTS, 10 CFR 19" AS A WORKER AT A NUCLEAR POWER PLANT, YOU HAVE CERTAIN RIGHTS AND RESPONSIBILITIES UNDER FEDERAL LAW. CP&L IS REQUIRED TO POST NOTICES LISTING THE ADDRESSES AND TELEPHONE NUMBERS OF NRC OFFICES AND TO INFORM WORKERS OF THEIR RIGHTS AND OBLIGATIONS.
FORM NRC-3, "NOTICE TO EMPLOYEES," SHALL BE POSTED BY EACH LICENSE WHEREVER INDIVIDUALS WORK IN OR FREQUENT ANY PORTION OF A RESTRICTED AREA.
THIS FORM IS ESSENTIALLY A MAP WITH ALL THE NRC OFFICES SHOWN AND THE TELEPHONE NUMBER OF EACH OFFICE LISTED.
IF THE EMPLOYEE NEEDS TO CALL ANY OF THE LISTED OFFICES TO REPORT A POTENTIAL OR EXISTING VIOLATION, HE MAY DO SO.
REPORT PROMPTLY TO CP&L ANY CONDITION WHICH MAY CAUSE A VIOLATION OF LICENSE OR UNNECESSARY EXPOSURE TO RADIATION.
KBW:89-1411(17)
RADIATION PROTECTION
- RADIATION INFORMATION/FACTS SHIELDING SURVEYS FELLOW WORK CREW DOSES
- OPPORTUNITY AFFORDED TO ALLAY CONCERNS
- NRC INVESTIGATED ALLEGATION
SUMMARY
KBW:89-1411(18)
CONCLUSION CP&L ACCEPTS FULL RESPONSIBILITY FOR ACTIONS OF ITS CONTRACTORS EMPLOYEE NOT ENGAGED IN PROTECTED ACTIVITY
- NO GOVERNMENT/AGENCY WAS NOTIFIED OF CONCERN
- REFUSAL TO WORK WAS UNREASONABLE NRC SHOULD EXERCISE DISCRETION AND NOT PURSUE ENFORCEMENT SINCE:
- NO RADIATION PROTECTION VIOLATION OCCURRED
- -NO THREAT TO PUBLIC HEALTH AND SAFETY AS A RESULT OF CONTRACTOR'S ACTION
- CP&L NOT INVOLVED WITH LABOR ACTION OF INDEPENDENT CONTRACTOR WITHOUT NOTIFICATION/CAUSE
- CP&L NEVER DENIED ACCESS
- MANY AVENUES EXISTED FOR EMPLOYEE CONCERNS
- CP&L'S RECORD AT ROBINSON - ISOLATED INCIDENT APPROXIMATELY 4000 CONTRACTORS BADGED SINCE SEPTEMBER 5, 1984 KBW:89-1411(19)