ML20115F115

Discusses Pre-Decisional Enforcement Conference Re Messrs Fields & Weiss Being Considered for Possible Enforcement Action Based on Alleged Apparent Violations of Crystal River Nuclear Plant Procedures Arguably Violated

ML20115F115
Person / Time
Site:	Crystal River
Issue date:	03/28/1996
From:	Hendrix R AFFILIATION NOT ASSIGNED
To:	Gibson A NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
Shared Package
ML20115F088	List: ML20115F102 ML20115F115 ML20115F140
References
NUDOCS 9607170094
Download: ML20115F115 (7)

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!l FINCH,McCRAME, BROWN &HENDRIX t 23s raAeETaBSmaaT.N.a.

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j aL13 aAF M DIPN as:EAa0 W.EE M ER ATLANTA, N 30303 immtsense 1 neon.narima (404)658-9070 xaesmonoceseca j AnnuawT.anoma 2ncurioupensaas.sunmaso a March 28,1996 knessomaonommAmas naxtuan.rmc5 mean.sm

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i i Albert F. Gibson l Director-Division of Resear Safety i United States Nuclear Regulatory Ca==iaian VIATELEFAX -

l RegionII l 101 Mariana Street,N.W., Sts.2900 Atlama, GA 30323-0199 1

i Re: Pre DecisionalErA mat Conference

! David A. Fields and Robert Weiss

DearMr. Gibson:

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This letter is written in response to yours of 3/8/96. Spaaiftaa11y, in your leuer, you have advised us that Messrs. Fields and Weiss are being considered for a possible enfacement action I

based on alleged apparem violations of certain Crystal River Nuclear Plant ("CRNP") Pro-

! cedures. You describe in your letter of 3/8/96 in Footnote 1 the appl! cable pmce.i that my j clients arguably may have violated. While we deny violating these procedures as written, we write to advise you that any =Hpsd enforcemem action agamst my clients would deny their right to due process oflaw given the unique facts of this case. Sag asszall%. Georgia Pacific v.

OSHRC.25 F.3d 999 (1Ith Cir.1994).

It is well settled that a stanne which either forbids or requires the doing of an act in taans

! so vague that men of common intelligence must necessarily guess at its mesmng and differ as to

{ its application violates the first essemial of due process oflaw. Canaallv v Ga*=1 a

raaeme+iaa cc 269 U.S. 385,391,46 S.Ct.126,70 L.Ed. 322 (1926). Statedin another way, j a stat =d standard of conduct is vague ifit fails to give the person of cia y i+11i=- a i

reasonable opportunity to know what is pmhibited, so that he may act acw41y. Cnavned_v.

l City of Rnekfont 408 U.S.104,108,92 S.Ct. 2294,33 L.Ed.2d 222 (1972). These due process

! standards have been applied by the courts to govermnental employmem regn3daa* Ssa, s.g.,

Menee v Breier. 501 F.2d 1185,1188 (7th Cir.1974), cert daa 419 U.S.1121,42 L.Ed.2d 821, l 95 S.Ct. 804 (1975).

) We would submit that the plant procedures which Messrs. Fields and Weiss are alleged to

( have violated are too vague to create a standard of candaa' which is capable of objective j Lc , . ;ss and~ enforcement. M= hall v. City of At1==ta 614 F.Supp. 581,584 (N.D. Oa.

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1984). Becense the prahMaa against vagueness extends to adminierrative regald E-3

< 9607170094 960710 PDR i G ADOCK 05000302 PDR

Mr. AlbertF. Gibson Pass Two ".

o conditions of gov-an= mal employment, and because my clients' NRC He==n are at stake based an vague and amblgoons plant procedures, we write to advise that we would consider any enforasmear action in this partionlar case to be p=Whi+=d by the Due Process Clause of the United States Consdtusian Whether in civil or criminal r--:- "ng= it is universally recogniand under the law that there exists a basic right to advance fair notice before paaalde may follow for alleged violations of proscribed rules of permissible -d=* AA Em=11 Co v. American R-Rafhingf.n. 267 U.S. 233, 239, 69 L.Ed. $89,45 S.Ct. 295 (1925). -

It appears that the essence of the NRC's consideration for escalated enfuu mem sedans against Messrs. Fields and Weiss is based on the allegation that they " conducted test without written safety evaluations." 'nie =~=d y allegation that the individuals " failed to follow Crystal River Plant Procedures for control of ==6= tank pressuit and level" has been ,

determined by the NRC OfEce ofInvesdgation to have been violated by 100% of the licensed operstnes at CRNP. San NRC fa= =~ ion Report 50-302/95 22. However, only Messrs. Fields and Weiss have been selected for esenlatad ufu. ..=,; actions. Therefore, the ds 2= = of what activities constitute a " test" for escalated enforcement actions is crucial.

No raaaaaahla construction of NRC rules and regalad- or FPC rocsiurus in existemos on September 4.1994 can lead to the conclusion that these safety conscious operators knew and fully unders:ood that their actions constituted a test. Regulatory sm.or. to define the term, ater the fact, to f!t the activities of Messrs. Fields and Weiss is arbitrary and capricious and in violation of their rights to due procoes.

When my cliams were first charged with alleged violations of CRNP rucedures in your July 7,1994 letter, no aHa*=4n of having conducted an "na=*hmi=3 test" was mandaaad In fact, during Mr. Fields OI interview on August 31,1995, Mr. McNulty acknnwiedged that the op .ica were not cited for having conducted a " test" because this term was not defined. Eisida IIanastiDE, page 124; It is fimdamemally unfair to threaten my clients' licenses to practice before the NRC when the apparent violations at issue are predicated upon CRNP piucedi.w which are so vague i that even the NRC cannot itself understand their maaing. In this regard, I wish to refer you to l Ine -aion Report 50 302/95-22. On page two in the synopsis of that report, the NRC authces decry "vanne nuidance providad to opemtors in p.ww.d for when pucedi. are adst[usta for evolutions being p-fe +i for alarm response times, and for da. ' 'ar when evnh*iane enandana a tee er -- - ' 2 a " In other words, the NRC's own experts have found that the roc.J.-.1 guidanaa pmvided to my ellame was no vagt. that they would not be able to Amesenine when evolutions might possibly constitute a test or experimenL N.# == M=g this nadaniahte vagunness, my cliams now appear before you in the comest of an ="--~i " apparent i

V alad*" WbErBin they art alleged to hEve enndneted ests t Without written safety evaluati4Els when they failed to foDow procedures for comrol of makeup ank pressure and level.

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Bessuse the procedures at issue have been fond by the N would seheh that h is A=damanmily unfair fbe the NRCaction to consid desmantned that CRNPJ procedures violation of same. were Althoughdasninst the NRC hasmy cl b and !=;=='

, we are now asked to jusdfY conduct which allegedly constituted a test or experiment i A=d===mally unfhir.1he requiremensa of due process oflaw most h gnised by,theNRC heena h eensiders the faamal issues in this maner, s

these are several statements which iadia*- ,

notice t

problems in this panicular case. For example, the NRC Inspe psocedure AI 500, section 4.3.2.3.2a. suses that when the aj qa==da-d shiftsupervision(i.e.,Mr. Fields)wouldmakethe n i=:

o  ;

. y.#4 requirements were ==hble. Here, the shift supervisor made that d  !

i yet, h is now alleged that he had no such discredan under the pm~^-e ==aa6amian and i ti=d n to inhiate an operator's a actions or the mah d fi the NRC la=~a'~s found that "... Contrary to th ,

( emneeto Carve 8 j System, revision 75. The Inspeedon Repo -- :*

pidenen on use of plant curves referenced within produres." E at p

' In the I '

P.i'-

d ==+ and Transmittal ofProcedures, which n a

that ,this M-g if aonly procedure would be usedconstituted a test or inh.iw evohnion. T

! ekaalia if a new n r dum had been generated and notto r.._ =1 The evolution. in .: 2:- in authors wentor-deterrnme on to write that "rninifenida.~ an evolution w uent

{ If an evnlutiaa heiae u...ha**d was a teet ny k'wa..; evnheiaa Ftwth-

.are. the " - did

! nne &he;*.;; :s:.ritime a...;nented a test of er=ds " " Lt .

withs==d% the NRC's specific recognition of the vagueness an(Famha ie supp pM j u, my clients are now being forced, in violation of their why it is that they failed to understand what was required of the I

would IWully submit that because our clients did not have fair n was proscribed by same, and ha~nea their inwy.. tion of these procedu is.r.. time, the they proced cannot naamiwiaaa!!y be expected to have anticipstad a e at Jos of these i

ures which was ady differem from their own.er nost fhetn retro 1

Whh respect to Curve 8 itself, on page 13 of the i=aaation i

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Mr. A!MF.Gibson

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. a a'='amar* by the NRC that there was no display in the control room for r wdsdrito Curve 8.

l The in=pama= =;-ai8a-11y found that "... To make a d=marminarian of g-- : 'ty to the limit of j Curve 8, operators would have to manually plot make-up tank pressure and level on a copy of

! Curve 8." Even though that is exactly what my clients did during the. evolutions of S=;r==%

l 4th and 5th, they ars. alleged to have deliberusely violated Curve 8.

i l Procedure OP 103B, Plant On===4ag Curves, provided the adminiawative operating limits j for normalplant opermeians. "This rhe did nar nrovide pidance on normal plant l operations or on the anal; hnhy of administrative operating limbs. In fact, rA OP-1.03B

{ was used only to provide revisions / control when admininwative ci- F-5 limits were revised.

j Mocedural pidance was not pmvided to assist the shift supervisor in doenrmining when existing l procedures were adv orifnewrm;ed. were necessary." These are dignsupunsa taken l from page twemy-three of the la===- ia= Report 50-302/95 22, and yet my clieues are in

! jesy Jj oflosing their livelihood, their license. and their m-*ian> based on an alleged wilful

! violation of these r -:-j c e If no gdd- was provided, how can it be fhirly stated that the j rs-:# + = were wilfully or deliberately violated? ne courts will not and osanot condone such

! .ddo-f enforcement and thus, the NRC cannot, ransistam with due process oflaw, make any l finding of deliberate or willfb1 m4=aandnet in this particular matter.

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4 According to NRC Enforonment Policy,10 C.F.R II, A- =S- C, i VIII, enforcement l actions involving individuals, inahdia= licensed operamrs, are ai-dam--+ ==1 actions which will be closely controlled andjudiciously apaliad_ An enfmeement action invnivina an individnni will naven11v he entran nniv when the NRO in enviaded that the b?M?..-.1 fully l nndereeand or than1A have undc - c. .d his or her reenaneihilitv 1 mew ne ehanid have imawn the smaaJ metlane and E -.hiv or with a-in diamoned Mlad to talm = 'd actinna which

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had acmal or potamini nafety nipificance. In the case under canaii--isr[due to the vaguenses j of the plant rm 4-.., it is highly questionable whether Mr. Fields and Mr. Weiss could have

{ fully understood or should have '=d-+:+i their responsibilities as they are now viewed afkarlhe i fast. On the som-y, Messrs. Fields and Weiss eaa id- ed it their duty to gather the infar=='ian j due to a serious safety concern that had been ignored by management. NRC experts have recognized that the guidance they received was ambiguous, i=c=,=t-7. confbeing, vague and in some cassa, es;#= abannt. And yet, the livelihood of my clients is thressened because of an j allegation of deliberate and willful violation of plant emw.J. .

! The NRC's enfacement rules indicate that action against an individual will not be taken

, if the improper action by the individual was caused by management failures. We would

respectfh11y submit that there were sieniM-t management failures in the develaam-a+ of the language of these vague and ambiguous plant gh . E-T--*!=_ of the vague gce ! + as wrinen was Af = =M* no gaida=a= was provided as required by Al-400E,nor wars

boundaries of proscribed conduct =p-a8 Ae=11y delineared u was necessary. However, j m=m - "a fhilures do not and there. De NRC itself, in the Notice of Ayr Violations to 1

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i Mr. Albert F.Gibson

l. PapFhe the Finrida Power C+- ,=5, discusses other apparent vialminna which would tend to i *-- -

< that there should be no action against the individuals in this maner because the root cause of tbs i dilennna Messrs. Fisids and Weiss faced in resolving a safety issue was itself caused by

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! -rhe Nac has signin.snt - d,at epC management e e anedem-j these apparentvinistiana SM6 11y, h appears that: 1) i==d-a= management oversight j allowed recuuent cb=11==== to and violations of =i= *g curves that were intended to ensus the design basis limits === nat avesadad 'n menarment did nnt nmvide adaansre nuidanen on the nam afmarina pmesdures for non-munne evnhations: 3) other p-- -9 I guidance ERE laddag such as guidelines for operstar response to alaans, r _-N--- I precautions e 4 i adherence to --;--- ie parameters ca==4aad in =d=iaierstive curves and the E-;-- ='h31*= and limharians of the shift supervisors: 4) management did not work effectively with the engineering

! sad operations staff to resolve a longstanding opersect cancem and 5) a series of engineering

! reviews of the adequacy of the makeup tank operating cave and other design basis parameters

! were in error r-haiag inadequate #=taa of design parameters by management." Again,

' these are direct quotes taken fmm NRC w.= - '==. Sag letter to P.M. Beard, Jr. dated 3/5/96 ham Ellis Marschoff, re: NRC Of5ce ofI-;;:-9 daa= Report 2 94 036S.

I In a separate la=-ade Report, number 50 302/95-13, on pages twelve and thirtesa l thereof, there is a review of management oversight and contml of the license activities at issue.

In hs own report, the NRC expressed its concern that management oversight and contml was not exsreisedto r.his the apparent intentinnal violation of plam rd.e. Indeed,inreviewmg

, the emire scenario, the NRC stated itself: "the mat cause of these issues appears to be a lack of j manassment oversight of the review process."

The CRNP procedures at issue are so vague, so inartfully drafted and provided such

! poor gnidaaae for my clients that it would be fimd= mane =11y unfair (and, in myjad =-=

{ unconstinnianal) to take enforcement action against them. The Due Process Clause requires that j these men be given fair advance notice of what is ==-atad_ of them before they can be placed in

{ jeopardy for having knowingly or deliberately violated proscribed standards of conduct. Because

{ they did not receive fair notice, because the notice they received via the plant procedures was l vague, ambiguous, and in some instances, completely lacking, and haa-a= their int r. on of j the poor s'dd aee offered by way ofimprecise and poorly drafted procedures was reasonable, it l is . ye,.fally submitted that the NRC cannot pursue any estwn ruest acuan against these j individuals without violating their :ights to due process of law.

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! Clearly, there was no deliberate misconduct here. There also was no willfulInissolubs.

! While my clients intended to do what they did, they sincerely believed their actions were bounded by pre-safety eyrw.d plant procedures. They were victimized by FPC's lack of

, precision in the creation and tu ^ ===W of the procedures they referred to for gaidana .

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Mr. AlbertF.Olbeen

, Page Six Besense the guidance they received imm the r-.L. was so deficient, they crossed a

! - 1 j they never would have had auch said- been more explicit. 'Dwy are vindms of management fluttures, not offenders as the Company hopes to portray.

If the NRC finds any mismandnet here, however described, wilful. WW. or J AmH6== h will be violating its own Rules of Practice in addinan to the Due Process Clansa of the U.S. can=innina PPC managsmant will be given an " excuse" (rogue operstars) fbr its own j

failures and will be in a position to cominne to o5er my clients publicly as the scapegoats for this afBair. Indeed, FFC's transparent and d-=aa =** anempts at alpinen*nadan and issus Ma*ian xia.a.zia the alleged enaemahnant theory concoming the evohnion on Sch 4th is ahogether revealinsinthis reged.

At no time after they issued their Pmblem Report following the "successib1" Ser-4 l 5th evohnion did FPC ever sit down with the operstars to fb!!y discuss what was done. FPC never listanad to my clients. All they did was pre-judge their conduct (as did the NRC initially),

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and thereafter accuse. At no time was there ever an ' ~ - . offered for free and candid con-vernadon about the issues b'--d. an adversarial situation amse at once. Rather than lisusa, l ' =. rather than review the safety issues, FPC accused. Even today, FPC is rather than self i in a defisction mode of spin comrol desperasely aaaW

to shift the focus from itself to the

OPereurs.

When FPC discovered that Messrs. Fields and Weiss were going to voluntest at their d

y..vbdy echadalad Pre-Deeininnal Enforcement Conference all nf the hinet they ===M FPC had never even bothered to inteview the operators after the Problem Report was received.

5 They were caught with their pass down. Because they anzst.lialsnad, because they never engaged in free and open discourse in the search for the truth, they did not have access to details they wnnld have tennwn mMn had they not been so adversarialin their appw.dl. FPC's sanenmonious snitude is the root cause of this endre scenario. They never listened when tne i cy.-. or  ! concems about the MUT issus long ago. They are still not Maaiac. They are in a bunker ma== Hey, using spin control tactics to deflect.

ITC has raised serious issues about my cbent's Lt.yui as part ofits deflection campaign. What possible motive did my clients have to conceal or withhold anything when they wrote their Problem Report? They did not memian the 4th because it was not relevam to their ead4 age Plain and shnple. They would freely have discussed the 4th and the 5th if anyone had

ever offered to listen to them. When FPC reallied that my clients were e.Mto freely and i completely discuss all lasues with the NRC (notwi+Mg pnor advice received fkom FPC

! counsel not to volunteer .oy.hh.g to the OI), FPC had to resort to allagad anonymous ebm concerns the night before my clients' last scheduled enforcement conference so that it would be

=g==i Position papers ' =*=ly filed by my clients with the NRC clourly danan==e*

that they had no insent to withhold .oAbg.

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Mr. AlbertF.O!been Pass Seven Problema Report 94 0267 wrinen by Mr. Weiss reports "ot A of MUT pnamure response during level .: " (F=phania supplied). 'Ihe evolution of the 4th was never hidden. Available REDAS tapes were not expunged. Those and recorcis of earlier evoluticos were available at all thnes. Engineering knew about h and it is shaply specious to suggest othstwise. But FPC did not listan, they accused and they are still accumng. 7hc question arise does this type of attitude, this ==nar of:=

= '=* between PPC and its per-3.

pannote safety? Query, what type ofmessage does an orchestrated accusation and choreographed MA campaign send to other operstars?

' Is the NRC 14%7 We can only trust that the public expectations fbr nuclear safety will be accorded more deference by the NRC than it has heretofore received fhnn the Florida

" Power Cg--- :' = CRNP operated outside ofits design basis for over a year. Wars it not for the acuans of these snan, due to management incompetence, it would probably still be op in that umafe condition. The public has a right to expect better from the rnanagement of Florida Power.

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• M FINCH, McCRANIE, BROWN & HENDRIX AEo -

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I RicaARD W.HENDRK_

Ga.Bar No. 346750 Attorney forDave Fields, Rob Weiss 225 Peachuse St., NE 1700 South Tower Atlanta. GA 30303 (404) 658 9070 /(800)228 9159 cmoocsawaruowsmessousar .

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