ML20056D253
| ML20056D253 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/10/1993 |
| From: | Varga S Office of Nuclear Reactor Regulation |
| To: | Rogers, Rogers K, Selin, Selin I, The Chairman NRC COMMISSION (OCM) |
| References | |
| CON-#394-14221, TASK-AS, TASK-BN93-020, TASK-BN93-20 BN-93-020, BN-93-20, OLA-3, NUDOCS 9308100267 | |
| Download: ML20056D253 (5) | |
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,/ wassiscTow. o.c. ross-oooi August 10, 1993 Docket Nos. 50-424-OLA-3 Board Notification 93-20 50-425-OLA-3 MEMORANDUM F0h: The Chairman Commissioner Rogers Commissioner Remick Commissioner de Planque Atomic Safety and Licensing Board and All Parties FROM: Steven A. Varga, Director Division of Reactor Projects - I/II Office of Nuclear Reactor Regulation
SUBJECT:
NEW INFORMATION POTENTIALLY RELEVANT AND MATERIAL TO BOARD PROCEEDING IN THE MATTER OF V0GTLE ELECTRIC GENERATING PLANT, UNITS 1 AND 2 In conformance with the Commission's policy on notification of the Commission and the Licensing Board of new, relevant, and material information, this memorandum calls attention to the documents discussed below.
On June 11, 1993, the Senate Committee on Environment and Public Works requested the NRC to provide its views on the issue of whether one-party taping of conversations by employees of NRC licensees may, under certain circumstances, constitute protected activity under section 211 of the Energy Reorganization Act of 1974. (Enclosure 1)
The Chairman's response to the Senate Committee dated July 14, 1993, is enclosed. (Enclosure 2)
As requested by the Senate Committee, the Chairman provided the NRC's views to the Honorable Robert B. Reich, Secretary of Labor, by letter dated July 14, 1993. (Enclosure 3)
Copies of Enclosures 2 and 3 were previously sent to the licensee and the intervenor in this proceeding.
arl 504-3049 Hood, NRR hh k hM 9308100267 N 005 lit
This infor. nation is being brought to the attention of the Commission, the Licensing Board, and All Parties as information which may be - evant and material to issues pending before the Commission and the Licensing Board.
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o hven A. a ga, Director Division of Reactor Projet s - 1/Il Office of Nuclear Reactor Regulation
Enclosures:
- 1. Letter from Members of the Committee on Environment and Public Works
- 2. Letters to Senate Committee
- 3. Letter to Robert B. Reich cc w/ enclosures:
See next page l
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BOARD NOTIFICATION GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, Units I and 2)
License Amendment, Transfer to Southern Nuclear Docket Nos. 50-424-OLA-3,50-425-OLA-3 Peter o. Bloch, Chairman Michael D. Kohn, Esq.
Administrative Judge Stephen M. Kohn, Esq.
Atomic Safety and Licensing Board Kohn, Kohn and Calapinto, P.C.
Mail Stop: EW-439 517 Florida Avenue, N. W.
U.S. Nuclear Regulatory Commission Washington, D. C. 20001 Washington, D. C. 20555 Office of Commission Appellate James H. Carpenter Adjudication Administrative Judge Mail Stop: OWFN-16/G15 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: EW-439 Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Adjudicatory File (2)
Atomic Safety and Licensing Board Thomas D. Murphy Panel Administrative Judge Mail Stop: EW-439 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: EW-439 Washington, D. C. 20555 U.S. Nuc! car Regulatory Commission Washington, D. C. 20555 Atomic Safety and Licensing Board Panel John 1.amberski, Esq. Mail Stop: EW-439 Arthur H. Domby, Esq. U.S. Nuclear Regulatory Commission Trautman Sanders Washington, D. C. 20555 Nationsbank Building, Suite 5200 600 Peachtree Street, N. E. Office of the Secretary (2)
Atlanta, Georgia 30308 Attn: Docketing and Service Mail Stop: OWFN-16/G15 David R. Lewis, Esq. U.S. Nuclear Regulatory Commission Shaw, Pittman, Potts and Trowbridge Washington, D. C. 20555 2300 N Street, N. W.
Washington, D. C. 20037 Director, Environmental Protection Division Department of Natural Resources 205 Butler Street, SE Suite 1252 Atlanta, GA 30334
r cc:
Mr. J. A. Bailey Harold Reheis, Director Manager - Licensing Department of Natural Resources Georgia Power Company 205 Butler Street, SE. Suite 1252 P. O. Box 1295 Atlanta, Georgia 30334 Birmingham, Alabama 35201 Atto ney General Mr. J. B. Beasley Law Department General Manager, Vogtle Electric 132 Judicial Building Generating Plant Atlanta, Georgia 30334 P. O. Box 1600 Waynesboro, Georgia 30830 Mr. Alan R. Herdt Project Branch #3 Regional Administrator, Region 11 U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission 101 Marietta Street, NW. Suite 2900 101 Marietta Street, NW., Suite 2900 Atlanta, Georgia 30323 Atlanta, Georgia 30323 Mr. Dan H. Smith, Vice President Office of Planning and Budget Power Supply Operations Room 615B Oglethorpe Power Corporation 270 Washington Street, SW. 2100 East Exchange Place Atla,ita, Georgia 30334 Tucker, Georgia 30085-1349 Office of the County Commissioner Charles A. Patrizia, Esquire Burke County Commission Paul, Hastings, Janofsky & Walker Waynesboro, Georgia 30830 12th Floor 1050 Connecticut Avenue, NW.
Mr. J. D. Woodard Washington, DC 20u36 Senior Vice President -
Nuclear Operations Art Domby, Esquire Georgia Power Company Troutman Sanders P. O. Box 1295 600 Peachtree Street Birmingham, Alabama 35201 NationsBank Plaza Suite 5200 Mr. C. K. McCoy Atlanta, Georgia 30308-2210 Vice President - Nuclear Vcg.'le Project Resident Inspector Georgia Power Company U. S. Nuclear Regulatory Commission P. O. Box 1295 P. O. Box 572 Birmingham, Alabama 35201 Waynesboro, Georgia 30830
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Board Notification 93 20 Dated: August 10, 1993 cc:
J. Taylor, EDO J. Sniezek, DEDR H. Thompson, DEDS L. Plisco, EDO T. Murley, NRR F. Miraglia, NRR J. Partlow, 'JRR W. Russell, NRR T. Martin, R1 S. Ebneter, RIl B. Davis, Rlli J. Milhoun, RIV B. Faulkenberry, RV L. Chandler, OGC OGC (3)
C. Cater, SECY (3)
- 5. Burns, OCAA ASLBP Office of the General Counsel fiRR Division Directors NRR Deputy Director NRR Deputy Associate Director NRR Assistant Directors NRR Project Directors NRR Branch Chiefs ACRS (3)
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The Honorable Ivan Selin Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555
Dear Chairman Selin:
We are writing to urge that the Nuclear Regulatory Commission (NRC) give careful consideration to and determine whether one-party taping of conversations by employees of NRC licensees may, under certain circumstances, constitute protected activity under section 211 of the Energy Reorganization Act of >
1974. We would like to be informed of your views on this issue at the earliest possible ti ce. Additionally, we believe it would be appropriate for you to inform the Department of Labor (DOL) of ,
your views on this issue.
Employees of NRC licensees are one of the prime sources of information regarding nuclear power plant safety and potential .
violations of the Atomic Energy Act and NRC regulations. Over '
the years, a number of significant safety problems have been discovered and a number of significant enforcement actions have been taken as a result of information provided by nuclear whistleblowers.
The NRC should be aggressive in ensuring that all lawful and necessary.means of documenting and communicating information to the NRC are considered protected activity under section 211.
Provided that the employee's activity is otherwise not in violation of the law, the NRC should be as aggressive in ensuring.
that one method of documenting and communicating information to the NRC is as available to an employee as any other lawful means of documenting and communicating information to NRC.-
Section 211 of the Energy Reorganization Act of 1974 does not allow either the Imc or the DOL to adopt a balancing test--
i.e. weighing the value of the protected activity against the disruption to the workplace--to determine what constitutes- '
protected activity. Because employers can almost always contend that whistleblowing disrupts the workplace to some degree,.the adoption of such a balancing test would eviscerate the very protections that the statute is designed to provide, nenous~rn .a'- .r p w to on asevetro *Aern 7-u1 W t/
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- 2 It is not difficult to imagine circumstances in which an employee would believe it to be necessary to tape one or more conversations, without his or her employer's or fellow employees' knowledge, in order to document wrongdoing or threats to the public healtn and safety. Accordingly, even one-party taping, provided it is otherwise lawful and reasonably undertaken for a protected purpose, may be necessary to enable the NRC to carry out its statutory responsibilities to protect the public health and safety.
The issue of whether, or, alternatively, under which circumstances, one-party taping by employees of NRC licensees constitutes protected activity is now before Georcia theCompany, Power Secretary of91-No.
Labor in the case of Mosbauch v.
ERA-1, 91-ERA-11. The Secretary's decision in this case will '
directly affect the NRC's ability to obtain information regarding licensee compliance with the Atomic Energy Act. Additionally, it will directly affect the ability of employees to engage in i protecced activity. The Secretary's decision, therefore, could have a significant impact on public health and safety and the ability of the NRC to fulfill its mission. :
P In light of the NRC's interest in the MosDaach case, and its responsibility for enforcing section 211, we believe it would be i prudent for the NRC to determine whether one-party taping may, i
under certain circumstances, constitute protected activity and to ,
convey this determination to the Secretary as soon as possible.
The NRC should not passively rely upon the Secretary of Labor to ascertain the correct public policy in the field of nuclear regulation from arguments made by the private parties in a ;
particular dispute before the DOL, without any input from the NRC--the agency primarily responsible for nuclear regulation. I i
The NRC has a responsibility to make its own, independent determination on this issue. The NRC should then inform the Secretary of that determination.
To be perfectly clear, we are not urging you to adopt any ,
particular position as to whether the taping in the MosbauchThis v.
Georcia_ Power Company case constituted protected activity. i specific issue is separate from the generic issue of under which !
circumstances, if any, taping by nuclear employees is protected activity. We take no position on the issue in this specific case. Nor are we taking any position on the merits of employee taping outside the special circumstances of the nuclear workplace.
Nonetheless , we request that you inf orm us and the Secretary of your determination as to whether taping by nuclear power plant employees under certain circumstances is protected activity.
Such a determination will serve as an important indicator of the NRC's commitment to aggressively fulfill its responsibilities for interpreting and implementing the employee protection provisions
- 3 of the Energy Reorganization Act and the NRC's regulations.
Thank you very much for your attention and timely response.
Sincerely, 1n Jo n Chafee x ucus Chairman Ra king Minor ty M, ember I
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l Alan .. Simpsod eph I. Lieberman Ranking Minority Member Chairman Subcommittee on Clean Air Subcommittee on Clean Air [
and Nuclear Regulation and Nuclear Regulation !
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UNITED STATES NUCLEAR REGULATORY COMMISSION 4 3m g g' ; wAssiwcTow. o. c. 20sss
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CHAtkMAN ->
The Honorable Max Baucus, Chairman -
Committee on Environment and Public Works .
United States Senate Washington, D.C. 20510
Dear Mr. Chairman:
j This responds to your letter of June 11, 1993, in which you requested the Nuclear Regulatory Commission's views on whether one-party taping of conversations by employees of NRC licensees _ ,
could constitute, in some circumstances, protected activity under section 211 of the Energy Reorganization Act of 1974. You also l suggested that it would be appropriate for the NRC to communicate ;
its views on this issue to the Department of Labor. ]
In general, the NRC believes that attempts by employees of NRC !
licensees, contractors, or subcontractors (" employee") to gather -;
evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination related to the ;
reporting of safety issues for purposes covered by section 211'of j the Energy Reorganization Act, 42 U.S.C. Sec. 5851, are !
activities subject to protection under that section. In the [
context of the Committee's lette.r, the.NRC believes that legal l surreptitious taping by an employee of personal conversations, to .
which the employee is a party, with the intent of providing the f information obtained to the licensee or the NRC, is an activity, -
subject to protection under'section 211. .
Although the activity may be within the scope of activities protected under section 211, employment may still be terminated .i (or other employment action taken), if the employer-can .
demonstrate by clear and convincing evidence that it would have '.
taken the same-unfavorable action in the absence of such i behavior; i.e., for legitimate, non-discriminatory reasons, '
including whether the activity was carried out in an-unreasonable manner or in violation of law. Thus, while the Commission 't recognizes that attempts by an employee to gather evidence of i safety violations or related discrimination in some respects i could have a disruptive effect on the workplace, the mere .
potential for interruption of routine conduct of operations that' ,
may be caused by reasonable whistleblower activities should not ,
i be a basis for disciplinary action against an employee. For.this reason, determination of whether an employer may terminate or ,
take other employment action against an employee who has engaged in an activity subject to protection under:section 211'will i e
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depend on the specific facts and circumstances of the particular .i Lawful taping of conversations to which the employee is a case. .
. party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such ;
material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee. ,
once an employee has acted to gather evidence, the employee j should inform either the licensee or the NRC, of the employee's !
I actions. Prompt notification is in the public's interest because '
it enables the NRC and/or the licensee to act promptly to protect public health and safety, to recognize and' correct any possible safety violation, or to address any possible discrimination. ,
7urreptitious taping properly carried out under the direction of ,
the NRC should afford the employee protection under section 211 of the ERA for such action.
i By copy of this letter, we are communicating our views on these-issues to the Department of Labor and are also serving it upon ;
the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company. 1 Sincerely, h ,
Ivan Selin ,
cc: The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh)
(Georgia Power Company) 1 a
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CHAIRMAN l
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The Honorable John Chafee -l Ranking Minority Member :
Committee on Environment and Public Works United States Senate t Washington, D.C.- 20510
Dear Senator Chafee:
This responds to your letter of June 11,-1993, in which you- ;
requested the Nuclear Regulatory Commission's views on whether one-party taping of conversations by employees of NRC licensees ;~
could constitute, in some circumstances, protected' activity under section 211 of the Energy Reorganization Act of'1974. You also" l suggested that it would be appropriate for the NRC to communicate its views on this issue to the Department of Labor.
In general, the NRC believes that attempts by employees of NRC 1 licensees, contractors, or subcontractors.("ecployee") to gather evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination related to the' .
reporting of safety issues for purposes covered by section 211 of !
T the Energy Reorganization _Act, 42 U.S.C. Sec. 5851, are activities subject to protection under' that section.: In the l context-of the Committee's letter, the NRC believes that legal _ .
surreptitious taping by an employee of personal _ conversations, to which the employee is a-party, with the intent of providing the i information obtained to the licensee or the NRC, is an activity subject to protection under section 211. !
Although the activity may be within the scope of activities . ;
protected under section 211, employment may still be terminated (or other employment action taken), if the employer can demonstrate by clear and convincing evidence that it would have. :
taken the same unfavorable' action in the absence of such.
behavior; i.e., for legitimate, non-discriminatory. reasons, ,
including whether_the activity was. carried ~out in an unreasonable [
manner or in violation of law. Thus, while the Commission I recognizes that attempts by an employee to gather. evidence of~
safety violations or related discrimination in;some respects could have a disruptive effect on the workplace, the mere
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potential-for interruption of routine conduct of operations that-may be caused by reasonable whistleblower activities should not- ;
be a' basis for disciplinary action against'an employee. For'this_
reason, determination of whether an employer may. terminate or take other employment action against an employee who has engaged in an activity subject to protection under section 211 wi31 l
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depend on the specific facts and circumstances of the particular ,
case. Lawful taping of conversations to which the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such >
material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee.
Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions. Prompt notification is in the public's interest because '
it enables the NRC and/or the licensee to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.
Surreptitious taping properly carried out under the direction of che NRC should afford the employee protection under section 211 of the ERA for such action.
By copy of this letter, we are communicating our views on these.
issues to the Department of Labor and are also serving it upon the parties participating in the Department of Labor proceeding, 3 Mosbaugh v. Georgia Power Company.
Sincerely, Ivan Selin ec: The Honorable Robert B. Reich Parties to the Mosbaugh proceeding ,
(Alan Mosbaugh)
(Georgia Power Company)
UNITED STATES
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CHAIRMAN ,I
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The Honorable Joseph I. Lieberman, Chairman !
Subcommittee on Clean Air and Nuclear Regulation 3 Committee on Environment and Public Works ;
i United States Senate Washington, D.C. 20510
Dear Mr. Chairman:
This reroonds to your letter of June 11, 1993, in which you requesteu the Nuclear Regulatory Commission's views on'whether
- one-party taping of conversations by employees of NRC licensees- !
could constitute, in some circumstances, protected activity under :
section 211 of the Energy Reorganization Act of 1974. You also. !'
suggested that it would be appropriate for the NRC to communicate; l its views on this issue to the Department of Labor.-
I In general, the NRC believes that attempts by employees of NRC licensees, contractors, or subcontractors (" employee") to gather !
evidence relating to nuclear safety concerns at NRC-regulated !
facilities or to gather evidence of discrimination ~related-to the reporting of safety issues for purposes covered by section 211.ofE i the Energy Reorganization Act, 42 U.S.C. S e c .-. 5 8 5 1 , are 1 activities subject to protection under that section._ In the ?
context of the Committee's letter, the NRC believes.that legal [
surreptitious taping by an employee of personal conversations, to :
which the employee is a party, with the intent of providing the information obtained to the licensee or the NRC, is-an activity i subject to protection under section-211.
i Although the activity may be within the scope of activities protected under section 211, employment may still be terminated (or other employment action taken), if the employer can ,
demonstrate by clear and convincing evidence that it would have i taken the same unfavorable action in the absence of such~ ~!
i behavior; i.e., for legitimate, non-discriminatory reasons,-
including whether the activity was carried out'in an unreasonable manner or in violation of law. Thus, while the Commission recognizes that attempts by an employee to gather: evidence of ,
safety violations or related discrimination in'some respects could have a disruptive-effect on the workplace, the mere potential for interruption _of routine conduct of operations that j i
may be caused by reasonable whistleblower activities ~should not be a basis for disciplinary action against:an-employee.- For this reason, determination of whether an employer may terminate or -
take other employment action against an employee who-has engaged in an activity subject to protection under section 211 will
2 depend on the specific facts and circumstances of th case. Lawful taping of conversations to which the en party to obtain safety information, carried out in a . ... and reasonable manner, for the purpose of promptly bringing such material to the attention of the licensee or the NRC, should not be a valid basis for terminating an employee. :
Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's actions. Prompt notification is in the public's interest because it enables the NRC and/or the licensee to act promptly to protect '
public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination.
Surreptitious tapi.ng properly carrien out under the direction of r the NRC should afford the employee protection under section 211 '
of the ERA for such action. -
By copy of this letter, we are communicating our views on these-issues to the Department of Labor and are also serving it upon ,
the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.
Sincerely, Ivan Selin ec: The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh) ,
(Georgia Power Company) {
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% ,,,. # July 14, 1993 CHAIRMAN The Honorable Alan K. Simpson Ranking Minority Member Subcommittee on Clean Air and Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D.C. 20510
Dear Senator Simpson:
This responds to your letter of June 11, 1993, in which you requested the Nuclear Regulatory Commission's views on whether ,
one-party taping of conversations by employees of NRC licensees could constitute, in some circumstances, protected activity under section 211 of the Energy Reorganization Act of 1974. You also suggested that it would be appropriate for the NRC to communicate ,
its views on this issue to the Department of Labor.
In general, the NRC believes that attempts by employees of NRC licensees, contractors, or subcontractors (" employee") to gather evidence relating to nuclear safety concerns at NRC-regulated facilities or to gather evidence of discrimination related to the reporting of safety issues for purposes covered by section 211 of ,
the Energy Reorganization Act, 42 U.S.C. Sec. 5851, are activities subject to protection under that section. In the context of the Committee's letter, the NRC believes that legal surreptitious taping by an employee of personal conversations, to which the employee is a party, with the intent of providing the information obtained to the licensee or the NRC, is an activity subject to protection under section 211.
Although the activity may be within the scope of activities protected under section 211, employment may still be terminated (or other employment action taken), if the employer can demonstrate by clear and convincing evidence that it would have taken the same unfavorable action in the absence of such behavior; i.e., for legitimate, non-discriminatory reasons, including whether the activity was carried out in an unreasonable manner or in violation of law. Thus, while the Commission recognizes that attempts by an employee to gather evidence of safety violations or related discrimination in some respects could have a disruptive effect on the workplace, the mere potential for interruption of routine conduct of operations that may be caused by reasonable whistleblower activities should not be a basis for disciplinary action against an employee. For this reason, determination of whether an employer may terminate or take other employment action against an employee who has engaged in an activity subject to protection under section 211 will
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depend on the specific facts and circumstances of the particular ,
case. Lawful taping of conversations to which the employee is a party to obtain safety information, carried out in a limited and reasonable manner, for the purpose of promptly bringing such i material to the attention of the licensee or the NRC, should not ;
be a valid basis for terminating an employee.
Once an employee has acted to gather evidence, the employee should inform either the licensee or the NRC, of the employee's :
actions. Prompt notification is in the public's interest because it enables the NRC and/or the licensee to act promptly to protect public health and safety, to recognize and correct any possible safety violation, or to address any possible discrimination. l Surreptitious taping properly carried out under the direction of l the NRC should afford the employee protection under section 211 '
of the ERA for such action. l By copy of this letter, ve are communicating our views on these.
issues to the Department of Labor and are also serving it upon '
the parties participating in the Department of Labor proceeding, Mosbaugh v. Georgia Power Company.
Sincerely, W
Ivan Selin cc: The Honorable Robert B. Reich Parties to the Mosbaugh proceeding (Alan Mosbaugh)
(Georgia Power Company) l l
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ENCLOSURE 3
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9 . . . + ,0 July 14, 1993 CHAtRMAN The Honorable Robert B. Reich Secretary of Labor Washington, D.C. 20210
Dear Mr. Secretary:
The Nuclear Regulatory Commission has been requested by the Senate Committee on Environment and Public Works to provide its views on whether one-party taping of conversations by employees of NRC licensees could constitute, under some circumstances, protected activity under Section 211 of the Energy Reorganization Act of 1974, as amended. The Committee also requested that NRC-communicate its views on this issue to the Department of Labor.
Enclosed, please find a copy of our letter to the Committee expressing our views concerning this issue.
Since this communication touches on issues raised in a case pending before you, Mosbaugh v. Georgia Power Company, 91-ERA-1 and 92-ERA-11, we are also serving a copy of this letter upon the parties to that proceeding.
Sincerely, Ivan Selin ,
Enclosure:
As stated t
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