ML17306A899

Final Director Decision Re Petition That NRC Take Actions Per 10CFR2.206.Petition Denied

ML17306A899
Person / Time
Site:	Palo Verde
Issue date:	08/12/1992
From:	Murley T Office of Nuclear Reactor Regulation
To:
Shared Package
ML17306A898	List: ML17306A897 ML17306A899 ML17306A900
References
2.206, DD-92-04, DD-92-4, NUDOCS 9208190277
Download: ML17306A899 (28)

Text

DD 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION THOMAS E.

HURLEY, DIRECTOR In the Hatter of ARIZONA PUBLIC SERVICE

COMPANY, ET AL.

(Palo Verde Nuclear Generating Station, Units 1, 2,

and 3)

Docket Nos.

50-528, 50-529, and 50-530 (10 CFR 2. 206)

FINAL DIRECTOR'S DECISION UNDER 10 CFR 2.206 I.

INTRODUCTION On May 22,

1990, David K. Colapinto, Esq.,

submitted a Petition on behalf of Hrs. Linda E. Mitchell (Petitioner) requesting that the U.S. Nuclear Regulatory Commission (NRC) take actions pursuant to 10 CFR Section 2.206 regarding the Palo Verde Nuclear Generating Station (Palo Verde) of the Arizona Public Service Company, et al.

(APS or Licensee).

The Petitioner stated that she is employed by the Licensee as an associate electrical engineer at Palo Verde.

She alleges that serious violations exist at Palo Verde in the systems for emergency lighting and fire protection which were uncovered by the NRC during routine inspections, and that Licensee personnel acted improperly to "water down" the inspection findings, suppress other serious violations, and discredit an NRC inspector.

Petitioner also alleges that NRC Region V management retaliated against the NRC inspector in question and agreed to "water down" inspection report findings as a result of the efforts made by the Licensee.

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Petitioner claims that these actions will chill efforts by NRC inspectors and employees of NRC-licensed facilities to raise safety concerns.

Petitioner sought a variety of relief, including (1) instituting a

proceeding pursuant to 10 CFR Section 2.202 to modify, suspend, or revoke the licenses issued by the NRC for Palo Verde; (2) issuing citations to the Licensee for violations improperly and illegally deleted from an NRC inspection report; (3) issuing fines to certain employees of the Licensee for allegedly tampering, obstructing and impeding an ongoing NRC inspection; (4) taking disciplinary actions against any and all NRC employees allegedly involved in retaliating against an NRC inspector; and (5) granting such other and further relief as the NRC may deem appropriate, In a letter to Mr. Colapinto of June 21,

1990, I acknowledged receiving the Petition and informed him that the Petition would be treated under 10 CFR Section 2.206 of the Commission's regulations.

I also informed Mr. Colapinto that allegations in the Petition concerning improprieties by NRC personnel had been referred to the Office of the Inspector General and that any inquiries regarding those allegations should be directed to that office.

I will not further address the relief sought for these matters because these matters are outside the scope of 10 CFR Section 2.206.

The allegations in the Petition fall into three categories.

First, Petitioner alleges improprieties by NRC personnel regarding NRC inspection activities.

As noted above, this matter was referred to the Office of the Inspector General.

Second, the Petitioner alleges that, during routine NRC inspection activities, an inspector uncovered serious safety violations at Palo Verde in the systems for emergency lighting and fire protection.

I addressed this aspect of the Petition in a Partial Director's Decision issued on October 31,

1990, in which I found no justification for instituting a proceeding pursuant to 10 CFR Section 2.202 to modify, suspend or revoke the NRC licenses held by APS.

I made this decision after reviewing the corrective actions that APS took to resolve the concerns found by the NRC Staff while inspecting emergency lighting and fire protection at Palo Verde.

I found reasonable assurance that Palo Verde can be operated with adequate protection of the public health and safety until the Licensee completed its ongoing corrective actions.

Therefore, I denied this aspect of the Petitioner's request for action pursuant to 10 CFR Section 2.206.

The third category of allegations set forth by the Petitioner allege improprieties by APS personnel regarding NRC inspection activities.

As was noted in the Partial Director's Decision of October 31,

1990, these allegations of wrongdoing were referred for investigation.

I further noted in that Partial Decision that I would issue a Final Director's Decision dealing with these allegations upon receipt of the investigative findings.

These matters were investigated by the NRC's Office of the Inspector General (OIG) which has completed its work on these matters.

Hy decision with regard to these allegations of wrongdoing follows.

II. DISCUSSION Petitioner alleges that Licensee personnel acted improperly to "water down" emergency lighting and fire protection inspection findings, suppress other serious violations, and discredit an NRC inspector.

Petitioner also claims that these actions will severely chill the rights of employees at NRC-licensed facilities to speak freely and raise concerns with NRC inspectors and

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the rights of employees to raise safety concerns without fear of retaliation in general.

On April 24,

1990, the NRC Staff issued Inspection Report (IR) 90-02.

In the letter transmitting IR 90-02, the NRC Staff stated that it found several concerns regarding the status of the 10 CFR Part 50, Appendix R, emergency lighting at Palo Verde.

In IR 90-02, the NRC Staff listed as unresolved items numerous apparent deficiencies in the emergency lighting system which were described in detail in the report.

Unresolved items are items for which the NRC Staff needs additional information to decide whether the matter is a violation of NRC requirements.

Petitioner alleges that APS officials improperly influenced the NRC Staff to "water down" IR 90-02 to cover up additional concerns raised by Petitioner and verified by an NRC inspector identified by Petitioner as "John Doe."

Petitioner further alleges

that, upon learning of these potential violations, APS management began a

concerted effort to harass and discredit "John Doe" through his superiors at NRC Region V, and that APS intended to cover up and suppress additional serious violations, many of which Petitioner's supervisors at APS recognized were legitimate concerns, Petitioner further alleges that APS employees stated that they were going to contact NRC management to get "John Doe" to revise his findings and have him transferred to another NRC region because he was causing too much trouble.

Finally, Petitioner alleges that senior APS officials contacted NRC Region V officials by telephone and accused "John Doe" of misconduct to impede and interfere with an ongoing inspection.

As stated

above, OIG has completed its investigation of the wrongdoing aspects of the Petition.

OIG issued its report on September 30, 1991 (OIG

Investigative Report, Case No.90-45H).

The following is a synopsis of this report.

The Petitioner told OIG that she had no first-hand knowledge of the alleged telephone calls by Palo Verde managers to NRC Region V officials.

The Petitioner learned of the telephone calls from Inspector "John Doe."

"John Doe" told OIG that it was his understanding based on discussions with Region V

officials that Palo Verde officials had called the Region and expressed concern with the manner in which he presented his inspection findings on emergency lighting at an exit meeting on March 23, 1990.

Specifically, Palo Verde officials were surprised at the exit meeting with new findings which "John Doe" had not previously discussed during the inspection.

Therefore, they were not prepared to respond.

All of the Palo Verde and NRC officials allegedly involved in the communications regarding "John Doe" and the NRC inspection findings denied or had no recollection of ever discussing "John Doe's" performance during the March 23, 1990 exit meeting.

However, Palo Verde and NRC Region V managers had discussed emergency lighting during telephone discussions following a February 9,

1990 exit meeting.

According to the NRC Region V officials, "John Doe" was not mentioned during these telephone discussions, and Palo Verde did not contest the emergency lighting findings.

NRC Region V held these telephone conversations with representatives of Palo Verde to inform them of the gravity of the emergency lighting issues.

With regard to IR 90-02, "John Doe" told OIG that he did not agree with the manner in which his inspection findings were.presented.

He believed his findings should have been reported as violations rather than as unresolved items.

'1

In Inspection Report 90-02, the NRC Staff included as unresolved items all of the emergency lighting findings listed by "John Doe" in his draft inspection report.

In other words, none of "John Doe's" findings were deleted from the report.

The NRC Staff both at headquarters and Region V continued to research these issues for several months.

Following additional inspections, Region V issued Inspection Reports 90-25 and 90-35 and assessed Palo Verde a

civil penalty of $ 125,000 for emergency lighting violations.

The OIG investigators did not substantiate the existence of a conspiracy between Palo Verde and NRC Region V officials to water down inspection findings, as alleged.

This concludes the synopsis of the OIG Report.

The Petitioner also claimed that the Licensee actions alleged in the Petition would chill efforts by NRC inspectors and Licensee employees to raise safety concerns.

As discussed

above, the specific allegations of Licensee misconduct which were the bases for the chilling effects claims were not substantiated.'II.

CONCLUSION The OIG conducted an investigation and could not substantiate the existence of a conspiracy between Palo Verde management and NRC Region V

officials to delete items or alter inspection findings, and other related aspects of alleged wrongdoing as detailed above.

Therefore, I have decided to

'On March 16,

1992, I issued a Director's Decision regarding Palo Verde (DD-92-1, 35 NRC 133) in response to a Petition filed by Messrs.

David K.

Colapinto and Stephen M. Kohn.

In Footnote 1 of that Decision, I indicated that the issues of widespread harassment, intimidation and retaliation raised by Messrs.

Colapinto and Kohn would be the subject of a separate Director's Decision.

These issues have not been finally resolved and are still under consideration by the NRC.

The NRC will keep Messrs.

Colapinto and Kohn advised of the resolution of these issues.

deny the Petitioner's requests for action:

(1) that NRC institute a

proceeding against APS pursuant to 10 CFR Section 2.202; (2) that APS be cited for violations deleted from NRC Inspection Report 90-02; (3) that NRC issue fines to APS and certain named employees for tampering, obstructing and impeding an NRC inspection; and (4) that NRC employees involved in retaliation against the NRC inspector be disciplined.

Finally, Petitioner requests that NRC grant such other and further relief as the NRC may deem appropriate.

Based on the foregoing, there is no further action deemed appropriate with respect to this Petition.

However, the NRC will continue to review DOL cases of discrimination and any OI investigations involving retaliation as they are completed for appropriate

action, as is normal NRC practice.

As provided in 10 CFR Section 2.206(c),

a copy of this Decision will be filed with the Secretary of the Commission for its review.

FOR THE NUCLEAR REGULATORY COMMISSION

$ /g'~A~

Thomas E. Hurley, Director'ffice of Nuclear Reactor Regulation Dated at Rockville, Maryland thi s 12th day of August, 1992.

Cite as 36 NRC 143 (1992)

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DD-92M OFFlCE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director In the Matter of Docket Noa. 50-528 50-529 50-530 ARI2ONA PUBUC SERVICE COMPANY,; et at.

(Palo Verde Nuclear Generating Station, Unite 1, 2, and 3)

Auguat 12, 1992 The Director of the Officc of Nuclear Reactor Reguhtion denies the remain-der of a Petition submitted by Mrs. Linda E Mitchell (Petitioner) requesting action with regard to the Palo Vade Nuclear Generating Station of Arizona Public Service Company, ct rd. (Licensee).

In her Petition, Pedtioner alleged that serious viohtions existed at the Palo Verde facility in the systems for emergency lighting and fire protection.

In a Partial Director's Decision issued on October 31, 1990 (DD-90-7, 32 NRC 273),

this aspect of Petitioner's request for action pursuant to 10 C.FZ. g 2206 was denied.

Petitioner had also alleged improprieties by Licensee personnel regarding NRC inspection activities, specifically that Licensee personnel acted improperly to "water down" inspection findings, suppress serious viohtions, and discredit an NRC inspector. Based on an investigation by the NRC's Office of thc Inspector

General, these allegations were found to be without merit.

Accordingly, the Director denied this aspect of the Petitioner's request for action pursuant to sec Uon 2.206.

143

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line supervisor.

See Enforcement Policy, Supplement Vll.The NRC considered the violation concerning Ms. Mitchell to be a Severiry Level 11 viohuon based primarily upon the actions of the individual who was employed by APS at that time as the Director of Quality Assurance (QA). Those actions are of parucular concern to the NRC because, as the Director of QA, this person was responsible for the Employee Concerns Program and for protecting those persons who raised safety concerns 6am harassment and discrimination and whose position was above Grat-line supervisor. The issuance of EA 92-139 sends a strong message to the licensee,'ltat discrimination by APS management at any level wtil not be tolerated.

Petitioners suggest that the NRC assess a civilpenalty of $ 1,200,000 on APS.

I have found that a civilpenalty in that amount is not warranted. The appropriate guidance for assessing a civilpenalty is found in the Commission's Enforcement Policy.

The Enforcement Policy classi6es different types of violations by their rehtive severity, provides exainples of the types of viohtions and the recommended severity levels for these violations, describes the circumstances in which famal sanctions, including orders, civilpenalties, and notices of violation are appropriate, and provides factors that should be considered in determining whether the proposed civilpenalty should be mitigated or escalated.

Petitioners did not address either the examples and severity levels or the escalauon and mitigation factors in recommending a proposed civil penalty.'n arguing that the NRC should assess a civil penalty of $ 100,000 for each individual action that is alleged to be discrimination, Petitioners, in effect, are asking the NRC to treat each alleged APS act of harassment in both the Thomas and Mitchell cases as an individual Severity Level I violation. That treatment is not wananted for two reasons.

First, under the Enforcement Policy, Supplement VII; the example provided of a Severity Level I violation is employment discrimination by senior corporate management.

The only involvement by APS corporate management above the plant level in either case before me now is the tangential involvement of Mr. William Conway, at the time in question the incoming APS vice-president, in the Mitchell case.

However, the ALJ generally complimented Mr. Conway's actions, see Mitchell. Slip Op. at 38-39 and 43, and I have no reason to disagree with the ALJ's analysis at this time. Thus. there is no reason to treat the "hostile work environment" in this case as a Severity Level I violation.

Second, in the NRC's judgment, the individual actions in the Thomas and Mitchell cases, while serious, do not rise to the level of severity necessary to constitute separate violations of 10 C.F.R.

$ 50.7.

In fact, the ALJ in thc Thomas case speciiically found that the individual "items" in that case would 0

In uaaceainS dae paopcacd civilparlay. the NRC acvicwed hc cacaladon and nuuSaucn raaoaa in 6c Erdorccncr t PoUcy and ax+luded dna no adjuauncna in dve baae civd pcnaay waa appropnau 342

not constitute employment discrimination in and of themselves; instead, it was only when those "items" were viewed in the context of the entire picture that t

they constituted discrimination. Sec Thomas. Slip Op. at 8. Accordingly, it was appropriate to treat the actions in the Thomas case in the aggregate.

Likewise, the discrimination in the Mitchell case did not consist of separate individual violations; instead, the discrimination consisted of a hostile work environment which was a single aggregate action. Thus, it was not appropriate to treat each individual action in these two cases as a separate violation of section 50.7.'etitioners also justify the proposed $ 1,200,000 civilpenalty by reliance upon the NRC's actions in Tennessee Valley Aurhcriy, EA 89-201 (Apr. 12, 1990),

NUREG4940, Vol. 9, No. 4, I.A%6 ("EA 89-201"), in which the NRC issued a civilpenalty of $240,000. However, as that case clearly demonstrates, the NRC followed the Enforcement Policy described above.

In EA 89-201, the NRC found that ttuee employees of the Tennessee Valley Authority ('TVA")were reassigned to new positions in retaliation for raising safety concerns to an NRC Commissioner.

The TVA official who was principally involved was a member of plant management'above first-level supervisor.

Therefore, each violation was classiQed as a Severity Level II violation for which the civil penalty under the Enforcement Policy was $80,000.

Thus, the aggregate civil penalty was

$240,000. Likewise, in this case, the NRC has based the proposed civil penalty upon the level of the individuals who were primarily or most effectively involved in the discrimination in the two actions involved in this petition.'.

Additional Allegations of Employment Discrimination at APS The petition alleges that Ms. Mitchell has suffered additional acts of employee discrimination at Palo Verde after the events that are the subject of the DOL Recommended Decision.

SpeciQcally, Petitioners assert that a recent Qnding by the DOL Wage and Hour Division requires an escalation of any civil penalty. On May 8, 1992, the Assistant Disuict Director, Employment Standards Administration, Wage and Hour Division, DOL, issued a preliminary Qnding that Ms. Mitchell's April 1992 Performance Appraisal had been lowered because she engaged in protected activity. APS hag, filed an appeal from that Qnding, While thc NRC condudcc that tnnuncns ol each acticn as a viotatitat ls na appopnare in rAir anroronncrn

~ation, thc NRC rrncrvcc thc d gin to treat individual acrian as separate victaticns in an appropriate casa c Pratticarcrs also aah thar the hi% tahe action against thc rennes APS OA Director individuaUy. At this tine, hoa>aver. there is na ru5cicru inrorntatitat to v>arrarn ratiorccrncrn action directly againsa thar individuaL Src lO CFJt. Pan 2, Apprndia C, f VZ. While thu individual' acticns wae a signiltcans corarihution to thc hostile t>trrh nvvircnrncnt. they ntay not have constituted a victatlon cr i0 CFJt. fSO7. in and cd thrrnscivcs. 'thracforc.

thc NRC tvtu nor tahe cnforrcrncru action against Qus individual aa this tine. 'Ihc NRC willceviche the eccccary's iinal dcciaitat in the ArircAariOcooahng and dcrcrnune ar thac tine ir addiYional action is narrantc>L 343

.jiutiating the DOL hearing process.

That appeal has been consolidated with other pending mauers for hearing before a DOL ALJ.

The NRC has already taken prompt action in response to the DOL's finding.

Initially, the NRC secured th'e DOL investigation file and reviewed it.

Sub-sequently, on May 22. 1992, Mr. John Martin, Administrator, NRC Region V, "--'-.-

issued a letter to APS, informing APS management that the NRC was concerned that this action might constitute a violation of 10 C.FE. g 50.7 and that it might have a "chillingeffect" on the willingness of employees or contractor personnel to raise safety concerns.

Specifically, the leuer asked APS to provide the NRC.

with the basis for the action taken against Ms. Mitchell and to explain what steps APS was taking to ensure that employees were fully informed of their rights to address safety concerns to the NRC or any other regulatory agency without fear of retaliation.

On June 23,

1992, APS responded to the NRC's.May 22 letter.

In its

response, APS provided its version of the events in question and described the steps it was taking to ensure that all APS employees were aware of their rights under the ERA and the Atomic Energy Act ("AEA"). As I noted above, the NRC normally will await a decision by a DOL ALJ before taking enforcement action. After reviewing APS'esponse of June 23, the NRC Staff saw no need" to deviate from the NRC's normal policy in this case at this time. The NRC'ill continue to monitor this case. Once the DOL ALJ issues a Recommended Decision, the NRC willconsider whether enforcement action is warranted.

C.

Allegations of a "Hostile Work Environment" at Palo Verde~

The petition also alleges that APS has created a "hostile work environment" at Palo Verde which discourages Palo Verde employees from raising safety~

concerns.

As a result of that allegation and the decisions in the Thomas~

and Mitchell cases, the NRC Staff recently conducted an unannounced special inspection at Palo Verde to gain insight into the perceptions and auitudes of workers at the site, with regard to their ability to raise significant safety issues.

See NRC Inspection Report No. 50-528/529/530/92-33 (Oct. 8, 1992)

("Inspection Report 92-33"). During this inspection. NRC personnel interviewed 314 site employees who were either APS direct employees or APS contractors.

Inspection Report 92-33 at 2A. These employees comprised a sample of Palo Verde employees who performed safety-significant work.

Of those employees interviewed, approximately 92% stated that they felt

, ~;free to raise significant safety issues to their immediate supervisor, to higher levels of APS management, to the Employee Concerns Program or "Hotline,"

or to the NRC. Id. at 4. Approximately 6% of those interviewed indicated that they felt free to raise significant safety issues to their immediate supervisor but felt some reluctance to raise the issues higher.

/d. Approximately 2";c of

those interviewed felt some reluctance to raise significant safety issues to their immediate supervisors. ld. Thc survey did not determine the root cause for the reluctance that was expressed by 8% of those interviewed. Id. at 5.'n its leuer transmiuing Inspection Report 92-33 to APS, the NRC concluded that lwihile these results are not indicative of a widespread problem with reluctance of APS employees to raise significant safety issues to their immediate supervisors or above, they do indicate that the cnvironrncnt at Palo Verde for raising signifteare safety concerns can be improved. Please advise us of your. plans in this regard.

r The NRC was and is concerned over any perception that an employee might suffer discrimination because of raising safety concerns.

Therefore, the NRC Staff requested APS to advise it of the steps being taken to resolve this perception problem, in addition to the response required in reply to EA 92-139, concerning plans to assess the extent employees have reservations for raising safety concerns.

On October 30, 1992, APS filed a consolidated response to both Inspection Report 92-33 and EA 92-139, detailing the steps that it is in thc process of taking to address this concern.

In light of the findings of thc NRC special inspection at Palo Verde as expressed in Inspection Report 92-33, APS'esponse to the NRC's May 22, 1992 letter, and APS'esponse to EA-92-139 and Inspection Report 92-33, I have concluded that no further action is necessary at this time regarding Petitioners'llegation of a "hostile work environment" at Palo Verde.

D.

Request for Institution of Proceedings Under Section? 206 Petitioners request that the NRC initiate showmuse proceedings to revoke, modify, and/or suspend Palo Verde's operating license.

The institution of proceedings in response to a request for action under 10 CS.R. tl2.206 is appropriate onlv when substantial health and safety issues have been raised.

See Consolidated Edison Co. ofNew York (Indian Point, Units I, 2, and 3), CLI 8, 2 NRC 173, 176 (1975), and Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), DD-92-1, 35 NRC 133, 143~ (1992).

While the allegations contained in the instant petition are indeed serious, they do not raise substantial health and safety issues that would justify revocation, suspension, or modification of the Palo Verde licenses.

Instead, I find that the NRC Staff's actions described above were the appropriate response to the DOL Recommended Decisions consistent with the Commission's Enforcement Policy.

s Fcnhcrinore, gvc ot rhose employees interviewers inronnot the NRC inspectors that they believers ihat urey hag suffered crnployinenr diacnrnrnauon in rcsaliauon tor raising safety concerns.

nre NRC weal review these ctairns through rhc NRC aoegaiion process.

Sac Inspection Rcport 92 33 ai 3.

345

Accordingly, I have concluded that no basis exists for initiating a proceeding as requested by Petitioners.

IV.

CONCLUSION ln conclusion, I have granted the petition insofar as it requests that the NRC take enforcement action against APS for the discrimination demonstrated in the Thomas and Mitchell caSes. '

have denied the request to the extent that the petition seeks a civil penalty above $ 130,000 and requests that proceedings be initiated to show cause why the license should not be revoked, modified, andlor suspended, A copy of this Decision will be Gled with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R.

$ 2.206(c).

As provided by this regulation, this Decision willconstitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the decision within that time.

FOR THE NUCLEAR REGULATORY COMMISSION James Lieberman, Director Office of Enforcement Dated at Rockville, Maryland, this 23d day of November 1992.

tL CX to en P

10 CFR 2.790 INFORMATIONEXEMPT FROM PUBLIC DISCLOSURE ATTACHMENT8 U. S. NUCLEAR REGULATORY COMMISSION MEMORANDUMFOR: JAMES M. TAYLOR, EXECUTIVE DIRECTOR FOR OPERATIONS FROM: DAVIDC. WILLIAMS,INSPECTOR GENERAL DATED JUNE 4, 1991

A'ITACIMggg 7 Cite as 36 NRC 143 (1992)

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DD-92M OFFICE OF NUCLEAR REACTOR REGULATION Thomas E Murley, Director In the Matter of Docket Nos. 50-528 50-529 50-530 ARIZONAPUBUC SERVICE COMPANY, et eL (Palo Verde Nuclear Generating Station, Units 1, 2, and 3)

August 12, 1992 Thc Director of the Oflice of Nuclear Reactor Regulation denies the remain-der of a Petition submitted by Mrs. Linda E Mitchell {Petitioner) requesting action with regard to the Palo Verde Nudcar Generating Station of Arizona Public Scrvicc Company, cr al. (Licensee).

In her Petition, Petitioner alleged that serious violations existed at the Palo Verde facility in the systems for cmergcncy lighting and fire protection. In a Partial Director's Decision issued on October 31, 1990 (DD-90-7, 32 NRC 273),

this aspect of Petitioner's request for action pursuant to 10 C.FX. $ 2206 was denied.

Petitioner had also alleged improprieties by Licensee personnel regarding NRC inspection activities, specifically that Licensee personnel acted improperly to "water down" inspection findings, suppress serious violations, and discredit an NRC inspector. Based on an investigation by the NRC's Office of the Inspector

General, these allegations were found to be without merit.

Accordingly, the Director denied this aspect of the Petitioner's request for action pursuant to sectlofl 2206.

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FINALDIRECTOR'S DECISION UNDER 10 C.F.R. 52.206 I.

INTRODUCTION On May 22, 1990, David K. Colapinto, Esq., submitted a Petition on behalf of Mrs. Linda E. Mitchell (Petitioner) requesting that the U.S. Nuclear Regulatory Commission (NRC) take actions pursuant to 10 CPS. 52206 regarding thc Palo Vade Nuclear Generating Station (Palo Vade) of the Arizona Public Service Company, cr al. (APS or Licensee).

The Fed tioner stated that she is employed by the Licensee as an associate electrical engineer at Palo Verde. Shc alleges that serious violations exist at Palo Verde in the systems for emergency lighting and fixe pmtection which were uncovered by thc NRC during routine inspections, and that Licensee personnel acted impropedy to "water down" the inspection findings, suppress other serious violations, and discxetiit an NRC inspector.

Petitioner also alleges that NRC Region V management retaliated against the NRC inspector in question and agreed to "water down" inspection report findings as a result of thc caorts made by the Licextsee.

Petitioner chims that these actions willchill efforts by NRC inspectors and employees ofNRC-licensed facilities to raise safety concerns.

Petitioner sought a variety of reuef, including (1) instituting a proceeding pursuant to 10 CPM 5 2.202 to modify, suspend, or revoke the licenses issued by thc NRC for Palo Vade; (2) issuing citations to the Licensee for viohtions improperly and illegally deleted from an NRC inspection report; (3) issuing fines to certain employees of the Licensee for allegedly tampering, obstructing, and impeding an ongoing NRC inspection; (4) taking disciplituuy actions against any and all NRC employees allegedly involved in retaliating against an NRC inspector; and (5) granting such other and further relief as thc NRC may deem appropriate.

In a letter to Mr. Colaphto of June 21, 1990, I acknowledged xeceiving the Petition and informed him that the Petition would bc treated under 10 CFW 52206 of the Commission's xeguhtions. I also infamed Mr. Coiapinto that allegations in the Petition concerxung improprieties by NRC personnel had been referred to thc Office of thc Inslector General and that any inquiries xegtuding those allegations should be directed to that office. I wHl not further address thc relief sought for these matters because these matters axe outside thc scope of section 2206.

Thc aHegations in thc Petition fall into three categories.

First, Petitioner allegcs improprieties by NRC personnel regarding NRC inspection activities.

As noted above, this matter was referred to the Office of thc Inspector General.

Second, the Petitioner alleges that, during routine NRC inspection activities, an 144

inspector uncovcrcd serious safety violations at Palo Verde in the systems for emcrgcncy lighting and fire protccuon.

I addressed this aspect of the Petition in a Partial Director's Decision issued on October 31, 1990 (DD-90-7, 32 NRC 273), in which I found no justification for instituting a proceeding pursuant to section 2.202 to modify, suspend.

or revoke thc NRC licenses held by APS. I made this decision after reviewing the corrective actions that APS took to resolve thc concerns found by the NRC Staff while inspecting emergency lighting and fire protection at Palo Verde. I found reasonable assurance that Palo Verde can be operated withadequate protection of the public health and safety until the Licensee completed its ongoing corrective actions.

'Iherefore, I denied this aspect of the Petitioner's request for acdon pursuant to section 2206.

11ie third category of allegations sct forth by the Petitioner allcgc impropr-ietie by APS personnel regarding NRC inspection activities. As was noted in the Partial Director's Decision of October 31, 1990, these allegations ofwrong-doing were referred for investigation. I further noted in that Partial Decision that I wouM issue a Final Director's Decision dealing with these allegations upon receipt of thc investigative findings. 'Ilicse matters were investigated by thc NRC's Officeof the Inspector General (OIG) which has corn plctcd its work on these maucrs. My decision with regard to these allegations of wrongdoing follows.

G.

DISCUSSION Petitioner alleges that Licensee personnel acted improperly to "water down" emergency lighting and fireprotection inspection findings, suppress other serious violations, and discredit an NRC inslxctor.

Petitioner also claims that these actions willseverely chill the rights of employccs at NRC-licensed facilitics to speak Smly and raise conccrtis with NRC hspcctors and the rights ofemployees to raise safety concerns without fear of retaliation in general.

On AprH 24, 1990, the NRC Staff issued Inspection Rcport {IR)9042. In the letter transmitting IR 9042, the NRC Staff stated that itfound several concerns regiirding thc status of thc 10 GFW Part $0, Appendix R, cmcrgency lighting at Palo Vcrdc. In IR 9042, the NRC Staff listed as unrcsolvcd items numerous apparent deficiencies in the emergency lighting system which were described in detail h the rcport.

Unresolved items are items for which the NRC Staff needs additional infortnation to decide whether the matter is a violation ofNRC requiretncnts.

Petitioner aHeges that APS officials hnpmperly infiucnced thc NRC Staff to "water down" IR 9042 to cover up additional concerns raised by Petitioner and verified by an NRC inspector idcntified by Petitioner as "John Doe." Petitioner further allegcs that, upon learning of these potential violations, 145

APS managcmcnt began a concerted effort to harass and discredit "John Doc" through his superiors at NRC Region V, and that APS intended to cover up and suppress additional serious violations, many of which Petitioner's supervisors at APS recognized were legitimate concerns.

Petitioner further alleges that APS employees stated that they were going to contact NRC management to gct "John Doe" to revise his findings and have him transferred to another NRC region because he was causing too much trouble. Finally, Petitioner alleges that senior APS officials contacted NRC Region V officials by telephone and accused "John Doe" of misconduct to impede and interfere with an ongoing inspecuon.

As stated above, OIG has completed its investigation of the wrongdoing aspects of thc Petition.

OIG issued its report on September 30, 1991 (OIG Invcstigatlvc Rcport, Case No. 9$45H). 'Ihe following is a synopsis of this report.

The Petitioner told OIG that she had no first-hand knowledge of the alleged telephone calls by Palo Verde managers to NRC Region V officials.

The Petitioner learned of the telephone calls from Inspector "John Doe" "John Doc" toM OIG that it was his understanding based on discussions with Region Vofficials that Palo Verde officialshad called the Region and expressed concern with thc manner in which hc presented his inspection. findings on emergency lighting at an exit meeting on Much 23, 1990. Specifically, Palo Verde oKciais vere surprised'at the exit meeting with new findings that "John Doe" had not previously discussed during thc inspection. Therefore, they were not prelxtred to respond.

Allof the Palo Verde and NRC officials allegedly involved in the commu-nications regarding "John Doe" and the NRC inspection findings denied or had no recollection of ever discussing "John Doe's" perfonnance during thc March 23, 1990 exit meeting. However, Palo Verde and NRC Region U managers had discussed emergency lighting during telephone discussions foOowing a February 9, 1990 exit meeting. According to the NRC Region V officials, "John Doe" was not mentioned during these telephone discussions, and Palo Vade did not contest thc emergency lighting findings. NRC Region'Y held these telephone conversations with representatives of Palo Verde to inform them of the gravity of the emergency lighting issues.

With regard to IR 9042, "John Doe" told OIG that he did not agree with the manner in which his inspection findings were presented.

He believed his findings should have been reported as violations rather than as unresolved items.

In Inspection Report 9042, thc NRC Staff included as unresolved items all of the cmctgcncy lighting findings listed by "John Doe" in his daft inspection rcport. In other words, stone of "John Doe's" findings were deleted from the rcport. The NRC Staff both at headquarters and Region V continued to research these issues for several months.

Following additional inspections; Region V issued. Inspection Reports 90-25 and 90-35 and assessed Palo Verde a civil

penalty of SI25,000 for emergency lighting violations. Thc OIG investigators did not substantiate the cxistcnce of a conspiracy bctwecn Palo Verde and NRC Region V officials to water down inspection findings, as alleged. This concludes thc synopsis of thc OIG Rcport.

The Petitioner also claimed that the Licensee actions allcgcd in thc Petition would chill efforts by NRC inspectors and Licensee employees to raise safety concerns.

As discussed above, the specific allegations of Licensee misconduct, which were the bases for the chilling effects claims, were not substantiated.t III.

CONCLUSION The OIG conducted an investigation and could not substantiate thc existence of a conspiracy betwccn Palo Verde management and NRC Region V oflicials to delete items or alter inspection Gndings, and other related aspects of alleged wrongdoing as detailed above. Therefore, I have decided to deny the Petitioner's requests for action:

(I)that NRC institute a proceeding against APS pursuant to section 2202; (2) that APS be cited for viohtions deleted from NRC Inspection Report 9042; (3) that NRC issue 5nes to APS and certain named employees for tamperin, obstructing, and impeding an NRC inspection; and (4) that NRC employees involved in retaliation against the NRC inspector bc disciplined.

Finally, Petitioner requests that NRC grant such other and funher relief as thc NRC may deem appropriate.

Based on the foregoing, there is no further action deemed appropriate with respect to this Petition.

However, thc NRC willcontinue to review DOL cases of discrimination and any OI investigations involving retaliation ashy are completed for appropriate action, as is normal NRC practice.

t Oa Msrch l6, t992, t issacd e Director's Dociaoa cgsrdiag Psio Verde gKH2 t, SS NRC tss) ia res pease to e ttctittca Gad by Messrs. Dssid K. Celsp'aao snd Stephen M. Kobe. Ia forsnotc i cf that Decision, t indicstcd thst tbe issacs ofwidcspnnd hssssrncar. brtbnidstioa, snd tslistica rsiscd by Messrs. Cctspbso snd Kohn trooM be tbc strbprct of e scpsrste Director's DcciYioa 'rbcsc isarcs bsse aot baca Sastly rcsolvod snd are still nader ccasidcrstica by tbe NRC. Tbc NRC tria hap Messrs. Cdtspirso sad Kcba edviscd of tbc csohaioa cf these issnes.

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As provided in IO C.FX. ti2.206(c), a copy of this Decision will be fried with the Secretary of the Commission for its review.

FOR THE NUCLEAR REGULATORYCOMMISSION Thomas E Murley, Director Of6ce of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 12th day of August 1992.

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