ML20045D994
| ML20045D994 | |
| Person / Time | |
|---|---|
| Issue date: | 06/23/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-178, NUDOCS 9306300297 | |
| Download: ML20045D994 (70) | |
Text
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.y RELEASED TO THE PDR
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eeceeococeanceseemssesee ADJUDICATORY ISSUE June 23, 1993 (lnfOrmatiOn)
SECY-93-178 FOR:
The Commission FROM:
John F. Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 09 U.S. Nuclear Reciulatory Commission v. FLRA, No. 93-1704 (4th Cir., filed June 4, 1993)
In April the Federal Labor Relations Authority ruled that the NRC must enter labor negotiations over union proposals regulating Inspector General investigatory interviews.
In reaching this result the FLRA overruled a prior precedent insulating IG investigatory. practices-from labor-management negotiations.
At the strong urging of the NRC's Inspector General we recommended to the Department of Justice that a petition'for review be' filed challenging the FLRA decision.
In early June DOJ filed a petition for review on the NRC's behalf in the United States Court of Appeals for-the Fourth Circuit.
The Solicitor General of the United States must authorize pursuit of the case.
He currently is considering the matter.
Briefs are due in court later this summer.
Attachment:
Petition for Review
Contact:
Drad Fewell NOTE:
TO BE MADE PUBLICLY AVAILABLE 504-1569 IN 10 WORKING DAYS FROM THE DATE OF THIS PAPER l
JOhk h
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y
.Q $/M [d Ob e l 3
2 State of Nevada v. O' Leary, Civ. No. 93-399-ECR (D. Nov., filed June 14, 1993)
Nevada brought this suit against the Department of Energy, the NRC and the EPA, as well as the heads of those agencies.
Nevada seeks court authorization for depositions of various scientists involved in a controversy over " episodic recurrence of flooding" at the proposed Yucca Mountain high-level nuclear waste repository.
Nevada seeks to " perpetuate" the scientists' testimony for possible use in federal court proceedings the state may bring years from now to challenge some aspect of the Yucca Mountain site.
FED.R.CIV.P. 27 permits lawsuits to perpetuate testimony in some circumstances.
We will cooperate with the Department of Justice and the other defendant agencies in responding to this suit.
Attachment:
Petition
Contact:
Marjorie Nordlinger i
J 504-1616 l
Oncoloav Services Corooration v. NRC, No. 93-0939 (W.D. Pa.,
i filed June 14, 1993)
This is a Freedom of Information Act lawsuit seeking access to various documents relating to plaintiff and to the NRC's inspection program at medical facilities.
The NRC's FOIA office had not yet finished processing the request when the suit was filed.
Plaintiff takes the view that the FOIA request had been
" constructively" denied.
We will work with the United States Attorney's office in Pittsburgh in defending this lawsuit.
Attachment:
Complaint for i
Injunctive Relief
Contact:
L. Michael Rafky 504-1974
-d 1'
DISTRIBUTION:
Commissioners J
n F. Cordes OGC licitor OCAA OIG OPA OCA OPP '
REGIONAL OFFICES EDO SECY
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ATTACHMENT -
U.S.
Nuclear Reculatory Commission v.
FLRA, No. 93-1704 (4th Cir., filed June 4,'1993)-
4 I
4 e
4-r w
- c IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES NUCLEAR REGULATORY
)
COMMISSION, WASHINGTON, D.C.,
)
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Petitioner,
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v.
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No.
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FEDERAL LABOR RELATIONS AUTHORITY,
)
)
Respondent.
)
)
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PETITION FOR REVIEW The United States Nuclear Regulatory Commission, Washington, D.C.,
hereby petitions this Court pursuant to 5 U.S.C. S 7123(a) for review of Decision and Order of the Federal Labor Relations Authority (FLRA) on Negotiability Issues in National Treasury Employees Union and U.S.
Nuclear Reaulatory Commission.1 Washincton, D.C.,
FLRA Case No. 9-NG-2051, 47 FLRA No. 29, issued April 9, 1993.
Signed this 4th day of June 1993.
MARK B. STERN (202) 514-5089 4'ktuA h 4M SUSilMA SONI (202) 514-4331 Attorneys. ADoellate Staff Civil Division. Room 7124 Denartment of Justice Washincton, D.C.
20530-0001 1
9 4'
i CESTIFICATE OF SERVICE I hereby certify that on this 4th day of June 1993, I served the foregoing-Petition for Review upon the following parties by causing copies to be mailed via First Class U.S.
Mail, postage prepaid to:
Honorable David M. Smith Solicitor Federal Labor Relations Authority 607 14th Street, N.W.
Washington, D.C.
20424 Cheryl A. Teare-Assistant Counsel National Treasury Employees Union i
901 E Street, N.W.
Suite 600 Washington, D.C.
20004 M
b SUSHMA SONI Attorney 4
L t
p 47 FLRA N3. 29 FEDERAL Z. ABOR RELATICNS AUTHORITY WASHINGTON, D.C.
+
NATIONAL TREASURY EMPLOYEES UNION (Union) an)
U.S. NUCLEAR REGtTLATORY COMNISSION WASHINGTON, D.C.
(Agency) 0-NG-2051 DECISION AND ORDER ON NEGOTIABILITY ISSUES April 9, 1993 Before Chairman NcKea and Nembers Talkin and Armandaris.
I.
Statement of the case This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of six proposals.1/
Proposal 1 describes the role of a Union representative in criminal and noncriminal investigatory interviews of unit employees conducted by the Agency.
Proposal 2-requires an Agency investigator conducting an investigatory interview that might lead to discipline to advise an affected employee of the general nature of the interview and of his or her representational rights prior to taking an oral or written statement.
Proposals 3 and 4 concern the manner in which employees must be notified of certain procedures, privileges 1/
In its Statement of Position (Statement), the Agency withdrew its allegation of nonnegotiability with respect to the second paragraph of Article 25, Section 25.8..
In its response, the Union withdrew the portion of Article 1,Section I.5 that was in dispute.
These proposals will not be
~
' considered in this decision.
and obligations in rolotien to Agancy-conducted crininal interrogations.
We find that Proposals 1, 2,
3 and 4 are negotiable.
Proposal 5 concerns the Agency's decision to reassign resident inspectors at nuclear power plants to another work i
site before the end of their tours of duty where there is a l
question concerning those inspectors' objectivity in the performance of their duties.
We find that Proposal 5 is negotiable.
Proposal 6 prescribes certain conditions governing the reassignment of a resident inspector to another work site based on a determination as to the inspector's loss of objectivity.
We find that the first five sentences of Proposal 6 are negotiable.
However, we find that the sixth sentence of Proposal 6, which would require the Agency to reassign an employee to one of the five work sites designated by the employee, directly and excessively interferes with
=anagement's rights to assign employees and assign work under section 7106 (a) (2) (A) and (B) of the Statute and, therefore, is nonnegotiable.
II.
Preliminary Matter The Agency contends that the Union's petition should be dismissed because it was untimely filed.
The Agency notes that because the Union initially failed to file a completc petition for review, the Authority issued an order directing the Union to file a corrected petition by May 20, 1992.
The Agency asserts that to comply with the Authority's order and the Authority's Rules and Regulations, the corrected petition had to be either postmarked by the U.S.
Postal Service or received in person at the Authority no later than May 20, 1992.
The Agency states that the Authority did not receive the petition until May 26, 1992.
According to the Agency, the May 20, 1992 date stamped on the envelope containing the Union's corrected petition was affixed "by a Union (-] controlled (date) stamp nachine."
Statement at 4.
i Relying on National Association of Government Encloyees. Local R7-72 and U.S.
Department of the Army, Rock Island Arsenal, Rock Island. Illinois, 36 FLRA 271 (1990) (Rock Island Arsenal), the Agency contends that "a date stamp from the U.S.
1 Postal Service is required to determine the date which the document was deposited in the mail."
Id2 (emphasis in 4
original).
The Agency asserts that because the corrected petition "was neither postmarked by the U.S.
Postal Service nor received by the Authority by May 20, 1992, [the petition) must be dismissed."
1d2 at 3 (footnote omitted).
4 i
4
Tha Union contands that, pursuant to osction 2429.21(b) of the Authority's Regulations, its petition was filed in a timely manner.
The Union states that a review of the documents in the record "makes it clear that the Union's i
[ corrected petition) was in fact filed on May 20, 1992 by virtue [of) the postmark" on the envelope that contained the petition.
Response at 3.
The Union asserts that the Agency's reliance on Rock Island Arsenal is misplaced.
According to the Union, Rock Island Arsenal " affirm [s] [the Union's) position by stating that two of the methods of filing documents with the Authority are by mail (U.S. Postal Service) or in person [.)"
Id2 The Union contends that because it filed "its petition by mailing it via (the) U.S. Postal Service [,)" it " fully complied with the regulatory scheme governing the filing requirements of the (Authority)."
Idt We find that the Union's petition was timely filed.
Under section 2429.21(b) of the Authority's Regulations, a document that is mailed and properly addressed to the Authority is filed with the Authority when a party places it in the U.S. mail, not when it is received.
Egg U,E1 Department of Labor, Mine Safety and Health Administration and National Council of Field Labor Locals. American Federation of Governnent Erolovees, 32 FLRA 302 (1988) (Department of Labor).
There are only two ways to determine the date of mailing:
(1) by the postmark on the mailing; and (2) in the absence of a postmark, by the date of receipt minus 5 days.
Department of Labor, 32 FLRA at 302-03.
In this case, the Union's corrected petition was sent I
through the U.S. mail.
A postcark of May 20, 1992, is stamped en the envelope containing the corrected petition.
The Agency argues that because that date was affixed on the envelope by a Union-controlled postal meter rather than by the U.S. Postal Service, such date is not determinative of the date that the corrected petition was filed.
We disagree.
The fact that the postmark date was placed on the envelope by an approved postal meter establishes the date of filing in this case.
We note that under the U.S. Postal Service Regulations, the date shown in a meter postmark is presumed to be the actual date of deposit, unless the U.S. Postal Service indicates that the date is incorrect.
Egg U.S. Postal Service Domestic Mail Manual, 55 144.532, 144.54, (Sept. 1992).
Eeg also Hunt v.
U.S.
Postal Service, 41 MSPR 381, 383 (1989).
In this case, there is no evidence to show that the U.S.
Postal Service determined that the date on the envelope containing the Union's corrected petition was incorrect.
We conclude, therefore, based on the date on the envelope containing the Union's corrected petition, that the corrected petition was 4
1 l
, ~
filed en: M:y 20,1992, ~ and, ' th2roforo, io : timely ' filCd within the meaning of section 2421.21(b)~of the Authority's Regulations.
III.
Proposals 1.
Procesal 1 Article 3 - Employee Rights 1
Section 3.3.2 j
When the person being interviewed is accompanied.
by a Union representative,11n both criminal and non[] criminal' cases, the role of the representative includes, but is not limited to[,).
the following rights:
l (1) to clarify the questions;
)
(2) to_ clarify the answers; (3) to assist the employee in providing 3
favorable-or extenuating facts; (4) to.suggest other employees who have j
knowledge of relevant. facts; and-(5) to advise the employee.
Proposal 2 Section 3.4 1
The-NRC [ Nuclear Regulatory Commission);shall.
advise the' employees annually of -their rights to Union representation under section 3.3.
In addition, when an investication is beina-conducted and where-the emolovea is'a cotantial j
recipient of disciolinary action, the emolovee
~j
-shall be advised by the investicator of the i
ceneral nature of the interview, and of his/her '
-)
richt to be reeresented by the Union in
-1 accordance with Section 3.3.1 and 3.3.2 above, crior to takina any oral or written statement from that-amolovee.
[Only the_ underlined portion of the proposal is in dispute.)
q Proposal 3
.Section 3.4.1 Where the. subject of an' investigation is being 9
interviewed regarding possible criminal' conduct and prosecution, at the beginning of the l
s
+
intervicw tha cmpicyao ch211 be givcn o ototencnt of Miranda rights.
The warning shall contain the language listed in Appendix A to this Agreement.
If the employee valves his/her rights, the employee shall so indicate in writing and will be given a copy for his/her records.
Proposal 4 Section 3.4.2 In an interview involving possible criminal conduct where prosecution has been declined by appropriate authority, at the beginning of the interview the employee shall be given a statement of the Kalkints warning in writing.
Further, the employee will acknowledge receipt of the warning in writing and shall receive a copy for his/her records.
A.
Positions of the Parties 1.
Acency The Agency asserts that Proposals 1-4 "give a variety of
' rights' to [an) employee during Agency investigations into potential criminal and non[] criminal wrongdoing by bargaining unit employees."
Statement at 9.
According to the Agency, "an independent office of the Inspector General (OIG) is in charge of both criminal and non[] criminal investigations" at the Agency.
Idt at 10 (footnote omitted).
The. Agency contends that Proposals 1-4 establish a number of requirements for the Agency's independent Inspector General (IG) and that the proposals are inconsistent with " provisions of the Inspector General Act of 1978[]" (IG Act).
1d2 The Agency claims, therefore, that the proposals are inconsistent with law and are nonnegotiable under section 7117(a)(1) of the Statute.
Relying on National Federation of Federal _Enclovees.
Local 1300 and General Services Administration, 18 FLRA 789 (1985) (QEA), the Agency asserts that, as interpreted by the Authority in GRA, "the independence of the IG under law precludes negotiation on proposals purporting to influence the conduct of IG investigations."
Idi at 11.
The Agency also contends that the court's decision in Defense Criminal Investicative Service v. FLRA, 855 F.2d 93 (3d Cir. 1988)
(DCIS) is not applicable to this case.
According to the Agency, DCIS " simply held that (section) 7114 (a)(2) (B) gives the employee a right to union representation during an
-1
investigatory interview by the [ agency's office of inspector general)."
Id at 11.
The Agency asserts that DCIS "in no way indicate [s] that the (U)nion could negotiate with the OIG or that the OIG vould be bound by negotiations between the
[A)gency and the [U)nion."
Id.
Further, the Agency contends that reading DCIS with GEA, the Authority "has established a clear precedent that if the erolovee's right is specifically authorized by the Statute then it must be followed by the OIG.
If, on the other hand, the employee right is one which can only be achieved through negotiations, then... the IG cannot be bound by any such negotiations."
Id2 at I' -12 (emphasis in l
original).
The Agency asserts that Proposals 1-4 seek to bind the OIG to a number of procedures that are not specifically required under the Statute.
The Agency notes that although procedures involving warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda) and Kalkines v. United States, 473 F.2d 1391 (Ct. C1. 1973) (Kalkines) "are often negotiated between agencies and unions, such agreements are not possible with the OIG due to [the OIG's) statutory independence."
Id2 at li (footnote omitted).2/
The Agency further asserts that there is nothing in the Statute or its legislative history that suggests that the Statute offers employees rights beyond those established in NLRB v. Weincarten, 420 U.S. 251 (1975)
(Weincarten).
The Agency claims, therefore, that the " holding in DCIS is not applicable to this matter and the holding in IGSA) is determinative. "
142 at 13.
2.
Union i
The Union asserts that the Agency has misinterpreted the plain meaning of the proposals.
The Union states that its proposals are not intended to contravene the provisions of the 2/
Under Miranda, in a criminal case, statements obtained during custodial interrogation of a defendant may not be utilized unless prior to the questioning the person is " warned that he [or she) has a right to remain silent, that any statement he (or she) does make may be used as evidence against hin[ or her,) and that he [or she) has a right to the presence of an attorney, either retained or appointed."
Miranda, 384 U.S.
at 444.
Under Kalkines, a Federal employee can be discharged for not answering a question if adequately informed both that the employee is subject to discharge for not answering and that the employee's replies and the " fruits" of such replies cannot be employed against the employee in a criminal case.
Kalkines, 473 F.2d at 1383.
IG Act.
Rather, according to the Union, the proposals merely seek to establish procedures to protect the rights of 1
employees in accordance with the representational role of the Union described in Weincarten.
Specifically, the Union contends that Proposal 1 explains the role of the Union representative in criminal and noncriminal cases.
The Union asserts that Proposal 1 " fully complias with the negotiable role of the union representative as envisioned in Weincarten."
Response at 5.
As to Proposal 2, the Union asserts that it " requires investigators to notify employees of their right to representation prior to taking any oral or written statement from an employee when the employee is the potential recipient of a disciplinary action."
Ist at 6.
According to the Union, the Agency's assertion that the Union is seeking to influence the manner in which the IG conducts an investigation is a
" gross misrepresentation of fact."
Idt The Union states that the proposal does not require anything of the IG.
- Rather, according to the Union, the proposal seeks to require an Agency representative to inform employees of their rights consistent with Weinaarten.
The Union notes that during bargaining, management " represented that (A]gency representatives are always present during (IG) investigations."
I42 The Union contends that Proposal 3 requires that employees being interviewed regarding possible criminal misconduct be given their Miranda rights in writing.
The Union asserts that such rights are required by the Fifth and Sixth Amendments of the U.S. Constitution in situations described in Proposal 3.
The Union further contends that a proposal requiring an agency to exercise its management rights in accordance with applicable law, regulation or the U.S.
Constitution is negotiable if it constitutes an appropriate arrangement under section 7106(b) (3) of the Statute.
Citing National Association of Government Enclovees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).(KANG), the Union contends that Proposal 3 constitutes an appropriate arrangement.
The Union contends that:
(1) the proposal guarantees that employees will be given their Miranda rights when being interviewed regarding criminal conduct; (2) the circumstances that trigger the interviews are totally outside employees' control; (3) management's right to determine its internal security practices under section 7106(a)(1) of the Statute must be measured against the procedura1' constitutional rights of employees; (4) the negative impact on management's right is minor while the benefit to employees is " enormous";
and (5) the impact of the proposal on effective and efficient Government operations is minimal.
Idi at 8.
.. ~.
t The Union asserts that Proposal 4 reguires that a:
l
.Kalkines warning be given to an employee in-. writing when an J
administrative investigation is taking_ place and that the 4
employee. acknowledge. receipt of the warning in writing.and be given a. copy.
The Union notes that'_the Agen;y admits that.it i
routinely;gives employees Kalkines warnings.. _The Union states that Proposal 4 nerely' incorporates: the rights of the aaployee under section 7114 (a) (2) (B) ~ of. the ' Statute and the : rights afforded by Kalkir.es into the contract.
The Union further asserts?that the proposal.is. consistent with the Authority's
)
decision.in National Treasurv Enclovaes Union and beoartment R
of the Treasurv. U.S. customs service, 9 FIRA-983 (1982)
(Custons).
B.
Analysis and Conclusions We find that Proposals 1-4 are negotiable.
As explained by the Union, Proposals 1-4 apply to criminal and noncriminal investigatory.interviewsiand are intended to codify and supplement employees' rights.to Union i
representation under section.7114 (a) (2) (B) of the Statute.
Under Proposals 1-4, in-criminal and noncriminalLinvestigatory
'j interviews, where the employee subject.to an examination reasonably believes. that.the interview may result 'in discipline, not only.vould the employee be entitled, upon:
request, under section 7114 (a) (2) (B), to Union representation, but also to the additional protections provided by the proposals.
The protections provided by.the' proposals.would-apply only in those situations in.which an employee is-
'1 entitled to Union representation. under section 7114 (a)(2)(B) l of the Statute.2/ ' We find that the Union's explanation of the proposals is consistent with the wording of thoseLproposals l
and we will adopt that. interpretation for purposes.of this decision.
The Agency contends that all criminal and noncriminal investigations within the Agency are conducted by the.OIG.
Relying on ESA, in.which the Authority held that proposals pertaining to IG investigations are. nonnegotiable under~
section 3(a) of the IG Act,-the Agency. contends.that Proposals 1-4 pertain to investigations by the oIG and', therefore, are nonnegotiable.
The: Union does not dispute the Agency's 2/
An employee's right to union representation under section
- 7114 (a)(2)(B) of the Statute applies :to all investigations,.
including criminal investigations, conducted by;an agency.-
E13 U.S.
Depart 1:ent of' Justice. Immioration and Naturalization'
~
Service Border
- Patrol.-El Paso, Texas, 42 FLRA 834,.840 (1991).
i 9
_i
)
i contontien that all crininni cnd noncricin21 invectigatieno within the Agency are conducted by the OIG.
However, the Union asserts that the proposals would not affect the actions i
of IG personnel because the proposals apply to Agency representatives, other than IG personnel, who are present at the interviews.
We find that the absence of any reference to IG personnel in Proposals 1-4 does not change the fact that the proposals concern IG investigations.
However, on reconsideration of GEA in light of the court's decision in DCIS, we conclude that we will no longer follow GEA to the extent that it holds that an agency is not obligated to bargain on a proposal merely because the proposal concerns the conduct of IG investigations under the IG Act.
- Rather, proposals that concern the conduct of IG investigations under the IG Act will be found nonnegotiable if they are inconsistent with the IG Act or are nonnegotiable on other grounds.
In GEA, the Authority concluded that because, under section 3(a) of the IG Act, an IG is subject only to the head of the agency or the officer next in rank below the head of the agency, an agency is not obligated to provide representatives to bargain over the conduct of IG investigations at a local level.
In short, the Authority held that the independence of the IG precluded negotiations on any proposals concerning the conduct of IG investigations.
In our view, this aspect of GEA can no longer be supported in light of our decision to adopt the court's reasoning and findings in DCIS.
In DCIS, in affirming the underlying decision of the Authority, the court rejected an agency's claim that, under the IG Act, an element of the IG's office was sufficiently independent within the agency that its representatives did not conduct employee interviews as the representatives of the agency.
Sam DCIS, 855 F.2d at 100.
The court found that investigators who were part of the IG's office were employees of the agency.
The court stated that the " degree of supervision" exercised by manarement of that agency over the IG's office was " irrelevant."
14.
Consistent with DCIS, we find that because IG representatives are employees of an agency and, thus, are subject to the agency's obligations under the Statute, an agency cannot declare proposals concerning IG investigations nonnegotiable solely on the ground that, under section 3(a) of the IG Act, all proposals concerning IG investigations are outside the duty to bargain.
Consequently, we conclude that, insofar as GEA holds that an agency is not obligated to
)
1
-lo'-
bargain on a proposal merely because the proposal concerns the conduct of IG investigations, we vill no longer follow that decision.
Rather, proposals that concern the conduct of IG investigations under the IG Act will be found nonnegotiable if they are inconsistent with the IG Act or are nonnegotiable on other grounds.
The Agency's sole contention as to the negotiability of Proposals 1-4 under the IG Act is based on the Authority's holding in EEA.
The Agency has provided no other reasons to support its claim that the " requirements" of the proposals are inconsistent with the IG Act.
statement at 10.
That is, the Agency has not explained how any of the proposals, by their terms, are inconsistent with any provision of the IG Act and it is not otherwise apparent to us that Proposals 1-4 are inconsistent with the IG Act or are nonnegotiable on other grounds.
It is well established that the parties bear the burden'of creating a record upon which the Authority can make a negotiability determination.
Egg, for examole, Patent Effice Professional Association and U.S.
Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 820-821 (1991); National Federation of Federal Emolovees, Local 1167
- v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), eff'c National Federation of Federal Employees, Local 1167 and Deoartment of the Air Force. Headauarters, 31st Combat SuoDort Group (TAC).
Homestead Air Force _ Base, Florida, 6 FLRA 574 (1981).
A party failing to meet this burden acts at its peril.
Finally, we note that the Authority has consistently held that proposals which supplement employees' rights to union representation under section 7114 (a) (2) (B) of the statute are negotiable, if they are otherwise consistent with law and regulation.
Egg National Treasurv Enclovees Union and U.S. Decartment of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washincton, D.C., 43 FLRA 1442, 1445 (1992),
petition for review filed, No. 92-1161 (D.C. Cir. Apr. 10, 1992).
The Authority has also held that proposals requiring an agency, in appropriate circumstances, to give Miranda and Kalkines warnings are negotiable.
Egg Customs, 9 FLRA at 986.
Accordingly, we conclude that Proposals 1-4 are negotiable.
4 IV.
Proposal 5 Article 25 - Reassignments Section 25.7 The URC has determined that it will not reassign any' resident inspector before the end of his/her
-11 duty, baccd en on occum d 1003 cf cbjcctivity criteria without providing the employee involved with an opportunity to present his/her response to charges of loss of objectivity.
Whenever the NRC obtains evidence that an inspector is no longer performing his/her duties in an objective manner, it shall provide the employee with a formal notice containing a listing of all known examples where the employee's conduct, judgement, and/or performance are not compatible with the standards of the resident inspector program, with specific [] cites to the areas of the program where a deficiency was found.
The employee vill be given reasonable official time to prepare a timely response to those charges.
Within ten (10) days of the receipt of the employee's response to the charges of loss of objectivity, the NRC will provide the employee with a final determination.
The NRC agrees that before issuing a final determination, it will fully consider all-of the employees's responses to the charges.
i A.
Positions of the Parties 1.
Acency The Agency contends that Proposal 5 is nennegotiable i
under section 7106(a) (2) (A) and (B) of the Statute because the proposal restricts management's ability to reassign resident inspectors.
According to the Agency, in 1977 the Agency began a program of placing resident inspectors at all operating reactor facilities.
The Agency asserts that resident inspectors provide the major on-site Agency presence for direct observation and verification of licensee activities.
The Agency states that resident inspectors' duties include:
(1) in-depth inspections of control room activities; (2) maintenance and surveillance testing carried.out by the licensee; (3) " periodic valkdown inspections" to verify the correctness of system lineups for nuclear systems important to safe operation; and (4) plant tours to generally assess radiation control, security, and equipment condition.
Statement at 14.
The Agency states that to perform these duties, resident inspectors are required to live within a limited distance from the reactor.
The Agency further contends that in formulating its resident program, it was under " constant Congressional scrutiny [,)" because Congress was especially concerned that the Agency "ensur[e] that resident inspectors maintain their objectivity."
Id at 15.
- .12-The Agency asserts that to " ensure objectivity [] the.
~Agency has specified [in its policy manual) that resident inspectors will automatically.be relocated. after serving at a site for... 5 years."
Id4L The Agency also asserts that it reserves'the right to reassign an employee at any time.if there11s a question concerning the employee's ability.to.
perform his or her duties in an. objective manner or if the Agency determines that a reassignment-is otherwise in the best interest of the Agency.
The Agency contends that by "remuirrinal the Agency to give the employee an opportunity to respond to [its) determination to reassign [the employee) and further remuirrinal [it) to ' fully consider' all of_the employee's.
responses to the charges before reassigning the employee [,)"
the proposal places restrictions:on.the exercise of management's rights to. assign employees and work. - Lim at 13' (emphasis in original).- Citing Authority cases, the Agency
- asserts-that Proposal 5 "not'onlyzinpermissibly delays a reassignment, but also places a substantive conditionfon the exercise of management ['s] right to reassign the employee."
14 at 16.
The Agency-states that by claiming that the. Agency did not "' fully-consider'"-the employee's response underLthe proposal, the employee could challenge the Agency's' decision to reassign the employee, and-relief could require the' Agency to return the employee to the position from which the employee was reassigned.
Id2 2.
Union The Union explains that Proposal 5 establishes a procedure for resident inspector employees to respond to=their:
assumed loss of objectivity if they are to-be reassigned before the end of their 5-year tour of duty.
According to the Union, although the proposal mayLarguably. infringe on management's right to. assign workj it nevertheless. constitutes.
an appropriate arrangement.
The Union asserts that under the test established in EAEg:
(1) the proposal " affords employees an opportunity to' respond to an assumed loss of' objectivity-for which the punished without an opportunity to clear their.name"r (y are2) the.
circumstances.that trigger the reassignment ~are totally outside the employee's controir (3) management's. rights are
" minimally impacted" by.the proposal because the:" hearing:
envisioned would not delay-the relocation, if;at all, more
- than'20 days"; (4) the-negative impact'on management's rights
-are minimal, while.the benefit to employees, whoimust uproot' themselves and their families, Tare " enormous"; and' (5) management would " suffer no significant costs by allowing employees to defend their name and professional reputation T i
cgainst on assumption that dicrupto tho pocca cnd trcnquility of the employees ['] home and family."
Response at 10.
B.
Analysis and Conclusions We find that Proposal 5 is negotiable.
According to the Agency, to ensure objectivity, resident inspectors assigned to a nuclear power plant site are automatically relocated after serving at a site for 5 years.
However, if the Agency determines, during the course of an inspector's assignment to a site, that there is a question concerning that inspector's objectivity, the inspector may be reassigned to another work site before the end of the 5-year tour.
Proposal 5 addresses the Agency's finding that an inspector has lost his or her objectivity and the decision, based on that finding, to reassign the inspector to another work site before the end of a 5-year tour.
Specifically, Proposal 5 prescribes the steps that an inspector can take to respond to a management finding that the inspector is no longer sufficiently objective to function appropriately as an inspector at the currently assigned nuclear power plant.
As a result of management's finding, the inspector may be reassigned to a different power plant.
The purpose of the proposal is to provide the inspector with an opportunity to rebut the alleged loss of objectivity before management makes its final determination and, based thereon, its decision to reassign the inspector.
The question is whether the process required by the proposal would directly interfere with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
The right to assign employees under section 7106 (a) (2) ( A) of the Statute encompasses the assignment of employees to positions, including the initial assignment and reassignments.
American Federation of Government Employees.
AFL-CIO. Local 738 and DeDartment of the Army. Combined Arms Center and Fort Leavenworth. Fort leavenworth. Kansas, 33 FLRA 380, 382 (1988) (Fort Leavenworth).
The right to assign work to employees under section 7106(a) (2) (B) of the Statute encompasses the right to determine the particular duties and work to be assigned and the particular employees to whom or positions to which it will be assigned.
National Treasury Employees Union and Department of the Treasury. Bureau of the Eublic Debt, 3 FLRA 769, 775 (1980), affirmed, 691 F.2d 553 (D.C. Cir. 1982).
Based on the record, we find that the reassignment ref erenced in the proposal involves an assignment to a l
1 different position rather then just a chango of location.
Egg Statement at 15 and 16.
We also find that the process required by the proposal would not prevent management from reassigning an inspector to a different position at another nuclear power plant site or from determining the particular duties to be assigned to the inspector at that site.
- Rather, the proposal does nothing more than provide a mechanism which wi.'l allow inspectors an opportunity to defend themselves against an Agency allegation that they have lost their objectivity.
Egg, for example, National Treasury Employees Union and U.S.
Nuclear Reculatory Commission. Washincton, D.C.,
43 FLRA 1279, 1322-23 (1992) (Nuclear Reculatory Commission) (sections of a proposal requiring that employees required to undergo reasonable suspicion drug testing be given notice and the basis for the testing, and an opportunity to respond to the office director, did not preclude the agency from exercising its right under section 7106(a) (1) of the Statute).
The decision to reassign the inspector--after providing the inspector with notice, with a statement of the reasons supporting a conclusion of loss of objectivity, and with an opportunity to respond to those reasons--would remain with management.
We reject the Agency's contention that, by requiring it to fully consider all of the inspector's responses, the last sentence of the proposal would directly interfere with management's rights to assign employees and assign work because it would restrict management's ability to reassign resident inspectors and result in relief requiring the Agency to return the inspector to the position from which he or she was reassigned.
Proposals requiring only that an agency consider exercising its management rights in a particular manner do not interfere with those rights.
National Labor Relations Board Professional Association and General Counsel.
National Labor Relations Board, 32 FLRA 557, 563 (1988).
Moreover, to the extent that the Agency's argument constitutes a claim that the proposal would permit the substitution of an arbitrator's judgment for that of the Agency in the exercise of management rights, we have consistently held that an agency's " concern that an arbitrator's judgment may be substituted for its own is not a basis for finding [a proposal) nonnegotiable."
Eptional Treasurv Employees Union and U.S. Decartment of Health and Human Services. Social Security Administration, Office of Hearinos and ADDeals.
Baltimore, Maryland, 39 FLRA 346, 350 (1991).
Egg Newark Air Force Station and American Federation of Government Employees.2 local 2221, 30 FLRA 616, 636 (1987) ("[t]he question of any impermissible arbitral interference with management's rights must be directed to the merits, including remedy, of an arbitration decision").
We find that the proposal simply provides procedures, under section 7106(b) (2) of the Statute, in connection with management's decision to reassign employees based on an asserted loss of objectivity.
In so finding, we reject the Agency's argument that the procedural steps established by the proposal would delay a reassignment and thereby directly interfere with the Agency's exercise of its manag'ement rights.
The fact that it would take a period of time to complete the required steps prior to making a final decision on reassigning the employee does not mean that the proposal directly interferes with management's rights under section 7106 (a) (2) (A) and (B) of the Statute.
Egg, for example, Department of Interior. Pureau of Land Manacement v. FLRA, 873 F.2d 1505 (D.C. Civ. 1989) (proposal requiring a 10-day delay in imposition of any suspension of 14 days found to constitute a negotiable procedure).
However, even assuming that compliance with the procedures set out in the proposal would result in the delay of a reassignment that would directly interfere with management's rights to assign employees and assign work, we find that the proposal constitutes a negotiable appropriate arrangement under section 7106 (b) ( 3) of the Statute.
To determine whether a proposal is an appropriate arrangement, we first decide whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right.
EAEG, 21 FLRA at 31.
In deciding whether a proposal constitutes an arrangement, we examine whether the proposal is intended to address or co=pensate for the adverse effects on unit employees that result from management's exercise of its rights under the Statute.
Seg, for examole, American Federation of Government Employees. Local 3509 and U.S.
Department of Health and HumAD Se rvices. Social Security Administration. Greenwood. South Carolina District, 46 FLRA 1590, 1601 (1993) (South Carolina District).
If we determine that the proposal is an arrangement, we examine whether the arrangement is appropriate.
To make this determination, we examine the competing practical needs of employees and managers.
- KANG, 21 FLRA at 31-32.
As to whether the proposal constitutes an arrangement, the Union explains that the proposal is an arrangement for resident inspectors who are alleged to have lost their objectivity and who, based on that allegation, are reassigned to a position at another work site before the end of a 5-year tour.
According to the Union, the proposal provides the inspector with an opportunity to respond to that allegation, which could adversely affect the employee's professional reputation and family life.
The Union contends that a reassignment based on a determination of loss of objectivity enormous" disruption to on inepoctor cnd to the vould cause m inspector's family, who would have to be uprooted.
Response
at 10.
Applying the analytical framework set forth in KANG, we find, for the reasons that follow, that the proposal constitutes an arrangement, under section 7106(b)(3) of the Statute, for employees who are adversely affected by the exercise of management's rights to direct employees and assign vork, under section 7106(a)(2)(A) and (B) of the Statute, I
through the evaluation of employee performance.
Specifically, under section 7106(a)(2)(A) and (B), management has the right to prescribe criteria governing employees' performance of their duties.
Egg National Association of Government Employees, Local R14-52 and U.S.
Department of Defense, Defense Finance and Accountina Service, Washincton, D.C.,
45 FLRA 910, 913 (1992) (Defense Finance and Accountino Se rvice').
Management also has the right under section 7106 (a) (2 ) ( A) and (B) to evaluate employees' performance under j
the criteria that it has established.
Egg, for example, American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration. Chicaco Recional Office, 34 FLRA 675, 679 (1990).
Moreover, management's right to proscribe criteria governing employees' performance is not limited to the identification of critical elements and the establishment of performance standards as part of a performance appraisal syste= under chapter 43 of title 5 of the United States code.
See Defense Finance and Accountina Service, 45 FLRA at 913.
It is clear that the criterion of objectivity involved in this I
case is a criterion governing inspectors' performance of their duties.
Consequently, regardless of whether that criterion is a part of the Agency's performance appraisal system for inspectors, we find that it constitutes an exercise of management's rights to direct employees and assign work, under section 7106 (a) (2) (A) and (B) of the Statute.
We also find that management's evaluation of inspectors' performance under that criterion constitutes an exercise of management's rights under section 7106(a)(2)(A) and (B).
We find, based on the record in this case, that it is reasonably foreseeable that some inspectors who are evaluated as to the objectivity with which they perform the duties of their positions vill be found by management to have lost their objectivity.
We also find that inspectors who are the subjects of such a finding would be adversely affected by that finding, within the meaning of section 7106 (b) (3) of the Statute.
In particular, inspectors who have been unf airly or wrongly accused by management of having lost their objectivity
would be adversely affected by that chargo.
Propoac1 5 vould mitigate these adverso offecto by providing inspectors with the opportunity to rebut management's finding of loss of objectivity before the decision is made to reassign them.
Consequently, we conclude that Proposal 5 is an arrangement for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b) (3).
As to the burden imposed by the proposal on management's exercise of its rights, we noted above that the proposal does not preclude management from reassigning an inspector.
Management retains the discretion to permanently reassign the inspector after the steps described in the proposal have been followed.
Moreover, except for the reasonable time required for an inspector to prepare a response, the time required to complete the process is within management's control.
Thus, we find that the proposal contemplates that a minimal delay is all that would be necessary to accomplish the objective of affording inspectors the opportunity to defend themselves against an Agency charge that they have lost their objectivity.
We also note that the proposal does not preclude the Agency from te=porarily assigning other duties to the inspector alleged to have lost objectivity.
Moreover, the proposal would not preclude the Agency from temporarily reassigning that inspector's duties during the time required to complete the prescribed procedures, if the Agency has concerns about the inspector's work performance.
We find that the benefit to inspectors of being afforded an opportunity to respond to an Agency decision to reassign them to a position at another work site based on an alleged loss of objectivity, and of the requirement that the Agency fully consider that response before making a final determination, outweighs the burden imposed on the Agency's right to assign employees and assign work by the delay resulting from the requirements of the proposal.
Additionally, we note that the proposal could benefit the Agency by saving it from expenses resulting from unnecessary or unwarranted reassignments.
We find, therefore, that the proposal would not excessively interfere with management's rights to assign employees and assign work under section 7106 (a) ( 2) ( A) and (B) of the Statute.
Consequently, we conclude that proposal 5 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Accordingly, we find that Proposal 5 is negotiable.
_y.
-1s :
1 I
.V.
Pronosal 6 Section 25.8 9
New Proposal
)
1
[1].In the event that the NRC.' determines that a resident inspector aust be reassigned to another location for reasons related to loss of; objectivity, the NRC will. provide a " list of_.
i vacant sites for which the employee is
]
qualified."
[2] From these vacant sites, the
.i inspector _shall_be allowed to submit his/her top three (3) choices-for reassignment ~.. [3] The NRC-shall reassign the inspector to one of L his/her top three (3) choices if at all possible.
[4) If
- the NRC determines it cannot grant one of the -~
1 inspector's top three (3)' choices,.it shall-1 document the' reasons why. L [5] Absent just. cause,
~
the inspector will be permitted to select two additional choices from the above' referenced
" list".
[6]-The final reassignment decision vill be made from among the employees ['] selections off of the " list of vacant sites".
[The sentences in the proposal have been numbered l
for the convenience of the reader.)-
I A.
P.psitions of the Parties 1
1.
Acency i
The Agency contends that-Proposal 6 is nonnegotiable
- l because it interferes with management's rightsuto_ assign employees and assign work under section 7106(a)(2)(A), and- (B) of the Statute.
The Agency asserts that the " essential y
portion of the.
. proposal requires that the-[ Agency) provide a list of vacant sites for which the employee =is qualified and'[from) this list.'if at all~possible'fthe.
1 employee will be assigned one of his. or her' top three a
selections."
Statement at 17.
The Agency states'that, in'any.-
a event, the. proposal provides that "the-employee 'will' be
-)
reassigned to one of his or her. top five choices." :lic-1 The Agency asserts -that the proposal:"could reuuire the Agency to place an employee in a position which'the Agency otherwise would not'have:placed the employee."
Idr at 16-17f (emphasis in original).
The Agency states that requiring the_
e Agency to reassign a resident inspector:to his or her choice-q "if at all possible" imposes a substantive condition on 4
management's right.to assign: employees.
The. Agency explains that_ proposal 6 could force the Agency to place'an. employee in 1
=
-19 o poaition fer which the employee might be qualified but, nevertheless, not the best person' for the job.
To illustrate this contention, the Agency describes a situation in which an employee selects locations that have plants with pressurized water reactors (PWRs).
The Agency asserts that while experienced with PWRs, the employee is an expert in i
boiling-water reactors (BWRs) and there is a vacancy at a plant that has a BWR, but that plant is not one of those selected by the employee.
The Agency contends that for
" mission [-]related reasons," the Agency might want to assign the employee to the BWR plant even though that plant was not one
~ e employee's top three choices.
Id at 18.
The Agency asserts that this determination is for the Agency to make.
The Agency claims that an arbitrator should not determine whether it is possible for the resident inspector to work elsewhere, especially as it concerns nuclear power plants.
The Agency also contends that, by requiring that an employee be provided with a list of vacant sites only for which the employee is qualified, the proposal precludes management from assigning the resident inspector to a site which does not currently have a vacancy, if management decides such a move would be appropriate.
The Agency states that by requiring management to assign the employee to one of five positions selected by the employee, Proposal 6 would force the Agency to reassign employees to positions which are not necessarily desired by management and vnich may not meet mission requirements.
The Agency further asserts that because the site to which the employee is assigned dictates the work which the employee must perform, Proposal 6 interferes with management's ability to assign work.
According to the Agency, a resident inspector must perform his or her duties at the plant where he or she is assigned.
The Agency states that the proposal would "directly dictate which 12h and thus Yhnt dutiti the employee would be assigned."
1d2 at 20-21 (emphasis in original).
The Agency also contends that the proposal is not an appropriate arrangement.
The Agency asserts that the proposal does not address the effects of the exercise of a management right and, therefore, does not meet the first part of the test under KANG.
2.
Union i
The Union states that Proposal 6 " permits employee inspectors who are the subject of a directed reassignment dut to an assumed loss of obiectivity
.. to have input into i
where they are reassigned."
Response at 11 (emphasis in
20 original).
According to tho Union, the Agency cictekenly asserts that this proposal would apply when resident inspectors are reassigned at the end of their 5-year tour of duty.
The Union asserts that the plain language of the proposal would only require the selection procedures to be used in very limited situations.
The Union states that the
" scenario [ presented) by management in preposterous." Idt The Union explains that under the proposal management would provide affected employees with a list of vacant sites for which the Agency has determined that the employee is qualified.
According to the Union, if management determines that an employee is most qualified to work at BWR reactors, then the Agency would create a list comprised of only those reactors.
Moreover, if management determines that an employee is most qualified for the PWR reactors, then, consistent with the Agency's mission, management.would give the employee a list of those reactors.
The Union also claims that even though this proposal may arguably infringe on management's right to assign work, it sets forth a procedure for resident inspectors to maintain some control over their lives when they are being reassigned because of an assumed loss of objectivity.
The Union contends, therefore, that the proposal constitutes an appropriate arrangement.
The Union asserts that:
(1) the impact of reassignments based on an alleged loss of objectivity is enormous because such reassignments cast a shadow on the career and professional reputation of employees 1
and cause disruption in employees' personal lives; (2) the circumstances that give rise to a reassignment are not within the employee's control; and (3) the impact on management is minimal because an employee's input into where he or she will be located is limited to the parameters developed by management.
I B.
Analysis and conclusions i
1.
First, Second. Fourth and Fifth Sentences j
Proposal 6 establishes procedures that the Agency will observe in reassigning to another work site employees whose objectivity has been questioned.
The first, second, fourth, and fifth sentences of Proposal 6 merely prescribe certain steps that management will take to afford inspectors an l
opportunity to indicate to management their preferences for i
reassignment.
These sentences, respectively, would only:
(1) require the Agency, when it decides that an inspector must be reassigned to another location based on a loss-of-objectivity determination, to provide the inspector with a list of vacant sites for which the employee is qualified; (2) permit the inspector to subnit his'or her top
~
three choices for reassignment to the Agency; (3) require the Agency, if it cannot grant one of the inspector's three choices, to provide an explanation; and (4) permit the inspector, should the Agency reject the three choices, to select two additional choices from the list of vacant sites, absent just cause by the Agency for denying the request.
These portions of the proposal do not require the assignment of inspectors to positions at work sites chosen by the inspectors.
Rather, they simply establish procedures that allow an affected inspector a chance to review a list of vacancies compiled by the Agency for which management has determined that the employee is qualified, and to inform the j
Agency of the vacancies on the list where he or she prefers to be reassigned.
Eeg, for example, American Federation of Government Emoloyees. AFL-CIO. International Council of U.S.
Marshals Service Locals and Department of Justice. U.S.
Marshals Service, 4 FLRA 3 84, 389-90 (1980) (proposal-establishing procedures for the consideration of employees for lateral transfer or reassignment constituted negotiable procedures under section 7106(b) (2) of the Statute).
Under the first, second, fourth and fifth sentences of the proposal, after management has provided inspectors with the opportunity to designate the work sites to which they wish to be reassigned, the Agency would still have the discretion to assign the inspector to a position, and to work at any work site.
That is, under these sentences, management could assign an inspector to work sites other than those on the list of vacancies.
consequently, we conclude that the first, second, fourth, and fifth sentences of Proposal 6 do not directly interfere with management's right to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
We find that those sentences constitute negotiable procedures under section 7106(b)(2) of the Statute.
2.
The Third Sentence Proposals which impose substantive conditions on management's rights directly interfere with management's exercise of those rights.
Specifically, proposals that condition the exercise of a management right on whether the exercise of the right is "possible" directly interfere with that right.
Ses National Association of Government Emolovees.
Local R5-82 and U.S.
Decartment of the Navy. Navy Exchance.
Naval Air Station. Jacksonville. Florida, 43 FLRA 25, 35-36 (1991) (provision limiting management in the selection of a candidate for promotion from outside the bargaining unit to situations where, it was not "possible" to promote from within, directly interfered with management's exercise of its right to select employees).
The third sentence of Proposal 6 requires the Agency to reassign a resident inspector to one of
-22 his or her top three choices, "if at all possible."
As worded, the third sentence of Proposal 6 obligates management to assign a resident inspector to one of the employee's three choices, if it could do so, and as such, dictates to management, in some situations, the positions and the work to which management can reassign an inspector.
By so dictating, the proposal imposes a substantive condition on management's exercise of its rights to assign employces and assign work and, thus, directly interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute.
Because the third sentence of Proposal 6 directly interferes with management's right to assign employees and assign work, it is negotiable only if it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Applying the analytical framework established in KANG, we find that the third sentence is an arrangement for employe'es adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute.
Specifically, we find that it is reasonably foreseeable that the employees to whom the proposal applies are employees who would be adversely affected by the exercise of management's rights.
Of fice of the Chief Counsel, IRS, 960 F.2d at 1071.
The Union explains that the proposal is intended as an arrangement for resident inspectors who are subject to reassignment based on an Agency determination that the inspector has lost the requisite objectivity to perforz his or her duties at the current work site.
The Union asserts I
that the proposal affords unit inspectors who are adversely affected by management's decision to reassign them input into I
where they will be relocated.
We find, consistent with the Union's statements, that the employees to whom the third sentence of Proposal 6 would apply are inspectors who, it is reasonably foreseeable, would be adversely affected by management's Jecision, based on an evaluation of the objectivity with which they have performed their duties, to reassign them to another work site.
We also find that the third sentence is designed to benefit those inspectors by allowing them an opportunity to provide input into where they will be relocated.
The third sentence of Proposal 6 would ameliorate the adverse effect of the reassignment on inspectors' professional and personal lives by requiring management, if at all possible, to reassign the inspectors to one of their three choices.
Specifically, the proposal allows the inspector to attempt to affect the Agency's decision and, thus, possibly avoid assignment to an undesirable work site.
Accordingly, for the reasons stated in i
connection with our analysis of Proposal 5, we find that the' third sentence of Proposal 6 constitutes an arrangement for employees adversely affected by management's exercise of its
rights to direct employees and assign work, under section 7106 (a) (2) (A) and (B) of the Statute, through the evaluation of employees' performance.
~
As to the burden imposed by the proposal on the exercise of management's rights, we note that although the third sentence obligates the Agency to reassign an inspector to a work site among those which the inspector has designated, if it is possible to do so, the judguent as to the availability of the position and the qualifications of inspectors needed to perform the work of the position is reserved 'to management.
In this regard, we note the Union's explanation that under the proposal management would create the list of vacant sites for which the Agency has determined that an inspector is qualified.
The Union's explanation is consistent with the wording of the proposal.
Consequently, we will adopt that interpretation for purposes of this decision.
Interpreted in this manner, we find that the work sites designated by an inspector would come from a list of vacancies for which management has determined the inspector is qualified.
That is, the list of vacant sites from which an inspector designates his or her three choices reflects management's determination as to the availability of positions and the qualifications of inspectors needed to perform the work of those positions.
Thus, the burden imposed by the third sentence on management's rights is reduced because, at the point that the inspector is allowed to designate three work sites, management already has determined appropriate vacancies for which the inspector is qualified.
Moreover, the sentence would not impose on management an absolute requirement that it reassign the inspector to one of the work sites which the inspector has designated.
That is, in situations where it may not be possible to assign an inspector to one of his or her designated choices because the employee has specialized skills that are needed elsewhere, including sites that are not on the list prepared by management, management would not be obligated to reassign the inspector to one of those designated choices.
For example, in a case where an inspector has designated his~or her three choices and prior to management acting on these choices an emergency situation arises at a work site not on the list prepared by management which management determines requires that inspector's specialized skills, management could determine that it was not at all possible to reassign the inspector to his or her designated choices.
Also, if management determines after having examined the inspector's three choices that for mission-related reasons the employee's skills were more suited for a work site not included in the employee's three choices, management could determine that it
was not at all possible to reassign the employee to those three choices.
Thus, if mantgement demonstrates that it is not possible to reassign the inspector to one of the three designated work sites, management would not be obligated to do so.
Egg, for examole, Amprican Federation of Government Emolovees. Local 2024 and U.S.
Department of the Navy, Portsmouth Naval Shiovard. Fortsqputh. New Hamoshira, 37 FLRA
~
249, 253-5B (1990).
on the other hand, by requiring the Agency, if it is at all possible, to reassign a resident inspector to one of the 4
designated work sites, the third sentence of proposal 6 affords a substantial benefit to affected inspectors.
The i
reassignment of an inspector based on a determination of loss i
of objectivity affects not only the inspector, but also that inspector's family.
The inspector would be uprooted by the reassignment and 1
would incur the disruption and hardships associated with moving in such circumstances.
By requiring the Agency, if at all possible, to reassign the inspector to one of the work sites designated by the inspector, the third sentence vould 1
benefit the inspector by giving him or her significant input into where he or she vill be relocated.
In this manner, the third sentence would benefit employees by possibly avoiding their assignment to undesirable work sites and thereby reducing the disruption and hardships associated with such an involuntary move.
Balancing the competing interests of the inspectors and the Agency, we conclude that the benefit to inspectors afforded by the proposal outweighs the burden placed by the proposal on the Agency.
Consequently, we find that the third sentence of Proposal 6 does not excessively interfere with management's rights and is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Egg, 12I examole, American Federation of Government Emelovees. Local 1658 and U.S.
Department of the Army. Army Tank-Automotive Epmmand. Warren. Michi AD, 44 FLRA 1375, 1387-89 (1991)
R (provision providing that, insofar as possible, the agency would normally avoid the assignment of incidental duties that are inappropriate to an employee's position and. qualifications found to constitute a negotiable appropriate arrangement under section 7106(b) (3) of the Statute); American Federation of Government Employees, AFL-CIO. Local 1931 and Denartment of the Navy. Naval Weapons Station. Concord. California, 32 FLRA 1023, 1035-37 (1988)(provision requiring management to make a reasonable effort to reassign employees, whose positions were eliminated, to vacant positions that management decided to fill and to train employees who had the aptitude for the vacant positions and reassign them to those positions when
- }
i they were trained, found to constitute a negotiable appropriate arrangement), reversed as to other matters, No. 88-7408 (9th Cir. Feb. 7, 1989).
3.
The Sixth Sentence The sixth sentence would require the Agency to reassign the inspector to one of the five work sites designated by that i
inspector, under the second and fourth sentences, from among the list of vacant sites.
Because the sixth sentence requires the Agency to assign the inspector to one of the five sites selected by that inspector from the list of vacant sites, the sentence limits the positions to which an inspector can be reassigned to those at the five work sites designated by the inspector and requires management to assign the inspector to a position at one of the five work sites.
Thus, if management determined that the inspector's particular qualifications and skills were needed to perform the duties of a position at a work site not listed as one of the inspector's five choices, management could not assign the inspector to that position.
Proposals that limit the positions to which management can reassign an employee to those chosen by an employee directly interfere with management's right to assign employees.
Eeg Aperican Federation of Government Employees, AFL-CIO and Air Force Loaistics Command, Wricht-Patterson Air Force Base, Ohio, 2 FLRA 604, 626-627 (1980), affirmed sub nom. Department of Defense v.
FLRA, 659 F.2d 1140 (D.C. Cir.
1981), cert, denied, 455 U.S.
945 (1982) (proposal requiring an agency to reassign employees who were subject to a reduction-in-force on the basis of employee preference found to directly interfere with management's right to assign employees).
Similarly, proposals that limit the duties that management can assign an employee directly interfere with management's right to assign work.
Est Deoartment of Defense, Of fice of Dependents Schools and Overseas Education Association, 28 FLRA B71, 880 (1987).
Consequently, we conclude that, by limiting management to reassigning the inspector to positions and to duties only at the five work sites selected by the inspector, the sixth sentence of the proposal directly interferes with management's right to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
We turn next to the Union's contention that the proposal constitutes an appropriate arrangement under section 7106 (b) (3 ) of the Statute.
Applying the analytical framework established by KANG, we find that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute.
- 26-For the purposes of this decision, we will assume, i
without deciding, that the proposal constitutes an arrangement.
Egg, for exazole, Angrican Federation of Government Encloyees, Local 1760 and U.S. DeDartment of Health and Human Services. Social Security Administration. Office of Hearinas and Appeals. Recion II, 46 FLRA 1285, 1289 (1993).
Consequently, we next determine whether the proposed arrangement is appropriate within the meaning of section 7106(b)(3) because it does not excessively interfere with the exercise of management's rights or whether it excessively interferes with management's rights under the statute.
- KANG, 21 TLRA at 31-32.
After balancing the competing interests of the employees and the Agency, we conclude that the sixth sentence would excessively interfere with the exercise of management's rights to assign employees and assign work.
The sixth sentence of Proposal 6 restricts the positions to which the Agency could assign the inspector to those located at only the five vacant sites designated by the inspector.
Thus, the Agency could not assign the inspector to perform the work of positions at work sites which the inspector has not designated.
If, for example, the Agency decided that the inspector was most qualified to work at a particular plant and that it needed to assign the inspector to perform the work of a position located at a particular plant that was not designated by the inspector, the sixth sentence would prevent the Agency from doing so.
Therefore, the sixth sentence would seriously impair the Agency's ability to manage its work force and determine the sites at which Agency personnel are needed.
We note that the sixth sentence is different from the third sentence of Proposal 6.
The third sentence of Proposal 6, unlike the sixth sentence, would not impose on management an absolute requirement that it reassign the inspector to one of the work sites designated by the inspector.
Rather, under the third sentence, if management demonstrates that it is not at all possible to reassign the employee to one of the work sites designated by the inspector, management would not be obligated to do so.
Thus, under the third sentence, if management concludes that it is not at all possible to reassign an inspector to one of the three locations chosen by the inspector because that inspector has skills ~that are needed at a different location, the Agency would not be obligated to reassign the inspector.
The sixth sentence does not allow management any discretion.
The sixth sentence would obligate management to reassign an inspector to one of the five work sites designated by that inspector regardless of whether management demonstrated that it would not be at all possible to do so.
l 9
We recognize that a reassignment under the circumstances of this proposal would disrupt the lives of the inspector and-i his or her family.
The sixth sentence of Proposal 6 benefits inspectors by giving them some control over where they are reassigned.
The sixth sentence would ameliorate the adverse affect of the reassignment, which resulted from a determination of loss of objectivity, on those inspectors' professional and personal lives by requiring management to L
reassign the inspectors to one of five work sites. designated by the inspectors.
We find, however that the benefit to inspectors of limiting the work sites to which they can be reassigned does not outweigh the burden inposed on management's ability to use inspectors' skills where they are needed.
Consequently,_ we find that the sixth sentence of Proposal 6 excessively interferes with management's' rights to assign employees and assign work.
We conclude, therefore, that this sentence is not an appropriate arrangement under section 7106 (b) (3) of the Statute.
We conclude that the first, second, third, fourth,_and fifth sentences of Proposal 6 are negotiable.
The sixth sentence is nonnegotiable because it directly and excessively interferes with management's rights to assign employees and assign work under section 7106(a) (2) (A) and (B) of the Statute.
V1.
Q:iir The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 1, 2, 3,
4, 5, and the first five sentences of Proposal 6 1/
We dismiss the petition for review as to the sixth sentence of Proposal 6.
i i/
In finding that these proposals are negotiable, we make no judgment as to their merits.
4
FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C.
NATIONAL TREASURY EMPLOYEES UNION (Union) and U.S. NUCLEAR REGULATORY C0KKISSION WASHINGTON, D.C.
(Agency) 0-NG-2051 STATEMENT OF SERVICE I hereby certify that copies of the Decision and Order of the Federal Labor Relations Authority in the subject proceeding have this day been mailed to the following parties:
Cheryl A. Teare CERTIFIED MAIL Assistant Counsel RETURN RECEIPT REOUESTED National Treasury Employees Union 901 E Street, N.W.
Suite 600 Washington, D.C.
20004 Michael J. Fox CERTIFIED KAIL Chief, Policy and Labor Relations RETURN RECEIPT REOUESTED office of Personnel Nuclear Regulatory Commission Washington, D.C.
20555 Dennis C. Dambly CERTIFIED MAIL Assistant General Counsel for RETURN RECEIPT REOUESTED Administration office of the General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, NW.
Washington, D.C.
20555 DATED:
8E -
'/ N3 f vMMIf M0/tN' liA#HINGTON, /D.C.
~ ~ ~Deborah D. Johp(son Legal Technician 1
i i
n
-i I
t h
t
' ATTACHMENT -
State of Nevada v. O'Learv, Civ. No. 93-399-ECR (D. Nev.,
i filed June 14, 1993) i
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_.,04. _.....<_. _
jinitch $tates pistrict (Ecurti DISTRICT OF NEVADA State of Nevada SUMMONS IN A CIVIL ACTION V.
CASE NUMBER:
Hazel R.
O' Leary, Secretary of tne U.S.
Dept. of Energy; U.S.
Dept. of Energy; Ivan Selin, James R. Curtis, E.
Gail CV-N
-93 3 9 9 -E CR dePlanque, Forest Remick, and Kenneth C.
Rogers, Commissioners, U.S.
Nuclear a
Regulatory Commission: Carol M.
- Browner,
" I Administrater, U.S. Environmental Protection Agency; and U.S. Environmental Protection Agency
_1 T O M'a ~ **: ' n 'es / W a w "
United States Nuclear Regulatory Commission
{
Washington, DC' 20555 YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon
- i PLAtNTIFF'$ ATTORNEY tasN eae eco us).
l Frankie Sue Del Papa, Attorney General, State of Nevada, i
Harry W. Swainston, Deputy Attorney General, Nuclear Waste Project Office, Capitol Complex, Carson City, NV 89710 i
an answer to the complaint which is herewith served upon you, within 60 days after service ot. >
this summons upon you, exclusive of the day of service. If you fail to do so, judg'nent by default will be taken against you for the relief demanded in the complaint.
i 1
4 CAROL C. FITZGERALD, CLERK JUN 141993.
CLERK oATE i
- trY DEPUTY CLERK g,
e j
)
FRANKIE SUE DEL PAPA Attorney General State of Nevada Capitol Complex Carson City, NV 89710 (702) 687-4170 HARRY W. SWAINSTON Deputy Attorney General JAMES H. DAVENPORT
~Special Deputy Attorney General State of Nevada Capitol Complex 1802 N. Carson, Suite. 252 Carson City, NV 89710 (702) 687-5866 ATTORNEYS FOR PETITIONER IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEVADA STATE OF NEVADA,
)
]
Petitioner,
)
]
v.
]
Civil No.
]
Hazel R.
O' Leary, Secretary
]
of the United States
]
Department of Energy; United
]
States Department of Energy;
)
Ivan Selin, James R. Curtis,
)
E. Gail dePlanque, Forest
]
Remick, and Kenneth C.
]
Rogers, Commissioners,
]
PETITION United States Nuclear
]
Regulatory Commission; United ]
States Nuclear Regulatory
]
Commission; Carol M. Browner, )
Administrator, United States
]
Environmental Protection
]
Agency; and United States
]
Environmental Protection
]
- Agency,
)
3 i
1 Respondents.
]
)
l I
i
Plaintiff, State of Nevada, alleges:
JURISDICTION 1.1 The jurisdiction of this Court arises under 28 U.S.C.
5 1331, 42 U.S.C.
5 10139, and Rule 27 of the Federal Rules of Civil Procedure.
5 U.S.C. 702 et seg.
28 U.S.C.
5 1331 provides that the District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.
42 U.S.C.
5 10139 provides that the United States courts of appeal shall have original and exclusive jurisdiction over any civil action for review of any final decision or action of the Secretary of Energy (DOE), the President of the United States or the Nuclear Regulatory Commission (NRC) or for their failure to act under the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C.
10101 et seg.
While this provision does not confer jurisdiction over this petition in the District Court, the actions Nevada vill seek based on the testimony perpetuated in this proceeding would be cognizable under 42 U.S.C.-5 10139 with respect to anticipated decisions by the DOE, the President or the NRC and under the Administrative Procedures Act, 5 U.S.C.
702 et seq., with respect to the Environmental Protection Agency's (EPA's) regulatory decisions.
Rule 27 of the Federal Rules of Civil Procedure provides that a party who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the United States 9
2
may file a verified petition in the United States District Court in the district of the residence of any expected adverse party.
L PARTIES 1.2 Petitioner State of Nevada is a sovereign State of the United States.
On February 2, 1983,- the Governor and Legislature of the State of Nevada were notified pursuant to Section 116(a) of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.
5 10136, that a repository for the disposal and storage of high-level radioactive waste and spent nuclear fuel may be located in a tuff medium at Yucca Mountain in southeastern Nevada.
On l
December 21, 1987, the Congress enacted the Omnibus Budget Reconciliation Act of 1987, Pub.
L.
100-203.
Title V of the Act contains the Nuclear Waste Policy Amendments Act of 1987 (NWPAA).
In the 1987-amendments, Congress selected the Yucca Mountain site as the only site to be characterized for possible development as a repository site.
The Respondent Secretary of Energy and the agency she administers, the Department of Energy, have primary responsibility to conduct site characterization activities at Yucca Mountain.
The State of Nevada has oversight and monitoring responsibility for the Department of Energy's program to characterize the Yucca Mountain site and, if subsequently selected, for the construction of a high-level radioactive waste repository at the site.
The State's oversight role extends to agency action by the Nuclear Regulatory Commission (NRC) and the Environmental Protection Agency (EPA) insofar as their respective f
l 3
i i
I
1 regulatory authority affects site characterization, the selection of Yucca Mountain as a repository site, the licensing of construction activities, the possession of high-level radioactive waste and spent fuel rods from commercial power reactors at the site, and the radiation emission standards which are established by such agencies for the protection of the general public.
1.3 Under the NWPA, EPA is required to " prom"' gate generally applicable standards for protection of the general environment from off-site releases from radioactive releases in repositories."
42 U.S.C. 5 10141(a).
Section 801 of Title VIII of the Energy Policy Act of 1992, Pub.
L.
102-486, contains provisions directing the EPA to promulgate by rule public health and safety standards for the protection of the public from releases of radioactive materials stored or disposed of at the proposed repository at Yucca
- Mountain.
Such standards must be
" consistent with the findings and recommendations of the National Academy of Sciences."
Section 801(a) (1) of Title VIII, Energy I
Policy Act of 1992.
Section 801(a) (3) of Title VIII further provides that the EPA standards "shall be the only such standards applicable to the Yucca Mountain site."
1.4 The NRC, which has the responsibility to issue a construction authorization for a repository (42 U.S.C.
10134(d)),
must, pursuant to its authority under the Atomic Energy Act, establish " technical requirements and criteria that it will apply
. in approving or disapproving" license applications for high-level radioactive waste repositories.
42 U.S.C.
4 l
.5 10141(b) (1) ( A).
Section 121(b) of the NWPA provides that these
" requirements and criteria" established by NRC "shall not be inconsistent with any comparable standards" issued by the EPA.
42 U.S.C. 5 10141(b) (1) (C).
Section 801(b) (1) of Title VIII of the Energy Policy Act of 1992 requires that "the Nuclear Regulatory Commission shall by rule, modify its technical requirements and criteria under Section 121(b) of the Nuclear Waste Policy Act of 1982 (42 U.S.C.
10141(b)), as necessary, to be consistent with the [ EPA] Adminis'trator's standards promulgated under subsection (a)" of Title VIII.
The NRC must consider an application submitted by the Secretary of Energy for a construction authorization for a repository at Yucca Mountain if a recommendation is made by the President to Congress and Congress overrides the State of Nevada's notice of disapproval under Section 115 of the NWPA, 42 U.S.C.,5 10135.
An environmental impact statement, prepared by the Secretary of Energy "shall to the extent practicable, be adopted by the Commission in connection with the issuance of a construction authorization and license for such repository."
42 U.S.C. 5 10134(f).
1.5 The Secretary of Energy is required by the NWPA to issue general guidelines for the recommendation of sites for repositories.
Pursuant to Section 112(a) of the NWPA, 42 U.S.C.
5 10132(a), the Secretary promulgated guidelines which, Inter alla, "specify factors that qualify or disqualify any site from-development as a repository."
The guidelines are contained l
10 C.F.R.
Part 960.
In response to the State of Nevada's petition for judicial review, the State's challenge to the validity of the DOE's siting guidelines was rejected by the Ninth Circuit Court of Appeals on the basis that the promulgation of See the guidelines was not a final decision by the Secretary.
Nevada v. Watkins, 939 F.2d 710 (9th Cir. 1991).
The Secretary of Energy must apply the guidelines in his recommendation to the President pursuant to Section 114(a) of the NWPA, 42 U.S.C.
S 10134 (a), which provides "that the Secretary shall submit to the President a recommendation that the President approve such site for the development of a repository."
A final environmental impact statement must accompany the Secretary's recommendation to the President.
See 42 U.S.C. 5 10134 ( f).
The guidelines, which may be revised from time to time (42 U.S.C.
f 10132(a)),
presumably must ultimately be consistent with the proposed radiation standards to be promulgated by the EPA and the licensing requirements and criteria established by the NRC.
i According to the Court's holding in Nevada v. Watkins, 939 F.2d j
(9th Cir. 1991), the validity of the guidelines and their 710 application will be subject to judicial review at the time of the Secretary's recommendation to the President, if such a recommendation should occur.
j Section 113(c) of the NWPA, 42 U.S.C. 5 10133(c), provides that the " Secretary may conduct at the Yucca Mountain site only such site characterization activities as the Secretary considers necessary to provide the data required for evaluation of the 6
suitability of such site for an application to be submitted to the [ Nuclear Regulatory) Commission for a construction authorization for a repository at such site, and for compliance
]
with the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.)."
Site characterization is expected to take from five to thirteen years beyond DOE's presently scheduled completion of site characterization in October 2001.
- See, e.g., United States General Accounting Office Report To The Chairman, Subcommittee on Clean Air, and Nuclear Regulation, Senate Committee on Environment and Public Works, entitled " Nuclear Waste, Yucca Mountain Project Behind Schedule and Facing Major Scientific Uncertainties," GAO/RCED-93-124.
Pursuant to Section 113(c) (2) of the NWPA, 42 U.S.C.
1013 3 (c) (3 ), the Secretary of Energy must
" terminate all site characterization activities" if she "at any time determines the Yucca Mountain site to be unsuitable for development as a repository."
Nevada's efforts to require the Secretary to promulgate procedures to address disqualifying conditions on a continuing basis was rejected by the Ninth Circuit Court of Appeals in Nevada v. Watkins, 914 F.2d 1545 (9th Cir. 1990).
COGNIZABLE ACTIONS 1.6 Based upon the substantial involvement by the respondent federal agencies in activities subject to judicial review under the NWPA, as amended, and the Atomic Energy Act, as amended, 42 U.S.C.
2011 et seq., Nevada anticipates that it will 7
i I
be a party in at least the following potential actions, all of which would be cognizable in the courts of the United States under 42 U.S.C.
10139 and 5 U.S.C.
702 et seq.:
A.
An action seeking judicial review of the adequacy of DOE's guidelines (10 C.F.R. 960) promulgated pursuant to Section 112(a) of the NWPA, 42 U.S.C. 10132(a).
B.
An action seeking judicial review of the decision of the Secretary of Energy to recommend to the President that Yucca Mountain should be developed as a repository.
C.
An action challenging the adequacy and sufficiency of DOE's environmental impact statement for Yucca Mountain.
D.
An action seeking judicial review of the statutory adequacy of the public health and safe'ty standards to be promulgated by the EPA for the protection of the public from releases from radioactive materials proposed to be stored or disposed of in a repository at Yucca Mountain.
E.
An action seeking judicial review of the statutory adequacy of the NRC's technical requirements and criteria for licensing of a proposed repository at Yucca Mountain.
F.
An action seeking judicial review of the decision by the NRC to issue DOE a construction authorization for a
, repository.
8
SUBJECT MATTER OF ACTIONS 1.7 The actions listed in Paragraph 1.6 involve technical and scientific facts which are relevant to a determination of the suitability of the Yucca Mountain site for development as a repository and which are germane to the validity of guidelines, radiation standards, and environmental impact statements which underlie the determination of the suitability of the site.
Those actions will not be cognizable by the courts for many years and may not become ripe for adjudication for decades.
The State of Nevada expects to be a party in the actions listed in Paragraph 1.6 but is presently unable to bring them or to cause them to be brought because they are not ripe.
DOE is currently developing technical and scientific facts and publishing expert opinion in technical reports which Nevada does not have the current ability to cross examine.
Because EPA and NRC have not yet issued their respective standards and technical requirements and criteria, the technical studies and opinions of the DOE's technical experts are relevant to those agency actions.
Due to the inordinate length of time which is required for site characterization, it is likely that the authors of the technical reports and studies will be unavailable for examination in NRC's construction authorization proceeding, or during review by the courts.
Certain scientific and technical issues have been addressed by DOE and its contractors in a 2aanner that suggests that such issues, insofar as they may impilcate site suitability, have been 1
9 i
o-resolved.
In particular, the State contends that DOE's inquiry into the hydrologic and geologic properties of Yucca Mountain which involve the possible episodic recurrence of flooding of the proposed repository horizon by hydrothermal waters has been inadequate yet DOE has foreclosed additional direct study of the potential phenomenon.
If the phenomenon of hydrothermal water flooding were established, it would: 1) directly affect the promulgation of radiation standards which may be established based upon anticipated geologic and engineered barrier systems at Yucca Mountain, 2) directly affect a determination of suitability of the Yucca Mountain site to isolate the migration of radionuclides from the repository to the accessible environment and the biosphere, 3) directly affect the preparation of environmental impact statements, and 4) ultimately affect NRC's consideration of DOE's application for a construction authorization.
NEVADA'S INTEREST 1.8 Nevada's interest in the actions listed in Paragraph 1.6 include, but are not limited to, the State's sovereign and quasi-sovereign interests in the land, water, wildlife and general environment in Nevada and the extent to which its jurisdiction over such matters may be preempted; the State's interest in protecting the health, safety and general welfare of its citizens; the State's interest in socioeconomic matters particularly as such interest relates to the preservation and protection of its major industries: recreation, gaming and 10
tourism; the State's interest in the protection of its proprietary interests which include the water rights which it owns in the Ash Meadows area, and the State's interest in its oversight and monitoring role of the federal repository program at Yucca Mountain established in the NWPA.
FACTS WHICH NEVADA DESIRES TO ESTABLISH 1.9 On or about November, 1987, Jerry S.
Szymanski, a geologist working for the Department of Energy at DOE's Nevada Operations Office, Waste Management Project Office, issued a report entitled " Conceptual Considerations of the Death Valley Groundwater System with Special Emphasis on the Adequacy of This System to Accommodate the High-Level Nuclear Waste Repository."
The model Mr. Szymanski developed predicted episodic upwelling of ground water at Yucca Mountain in response to major tectonic events, which include moderate to large earthquakes and/or volcanic activity.
His model incorporated seismic pumping and gas-assisted, fracture controlled, thermal convection.
His model predicted the likelihood of the upwelling of large volumes of water which would flood the repository within the first few thousand years after emplacement of the waste.
If his model is correct, under current licensing regulations Yucca Mountain would likely be disqualified as a repository site.
Mr. Szymanski claimed that flooding at the repository horizon has repeatedly occurred in the past and could be expected to happen again.
Furthermore, the engineered containments of the waste could be 11
expected to fail and the water would carry radioactive isotopes and hazardous chemicals into the biosphere.
Mr. Szymanski recommended that " serious consideration should be given to abandoning the Yucca Mountain site and declaring it as unsuitable for the purposes of permanent disposal of the high-level nuclear wastes."
1.10 In 1990, the DOE empaneled a five-man external review panel selected by the DOE and Mr. Szymanski.
The external review panel produced a majority and a minority report.
The minority report, issued by Professor Charles B. Archambeau and Dr. Neville Price in 1991, strongly supported Mr. Szymanski's hypotheses while the majority report, also issued in 1991 by Dr.'s Dennis Powers, John Rudnicki and Leslie Smith, was critical in many respects.
The external review panel did not resolve the controversy.
In response to a request from the DOE, the National Academy of Science's National Research Council established the Panel on Coupled Hydrologic / Tectonic / Hydrothermal Systems at Yucca Mountain, Nevada under the auspices of the Board on Radioactive Waste Management, to evaluate 1) if the water table had been raised in the geologically recent past to the level of the proposed mined geologic disposal system (MGDS) and 2) if it is likely that it will happen in the manner described by Mr.
Szymanski within the 10,000-year period covered by the applicable federal regulations.
The individuals appointed-to the Panel on j
Coupled Systems claim to have read Mr. Szymanski's report and 12 l
i other portinent literature, and interviewed or consulted with i
scientists involved.in field and laboratory investigations of Yucca: Mountain and the region for the DOE, the State of Nevada, independent scientists, and the five members of the External Review Panel.
In 1992, the Panel on Coupled Systems issued a final report entitled " Ground Water at Yucca Mountain, How High Can It Rise."
The Panel's overall conclusion in the report "was that none of the evidence cited as proof of ground-water upwelling in and around Yucca Mountain could be reasonably attributed to that process."
Op. cit at p.
3.
1.11 The State of Nevada's Nuclear Waste Project Office has engaged the services of Technology and Resource Assessment Corporation (TRAC) for the purpose of critically evaluating the problems raised by Mr. Szymanski and the treatment given to them by the Panel on Coupled Systems on behalf of the DOE.
On November 19, 1992, an official of TRAC, Dr. Charles B.
Archambeau, wrote to Dr. Frank Press, President of the National Academy of Sciences as follows:
[W]e have reviewed the National Academy of Sciences' report generated by the Panel on Coupled Hydrologic / Tectonic / Hydrothermal Systems at Yucca Mountain, as previously noted.
The Panel report i
contained-a large number of strong conclusions, with the overall conclusion stated as follows (p. 3):
The panel's overall conclusion was that none of the evidence cited as proof of ground-water upwelling in and around Yucca Mountain could be reasonably attributed to that process.
The preponderance of features ascribed to ascending water clearly (1) were related to the much-older (13-10 million i
years old (Ma)) volcanic eruptive process that produced the rocks (ash-flow tuffs) in 13 1
which the features appear, (2) contained contradictions or inconsistencies that made an upwelling ground-water origin geologically impossible or unreasonable, or (3) were classic examples of arid soil characteristics recognized world-wide.
I, along with my co-investigators, have taken strong issue with the Academy report in general and with'this conclusion in particular.
In fact, we disagree with most of the conclusions and recommendations made in the report.
Therefore, this is not what might be termed a
" disagreement about scientific details" but major criticism directed at the Panel for their disregard of critical data that was available and known to them, their misrepresentation of other data and results, and the use of equivocal and often contradictory field
" observations" and data to draw very strong conclusions and recommendations.
I Dr. Press has since rejected a suggestion by TRAC that a re-evaluation of the Academy Panel report, by the Academy itself, is appropriate.
1.12 Nevada desires to take the depositions of all of the researchers who have participated in the evaluation of Mr.
Szymanski's hypotheses to establish the facts upon which their evaluations were based, thus perpetuating that evidence.
NEVADA'S REASONS TO PERPETUATE TESTIMONY 1.13 The State of Nevada is in agreement with its contractor, TRAC, concerning TRAC's criticism of the Academy Panel's report.
The Department of Energy, however, fully endorses the primary conclusions of the Academy Panel's report, and takes the report to be the Panel's endorsement of its plans for studying the factors which contribute to a site suitability determination.- 'The State anticipates that the DOE will utilize and rely upon the conclusions of the report of the Panel on 14 i
+
Coupled Systems, and DOE's own conclusion of the report's purported endorsement of its plans for. site investigation in the execution of its statutory duties under the NWPA, particularly the determination of site suitability, the preparation of an Environmental Impact Statement, DOE's submittal of license applications to the NRC, and DOE's ultimate claims in the licensing proceedings before the NRC.
The State expects that the report, and DOE's conclusions about the report, will be relied upon by DOE to: 1) justify its avoidance of specific investigations, data collection and analysis, and suitable evaluations during site characterization of possible past or future episodes of hydrothermal water upwelling that might be critical to a site suitability determination; and 2) effect DOE's closure of technical issues, regarding site suitability and licensability, dealing with the origin of carbonate-silica vein deposits in fractures and faults within Yucca Mountain.
If DOE's scientific site investigation activities avoid future investigations directed specifically to the hydrothermal water upwelling. question, then DOE's determination of site suitability may necessarily rest primarily upon the Pane?'s report.
Nevada seeks to perpetuate the testimony of the Panel members, and the testimony of qualified scientists who express opposing and dissenting views so that the Panel's report may be given the proper weight and credence which' it is entitled in the actions ~ referred to in Paragraph 1.6 which may be cognizable in the federal courts at some future date.
15
Additionally, Nevada seeks to perpetuate the testimony as stated, for the purpose of challenging DOE's failure to discover and document scientifically-based facts which are germane to the hydrothermal water upwelling question as the result of DOE's continued reliance upon the Panel's report having unreasonably caused its scientific investigation of the site to be inadequate.
1.14 The Panel's report may also influence EPA's promulgation of health-based radiation standards by which the suitability of Yucca Mountain may be evaluated and may affect NRC's promulgation of licensing criteria with which Yucca Mountain must comply to qualify for a construction authorization and repository license.
The actions listed in Paragraph 1.6 will be influenced by the existence of the Panel's report.
To the extent that Nevada will be unable to challenge the findings and conclusions of the Panel, in the absence of the perpetuated testimony by the Panel members and other researchers, the State's oversight and monitoring role will be frustrated and any meaningful judicial review of NRC's, DOE's or EPA's administrative actions will be jeopardized.
PERSONS TO BE EXAMINED 1.15 Hevada desires to perpetuate the testimony of the members of the National Academy of Sciences Panel on Coupled Systems which produced the report:
" Ground Water-at Yucca Mountain, How High can It Rise?"
Additionally, Nevada desires to perpetuate the testimony of the five-member' external review panel selected by the DOE.
Finally, Nevada desires.to perpetuate the 16
l testimony of Jerry S. Szymanski and the principle investigators 4 -
.that are employed by TRAC.
1.16 The following are the names and addresses of the persons generally referred to in Paragraph 1.15 whose testimony Nevada seeks to perpetuate:
Jerry S. Szymanski, 1572 Silver Mesa, Las Vegas, NV 89109 Charles B. Archambeau, Department of Physics, l
Theoretical and Applied Geophysics Group, University of Colorado-Boulder, Campus Box 583, Boulder, CO 80309 Gerald A.
Frazier, 1107 Mountain Pines, Boulder, CO 80302 q
Malcom R. Somerville, Servios Geol 6gicos Y Sismicos Calle 114A No. 11A-40, Of. 105, Santaf6 de-Bogots,-
Colombia, S.A.
i J
Don E. Livingston, 1108 Rock Springs Road, Las Vegas, NV 89128 I
i Neville Price, Balloon House, 6 Black Frairs St.,
Stamford, Lincolnshire PE9-2BW, United Kingdom Dennis W.
Powers, Star Route Box 87, Anthony, TX 79821 John Rudnicki, Northwestern University,.2145 Sheridan Road, Evanston, IL 60208-3109 17
Leslie Smith, Department of Geological Sciences, University of British Columbia, 6339 Stores Road, Vancouver, B.C. V6T-2B4 Frank Press, National Academy of Sciences, 2101 Constitution Ave., NW, Washington, DC 20418 C. Barry Raleigh, University of Hawaii, School of Ocean, Earth Science and Technology, Deans Office 1000 Pope Road, MSB 205 Honolulu, HI '96822 George A. Thompson, Department of Geophysics, Stanford University, Stanford, CA 94305-2215 William F.
Brace, Massachusetts Institute of Technology (ret.), 49 Liberty Street, Concord, Massachusetts 01742 Barry H.
G. Brady, Dowell-Schlumberger, 5051 South 129th East Avenue, P.O.
Box 2710, Tulsa, OK 74101 John D.
Bredehoeft, U.S. Geological Survey (M/S 429),
345 Middlefield Road, Menlo Park, CA 94025 Raymond M. Burke, Department of Geology, Humboldt State University, Arcata, CA 95521 j
Robert O.
Fournier, U.S. Geological Survey, (M/S 910),
345 Middlefield Road, Menlo Park, CA 94025 Sabodh K. Garg, S-Cubed, 3398 Carmel Mountain Road, San Diego, CA 92121 George M. Hornberger, Department of Environmental Engineering, Clark Hall, University of Virginia, Charlottesville, Virginia 22903 18
Robin K. McGuire, Risk Engineering, Inc., 5255 Pine Ridge Road, Golden, CO 80403 Amos M. Nur, Department of Geophysics, Stanford University, Stanford, CA 94305-2215 H. J. Ramey, Department of Petroleum Engineering, Stanford University, Stanford, CA 94305-2215 Edwin W. Roedder, Department of Earth and Planetary Sciences, Harvard University, Cambridge, MA 02138 Douglas Rumble, Geophysical Laboratory, Carnegie Institution of Washington, 2801 Upton Street, l
Washington, DC 20008 W.
Geoffrey Spaulding, Quarternary Research Center (AD-60), University of Washington, Seattle, WA 98195 Brian P. Wernicke, California Institute of Technology, Seismology Laboratory (252-21), 1201 East California Boulevard, Pasadena, CA 91125 Mary Lou Zoback, U.S.
Geological Survey (M/S 977),
345 Middlefield Road, Menlo Park, CA 94025 SUBSTANCE OF TESTIMONY 1.17 The facts that Nevada seeks to establish by the proposed testimony are the facts which the individual researchers relied upon in reaching their conclusions in the sundry reports and portions of reports which they individually wrote or reviewed.
Other facts include: 1) the pertinent literature read l
and considered by such researchers, 2) the names.of other scientists who were interviewed or consulted, 3) the areas of 19
each individual's expertise and the extent to which each individual confined his or her attention to such areas, 4) the extent to which each individual agreed or disagreed with reported conclusions and recommendations, and 5) the data and the source of the data that were considered.
SUMMARY
4 Nevada seeks to perpetuate the testimony described in Paragraph 1.17 for the purpose of evaluating the following agency actions with the intent to seek judicial review: radiation standards promulgated by the EPA, licensing criteria promulgated by the NRC, determination of suitability of Yucca Mountain by i
DOE, promulgation of an environmental impact statement for Yucca 4
Mountain, consideration of licensing applications by the NRC-for Yucca Mountain.
Nevada intends to challenge in an appropriate i
action cognizable in the courts of the United States any attempt 1
by the DOE to avoid or diminish the importance of the Szymanski hypothesis in any proceeding before any federal agency and/or in j
l connection with any other activity having to do with DOE's l
determination of suitability of the Yucca Mountain site to isolate radioactive waste from the biosphere for 10,000 years.
Nevada intends to rely upon such testimony to prove that the Yucca Mountain site is not suitable and is not licensable.
Because of the time necessarily elapsing before Nevada may bring or may be involved in an action in which the testimony which Nevada seeks to perpetuate will be relevant and germane, the persons whose testimony Nevada seeks to perpetuate may be 20 t
4
deceased, unavailable, or without adequate recollection of pertinent facts.
PRAYER FOR RELIEF The State of Nevada hereby petition's the Court for an order authorizing the Petitioner State of Nevada to take.the depositions of the persons named in this Petition for the purpose of perpetuating their testimony.
Respectfully submitted, this /k day of June 1993.
FRANKIE SUE DEL PAPA Attorney General for the State of Nevada l
7 By:
04w% lUr 172b,%
n1J HARRY WI/SWAINSTON Deputy Attorney General capitol Complex 1802 N. Carson, Suite 252 Carson City, NV 89710 (702) 687-5866 (MhuM1/ kg //n3 JANES H. DAVENPORT V
(/
Special Deputy Attorney General-1110 Capitol Way South Suite 307 Olympia, WA. 98501 (206) 357-9350 4
21
STATE OF NEVADA
)
)
ss.
VERIFICATION COUNTY OF CARSON CITY
)
Personally appeared before me, the undersigned notary public in and for the jurisdiction aforesaid, Robert R. Loux, who acknowledged to me under oath that he is the Executive Director for the Nuclear Waste Project Office, an agency of the State of Nevada and that he verifies the forgoing Petition for and on behalf of the State of Nevada; that he is duly authorized so to do; that the facts stated therein have been assembled by authorized employees and counsel for the State of Nevada; and that the allegations therein are true and correct to the best of his knowledge, information and belle A Aw-ROBERT R. LOUX /
/
SUBSCRIBED and SWORN to before me on this ll day of June, 1993.
b OsCv %'
NOTARY {?UB(:C MdRV JD J0iiNS0[i NOTARY PUBLIC NEVADA
[
CARSON CITY k,
My Appt. Expires Aug. 12,19934 y
............-..n 22
5 ATTACHMENT -
Oncoloav Services Corporation v. NRC, No. 93-0939 (W.D. Pa.,
filed June 14, 1993) g e
=
y
l UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OP PENNSYLVANIA ONCOLOGY GERVICES CORPORATION
)
)
1145 Bower H131 Road - Suite 105
)
Yd h8f Pittchurgh, PA
- 35243,
)
Civi1 Action No.
Plaintiff,
)
)
)
v.
)
)
UNITED CTATES NUCLEAR REGULATORY
)
COMMISSION Wemhington, D.C.
20555, and
)
i FOIA OFFICER
)
RUSSELL POWELL, Nuclear Regulatory Commission
)
)
U.S.
washington, D.C.
- 20555,
)
)
Defendants.
)
COMPLAINT FOR INJUNCTIVE DrLTEF 1,
Thio action is brought under the Freedom of Information Act, 5 U.S.C.
Section 552, ng amended,
("FOIA") to certain enjoin defendants from withholding from public disclosure records which are within their possession and control.
i 2.
Thio court hao juriadiction over thin action pursuant to 5 U.S.C. Santion 552 (a) (4) (B).
3.
Plaintiff Oncology Services Corporation is a
corporation that is licensed by Defendant United States Nuclear Regulatory Commission for the use of radioactive by-product material,.
Plaintiff is interested in obtaining transcripts of t
testimony taken by Defendant United Ctates Nuclear Regulatory 4
Commission in connection with its investigation of alleged 20 and 35 as investigated 19, violations by plaintiff of 10 C.P.R.
by the Incident Investigation Team and certain other information.
4.
Deftsudant United States Nuclear Regulatory is an agency of the United States established by Commission ("NRC")
statute.
Among its responsibilition in the administration. of concerning nucicar safety and health and the federal programs enforcement of standards promulgated thereunder.
The NRC has i
possession and control of the records to which Plaintiff has requested access.
5.
Plaintiff filed with various individuale and 1993, February 10 and departmentu of Defendant NRC on January 29, 25, 1993, and March 5 and 26, 1993 letters requesting accans to certain documents under the FOIA.
A copy of tha letters are attached hereto collectively as Exhibit A.
Access was requestod for transcripts of all interviews made by the - NRC's Incident Investigation Team, for the Indiana, Pennsylvania accident.
That an FOJA number 93-108.
Acowsw request has been givon, by the NRC, was also requested for the Guidelines / Instructions For Region I Inspectors xegarding By-product Material Licensee Inopoetions.
That request has been given, by the NRC, an FOIA nusuber 93-177.
t 4
e e
_p.
1 i
Datendant NRC has fallod to respond to FOIA requests i
o 6.93-100 and 93-177.
l Section 552 (a) (6) (c) and the 7.
Pursuant to 5 U.S.C. Section 9.29(c), p1aintiff is 10 C.F.R.
regulations or Defendant, deemed to have exhausted its administrative remedien because i
Plaintiff's defendants havo not made a final determination on requests within applicable statutory and agoney tima limits, 5 i
Section 9.25 (g) and U.S.C. Section 552 (a) (6) ( A) and (D), 10 C.F.R.
Soction 9.29(c).
B.
Pursuant to 5 U.S.C. Section SS7 (a) (3), plaintiff has a right of access to the documents requested and defendants have no legal bauls for their actions in withholding access to said documento.
W!!EREFORE, plaintiff prays this Court!
1.
To take jurisdiction of this cause; 2.
To order defendant U.S.
Nuclear Regulatory i
Commission to permit aooems to the requested documents; action; To expedito the proceedings in this 3.
4.
To issue a written finding, pursuant to 5 U.S.C.
Section 552 (a) (4) (F),
that the circumstancos surrounding the withholding raise questiono yhether
. ~
~.
i 1
I agency personnel acted arbitrarily or capriciously I
with razpoet to thle withholding; and l
To grant such other and further relief as the Court 5.
may deem just and proper including, but not limited i
an award of re,asonable attorney fees and other to, costs incurred in this action, pursuant to 5'U.S.C.
Section 552 (a) (4) (E).
naspectfully submitted, I
Harcy L. Tolkitt g 7pg,
Pa. I.D. No. 53447
)
i P.O. Box 607 Indiana, PA.14701-0607 i
l l
Kerry A. Kearney g
REED SMITH SHAW & McCLAY j
3 i
Pa.
T.D.
No. 20120
-l 435-Sixth Avenue Pittsburqh, PA 35219-Attorneys for Plaintlff,
.l Oncology services corporation 1
i June 14, 1993 i
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(412) 200-3046 January 29, 1993 VIA FAXr 301/492-7275 Ma'.
Cherie Siegel N461onal Regulatory Commission Rockville, MD RE:
NRC/ITT Investigation of Oncology Services corporation Dear Mm. siegel On behalf of oncology services Corporation, the Licensee that is the subject of the above investigation, I am requesting that complete transcripts of all interviews made by the NRC-be copied and sent to me as soon as they are public.
You indicated that they would be public on or abortly after the Commission report on February 8,1993.
If there is any problem with giving these to me as counsel for OSC, could you
~
We please make them available directly to Dr. Douglas Colkitt.
will be more than happy to arrange for pickup or to pay for some form of overnight shipment.
Again, I am.'nterested in a.2 testimony of all witnesses taken in connect ;on with this ITT inves tiga t' ion, I also understand that-Dc. Colkitt can come to Rockville to see his transcript until February 5, 1993 and that he should call you at 301/492-8373 to make arrangements.
vary truly yousu, RECD 9MITH SKAH 6 McCl,AY s/ Kerry A.
N e ss r n ey BYt Kerry A.
Hoarney XAKarep I
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r Rzun hrrn SIIAW b Mf7C).A.Y wAutpetitow, sv MILLON 6QUAAC 34AlikJC Abl*M86-435 gixtg avswys MitAOL6fttet 6A P.O. swie stet eftilf4agQae, pp g;3pp tiTTigh%tt PA 16219 1066 ggggg,jggg, pg 8Artf AW YA tillt Jf f8Ff (RCA1 (13gM jj)]
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Whe*tt'6 oiRfC1 D4At ledStt (43P1 200-3046 February 10, 1003 yIA TAX:
301/4DP-7P75 Mn.
Chorio Siegel National Regulatory Commiccion Rockv13J0 MD RE:
NRC/1IT Ynvnatination of Uncolocu cervh enrnnretinn - Februaru 9.
1D03 commissipri H,ttp r ifi c neer Me, Siegeli As counsel for Oncology servicec corporation, I wnulo like in tirdor thw f is 11 tronveript and a videotape ur thn Nuclear Regula t tir y L ummis sion h e o n' i n g.i t which the I3T report won presutsted to thm commission on February 6,
10 0 'J.
Yots had pluvious1V a D r e t; d tu give uc the c o rnp l e t e Leonocripta of the NRC/
ITT invoblJgation, which I rosmally requested by letter doloC January PR, 1993.
If I need to do anythinq further to gnt theon (s unscrilit s and v i rle u l a p c of the FCbruary.8 1993 hearing, rould you pleeuw Int me know.
We will call you et 301/492-832.1 in a few days in verify that nur request is pouccoding.
Ho will, of CDul5e. f18 U any copying Foon involved.
Thanks for guus help.
)
Very truly gnesrs, RFCD GHITH DHnN & f1 C C L A Y.
c /Kne ry A.
Weorney a
D' Y :
Kerry A.
Kuorney KAKti99
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Reza Swnrn Su4w & McCs Av wsmanoes, oc
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- L"" TA evnaur.cu, en tine 41))t+1114 if 64 7nstI (t.CA) 9 At its.244.)M) waisca $ mm.1 p.m ww ta F v D r tstii y 2 5, 200'4 t il l ' ) P88-3046 d
VJJ FAX;_, 3.D.1/ 4 0 2 -4 0 7 4 Russol) I$ o w e l l, FDIA Officer Mail Stop P378-C 1ctory Coinmission N ts r. lo o t Regt:
Wechington. DC
'd 0 555 RC:
NnC/IIT 7 n v e r, ti.gjlLtion nf Oncolocu services Iteerina Februeru B.
1993 Inminis91on (pennratior) _-
Door Mr.
Powall:
1 sin c e r a t e n r1 that ynu are treating my request for the taken by fir. P a p e r ic 110 ' u 11T team as Picasa sco t he Ottannett letter from Dr.
ena tsonscr$ pts antervieww whJch my client's prnsident, on FOIA requeGt.
Pepwale13o.tu Dr. DouglsR Colkjtt, Febr uary 0, transcriptc atter thn sagn we are w ri t i t l a rt to thase 2003 Commissinn hearing.
In auditiuti to at ing$ ng thin to your ottention. OSC w e n t e. tn meko two FDIA r eques t s:
makes a Frandom of Information Act documwnts nf tho NRC Setiinq foith the namon uf
).
Than letttsr issued by the.NRC fut Requent tutSef o ty Of flents untin e licencos H n ri$ a t i oli of radiat3nn meter 1018.
trinefacol use ocoka copion nf all Dyproduct P.
1his lettes' also for Brachytnerapy is provided Motorial Licenses under which medinal purposes.
l' A c co u t;oll wstn quustions.
Very truly yourn, REED SM11H GHnN & McCLAY s/Kurry A.
Kearnoy Kos s y A.
Mearney K AKa r o p-
Runn Swxrn Sxtaw & McCLAv d)) $lk1H AV(NUI MTIE8U80H+PA'IIIIA N gggg mA#p% Appal 66 9ft EUR 3000
" U'M PHit AQ(LPH6A. PA Ptif tputC.f t te llD6 supv I
HattiLSLNtG, PA eu.mw ancitAN, VA 18 tit 17747: rt( As tamd10N. NI WRITit'l fhtfCi DIAA Nim 48tR (412) 208-3046 March 5, 1993 Y_I_A AX:
301/504-2162 AND 3Y Mall James M. Taylor Executive Director for Operation United States Nuolear Regulatory commission Washington, DC 20555 Re:
Oncology Servloes corporation - Response to IIT Report on_ Indiana, PA Incident - Nureg-1480 Dear Mr. Taylor By letter dated February 4, 1993, you sent to Dr. Douglas R. Colkitt, the president of my client Oncology Services corporation a copy of the NRC Incident Investigation Team Report relating to an incident at the Indiana Regional Cancer Center, Indiana Pennsylvania on November 16, 1992.
In that letter you stated that Oncology services Corporation had an opportunity to respond by March 5, 1993.
Enclosed are oncology ses;vicps corporatJon's responses to the NRC's Incident Investigation Team Report.
Note that Dr. Paperiello, who was head of the IIT,-told Dr. Colkitt and Ca.;; ology Genices Corporation that transcripts of his interviews would be available to oncology services Corporation on February 8, 1993.
To date, despite requests to several departments of the NRC, Oncology Services Corporation has been denied access to those transcripts.
Ac a result of the. fact that we have not received, transcripts to which we are entitled under the NRC regulatiods, we' asked for addi'ti'onal time to respond.
Your office indicated that we could make a partial response.
We reserve the right to add additional comments on this NRC IIT Report after those transcripts havd been received and we have had an opportunity to review them.
a I
l t
b O
AY Renn SMITH bHAW March 5, 1993 James M. Taylor tion if you need any additional informa Please contact me regardi.ng this report.
Very truly yours, REED S TH SHAW & McCLAY
-A. Kearney'~' -
Ke 4
(
KAK cic Enclosure M.D.
Douglas Colkitt,Estluire ocs My cy Colkitt, 1
i 6
0
+
(
ONCOLOGY SERVICES CORPOR ATION -.
$141384137.9 + 800428-9076 Fan: El4 2384069 '
110 Repent Cain
- Suite 100 * $ tate College. PA
- 16801 -
t March 26, 1993 (412) 4G3-3570 VIA TELECOPY: 303 492-4874
[REEDOM Of INFORMAil0N ACT REQUEST '
~
Natulle Brown, FOIA Officer
.J.d 4 fy Mail.Stop P378-C g,
1 Muclear Regulatory concnission Washington,-DC 20555 s
70IA Reouest of Oncoloav Bervioos cernoration ret Daar Xs. Browns on behalf of oncology servioos Corporation I^would like to make an FOIA Request for the Guidelinus/ Instructions For Region:I.
q Inspectors nogarding syproduct Material-Licensen Inspections.- I assume this is one boox or manual readily available and would like to receive such as soon au possible.
If you havo'any w estions,
~
please contact sne at 814-238-0375.
Thank you for your continued cooperation.
j f
very truly yours, f
/
9 8e/4tA Hascuy L Colkitt
~
General Counsel bc Douglas R. Colkitt, M.C.
(via telecopy)
Kerry A. Kearney, Esq. (via'telecopy) 4 a
e S
o 4
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ONCOLOGY SERVICES CORPORATION
)
1145 Bower Hill Road - Suite 105
)
Pittsburgh, PA
- 15243,
)
)
Civil Action No.
Plaintiff,
)
v.
)
)
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION
)
Washington, D.C.
20555, and
)
RUSSELL POWELL, FOIA OFFICER
)
U.S. Nuclear Regulatory Commission
)
Washington, D.C.
- 20555,
)
)
Defendants.
)
CERTIFICATE OF SERVICE I
I hereby certify that the following have been served, at their indicated addresses, true copies of the Complaint and Summons, the Motion to Compel Preparation of a Vaughn Index with appended Order and Memorandum of Points and Authorities, in the manner indicated:
The Honorable Janet Reno Thomas W. Corbett, Jr.
Attorney General of the United States Attorney for the United States Western District of PA Department of Justice United States Post Office-Room 4400 and Courthouse 10th Street & Constitution Ave.
Pittsburgh, PA 15219 Washington, DC 20B30 Marcy L. Colkitt
{ty pg)
Pa. I.D. No. 53447
- ^ -
Dated:
June 14, 1993