ML20070M528
| ML20070M528 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 03/09/1991 |
| From: | Colapinto D, Kohn S KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Jordan W, Kline J, Smith I Atomic Safety and Licensing Board Panel |
| References | |
| CON-#191-11523 91-633-05-OLA-2, 91-633-5-OLA-2, OLA-2, NUDOCS 9103210272 | |
| Download: ML20070M528 (77) | |
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-i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 91 11 P4 :14 j ATOMIC SAFETY AND LICENSING BOARD .g , ,g ,
Before Administrativa Law Judgest NNc)
Ivan W. Smith, Chairman Dr. Walter H. Jordan Dr. Jerry R. Kline In the Matter of, Docket Nop. 50-528-OLA-2 50-529-OLA-2 ARIZONA PUBLIC SERVICE 50-530-OLA-2 COMPANY, et al., . ALSBP No. 91-633-05-OLA (Palo Verde Nuclear Station, (Allowable Setpoint-Unit Nos. 1, 2, and 3) Tolerance)
SUPPLEMENTAL PETITION OF MITCHELL PETITIONERS FOR._ LEAVE TO TNTERVENE I. INTRODUCTION Pursuant to the Licensing Board's February 19, 1991 Memorandum and Order, Petitioners-Allan L. Mitchell and Linda E. Mitchell (hereinafter,_nMitchell Petitioners")
hereby supplement their-January 28, 1991 Petition for Leave to Intervene in the above-captioned proceedings. The Mitchell Petitioners submit for consideration the following proposed contentions pursuant to 10 C.F.R. Section 2.714(b).
These contentions are also proposed as joint-contentions with Petitioners Myron L. Scott and Barbara S. Bush (hereinafter, " Scott / Bush Petitioners"), who:are also petitioning on:bahalf of-coalition for Responsiblo Energy Education (" CREE") and Arizonans for a Better Environment-9103210272 910309 gDR ADOCK O y0 Q()
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("ABE"), in the event the Scott / Bush Petitioners (oither in their own behalf or on behalf of CREE or ADE) arc able to establish standing to intervone. In support of these proposed contentions, the Licensing Board is respectfully referrod to the Affidavit of Linda E. Mitchell (Exhibit 1, attached hereto) and other supporting documentation submitted horowith.
II. PROPOSED CONTENTIONS A. contention Number One content j on_J:o, 1: Tho request to amend the setpoint tolcrances .or the Main Steam Safety Valves (MSSVs) and the Pressurizer Safety Valves (PSVs) would cause a safety limit violation in the event of a loss of condensor vacuum (LocV). Setpoint drift in the increasing direction of the pressurizer safeties setpoint with a sotting high in the band would exceed the safety limits.
In support of this contention, Petitioners stato that based on the information provided in the application for amendment the margin of error between the safety limit of 2750 psia and the peak pressure of 2740.9 psia is only approximately 9.1 psia. Sco, November 13, 1990 letter from William F. Conway to U.S. Nuclear Regulatory Commission, Attachment 1 at pp. 23-24 (hereinafter, " Application").
Even a drift of plus or minus 1% (approximately 50 psia) would exceed the limit of 2750 psia. See, Tech. Spec. Bases 3/4.4.2, Reactor Coolant System -- Safety Valves. Given that APS concedes that the MSSVs and PSVs have exceeded the plus or minus 1% limit "several times, necessitating the issuance of Licensee Event Roports (LERs)," almost any drift 2
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in the setpoints would result in a safety limit violation.
Application, Attachment 1 at p. 2.. The consequences of the i
strong possibility of exceeding the safety limits during a LOCV trip could result in a plant shutdown each time a safety limit violation occurs, saa, Tech spec. Section 6.
Another concern regarding the requested amendment is the proven unreliability of the MSSV's and PSV's. If the amendment is granted, APS would reduce the frequency _of testing which would result in unacceptable setpoint drift.
Application, Attachment 1 at pp. 2; 5.- Ourrently, only about one-third of the MSSV's are found to be within the plus or minus 1% setpoint tolerance. Sge, Exhibit 2, Recent-Test Data. This Data is based on strict surveillance testing every cycle (approx. every 10 mos.) under the more stringent plus or minus 1% setpoint tolerance standard.
While the majority of the MSSV's fall within the plus or minus 3% setpoint tolerance,.in recent tests several of the valvos have been found to exceed the plus or'minus 3% .
setpoint tolerance. Id. Indeed, some of the valves have been found to be in excess of minus-S% in recent tests. Id.
l l If the setpoint tolerance is-increased as requested it would result in greater setpoint drift than what is currently experienced at Palo Verde. Setpoint drift in the range of plus or minus 10% to 20% could occur if the amendment is granted. Such sotpoint drift is unacceptably high given-the-safety. limits. ,.
There is no evidence that the current plus or'minus 1%-
setpoint tolerances have in fact adversely-impacted-the-3
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restart schedules or-have in any way resulted in u significant ooonomic impact" upon APS. Application, Attachment 1 at p. 2. Even if there were some ovidenco of such consequences, this is not a sufficient reason to grant tho amendment at the expense of safety requirements.
There is also no evidence that the current specifications result "in increased pan-rem due to additional testing and maintenance of the safety valves."
Id. First, the MSSVs are not located in radiologically l controlled areas of the plants, thus no man-rom exposure-results from the testing of these valves. Second, the pSVs are not tocted on cita by Palo Verde' personnel. These valves are packaged and shipped to an outsido vendor for j testing. Thus, no man-rom exposure to testing personnel .
results from the testing of these valves.
Fina /, the licensee has been cited by NRC Region V Staff for deficiencios in the Surveillance _ Test (ST) program l
proceduros, for inadequato training of1ST personnel, and for the assignment of unqualified personnel to perform tests on the MSSVs. Eeo, Contention No. 3. ApS should not be -
granted an amendment.to the MSSV setpoint tolerances if.it
.has demonstrated deficiencies in its current program.
The-proposed PSV and MSSV tolerance changes should bo -
! denied. If-granted, tho-amendment would result in-safety
{ limit violations.
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j B. Contention Number Two f
j contention No. 2: During a Steam Generator Tuba 4
Rupture (65fkT~ovent the offsite radiological releases
- would exceed acceptable limits if the proposed changec in Tcchnical Spooifications for auxillary feedwater j flow ( ATW) , Hi response time,gh Pressurizer PSVs and MSSVs Pressura Trip (HPPT) are permitted.
I 2
! In support of this proposed contention, Petitioners i
- state that the APS application is deficient in several
! respects regarding the analysis of the proposed Tech Spec j changes during a Steam Generator Tube Rupture (FTGR) event.
! Application, Attachment 1 at pp. 43-44. The APS analysis is i
dependent upon the assumption that all steam generator tubes 1 are in-good condition (itse , that there are no leaks or j ruptures). Yet, APS has not provided historical data-3 regarding tube maintenance, and is unable to do so'given its l intention of not performing Eddy current testing until l February 1992. See, Amendment No. 53 (effective January 16,
, 1991). Without adequate analysis of the steam generator -
tubes the propoced amendment here should be rejected. 'There
, is-no way to assess tha' condition of-the; tubes without:such
! testing. Moreover, the delay in Eddy current testing only f increases the probability: that the condition of tho tubes is -
- worse than postuinted by APS in its Application.
! The analysis regarding tube recoverycin general is j suspect given the lack of-testing and the-lack of data on j hcat exchanga-and lodina spike. APS has not incorporated
. all of-the variables into its SGTR analysis. :The -
l calculation summaries provided by APS do not appearlto be-
! based on n worst case scenario, even though APS/ states in
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- P.O7 conclusory fashion that its estimate was Heensarvatively pontulated." Application, Attachmnnt i at p. 44.
In addition, the radiological dose calculations summarized by APS appear to be subjective and are suspect given the above-stated factors. Even the APS study projects an estimated increase of approximately 30% in the 2 hour2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> thyroid dose from 200 rem to approx. 260 rem. This estimated increase in off-site radiological exposure is alarming, particularly in light of the fact that the Mitchell Petitioners live only 2 to 3 air miles from Palo Verde. Ex. 1, Linda Mitchell Aff. at para. 3.
Even more alarming is that APS has not specified the geographical area upon which its radiological estimates are banod. Sea, 10 C.F.R. 100.11(a). The proposed amendment should also be rejected because APS cannot provide sufficient data regarding off-oito radiological oxpocuro.
C. Contention Number Three contention No. 3: The-Surveillance Test program 3rocedures are deficient and some licensee (ST) engineers have not been adequately trained. In addition, qualified personnel have been replaced by personnel who are unqualified to perform and/or direct Section XI l
Testing on MSSVs and PSVs. !
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APS has been cited kur the-NRC Region V Staff for deficiencies in its Surveillance Test (ST) program-l prneadoren. Ana, Ev. 3, Reginn V Tnmpaction Report Nom. 50-l 528/90-28, 50-529/90-28,-and 50-530/90-28 at pp. 5-6 (Approved Sept. 24,1990) (hereinafter, " Report No. 90-38") . -
l It is believod that this matter remains an open concern.
Id. APS has also been cited by NRC RV Staff for inadequate 6
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i tr:ining of engineers assigned to-perform ST's for the MSSVs and for assigning unqualified personnel to perform and direct such tests. Id., at p. 16. Curiously, APS replaced a qualified lead engineer possessing years of exportise in-Section XI tanting with personnel who have boon deemed to be l unqualified by NRC Region V.
l These glaring deficiencies call into question the integrity of the licensoo's ST program for the MSSVs. The requested amendment should be denied because the tests of pressurized safety valves are unreliable and the licensee has failed to demonstrato it has an adequate ST program.
D. Contention Number Four Contention No. 4: The licensee has failed to maintain a Quality Assurance program in accordance with 10 C.F.R. Part 50, Appendix B.
Petitioners incorporate herein all allegations raised.
in support of proposed Contention No. 3.
Palo Verde has numerous Quality Assurance (QA) procedure deficiencies and has failed to_ implement a-QA program in accordance with-licensing and regulatory requirements. APS has been criticized.by the NRC for deficiencies in the Palo Verdo QA program. See e.4., Letter.
from J.B. Martin, NRC, to W.F. Conway, APS, dated Oct. 16, 1990, Subj. Notice of Violation and Proposed. Imposition of=
Civil Penalty -- $125,000 (NRC Inspection Report-Nos.50- .
520/90-02,90-025 and 90-035); Letter from W.F. Conway, APS, to Director of Enforcement, NRC, dated Nov. 15, 1990, Subj.
Reply to Notico of Violation and Proposed Imposition of Civil Penalty -- NRC Inspection Roport Nos. 50-528/90-02, 7
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90-025 and 90-35; Letter to W.F. Conway, APS, -from jib. I Martin, NRC, Subj. Systematic Assessment of Licensee Performance Report Nos.- 50-520/90-53, 50-529/90-53 and 50-f 530/90-53. The licensea's QA personnel are also unqualified to perform a QA function for the ST program, particularly
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with-regard _the proposed Tech Spec changes. l It is believed that APS's QA program is presently under ;
investigation by the NRC Staff,-NRC Office of Investigations-and NRC Office of Inspector General. Upon information-and- j belief, QA deficiencies may-result in criminal prosecution I of APS managers in the near-future. Furthermore, the :
licensee has failed to investigate sworn' allegations that test personnel have falsified test results and slept on the job.
In another incident, the Director oi Quality Assurance '
advocated the termination of Petitioner Linda Mitchell-from -i her employment at Palo Verde because she. reported safety -
problems to the NRc which-were ignored by the_QA~ department. ;
Ex. 4, Excerpt of deposition testimony of Gerald W.. Sowers; Ex. 5, handwritten note of incident. This example.'of^ '
1 harassment and intimidation by the.Palo Verde:QA Director is ;
also indicative of the general attitude by'QA management a towards employees who raise' safety concerns.
Given the QA breakdown in general,- and in regards to valve testing, relaxation of any' safety standard would'
- threaten the public health and safety, q
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MAR-10-91 SUN 15349 . P. O3 E. Contention Number FivA Contention No. 5: The liconsoe has harassed and Intimidated and otherwise retaliated against personnel for raising safety concerns related to the testing of MSSVs and PSVs.
Petitioners incorporate herein all allegations raised in support of proposed contention No. 4.
The licensee has been sanctioned, on numerous occasions, for the harassment and intimidation of employees.
A licensco contractor also entered into an illegal and rostrictive settlcment, in violation of public policy, with a whistleblower employee. Ex. 6, McQuay v. The Waldinger Corp., No. 85-ERA-33, slip op. of Soc'y. of Labor (May 31, 1990).
Notably, employoos ongaged in ST activities for the pressurized safety valves have alleged harassment and intimidation, and the U.S. Department of Labor (" DOL") has found that these employees were retaliated against for raising safety concerns about test procedures. Ex. 7, Thomas v. APS, No. 89-ERA-19, RD&O of ALJ (Apr. 13, 1989).
Upon information and belief, employees have also been rotaliated against for testifying in the Thomas proceeding.
APS has been specifically sanctioned by the DOL for promulgating, and distributing to ST personnel, memoranda restricting the right of testing employees to contact the NRC. Id., at pp. 13-17. According to sworn testimony taken in February 1991, the APS memoranda deemed by the DOL in Thoman to restrict the right of employees engaging in ST activities to contact the NRC are still in effect and have
in te re - t - o - 9 s sus asaso . P,e4 never been rescined -- despite the DOL's order that APS publicly repudiate these restrictive memoranda. Ex. 8, Excerpt of deposition testimony of Daniel Smyers. Copies of the two memoranda in question are attached hereto as Exhibits 9 and 10.
Upon information and belief, the NRC Office of Investigations and the NRC Office of Inspector General are precently investigating issues related to haraccment and intimidation of employees in the engineering organization which includes ST personnel. Criminal prosecution of APS managers and civil penalties may result from said investigations.
Given the atmosphere.of harassment and intimidation.
Within the engineering organization at Palo Verde which includos ST personnel, the licensee's request for amendmont should be denied.
III. PETITIONERS CAN MAKE A SIGNIFICANT CONTRIBUTION TO THESE PROCEEDINGS Petitioners have direct access to information and evidence relevant to the proposed contentions. The Mitchell Petitioners and witnesses' John-Doe and Jane Doe, 1 through I :
l 99, are present or former employees at Palo~ Verde who are highly skilled technicians and/or trained engineers possessing expertise and knowledge about the technical areas under consideration or are familiar with the systems at Palo Verde. Ex. 1. Petitioners and Jane and John Doe, 1 through 99, have the experience and background to analyze data and
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[ addition, Petitioners have direct access to individuals with
! first hand knowledge of evidence which will be introduced in f support of the proposed contentions and the supporting f allegations. Id. Petitioners are in a unique position to l present evidence and other information of interest to tho i Licensing Board regarding the proposed contentions.
l 4 IV. CONCLUSION i -
For the foregoing reasons, Petitioners' proposed lI l Contentions should be admitted and Petitioners should be t
admitted as intervenors to these proceedings.
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3 Respectfully. submitted, David K.IColapinto '
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- Stephen M. Kohn f
i KOHN, KOHN & COLAPINTO, P.C.
!- 517-Florida Ave., N.W.
i Washington,-D.C.. 20001 1
i (202) 234-4663 Attornoys for the Mitchell-Potitionors i
March 9, 1991 l
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ADDENDITM c
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ADDENDUM ,
I.TST OF PROPOSED CONTENTIONS Contention No. It The roquest to amend the sotpoint
't'61'orancos for the Main Steam Safety Valves (MSSVs) and the Pressurizer Safety Valvos (PSVs) would cause a safety limit violation in the event of a loss of condenser vacuum (LOCV). Sotpoint drift in the increasing direction of the pressurizer safetics
- setpoint with a setting high in the band would exceed t tho safety limits.
Contention No. 2: During a steam Generator Cubo Rupture (FUTR) ovent the offsite radiological releases would cxcocd acceptable limits if the proposed changes in Technical Specifications for auxillary feedwater flow (AFW) Hi responso time,gh Prossurizor PSVs and MSSVsPressuro Trlp (HPPT) are permitted.
I contention No. 3: The Surveillance Test program
! procedures are deficient and somo licensco(ST)engincors have not been adequately trained. In addition, qualified personnel have been replaced by personnel who are unqualified to perform and/or direct Section XI Testing on MSSVs and PSVs.
l contention No. 4: The licensee has failed to maintain a Quality Assurance program in accordance with 10 c.F.R. Part 50, Appendix D.
Contention No. 5: The licencoe has haraccod and
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lntimidated and othorwiso retaliated against personnel for raising safety concerns related to the testing of MSSVG and PSVs.
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wwC UNITED STATES OF-AMERACAW 11 N NUCLEAR REGULATORY COMMISSION
- iitt M u ;4IS In the Matter of, TioCn jyhki"$' "
ARIZONA PUDLIC SERVICE CO., Docket Nos. 50-528-OLA-2
. pl a ls 50-529-OLA-2 UPaTo Verde Nuclear Station, 50-530-OLA-2 g Units 1, 2 and 3)
) .
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Supplemental ~
Petition-of the Mitchell Petitioners have baan served upon the following persons in the manner as noted below.
Office of the Secretary (*)
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn Docketing and Service Dranch (301) 492-1672 ,
Administrative Law Judge Ivan W. Smith, Chairman Jk)
Atomic Gafety and Licens:.ng Doard l U.S. Nuclear Regulatory commission i Washington, D.C. 20555 (301) 492-7285 Administrative Law Judge-Dr.- Jerry R..-Kline f*)
- Atomic Safety and L:. censing- Board j U.S. Nuclear Regulatory Commission
- -Washington, D.C. 20555-(301) 492-7285
- Administrative Law Judge l Dr. Walter H. Jordan'(**)
ASLPB-
!- 881 West Outer Drive Oak Ridge, TN 37830
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. Office of the General Counsel U.S.. Nuclear Regulatory-Commissio)n (*
Washington, D.C. -20555' 1
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Barbara S. Bush Exe:utive Director Coa'41 tion for Responsible Energy
. Education 315 West Riviera Drive Tew.po, AZ 05202 i
Myron L. Scott (*)
Lewis & Clark Northwestern School of Law t
10015 S.W. Terwillinger Blvd.
Portland, OR 97219 Arthur C. Gehr, Esq. (*)
Snell & Wilmer 3100 Valley Bank Center Phoenix, AZ 85073 Jack R. Newman,-Esq. (*)
Newman & Holtzinger, P.C.
1615 L Street, N.W.
Washington, D.C. 20036
(*) Denotes service by facsimile.
(**) Denotes service by overnight express mail.
By: N -
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i I, Linda E. Mitchell, under the pains and penaltios of l
perjury, hereby stato that the following is true and correct
. to tho boot of my information and belief:
1
- 1. My.name is Linda E. Mitchell, and I reside at Star
! Route 3, Box 277B, Buckeye, Arizona 85326.
- 2. I-am employed by Arizona Public Servioo Co.
("APS") as a system engineer at the Palo Verde Nuclear s
l Gonorating Station ("Palo Verde").
8
. 3. I live within five (5)-ground milon of the Palo I
3 Vorde plant and within approximately two (2) _ to three (3) _
l air miles of Palo Verde.
l
- 4. As a cystem engineer at Palo Verdo I-have reported l numerous problems about Palo Verde to APS management, tho-U.S. Nuclear Regulatory Commission ("NRCH), and the news f
! media.
S. In part because my whistleblowing activities are voll known at Palo Vordo other employees have provided me with information about safety related problems'at the plant and have sought assistance in disclosing safety problems..
Some employees who have provided information me have done so l _
nnonymously out of fear of retaliation.
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- 6. There are.ceveral1Palo-Verde employees-who are asssisting me in-these procec' g- At-the present time, f
these individuals can only be 4
- Wified as John Doc and i -Jane Doe witnesses due to concern about,rataliation against l employees for-openly assisting me in.these proceedings.
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- 7. The John Doo and Jane Doe witnesses who hava l
provided no with information concerning those proceedings
- arc knowledgeable about the Main steam safety Valves j ("MSSSVs"), Pressdritor Safety Valves ("PSVs")- and the l technical r.pooitication changes requested by APS in ito t Nov&mber 13, 1990 application.
l 8. Throughout the course of those procoodings, t
j Petitioners Allan L. Mitchell, Linda E. Mitchell and l Coalition for Responsible Energy Education / Arizonans for a t
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j- Better Environment will have continued access to information t
i and expertico provided_by_ John Doo and-Jano Doe-witnesses i
j regarding technical matters raised in these proceedings.
i l AFFIANT SAYETH FURTHER NOT, I
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l Date . Linda E. Mitchell a
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- 7. The John Dee and Jane Dce witnocces who have-provided me with internation concerning these proceedings are knowledgeable about the Main Steam Safety Valves
("MsSSVs"), Pressurizer Safety Valvos ("pSV58 ) and the technical specification changes requc0ted by APS in its November 13, 1990 application.
- 8. Throughout the courso of theso proceedings, Detitioners Allan L. Mitchell, Linda E. Mitchell and coalition for Responsible Energy Education / Arizonans for a Betcar Environment vill have continued access to infor.tation and expertise provided by John Doe and Jane ~Doo witnessos-regarding technical matters raised in these proceedings.
AFFIANT SAYETH FURTHER NOT, bate 80$l -
fA YA Y Ph Y Linea E. Mitchell-l
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EXHIBIT 2 1
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'O TEST 6 TEST 7 TEST 8 fl TEST 3 TEST 4 TEST 5 TEST 1 TEST 2 q' VALVEID# SETPOINT 4 ~'
1255 1256 1258 S G E-554 - 1250 1290 1290 -s 1290 1 2_7 2 1288 1316 1327 1321 SGE-555 1311 1328 1330 O 1315t3J1[L35 D 7338 13'69 SGE-SSS 7348 1308 1315 - 2 1352 S G E-557 S G E-558 1315 131S
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1315 7345 SG E-559 SGE-560 1290 1294 a
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SG E-573 1312 1300 1296 SGE-574 1315 1321 1304 /,e1308 130s SG E-575 1315 7364 1325 1323 1327- '
S GE-57G - 1315. I'Tf 3 7Dy4N 355 4
f 1303 1318 1310 1315 7342 1339 1 ' S G E-577 1289 1283 1287 - ,
SG E-578 1290: 7376 1244 7267 1249 1251 .. ;
SG E-579 1250
- 1301 1315 1318 1315 1315 1307 7301 1224 1324 S G E-691 1325 1329 '1325 .;
1315 1345 1336 SG E-692 1316 1316-
' SG E-694 1315 1305 1316 734f 1321 1321 SGE-695 1315 T' -
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t U. 5. NUCLEAR REGULATOW COMMISSION
' :.'b 3.wh ,
REGION V Q'epo:w rt
,Nos. :
" 5052B/9028,50529/9028'and50530/90-)8 ii ~
iDNetNos.: 50-528, 50-529, 50 530
(
~
LYee'ns'eHos.: NPF-41,NPF51,NPF74 jrhkcInsee:
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Arizona'Public P. O. Box 53999, Station 9Service com$2 Phoenix, AZ, 85072-53999 l
4 Facility Name: j
, f. '
Palo Verde Nuclear Generating Station Units 1,2&3 i
i s'[. Jn,geit.t ion conducted:
July 15 through August 25,1990.
NN"' - Inspkto'rs': D. Coe {
A Senior Resident Inspector F. Rinp, aid, 9,,,$
[i Approved By:
J. Sloan, C. prs, Resident Inspector Resident Inspector R sid nt Inspector (Rancho Seco) r 5^:2
__H.Vong, chief _ ___ Gh#de !
V Date signed ReactorProj6ctsBranch,SectionII
- Inspection Summary: ;
!~"'
ceti$n on July 15 throuch August25, 1990 (Report Numbers
, M' 287507eT50-529/90 28, and 50 3307F0 28) !
Areas Inspected: s Routine,onsite regular and backshift inspection by b
^ the three resident Arcas inspected included: inspectors and,one inspector from the Region V staff. !
previously identified items
- activities surveillanc;e testingengineered safety feature system walkdowns;; mo i
... monthly plant maintenance reactor trip and restart ,
-issued Unit incorrectly 1; damaged rea;ctor trip breaker - Unit 1;; alarming dosimeter
- Unit 1; main steam _
Unit 2; post refueling restart - Unit 2; pressure restart reactor safety physics valve testing -
cvaluation Unit 3 - Units 1 and 2; main feedwater isolation valve alignment -
valves;- Unit 3; plant shutdown forced by slipimpropar 0-ring ma >
assembly - Unit 3 spent fuel pool-activities ped control element ;
Units 1 2 and 3 i operated licensee event re valve maintenance and testing - Units 1, 2 and,3; review; of motor ;
i t
special reports ports Units- 1, Units 2 and 1,3.2 and 3; and review of periodic and .
i During37700 30703, this inspection the following Inspection Procedures were utilized:
37828 40500, 61705 61706, 61707 !*
62703, 71707,, 71710,, 72700, E6700,, 92700, 92701,, 92702, and 93702.61 i
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'(_ Closed) Followup Itea (530/89-21-01): "Lo'st of'Soerrt Fue1
, Pool Level" - Unit 3 (92/ul) ,,
This item resulted from an inadvertent loss of Spent Fuel Pool (SFP)levelduetoinaccuratecontrolroomvalve
.. stetu_s drawinos. This event occurred on Hay 22 1989 and
'in, response tfie licensee committed to a broad re, view o,f system status control requirements. On August 2 1989-
.valve Unit 1alignment.
experienced a loss of SFP level due to an,improp,er This was documented in NRC Inspection Report 528/89-36 (528/8936-01). In and resulted in a Notice of Violatioh the licensee's response to the Notice dated November 21, 1989, the licensee reported that the review of system status control had been c.ompleted and also described changes that were planned.
w 1990, the licensee transmitted the schedule forOn January 23, implementing June 14, 1990, these changes to the NRC. Additionally,on the licensee transmitted to the NRC the
,:. list of separate SFP operating procedures to provide
. clearer more detailed directions for operators.
These were 1990 originally expected to be in place by January 10, Augus,t but 20,subsequently 1990. the licensee revised this date to These procedure's have been implemented. .
Based is closed. on the licensee's However the inspectorprogress will review on this this item issue,these changeswhenreviewlngitem(528/8946-01) for closure.
b.
(closed) Enforcement Item (530/89-36-01): "Emerceny.
DieseFCentrator Isolatec as Requireo" - Unit 3 (92702)
(EDG) Excess Flow Check Valves fiot This item resulted from an interim disposition of an Engineering Evaluation Request EER which required that
'l ExcessFlowCheckvalvesonall(EDG)sbeisolatedpending further engineering analy. sis and final EER disposition.
J The required isolation was put into effect in Units 1 and 2, but was not implemented in Unit 3. The inspector noted that the licensee s corrective action to prevent recurrence was to issue a policy memorandum to all system.
engineers requiring formal written transmittal of any disposition.action required by an EER interim or final immediate Although some weaknesses in the engineering communication to user groups have been noted in Inspection
> Report 530/90 32 since the event in question, none $ ave ,
involved the failure to implement immediate required actions. This item is closed. ,
c.
E(0 pen)FollowuoItem(530/89-36-02): " Surveillance Test rogrammatic cnances" - Unit 3 (92701) ~
The inspector reviewed the report of a complete programmaticreviewoftheSurveillanceTest(ST) program '
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MAR-10-91 OUN 10801 . P . 2*4 r
, arepared by a licensee outside contractor. The licensee
( '
. ;as not yel incorporated the recommendations of .this report into the procedures geverning the ST program.
J '. Training for the approved procedure changes was in
~
progress at the end of the inspection report period. This l". .y~~ .< item will remain
',( changes resulting,open from thepending review of prograMatic contractor.'s report.
'.* ~ '
- d. (Cfosed) Enforcement Item (530/89 36-03): "RC$ Spill
- Due to Valve Sequencing Error" - Un7t 3 (92707) ,
@. Thisitemresultedwhen.an.AuxiliaryOperator(A0) perforced a valva lineup in which the improper sequencing
.,. of valves being positioned allowed an inadvertent RCS flow
&.. path resulting in a primtry coolant spill. The inspecter E. noted the licensee's actions to prevent recurrence
'. included discussions with Unit 3 operating crews regarding communications oractices and identification of important valving sequences when appropriate. In addition a k: secuence" column was odoed to the valve lineup s,heet used
-F to cocument and control valve alignments. This lineup sheet was subseq0ently discontinued and replaced by a form
,a incorporated in the Conduct of Shift Operations procedure, 40AC 90P02, for "special variance" alignments which includes a sequence column. The inspector reviewed several of these forms in plant files and also reviewed clearance restoration forms and concluded that licensee personnelwerespecifyingalignmentsequenceonthese documents. This item is closed.
- c. (Closed) Followup Item (530/89-54 01): Sandblast Grit Found in Instrument Air Hose" - Unit ~3-(97701)
This item resulted from the licensee's investigation of an ,
improperly operating feedwater control. valve, which determined tiat a significant quantity of sandblast grit .
was present in the air operator booster relay. The source h of this grit was traced to a newly installed air hose.
~. The licensee determined that the grit came from sand-blasting the end fittings of the hoses prior to brazing the end connectors into place. The grit remained inside the hose when the supplier capped the ends and delivered them to APS.
which analyzed and The inspector confirmed reviewed the source EER of the grit90-IA-004, and initiated corrective actions. These actions consisted of quarantining and cleaning other hoses purchased from the same supplier aad changing the configuration item description for applicable class and item numaers. In addition, the licensee confirmed that similar hoses purchased from this supplier were not installed in other plant systems and completed a l training briefing for maintenance personnel in all units l en the need for thoroughly inspecting new components prior i
h
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,R-10-01 OUN 1GtO2 . P.25 new alarm s'ettings are not effective until either the power is f ccycled of f, then on, or the' reset button it pressed. The inspector noted that there was no APS procedure for setting the
, alarming dositeter and that the technical canval did specify the correct sequence. -
- Initial RP technician training given to new RP technicians does addressgspecific instructions on setting the alarming dosimeters. For. continuing training the inspector identified
. two concerns: (1) during the las', d Continuing Training done in April 1989, the 2 Tech alarming dosimeter was in predcminant use end not the presently used Desitech dosimeter (different procedures for setting the alarm setpoints); and (2) experien:ed RP Technicians were " grandfathered" when this course began and therefore did not receive this training. 1he next Continuino RP Training course is scheduled for April 1991, which will include proper alarming dosimeter setup. The Unit 1 RP Manager issued a memo to all Unit 1 RP Techn!cians with copies to Units 2 and 3 RP Mangers. Site RP.is considerin
. . .g whether additional procedural requirements are necessary. g -
Unit 1 RP also reviewed all individuals who received a dose .
Greater than 50 millirem since the beginning of 1990. In no case did an individual receive a dose greater than that for which the alarming dosimeter should have been set.
The inspector noted that during the Unit 1 outa0e dosimetry was issued by contract Dosimetry Technicians who appeared to set alarming dosimeters properly. When the outage ended, the Shift RP Technicians took over this responsibility. It appears that the turnover of this responsibility was incomplete and some Shift Technicians issuing alarming dosimeters did not receive adequate training to assure that the alarming dosimeters would consistently be issued in accordance with the applicable REPS. >
One violation of NRC requirements was identified,
'h 10. Main Steam Pressure Safety Valve (PSV) Testinn - Unit 2
~(62726)
~
The inspector reviewed the documentation associated with performance of Surveillance Test 73ST-92Z18 Set Pressure Verification," which was comple. " Main Steam PSVted in Ju in Unit 2. In discussing the interpretation of chart recorder
' data with ?ersonnel who perforced tie test, the inspector observed tiat the charts alone were inadequate to determine the lift pressure in some cases. The test personnel explained that the test performer had to listen for indications of the PSV lifting and that this information was used in conjunction with l the chart information to determine the percent of load cell l
capacity at which the PSV began to lift. This figure is then used in calculations to determine the lift setpoint of the valve.
CDee -
' M a ra - : o - o t oun ss:om .
g e.26 Upon reviewing the procedure the inspector noted thet' thtre !
how to actually perform the test ' '
l .. 6
.ari no instructions or how'to set up the Trevites regarding,t equipment on the FSV. ,There also no notes or other guidance to clarify the test methodology. *The procedure steply instructs the vendor representative to perform the, test. According to licensee personnel involved with the test, the vendor does not have or use any procedures in setting up the Trevitest equipment or in serformtho'the test. A vendor technical manual is available sut was not referred to during the test.
- The licensee stated that the vendor representatives who '
actually perform the test are extremely well trained and experienced with respect to the Trevitest method of PSV set' pressure verification. Mditionally licensee test technicians must cumplete training" Qualification and Training Requirement procedure Coeponent730P-0TR01, ialty Engineering." However, one of the for anc S;sc lead engineers assigned as Test Director for a licensee test g team was a contractor Qualified to ANSI N3.1 1978, but lacked any prior experience with this type of testing. He was only given oral briefings of the test rathodolop and procedura priortoperformingtheSurveillanceTest(ST. -The inspector
- encluded that given the minimum training requ)itiments (ANSI N3.1-1978), the procedure lacked sufficient detail.
A previous revision of t'ho ST procedure had more detail regarding conduct of the test. However these steps were removed oecguse each step was too time c,onsuming and interrupted the normal moving test activities.progrets However of the these relatively inspector quick that concluded the absence of any procedural ste,ps addressing the setup of the '
Trevitest ecuipment or the conduct of the test resulted in final test cata which did not appear consistent.-
t
) As a result revising of 73ST-92Z18 procedure these discussions, to assure consistent and ceaningful test perfo'mance and results, the licensee committed to include adequate detail to -
Instruction Change Rettuest NS 38052 was submitted on August 10, 1990 to this effect. The inspector had no further questions and wlll follow implementation of-the licensee's proceduralimprovement.,followupItem(529/9028-01).
No violations of NRC requirements or deviations were identified.
11.' Post _RefuelingRestart-dnit 2(71707) '
- The inspactor observed activities on July 19,1990, associated with turbine generator overspeed testing and synchronizing the-generator to the grid. These activities were in
, controlled and completed in an acceptable mann,er. During general, the well 03eration of the turbine and associated systems the inspector o> served a control room operator operate the con, trol i
e g .-
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163OD N
MAR-10-01 OUN . P,27 1
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t EXHIBIT 4 I
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UNITED STATES OF AMERICA -
d DEFORE THE DEPARTHENT OF LABOR ',
4 S
LINDA MITCHELL, )
)
Cornplein ant, )
)
vs. ) No. CV 69-23594 ' *
)
AR32OHA PUBLIC SERVICE COMPANY / ) '
ARI2ONA NUCLEAR POWER PROJECT, ) ,,
2 3
Respondento. ) '
) ;
4 :
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DEPOSITION OF GERALD SOWERS 0
- r VOLUME II .ls .
\.*
! Phoenix, Art =ona J-February 15, 1991 4
9: 55 a. m.
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l COFY PREPARED FOR f DAVID COLAPINTO, ESO. f. ,
MARY BLYE DELFORD, RPR ;
{
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a 1 i==F l 11 I .... ..... ..
11 H R - 1 0 - 9 1 SUN 16804 . P.29 l l
48 1 Q. This one.
2 A. This one? I vne unaware of this report.
3 C. Did Mr. Smyers report to you in February 19907 4 A. Yea, he did.
5 Q. So you were in his direct chain of commandt 6 A. Yes, I vaa.
7 Q. Would it have been unusual for Mr. Smyers and 8 Linda Mitchell to generate auch an evaluation and it not 9 come to your attention?
10 A. I' consider it to be unusual.
11 Q. That's all en that one.
12 Before I do go to another document, after you 13 learned of the existence of this document, did you ever 14 discuss it with Mr. Cmyers or Hrm. Mitchel11 15 A. No, I did not.
16 Q. Did you ever inquire of Mr. Levine-or anyone at 17 APS as to why you were never shown a copy of thim-document 18 before it was abovn to you by counselt 19 A. No.
20 NR. COLAPINTot Let's mark this as Exhibit No. 6.
21 (Deposition Exhibit No. 6 van marked for 22 identifiention by the court reporter.)
23 9. BY MR. COLAPINto Have you had a chance to 24 review what's been marked as Exhibit 61 25 A. - Yesj 2 have.
l
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MAR-1o-91 SUN 16305 . P,30 l
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1 49 ;
i Q. Have you ever seen this document before?
2 A. No, I have not.
3 Q. After reading Exhibit No. 6, does it refresh your 4 recollection of a meeting that you may have been in 5 attendance in Mr. Reilly's office?
6 A. .I recall the meeting that I believe this document 7 refers to.
4 Q. I think in the prior deposition on November 19, 9 1990, you stated that you did not recall what Mr. Ballard 10 had said at that meeting. Does this refresh your 11 recollection? ,
12 A. I recall Blaine Dallard talking about Linda in 13 that meeting. But to be honest, I don't believe that what I l 14 see written in front of me accurately reflects what vae said i
15 at that meeting.
16 Q. You don't recall Mr. Ballard calling l
l 17 Mrs. Mitchell a bitch?
18 A. I don't recall whether he did or not. '
19 Q. Okay.' And what you de recall Mr. Ballard saying 20 about Hrs. Mitchell?
21 Is it fair to say at least at some point in that-22 meeting in which you were present, Mr. Ballard spoke in 23 derogatory' terms about Hre. Mitchellt 24 A. Whate.I recall in that meeting is that the 25 disodamion had to do with Linda's performance as a eyatem
?T_._._...__
MAR-10-91 OUH 1G 05 . p.z1 I
50 1 engineer on emergency lighting and the supposition on his 2 part that if the system van really in as bad a shape ao it 3 v a n, that the system engineer suet be partially responsible 4 for that.
5 His statemente were eset in the context that 6 eystem engineers who are not performing the voy they-should 7 be, abould be removed from their job. He was told by 0 Nr. Reilly and myself that we had no evidence that Linda vna 9 not performing her dutica in her job, and that that was the 10 end of the discussion.
11 Q. And did Mr. Henson's name come up at that time?
12 A. I don't recall it coming up, no.
13 Q. Did Mr. Dallard over indicate to you, whether in 14 this particular meeting that you reen11 or outside of it, 15 that other members of APS management shared his view about 16 Mrs. Mitchell?
17 A. No.
18 Q. bid you ever have any subsequent' discussions with 19 Mr. Ballard about Mrs. Mitche119 '
20 A. No. -
21 Q. Did Mr. Ballard ever indicate to you, either at 22 this particuint meeting or prior to this meeting, that 23 Mrs. Mitchell had raised hot-line concerna?
24 A. I can't recall whether he ever mentioned that to I 25 me or not.
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. . is U.S. DEP ARTMENT OP' L ABOR
. .' 6tCRt.f ARY or LA9eM
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DATE: May 31, 1990
> CASE 110. SS-EP& 33 .
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I}t Tile MATTER OF LLOYD HARTIll HCQUAY, JR. , '
s COMPLAIllAllT, V.
T)lE WALDIllGER CORPORATIOM, RESPo!!DEllT.
DErons int secarTAny or IABOR I
ORDER APPROVIl10 SETTLEMENT AND DISMISSIltG CASE This caso arises under the employee protection provision of the Energy Roorganization Act of 1974, as amended (ERA),
42 U.S.C. I 5651 (1982), and is before me for review of a Sett1ccent Agreement entered into by the parties.
As I On March 29, 1990, I issued an order to Show Cause.
explained in that exder .
Paragraph 6 of the settlement requires Complainant to
" refrain from an voluntary participation in any employment diser mination proceedings against (Rospondent), and (to refrain from providing any information of any kin)d about (Respondent) to any individuals, organizations or private or governmental agencies.H. Paragraph 7.of the settlement requires i
Conplainant to " refrain from encouraging, assisting, persuading or attempting to persuade other persons to commence discrimination in employment proceedings or-i claims against (Respondent)."
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l paragraphs 6 and 7 of the cottlement here would rostrict complainant from providing information to the Nucicar Regulatory Commiccion (NRC) or any other such information could be relevant and agoney,l materia to law enforcement investi ations b the NRC or other agencies, including invest gations y the Department of Labor under the ERA or other lavo.
Paragrapha 6 and 7 alco would prohibit Complainant from voluntarily testifying, taking part in or assisting in any law enforcement proccoding involving an alicged violation of the ERA.
slip op, at 2.
Accordingly, I found paragrapha 6 and 7 of the parties'
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Settlement Agroccont (Settlement) void as against public policy to the extent that those parsgraphs would restrict complainant from communicating to federal or stata enforcement authoritlos concerning alleged violations of tho ERA or ot.her laws. Tho
- Order to show cause gavo the parties 30 days to show cauce why paragraphs 6 and 7 should not be covered and the remainder of the settlemont Agreement approved and this caso dismissed with prejudico.
The parties have not filed any response to the ordor to show cauce. Accordingly, paragraphs 6 and 7 of the settlement are severod to the extent that they would restrict Ccmplainant from communicating to federal or state enforcement authoritics concerning alleged violations of the EPA or other laws. I find the remainder of the settlement to be f air, adequate and reasonable and it is approved as provided in the Order to Show
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Settlement cause. This caso is dismissed with prejudice. :
Agreecnent, paragraph 4.
so ORDERED, iiecr ary of ubor Washington, D.C. (V 4
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.. l RERTIFICATE_OF SERVICC Jr. v. The Case Hame Jn the Matter of_Lloyd Martin McQuay, ESA,inger Corporation Caso No. 45-ERA-33 Document :
order Approving settlemont and Dismissing Case .
A copy of the abcVc-referenced document was sent to the following VAY 3 I F390 ._,
persons on
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_ CERTIFIED MAIL Lloyd M. McQuay, Jr.
13148 West Ocotillo Number 1030 Glendale, AZ 85307 l
J. A. Ciminski 5108 W. Echo Lane
- Glendale, AZ 85302
' Ronald Kaplan, Esq.
Waldinger Corporation 2601 Bell Avenue .
- P.O. Box 1612 l
Des Moines, IA 50306 l
Jacos Swanger, Esq.
Brown, Winick, Graves, Law Firn .
Two Ruan Center
- 601 Locust Street d suito 1100 Dos Moines, IA 50309 Rosemary Cook, Esq.
security Pacific Bank Bldg.
101 H. First Avenu2 Suite 2210 Phoenix, AZ 85003 l
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\. b REGULAR MAIL Samuel D. Walker Acting Administrator Wage and Hour Division U.S. Departn.ont of Labor Room S-3502 200 constitution Ave., N.W.
Washington, DC 20210 Wage and flour Division U.S. Department of Labor /ESA 3221 North 16th Street Suite 301 Phoenix, AZ 85106 '
Director Office of Enforcement Huclear Regulatory Commission ;
Washington, DC 2055S Assistant General Councol for ,
Enforcement
Office of the General Counsel Huclear Regulatory Commission (8 Washington, DC 20555 Enforcenent Coordinator U.S.H.R.C., Region V 1450 Haria Lane, Suite 210 Walnut Creek, CA 94596 Honica Gallagher Associate Solicitor U.S. Department of Labor Room H-2716 200 Conotitution Ave., H.W.
Washington, DC 20210 Hon. Henry B. Lasky offico of Administrative Law Judges 211 Main Street, Suite 600 San Trancisco, CA 94105 ,
Hon. Nahum Litt
. Chief Administrative Law Judge Office of Administrativa Law Judges Suite 700 1111 20th Street, N.W.
Washington, DC 20036
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}{on. John H. Vittone Deputy chief Adminictrativ? Law Judge office of Adminictrativa Law Judges Suito 700' 1111 20th Street, N.W. .
Whington, DC 20036
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DATE t y 1 3 1959 CASE NO.' $9-CRA-19 IN Tilt MATTER OF i
SARAH THOMAS i
Complainant '
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+ ARI20NA PUBLIC SERVICC CO.,
Responfant .
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- Appearances i Stephen M. Kohn, Esq. ;
Michael D. Kohn, Ecq.' t l
526 U Street, IN Washington, D.C. 20001 .
For the Claimant ,
Janice Harrison Moore, Esq.
Arizona Public Service Co.
j P. O. Box 53999
- I Phoenix, At 65072-3999 1
Before: Thomas Schneider Administrat1ve Law Judge 1
RECOMMENDED DECISION AND ORDER This case arises under-$210 of the Energy Reorganization Act of i
1974 (the Act),.42 USC 55S51, the Employee Protection, or "whistleblower," provisions, and the implementing regulations in 29 CFR Part 24.
A trial was held in Phoenix, Arizona, on February 28 and March 1 and 2, 1989. Both parties appeared with counsel.
i Timeliness ,
l' On October 21, 1988 Complainant (" Thomas") mailed a letter, 1
3 certified mail, return receipt requested, to the office of.the Administrator of the Wege and Hour Division, Employment Standards l
l Administration, U.S. Department of Labor, complaining against the respondent employer for the following reascas:
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"1. Withdrawal of LLRT certifications.
- 2. Failure to promote.
- 3. Harassment on the job.
- 4. Back wages."
l (CX321/)
Act.
This procedure constituted a filing of a complain discrimination occurred within 524.3(b). thirty daysAsofdescribed the filingbelow, of the I complaint the filing in timely. find The complaint that the withdrawal was thereforeof LLRT certific 1988 timely.
constituted Another document discrimination.(ALJ 2) on DOL rorm Wit-3 was date and apparently was the basisIt of does thenot investigation serve to time-ber undertaken the by the Wage and Hour Division ( ALJ 1) .
earlier complaint. c.
Substantive issuf*
six items establish.a prima facia case of It has been said ,he discrfmination under the waistleblower statuttsi 1) that the party charged with discriminetion is an employer subject to the Act; [
the complainant was an employee under the Act;
- 2) that 3) that the complaining employee was_ discriminated against with respact to a condition of employment; 4) that the employee ongeged in protected activity:
5) that the employer knew or had knowledge that the employee engaged in protected activity; and least
- 6) that the discrimination was retaliation, motivated, at-in part, by the employee's engaging in protected activity.
Stephen Kohn, Protectino Environmental & Nuclear WP'stleblowersi A Littoation Manuel, Nuclear Information aE6~ Resource Service - Government Accountability Project (1985), p. 17. .
s e
- 1. Complainant's exhibits are designated CX; respondent's, RX;TR 8
f Administrative Law Judge s, ALJ.
page.
- 2. Section references are to 29 CFR.
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In this case there is no question that the respondant, Arizona Public Service (APS) operates the Palo Verde Nuclear Cencrating Station, and is an employer under the Act and that the The complainant other l 1s an employee 'and was such at all relevant times. l l
1 elements are'the ones litigated here.
Boekground Sarah Thomas testified that she is 41 years old, has been(TR 47.) !
married for 19 years, and has two children aged 15 and 12. >
She moved to Phoenix when her husband was-transferred =there in 1981. (TR $2.) She worked for a time for a contractor at the Palo 1 e Verde Huolear Power Plant and in 1983 was hired directly.by the(TR 54-55.)
ll respondent as a radiation waste aide.
got the job of " Engineering Technician - Nuclear" on June 6, 1984.
l (TR 55.) One of the reasons she wanted the-job in Engineering was i that it very rarely required night shif t work, in contrast to the 4
i radiation waste work which called for night shift work regularly.
(TR 56.) She disliked night shift-work because of her family e L
responsibilities.
As an engineering technician she worked with an engineer by the 1
name of Gary Irick-("Irick") and under:the supervision of Ronald '
Kropp ("Kropp"). The three summaries of employee performance l appraisal filled out by Kropp (EX 6, 7, 8) for enca of the first i
i two-and-a-half years of her employment in engineering rated her as '
" superior" on a scale that went down from " exceptional" to-There was
- superior" to "competant" to " acceptable" to " marginal."that he-only rated one-o -
testimony from'another supervisor j
seven employees " exceptional." (TR 624.) .
In addition to the'overall rating of " superior," the appraisals J
included highly complimentary comments such as "Her files proved tcto '
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be invaluable." "She-acted independently with the Licensing -" Overall,-Sarah dept. '
i elose out items ... two months ahead of schedule." She requires is hardworking, intelligent, and apoint fast learner.
minimum supervision. Her strong is that she stick (sic] with ;
i a job until its done." (CX 6.)
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"Very helpful during the program developmentz ... She became j
veryknowledgable-ofthecomputerprograms-onTSOandindependent1fe j
scheduled and monitored unit 2's valve test program. ...=She,is:ab ,
to disposition many of the control room concerns without engineering
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assistance. ... She Interfaces well with all engineering personnel and other dapts. She is currently. training the Engineering Aide to
- l. take over this responsibility. ... Sarah has-trained:the Aide 1
- sufficiently to permit the Aide to independently work on the-IBM-PC to enter data and-assist the engineers as needed ... her performance- ,
' is always superior ... Sarah _ operated with considerable independence of action as a data taker, or. lead technician of a procedure. ...
' readily accepts responsibility and performs in a superior uanner. ,
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She excells (sic) at testing and Jata management and likes to get She works well with all the engineers out in the field and test.
and interfaces well with other departments." In the space entitled
" career development plan" Kropp noted: " Sarah needs training on ASME x1, Snubbers'and LLRT testir.9 to fully diversify and needs to work with engineers and learn more of the technical basis for the testing programs" (CX 7.)
In requesting a salary increcce for Thomas in 1985, Kropp wrote: "She gives 150% to her job." (CX 5; TR 63.)
In short, until the Fall of 1i86, the middle of her third appraisal period, complainant's performance was really superior.
There was evidence that performance appraisals are truthful and taken seriously by supervisory perconnel. (TR 625.)
The events leading up to the activity that complainant contends is protected activity began in the Pall of 1986.
Complainant's job was part of so-called Section XI testing.
Section X: refers to a section of the regulations that governs testing of valve stroke times. Valve stroke times indicate the speed with which valves open and close. Valves are essential to the safe operation of the plant and their proper functioning is critical. Valves are tested every 90 days and their stroke times recordco. When a valve's stroke times show a certain degradation the valve must then be tested every 30 days. It is obvious that such testing has significant safety implications.
'ALLEGCD PROTECTED ACTIVITY In discussing the two controversies that are the focus of the alleged protected activities, it must be remembered that it is not my function to determine whether complainant's position on a technical matter is correct. An activity is protected if done as part of "particip[ation) in any manner ... in any action to carry out the purposes (of 'the Act) ." $24.2(b)(3). A good faith or reasonable belief that a pr,blem related to thJ Act exists is sufficient. "The merits of a charge made egainst an employer is irrelevant to its protected status." Womack v. Munson, 619 P.2d 1292, 1298 (8th Cir. 1980.) Respondent does not question Thomas' good faith. (TR 37.)
TSO-PC Controversy The first cluster of events-involves the TSO-PC controversy.
Until the fall of 1986 the valve data was tracked on a At mainframe that time computer, referred to as TSO (Time Sharing Option). He wrote a Supervisor Kropp had installed an IBM PC computer. Thomas and program for che PC to track the data (TR 78, 434, 559). It'would engineer Irick complained that the PC did not work well.
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- _p sometimes lose datas it did not easily display previous valve stroke times: input was slow; and it failed to disclose defects that it should have caught. (TR 78-80, 272.) Kropp testified that the PC worked well, but that Thomas and Irick refused to learn the program. (TR 366.) Tom Weber, the lead engineer, shared that opinion. (TR 500-501, 618.) Irick testified that Kropp had pride of authorship in the PC program and did not want to believe it didn't work. (TR 274.) Thomas insisted that she did her best and knew perfectly well how to operate the PC. (TR 684.)
In any event, Irick and Thomas met with Kropp on October 8, 1986 to discuss the problem and again on November 25. On December 2 Kropp instructed them no longer to use the old TSO system and to use the PC exclusively, although Thomas and Irick reiterated their objections. (TR 77, 82, 271, 368; CX 9.)
j On February 18, 1987 Irick, Thomas and(surveillance an engineer from tracking) another !
group were discussing problems with "S.T."Kropp came in during this packages produced with the PC computer. -
discussion and, according to credible testimony, became very angry and told Thomas and Irick "to throw S.T. packages in the garbage" if l the; were not properly completed. As complainant understood this i
remark, it would violate regulations, in that it called for destroying documents that were required to be kept (TR 175), that were not blank. (-tR 646.)(TR According to Kropp, all he meant was to 373.) Dut he was " upset" when Thomas destroy blank documents.
failed "to clear the control room out." (TR 372.) Six months later, in a meeting with Thonas and Mr. Rodriguez from Personnul, Kropp apologized to Thomas for having raised his voice at her in February. (TR 375.)
In'any event, Irick and Thomas were disturbed by Kropp's remark and immediately went to see Gerald Sowers, Kropp's supervisor.
Sowers told them to resume use of the(TR TSO86,and toCX 27C; feed9.)itComplainant the data -
that had only been fed into the PC.
contends that this appeal to Sowers was one instance of protected x
activity. Kropp z forred to this appeal to Sowers as " going behind l my back." (TR 369.) He tastified he was " hurt" rather than angry.
(TR 371, 374.)
Sowers did not testify, but there was evidence that the primary reason for ordering the use of the TSO was that its data were (TR accessible to more people in the facility than the PC's data.
619, 685.)
Complainant immediately began to feed the data into TSO as instructed by Sowers. By March 31, 1987 this task was completed for Unit 1. (The Palo Verde facility has 3 units.) In completing this task, complainant found that three valves which had been cleared by the PC program actually required being put on a 30 day testing schedule. (TR 80, 90.) In other words, by using the TSO complainant had discovered defects, which reflected violations of regulations, e
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MAR-10-h1
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.. .. - -S-that she had not discovered by using (TR the PC. Iricktold 91-.).Kropp and Thomas them to reported this problem to Kropp.
- engineer it away." (CX 9; TR 92.) Irick and complainant understood this order to mean that they should so over 92, the work carefu2'y no to see if they had made any mistakes. (TRHe 178.) Finding told them to write a PRO mistakes, they again met with sowers.
(Potentially Reportable Occurrence) immediately, which they did.
(CX 9, CX 10.) A PRO is a document that must be filed if a problem comes up that may indicate a violation of a regulation, whether or not further investigation shows an actual problem. The significance of complainant's testimony is that Kropp should have told her to write a PRO, but that he did not want a. PRO filed, and that Sewers (TR 93-94, 255.)
again overruled his subordinate, Kropp. .
Thomas testified that Kropp was "very livid" and upcet when he found out that Irick and Thomas had again gone to Sowers. (TR 94.)
Irick described it as Kropp's "just incredible outward show of anger." (TR 281.)
After the PRO was filed the matter was further investigated and a so-called LER (Licensee Event Report) (CX 11) was filed with the _
NRC on April 27, 1987. It was prepared on the basis of the. PRO written by Thom&s and Irick and with input from Kropp and others, but the final version was not seen by complainant.or Irick before'it was '.iled. (TR 100.) In their view the LER did It not accurately state blamed "a who and what was responsible for the incident..
cognitive personnel error by the test engineer," (that would be Irick) rather than Kropp's failure to heed Thomas' and Irick's-complaints (TR 101), and three other similar statements (TR 101-103) which counsel referred to as " massaging the language" (TR 379) to deflect the blame. Complainant called this to the attention of Kropp's supervicor in a memo dated Hay 6, 1987. (CX 9).
Complainant and Irick decided that they need not call this LER incident to the attention of the NRC (TR 330), but had performed
- their duty by calling it.to the attention _of management. (TR 171, 340.)
l Date of, valve rev-lew l
The second cluster of ovents alleged As to be protected activity mentioned, valves have revolves around to be tested the date regularly, of valve at 90 day orreview.
30 day _ intervals, with a 25%
leeway. . If-valves areHowever,tested' individually in 1986 it iswere valves clearscheduled when thefor-period-begins to run.
testing in groupsc and the testing period cou.'.d: extend for as long as six weeks. All valves in the group that passed the test were' In this way it was possible.for a then accepted on the same day.
valve that was " exercised" (tested) at the beginning of a six week schedule, to be accepted six weeks'1ater, and to then-be scheduled for retestino 30 or-90-days from the date of acceptance, which would
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nqn.2o-6i suu ie: is. p.4e be more than 30 or 90 days from the date it was exercised. (TR !
268-269.) Since the APS procedure was to calculate the next scheduled test on the basis of the date of acceptance, complainant some valves would be tected less frequently than was concerned that required by regulation. (TR 72-75.)
Complainant testifie6 that she discusced this matter with Kropp in October 1986, and was instructed to use the acceptance review d a.t e. (TR 75.) She also testified (Nuclear that sheRegulatory raised thisCommission.)
concern with an'on-site inspector from the NRCThe NRC did investigate this concern, and Kropp was (TR 76, 96-97.)
aware of the investigation. (TR 356, 361; RX 4, p. 1; CX 12.)
Although Kropp denied knowledge that Thomas had complained to the NRC (TR 405) he admitted that Thomas and Irick hadAnd discussed he knewthe that valve review dato question with him. (TR 431.) this question. (RX 4.)
Jay Ball of the NRC was also concerned aboutthe question had never been raised be He further testified that (TR 352.) I therefore infer that Kropp Thomas and Irick raised it. ,
believed that Thomas had raised the question with the NRC.
Thomas and Irick also discussed this concern with Sowers at the same meeting in which they discussed the TSO-PC probicm, on February 18, 1907. Sowers instructed them to use the exercise date of the valve. (TR 86.)
Other alleged protected activity Complainant also reported to the NRC that her engineer, Jim Centre 21, her lead engineer, Tom Weber and her supervisor, Kropp, may not be qualified to supervise LLRT technicians becausc they allegedly have less than (CX the required four years of experience in 13, TR 647.) She also complained to NRC .
the discipline of LLRT.
about being asked to use acceptance procedure that had not been approved, (TR 135-138; CX 13.) Since these activities apparer.tly
- took place after the last incident of alleged discrimination, or after the complaint was filed with the Department of Lobor, I do not consider them further here. ,
SUPERVISOR RON KROPP 'S MOTIVATION AND IOIOWLEDGE I find that Thomas embarrassed Kropp repeatedly. She complained to Sowers about Kropp insisting on the exclusive use of the PC, ebout his order to destroy S.T. packages, and about the practice of using acceptance review dates in scheduling tests.
Sowers apparently .was generally diplomatic and tried to " keep the family happy" (TR 592), but he unquestionably countermanded Kropp's order about using the PC, and apparently implicitly supported Thomas' other points. Sowers further ordered a PRO to be written about an event that Kropp hoped could be " engineered away," which i was followed by an LER, which is a report that something went wrong l in Kropp's department. The fact that the LER was worded to minimize blame suggests that it is an embarrassing document.
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I As explained, Kropp also knew that Thomas discussed her concerns about valve review datos with the NRC, and this question remained an active concern for Kropp as late as March 15, 1988. (RX 4, p. 2.)
One of the reasons I believe Kropp had a retaliatory motive is because that is very understandable and human. Thomas was a mere technician with a high school education, attempting to get an associate degree in her spare time. Kropp was an engineer with two masters' degrees and at least 11 years engineering experience. (RX 2). In these circumstances it was embarrassing and annoying to have her report what she considered his nistakes to his nupervisor and to the NRC, and then to have those pet!.le give them serious consideration and make more work for him.
The discriminatory treatment here was .At as egregious as that in many of the reported cases. Thomas was not fired or suspended, or overtly disciplined. In fact, it is to respondent's credit that management, as personified by Sowers, responded quickly and .-
decisively to her complaints, and, except for Kropp, appears not to have discriminated against her. But, of course, Kropp is part of management, and his conduct taken as a whole, evidences conduct that would chill the freedom to bring complaints either to management (see Mackowiak v. Universitv Nue3 ear Svstems, Inc., 735 F2d 1159 (9th Cir. 1984) or to the NRC. This conduct is what Section 210 of the Act is designed to prevent.
ALLEGED DISCRIMINATORY TREATMENT complainant felt that Kropp's attitude towards her changed after she complaines to Sowers. (TR 87.) before, Kropp had been friendly and commt.41cative. (TR 57-58.) Afterwards he became unfriendly and would avoid any unnecessary conversation. (TR 88, 95, 108.) Thomas felt she could not talk to him at all. (TR 238.) .
Irick corroborated this change in attitude. (TR 277.)
This basic change'of attitude permeated all subsequent relations betweAn Thomas and Kropp and manifested itself in several specific instances of discrimination, as well as being generally unpleasant. That attitude continued until after the filing of the complaint and is the basic for a claim of continuing discrimination. (TR 669.)
Each of the following items, by itself, would not support a finding of discrimination or disperate treatment. Only when viewed together, when each item is viewed in light of all other items and in light of Kropp's understandable hostility to Thomas does each item appear as an item of discrimination.
The cpecific instances of discrimination alleged are theses (1)
Complainant was reassigned to LLRT (Local Leak Rate Testing) without
_._.. _ _ _ ___._ . _~_ _ _ . _ _ _ _ - . . . _ _ _ _ _. _._ _ . _ _ . _ _ _ _ __ .
MnR-1G-91 SUN 163 16 . P. 50 a specific limitation in terms of time or achieving a certain level of compe'ance; (2) che was not promoted to Senior Technician; (3) although the claim of discrimination respecting Thomas' lack of
(
promotion to associate engineer was dropped, the evidence showed that Thomas absenteeism was considered disqualifying for her, but not disqualifying for the person who was appointed to'the positiont-(4) Complainant was assigned to be retrained on the PC for coveral weeks, which was demeaning since she did not need the training and had herself trained the aide who was then assigned to train her; and (5) on September 29, 1988 all her certifications for doing certain testo. wore suspended, even though she had trouble with only one test.
Complainant alleged that she was discriminated against after that as well. For example, However, she was denied a day off to go to the I shall not consider events after doctor in December 1988.
the complaint was filed with the Department of Labor on October 21, 1988. (CX 32.) .-
C_ro s s- tr a ining in LLRT on October 1, 1987 Kropp issued a memo reassigning Thomas from Section XI testing to LLRT and reassigning an LLRT1988. technician, Larry Trouy, to Section XI testing, effective January (1) 1, Reduction (CX 14.)
The reasons given for this reassignment were:
in dep3rtment exposure if a member of the LLRT or Pump and Valve team were to depart. There are currently no back-ups within ANPP (another acronym for recponcent) for either Technician position.
i (2) Diversification of training and experience for both Technicians." (CX 14.) As recently as the time of trini, Kropp tectified: "The only way I could survive was to have the three technicians under Tom Weber fully cross trained with LLRT and .
Section XI " (TR 410 ) Yet that rationale is questionable.
For Thomas this reassignment meant doing heavier work, working i (TR 126-127, l night shifts, being exposed to more radiation, etc.
616.) She contends the motivec for the reassignment were pretextual or, at best, mixed. She points out that no other technicians have been reassigned in this way before or since. (TR 124, 294.) John Kern, another LLRT technician, has never been cross-trained in Section XI testing. (TR 448.) On a bid sheet for test technician / senior test technician that was posted in December 1987 no mention is made of a cross training requirement. (CX 28.) I infer that Kropp did not intend to require cross-training of all technicians-underthis supervision.
Larry Trouy, who was performing well in LLRT has learned
~
Section XI and has not been reassigned back, even though Thomas is allegedly not qualified for LLRT, and even though Kern has not been trained in Section XI. Before 1986, cross-training was done without
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MAR-1O-91 SUN 16: 17 . p,33 reassignment, on an informal basis. (TR 233, 236, 436-437, 642-643.) Sandra Henry, a senior technician in Kropp's department, has not been trained in either LLRT or Section XI. (TR 111-112.)
An " outage" occurs when a unit is shut down, usually for refuelling. Much maintenance and testing is done during outages.
For the outage scheduled for April 1969, all the LLRT technicians' work will be done by outside contractors. (TR 128, 293, 450.) The implication is, and I find, that the back-ups mentioned in the Kropp memo are not needed.
Complainant contends that from the viewpoint of overall plant safety and proper functioning the transfer makes no cense. Before the transfer Thomas was doing superior work in Section XI testing and Trouy was apparently happy in LLRT. After the transfer Thomas was not doing nearly as well. There was some evidence that Trouy was not doing perfectly in LLRT. (TR 295-297.) Why not move Thomas back to where she was doing so wc11, and was happy 7 If this were an isolated incident, or if I did not find that Kropp had strong .-
discriminatory motives (see above, pp. 7-8) I would consider the reassigne ent a rational management decision which I should not second guess. But in the whole context of this case I am persuaded that Kropp was motivated, at least in part, by a desire to give Thomas a dirtier job, or at least, not to have her back in Section XI where che embarrassed him significantly.
Not only was LLRT more disagreeable work than Section XI, but Thomas was transferred to it without being told a time when the transfer might end. She asked whether it was temporary or permanent, but was not given an answer. (TR 237, 410.)
Fa'ilure to oromote to Senior Technician The engineer who worked most closely with Thomas in Section XI ,
was Gary Irick. He knew her work. In Spring 1987 he thought that she was a Senior Technician. (TR 120, 287.) Apparently, so did Ms.
Robinson, a woman from Personnel whom complainant consulted. (TR 120, 184.) In fact, Irick had enough confidence in Thomas to have I her be the person for others to consult when he was not available.
(TR 120-121, 266.) Tem Weber, the lead engineer, testified that he i
did not know of this arrangement (TR 544), but I credit complainant I when she testified that he must have known. (TR 672-673.) Irick l suggested that she apply for the position of associate engineer, I which would have been the next step up from Senior Technician. (TR 288.) She did apply, and was ranked fifth out of seventeen applicants. (TR 384.) This fact alone supports the proposition that she was well qualified to be a Senior Technician, a step below associate engineer. (TR 640-641.)
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Kropp testified:that Thomas was-not-yet qualified toibe a-senior Technician because she-lacked initiative,cd1 versification, ' ~
competence,-willingness to work overtime,1and similar intangibles.
(TR 385', _400. ) 'This testimony;is suspect _ because Kropp~ had; attributed these very qualities.to her11n: 1985 and 1986, before the;
~
protected activities. (CX 5, 6,-7.)=Kropp also:said! Thomas had'done I --
no physical' testing before'her transfer to LLRT. (TR.401.) This .
was not correct.- (TR~642-643.) Thomas testified _that she-had more education and experience than any.other. technician on site. (TR-
.i 109, 187.)
There-was uncontradicted. testimony-that_ sandra Henry,-a-senior
- technician under Kropp's sugervision,- was!1ess qualified than i Thomas. (TR 111-112, 189, .90, 456-457..)1Xropp. testified that she was already a Senior _ Technician-when he took over. (TR 348.) The ~
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-implication is thatLsince Kropp did-not promote-Henry he did not discriminate by not promoting Thomas. -
1 It is1 difficult to41abel a failureito. promote as ._ .
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discriminatory,- just as,_ (in1the-.words of the playwright,c Atheir B u t ',- by rugard) it is- impossible)to name the day a drought began.
y the time complainant: clearly asked to be promoted, in aLmeetingJin
!: October 1987 with her, - Kropp and Mr. Rodrigue: Vfrom personnel (TRIt 384), Kropp was angry,-or hurt, or cold vis-a-vis-complainant.
]
! is a reasonable inference -~ that,- absent . Thomas' protected: activity, .
1.e., embarrassing Kropp before=his supervisors,"she'.would have been-granted the promotion to SeniorLTechnician-by; october: 1987-f 4
l Absenteeism 1
_ Thomas-applied for the position of; Associate: Engineer, was? .
ranked 5 out of 17, and1therefore did not.get theLjob.- (TR 384.);At-
- one point she= alleged that the failureitoigive-heritheijob was. ..-
i ' discrimination but she withdrew this claim:at trial.- (TR 180. ):
However, in. discussing.the " matrix"-(a form for1 evaluating '
applicants for a: position) prepared (for. Thomas andLthe one: c prepared:
i the person who was chosen for the' position,-Kropp-r for Mr.'Rafferty,iscrimination.
revealed-actual d l '
RX 5 is the matrix for Thomas. CX 41'isithe' matrix for l
Rafferty. Both-matrixes show_a'minusTsign (~) forrtheflineJiabeled; i- " attendance." - Kropp, wh.en1 questioned aboutEthe'minuaEsign?on
-Thomas' matrix, testified thattit'meantithat-Thomas'was" disqualified ~ -
L
- on the ground ofthertabsenteeism. (TR 425.L) Hetwaslthen shown
' Rafferty's1 matrix, and he. attempted to explain thersignificance '
~
' differently. -(TR 428.)-
L I find that Kroppfjudged complainant'afabsenteeism'to=be j disqualifying, but judged Rafferty's relatively similar1 absenteeism;
- record'not to befdisqualifying.
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ra a n - 2 e - 9 i sud 2s se . e . :s s Training on the PC on October 7, 1987 Kropp directed that Thomas be trained on the .
IDH-PC. He wrote a follow up memo on November S, 1987, because, apparently, nothing had happened in response to the first memo. (CX 23.) The program required 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> of supervised training per week for four weekc, with 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> of practice and actual data input the i last week. Thomas testified that these requirements were silly for her and demeaning. She know how to do all the things required, had done them for a long time, and was to be trained by the Aide she had i trained on the same equipment. (TR 658-661; CX 7(56), CX 23.)
Nothing in the record explains this except a retaliatory motive.
withdrawal of cert _ifications on September 29, 1988 Kropp issued a memorandum notifying complainant that "your certifications for all LLRT procedures are temporarily suspended. All tests performed in the future will
- require the presence of a qualified technician or Engineer until ,,
your certifications are re-validated." (CX 32.) i This action resulted from an incident on September 26, 1988.
On that day Thomas was assigned by her engineer, Jim Cantrell, to conduct a certain test, referred to at the hearing as CLO-6.
According to Thomas, she requested Cantrell to assign one of the other technicians to her as "back up," and this request was " treated lightly and denied." (CX 32.) She later testified that she made the request because she felt lightheaded and ill (TR 139, 252), although she did not mention this feeling in her memo to Kropp of October 4,
- 1988. (RX 1.) Her lead engineer, Tom Weber, testified that he thought she wanted back up in case the test failed. (TR 540.) He alsc testified that he found out she felt ill on the day of the incident (TR 623), or the next day. (TR 624.) I find that she really felt ill on that day, before the test began. Since Centre 11 '
did not testify, I do not know his reason for not assigning help.
from the beginning. His memo (RX 14) does not mention her request.
All witnesses agreed that the mechanics who hooked up the test did so in a manner that was not the preferred manner (RX 14; TR l
529), and one that Thomas asked them to change. An argument ensued, and Thomas called Cantrell and Weber, who failed to answer their phones. (TR 650.) She reached John Miller, an experienced technician. In response, Weber, the lead engineer, contacted Thomas, and then dispatched engineer Cantrell and technician Kern to f the scene. (TR 523.) Kern instructed the mechanics to connect the I hoses in the standard way (TR 473-474; RX 14), and the test was successfuly completed (TR 524), with Thomas signing off.on it. (TR 667.) Apparently, during this controversy, the pressure in one of the valves went as high as 72 psig or 87 psis, when the proper pressure is 50 psig. !!o damage was done.
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Weber, the lead engineer, believed that Thomas' certification
' to do this test (CLo-6) should be withdrawn, but not that her certificates for all tests chould be withdrawn. (TR 533, 541,(TR 594; RX 15.) (The other tests are designated CLO-1, 3, 5, and 7.
130-134.)) Wbber testified that he thought that Thomas confessed a lack of confidence in her ability to do all tests-involving "the panel." (TR 536.) Thomas denied this (TR 666, 692) however she had only done the CLO-6 test twice before. (CX 32.)-
Kropp testifed that he suspended all of Thomas' certificates because of this lack of confidence and because all the tests are similar in that they all involve the panel. (TR 414-415, 467, 478.)
However, this rationale is discredited because not all the tests involve the panel (TR 645), and furthermore, Thomas had used the panel hundreds of times (TR 488, 645) and was very familiar and comfortable with it. Thus, Weber's thought that Thomas' certification for CLO-6 should be suspended is reasonable. Kropp's action in suspending all her certifications is less so, and is best -
explained by his hostile attitude.
As a result, Thomas was required to be retrained in all the tests (TR 419-420), even though she was fully qualified in almost all of them. (TR 412.) This retraining, like the PC retraining, was humiliating. (TR 135.)
Furthermore, if Thomas' testimony is believed, and I believe it, the net effect of this incident is to discourage people from asking for help if they need it. Thomas had been hoping to complete her training in LLRT, and to be retransferred to Section XI. By September 1988, just before this incident, she had been certified in CLO-3 through 7, with the exception of the door adjustment on CLo-3. (TR 200.) On the day of the incident she felt ill, asked for
- back up in advance, which was denied, and when she had difficulties she was sent back to square one -in her training in LLRT. Her hope for early transfer back to Section XI was dashed. -
FREEDOM TO CONTACT THE NRC The record contains-two memoranda that I do not find were aimed at Thomas specifically, but which could be interpreted as discouraging free contact with the NRC.
The first is dated April 11, 1988 and 1s-directed to all
" Engineering Evaluations' Department Personnel." (CX 18. ) This memorandum expressly states that all correspondence leaving the department must have the supervisor's signature, and the Manager and the Director must receive copies. Obviously, if this directive includes correspondence to the NRC, it inhibits free contact with the NRC. .
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ima-ae-,2 sus o22e . p ._ s e l
14 The second is a three page rnemo, dated Januar 1989 to
" Distribution" and is entitled " Setting the Tone."y 16, (CX 17.) It contains the following statements:
The second (enclosure) is a briefing paper I have used in the past to calibrate personnel on an appropriate way to interact with outside organizations so that the-results of the outsider's efforts are not unduly biased by a few vocal individuals venting frustration. It is unfortunately typical for unsophisticated individuals i to believe that-some outsider can do more to resolve i their frustrations that [ sic- than) their own.
organization can. They are inevitably _ surprised when the results turn out to be very different than they had hoped for and not personally helpful at allt i
e**
! Be sure to debrief your supervisor carefully of your 1
, interface activities with an outside grou?. Be i censitive to their reactions especially when they seem :
to be surprised or question you closely about your l actions or procedural requirements.
]
I Again, it is obvious that if "outside organizations" includes the NRC, this reemorandum-discourages personnel from-contacting the NRC freely about perceived problems, and-requires personnel-to report contacts with the NRC to a supervisor.
RELIEF Thomas requests-the following relief (TR 30, 725, 745-746):
f (1) Promotion to Senior Technician, retroactively with back !
pay. -
(2) Reassignment to Section XI.
(3) Damages for emotional distress.
(4) That an order issue guaranteeing free-access to the'NRC.-
(5) Modification of her evaluations- to eliminate reference to absenteeism. t (6) Sealing her 1988 performance review, or having her 1989 performance review include only work she will have done in Section ,
XI. ,
Section 201 of the'Act provides that the Secretr.y shall_ give
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the following relief for violations of the section: j
- l
,4 a n - 1 o - s. i sus 2o: 20 . e,sc
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" order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay),
terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant." (42 USC
$5051(b)(2)(B).]
seem Requests for relle" (1)(Promotion) and (2)(Reassignment) to be contemplated by the statute, ineemuch as I have found both the transfer to LLRT and the failure to promote to be discrimination based on Kropp's desire not to have Thomas work in Section XI where she embarrassed him.
Although the Secretary may order compensatory damages, I find the evidence insufficient in this case to recommend such an award.
Therefore, request for relief (3) is denied. .
Request for relief (4)(order re contact with NSC) is contemplated by the " affirmative action" clause in the Act.
Requests for relief (5) and (6) (modification of evaluations) is denied. Thomas' 1988 evaluation (CX 16) contains her explanation including the reference to absenteeism, of all negative items, which, together with this recommended decision and order, should suffice to set the record straight.
Promotion and back pay I have found that absent her protected activity Thomas would I have been promoted to Senior Technician no later than October 1987.
She should now be promoted retroactively to October 1, 1987.
Thomas calculated that she would have earned $6,500 more by the time of trial had she been promoted. (TR 111ff, 211ff.) This calculation was based on the assumption she would have been promoted in May of 1987. The parties should confer immediately and attempt to job ciascification arrive and at a at the appropriate pay level within that figure for the amount Thomas would have earned had she been promoted to Senior Technician on October 1, 1987. If they cannot agree within 15 days, they should separately state their respective positions on this point to the undersigned or to the Secretary, whoever shall have jurisdiction, within 20 days, s
Reassionment I have found that Kropp was motivated, at lean. in part, to transfer Thomas to LLRT because of Thomas' protected activity.
She can continue to be fully trained in LLRT by temporary assignments in that section, but she should be reassigned back to Section XI as a Senior, Technician.
MAR-10-91 SUN 16 221 , p, ,
[rt,edom to contact the NRC CX 17 and CX 18 were the only documents introduced to indicate that anyone higher than Kropp had discouraged complainant, or anyone To remedy this " chilling" the else, from freely contacting the NRC.
following should be donet (1) A memorandum written and distributed to the same
" distribution" as the memorandum of January 18, 1989 (CX 17) from an official occupying a position at least at the level of W.C. Marsh, referring to the memorandum of January 18, 1989, and statingt "Nothing in that memorandum or in the ' Guidelines for Conduct of Plant Personnel During Visits by Outside Agencies' that were attached to the memorandum should be construed to discourage any personnel from freely discussing their concerns with representatives of the NRC; nor is there any requirement that a supervisor be informed of any contact you may have with the NRC or ,.
its representatives."
(2) A memorandum written and distributed to the same distribution as the memorandum of April 11, 1988 (CX 18) from an official occupying a position at least at the level of G.W. Sowers, referring to the memorandum of April 11, 1988 and stating:
"Regardless of anything contained in that memorandum, all personnel are free to correspond with representatives of the NRC without knowledge or approval of anyone in management."
RECOMMENDED ORDER
- 1. Respondent is ordered to promote complainant to the position of Senior Technician, retroactively to October 1, 1987.
The parties are ordered immediately to confer and attempt to arrive at the appropriate pay level within that job classification and at a figure for the .$ mount Thomas would have earned had she been promoted to Senior Technician on October 1, 1987, and to implement such agreement. If they cannot agree within 15 days, they should separately state their respective positions on this point to the administrative law judge or to the Secretary, whoever shall have jurisdiction, with.in 20 days.
- 2. Respondent is ordered to transfer complainant to Section XI testing.
- - . . . - . _ . . . - - . . . ~ . - . - . . _.. - .. - . , . ....~ .. .... .. ---- - _ _ . - . _ - - - . .
I'1 A R_- 1 0 - 9 1 . SUN 16'322 .. P.eo
- 17
- 3. Respondent is ordered to issue memoranda as described in the recommended-deelsion of the administrative law judge at page-16 under the heading " Freedom to contact the NRC."
874 4 , i s'!M Thomoc Schneider-Administrative Law Judge s
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MAR-10-9i SUN 16 22 .
P.59' I I
- 1 SERVICE SHecT Sarah Thomas -
7438 W. Carol Avenue 89-ERA-19 Peoria, Arizona 85345 Administrator Wage & Hour Division 1 USD01 - ESA-Room S-3501, FPB Janice Moore, Esq. 200 Constitution Ave., N.W.
Arizona Public Service Law Washington, D.C. 20210 Department 2100 Valley Bank Center 201 North Central Cornelius Donoghue j Phoenix, A2 85073 - Deputy Associate Solicitor i j
O/ Solicitor - USDOL Suite N-2620, FPB l 200 Constitution Ave., N.W. ;
Michael D. Kohn, Esq. Washington, D.C. 20210 526 "U" St., Northwest Washington D.C. 20001 Nuclear Regulatory Commission q O/ Inspection & Enforcement Washington, D.C. 20555 i Monica Gallagher, Assoc. Solicitor Richard V. Haburn U.S. Department of Labor Director of Enforcement O/ Solicitor, Division of Fair Employment Standardo Labor Standards, Room N-2716 Administration 200 Constitution Ave., N.W.
Wage-and Hour Division Washington, D.C. 20210 3221 N. 16th Street, Suite 301 Phoenix, Arizona 85016 .
Elizabeth Culberth, Director E112ebeth H. Dole Office of Administrative Appeals Secretary of Labor U.S.' Department of_ Labor O/ Secretary - USDOL -Room S-4309 Room S-2018, FPb 200 Constitution Ave., N.W.
200 Constitution Ave., NW Washington, D.C. 20210 Washington, D.C. 20210 g#/W WfaQJe F/9 W25 22 y
, bic t - 4 (Name)
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APR 131989 (Date)
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MAR-10-91 SUN 16323 , Pe GO EXHIBIT B 9
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UNITED STATES OF AMERICA DEFORE T!!E DEPARTMENT OF LABOR ,
LINDA HITCHELL, ) '
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Complainant f )
vs. No. CV 89-23594 i.
ARIZONA PUBLIC SERVICE COMPANY / J.;
ARIZONA NUCLEAR POWER PROJECT, ) .
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Respondents. ) N
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,it DEPOSITION OF DANIEL SMYERS l,.li js!r U
Phoenix, Arizona A(.
February 13, 1991 4
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COPY PREPARED FOR:
KOHN, KOHN & COLAPINTO MARY BLYE BELFORD, RPR i
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11 A R - 1 0 - 9 1 SUN 16324 . P.G2 30 1 A. I wasn't aware of this. It didn't come from me 2 or Henson; I know that. Because we were -- I was involved 3 with writing this.
4 Q. But did you hear any rumors on-site that anyone, 5 even if Linda told you at the time, that anyone told her 6 that she shouldn't come back to the site?
7 , HR. LYONSI object to form and foundation. .
8 A. I don't remember. If you have anything specifio, 9 maybe you can trigger my memory. It sounds like you have 10 something there.
11 Q. BY MR. KoHN1 I will come back to that.
12 I want to then show you a document we will mark 13 up as Exhibit 10. .
14 (Deposition Exhibit No. 10 was marked for 15 identification by the court reporter.)
16 .Q. .BY MR KOHN And I believe you referenced a memo i
17 from Gerry Sowers coming down after Linda wrote this. Is.
18 this that memoranda? ,
19 ,A. -Yes, that's what I was referring to.
20 Q. Did you ever discuss this memo, Exhibit 10, with 21 Hr. Sowers?
22 A. Yes, I basically wanted-to know why everything 23 had to be approved by him, and he just said, So management 24 will know what's going on, where it was going.
25 Q. Has Mr. Sowere ever informed you that this t
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t14 R - 1 0 - 9 1 SUN 10324
- P* Z i
31 1 memorandum has been revoked?
2 A.' No.
3 Q. Is it your understanding that this memorandum is 4 still in effect?
5 A. Everything I si g and send now still goes through 6 my manager.
7 Q. So you are still complying with Exhibit 107 ,,
8 A. Even though Corry is not my manager anymore, I 9 still send everything through my nianager. Except there are 10 certain little memos that we send out; but the manager is 11 also co'd on it. But official letters always have to go
, 12 through him.
13 Q. After writing Exhibit No. 9, did you ever learn 14 of any discussions concerning Linda Hitchell losing what's 15 known as signature authority?
16 A. .N o . In fact she can, she still has signature l 17 authority to sign of f the EERs and all of ou'r engineering 18 documents. Other than this, saying it's got to go through l 19 the managers, I don't remember.
20 Q. Do you believe Linda Mitchell as to the meaning l 21 of Exhibit 10, the Sowers' memo?
- 22 A. I don't remember. I know we all had this and we 23 talked about it. -
l 24 Q. I would like to show you a document now, which we 25 will mark as Exhibit 11.
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January 18, 1989 .
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sucatet Setting the Tone Y
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I have enc 1'osed two diver.ne yet related items for your information and .g
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. The first is a statement of my personal management philosophy which !.
'l ' lists the seven fundamental tenets I feel are keys to success in our
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environment real verld. discribed is idealictic and could never be achieved in the 7 It is. however, a good measure of what I will be trying to t',,
achieve in APS.- between us. within your organizations and within my relationships approximation Iaskforyourcommitmenttostrivewithmetoachieveareasonable.f of that environment. I_am personally convinced that our ,
- , . '. success here vill be in direct proportion to the degree to which we can achieve that environment. k l . The second is a briefing paper I have used in the past to calibrate plant .I personnel on an appropriate uay to interact with outside oro nizations -
P a few vocal individuals venting frustration.so that the results 'l(, of the
,; for unsophisticated indiv' duals to believe that some outsider can do l'. d more 7 to resolve their frustrations that their own organization c;on. They are t:
inevitably surprised when the results turn out to be very different than E l they had hoped for and not personally helpful at all! It is important- $'
that ve-get our peo f f,' them in this area. ple's attention in this regard and carefully educate ji'
. .' Core must be used to avoid giving them an impression 4 a
board in responding to questions from such organitetions.tha
, a 3 E", ,$ d. i.Vp;them: to, be open and hones,t., i j 'kY.l!.W h:
! We also vant them to understand lhat.We clearly want I^-
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'exaggeratiio'n' 25an'd{'APSadd },'h end2 vhen3that<happens)theopinions;nresulting; interaction ween.that organization ~
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', - "for". interacting vi.th all 'such' groups in generalf'or,'theiupco
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- ,is beinglmade in this area and we must continue to make more d
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Distribut' ton i. ..'; '
A "18',- '3 January 18, 1989' '
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'i Thenklyou in advance for your_ help and comitmenti 'y/
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cc iJ. N. Te'nch J. E. Kirby . $l'n.
't R. M. Butler M'..
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MAR-10-9i SUN 16326 .
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,.. , a MY. MNAGEMENT PHILOSOPHY
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4 I believe in the seven management principles enumerated by H. G. Rickover in his management assessment of GPU.
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Re'uire q rising standards of adequacy.
De technically self sufficient. I Nurture the capacity to learn from experience.
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. Adhere to
'l i the concept of total responsibility. l Pay meticulous attention to detail. ,
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'5 Rey, ire relentless training.
Respect,even small amounts of radiation. '
g These principles can best be implemented which supervisors and workers respect Gne another.in o work environment in ,
One in which they accept their' res'pective roles 'and responsibilities willingly. This environment
- s established by senior management but must be nurtured by all levels af supervision. .
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First, the nurturing takes the form of fostering open communications, a Workers reco,rendations; and supervisors feel free to discuss problems and to make forceful close ranks and support however, theonce a decision has been taken, all concerned decision. F Closing ranks con.fidence that it was understood and valued.is possible because a
' Aan cr This trust is a most treasured CSucceG)itical element 'which must be continuously eW by management. .
, of:.the employees.in .a nuclear power plant is very difficult w tro'Ut thewill .
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their Secondly, employees the of nurturing openness requires to supervisiors to be an example to -
constructive criticism. Supervisors -
demonstrate rise. an understanding that standards will and should continuously .^
improvement. They demonstrate a genuine desire for personal and organizational criticism of their subordinates.They avoid defensiveness, pride of authorship, and destr 6; . . without> brutalizing 'its employees.-The organization is brutally self-critical 1 Employees are not afraid ..to provide -
N 2.'.v,i:~information; ioccurred necessary to understand why a problem occurred - even ? if it f.hQ@E'd't.YholdsM'way..as?a result. of their/own inappr 3 $.
.. y' ?ll. int a indiv'idualt membersSacco'untable' for their actions, but it is done th..vL.
The organitation R by the maj asf fair and p'i d . . - ccmployees.1that ,is , viewed 8'The with actions are" consistentappropriate a policy of differentiation 4 r.., . ', ,' ' :".: be tween ? wil 1 ful or diligence; reckless disregard of requirements or lack of due R.
i and disciplinary; measures are taken inadvertent inappropriate action. The $
disqualification from specific duties for 'the first two categories. traditional c k'z and Temporary W
'in those dutles are the norm for the last categoryretraininD for requalification fy, F
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.,d. iThirdly, minagers n'u rture this environment by personally setting the ;
. L . example, of professional . conduct, of acceptance of individual responsibility. .l '
.i '. e. ' and accountability.. .They,ialso cemo,nstrate; the organization's acceptance ' A .
i "l4 ' . ' . 'of ..-its"iaccountabil.ity, bywoviding'Jsubordinates with- clear divisionst of "e responsibilityc; and , the;, requisite. .abthority to f discharge'. those i
respon'sibilities. . The' organization ' supplies .its employees . the -tools -to $,
do the"jobTexpected of them ' sound leadersh% good procedures. Lo2sist3 tnt
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8pproprsiate. 2facili ties, and excel'ent., performance. - based 5.
i . training $.v/[Managemen,tV also nurtures the environment 'by requiring ~and 0-factiftating' teamwork within.and between departments. <.
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Finally, in Jthis era of shrinking re so'urces , growing regulatory- I requirements, and increasing competition, management -must foster the organization's ability to innovate.
One can never be satisfied. .One needs. -
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,. to continue to cuestion.and refine the way. the organization does . business ..n .
.4 with an' eye on the " bottom line". One should look to technology to irnprove 6, '
accuracy and efficiency and incorporate those aspects of emerging technology .p q , which can he,1p the organization improve and reduce costs.
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f work (e.ortunate nyiron: rent'indeed ',)ust - described. is the plant,None that can the fully less,achieve the ratherfounded an organization utopian )-
!. 'on'.highsstanda'rds;dtrust. mutual respect, personal responsibility. and '/. .
decent, treatment of > it's members will enjoy a synergistic rnultiplication
'~ofatheNimperfect : efforts .of those individual mem:>e rs .
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- bel, success? The result will -
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Walter C.- Marsh -
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.. 'CUIDELINES FOR CONDUCT'0F PLANT PERSONNEL DURING 7[
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'I Be upbeat and positive. This helps demonstrate a good, professional g\
t attitude and helps put the outsider in a positive-frame of mind as he observes your performance. 4,
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" .'; Be open and candid we are- trying to _do our jobs the7best T.
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.. ' ;.:( however, avoid the following trapst
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- 1) Take great care to-differentiate between .% -
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- 2) Don't out and be then afraidprovide to say it, you don't know the answer but will . find y,. .
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- 3) .Dsn't complain about another APS organization.' Disputes between .;
. other arrangement!APS groups are best settled by_APS - evervone ,
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y Ee sure to know and follow-the PVNGS. rules-for= procedure usage. 4 s uill have reviewed the procedure (s) you-are going to execute and- They- f* ' '
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. ' vill performed.note any_ > difference between-the written word andLhow you- .
- r De sure to debrief your supervisor' carefully of-your interface ~.
' activities with an outside group. . J:
En sensitive to their' reactions' '
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- about your actions or pr,ocedurel requirements.especially This may-give PVNGS "i whe i .
management en opportuni,ty to correct a mistaken impression before !!
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.l -Carry out your duties as'you normal.ly do - don't attempt to improvise o , in response to en indication'that they think your-actions are:less w: D'
..'~,.",, than' perfecti-hovover. . it.is a good _ idea to check yourself ~againstJ.
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the_' appropriate procedure and11f you are in error say'so, accept$ !.'.
V 3 , w....,. ; your personal responsibility. take any. appropriate corrective action E' i
,; $'5 W.W[.g&.' ;, ?'th9;,J:(such.as redoing the . activity, correctly) L ', y Mto.,5,i.sc.rs
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(ipej,'Th${gWelvefbee ,.?Mtratio i
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.t. . .isuge rewedEthiteup.. procadute has'never been right."
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% ' *k' . a,t o' er pdiv,i'dualferror.dnsgepd 'of turning an individual error into rd,o an @1c'.orfprogramagig.;one.
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MAR-10-01 SUN 16I29 . p,yo EXHIBIT 10 0
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MAR-10-01 SUN 16329 . P. *P 1 1
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5 Arizona Nuclear Power Project COMP ANY CO ARESPCNoENCE l
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Engineering Evaluations Department Personnel I}.
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FA0u: G. W. Sovers [Z/, y N si.. . 6102 to n 2643 File 68-001-403 .-
susxct: Fouting of Department Generated Correspondence The following ere guidelines to be used by all when writing and routing correspondence generated with the department:
- 1. All correspondence leeving the department must l.,o out et least under the discipline supervisors signature. *r.is may not be delegatedexceptbyspecificletterofdelegr.tionandonlyin the Supervisor s absence.
- 2. In all cases for outside correspondence, the Manager end Director are to be copied.
3.
For correspondonce 1 caving the department dealing with commercial issues or scope of work issues, the Meneger will sign as approved.
4 Correspondence requiring the Director's or above signature / review
! shall have a Document Authorization Routing Slip (PV 122-00J) attached.
- 5. Correspondence within the department, including carbon copies, can be done at the discretion of the originator without Supervisor review.
No deviations will be ellowed unless approved by the Managar. This polfcy is effective immediately.
l CVS'/LLHlsm Attachments cc: R. M. Butler l
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EXHIBU' g .
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