ML20129G654

Investigation Rept 3-95-044 on 960703.No Noncompliance Noted.Major Areas Investigated:Allegations Re Alleged Discrimination Against Contractor Radiation Worker for Raising Safety Concerns in Law Suit Re Radiation Exposure

ML20129G654
Person / Time
Site:	Perry
Issue date:	07/03/1996
From:	Devittio R, Mcnulty W NRC OFFICE OF INVESTIGATIONS (OI)
To:
Shared Package
ML20129G647	List: ML20129G643 ML20129G654
References
3-95-044, 3-95-44, NUDOCS 9610070252
Download: ML20129G654 (71)

Text

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Title:

PERRY NUCLEAR POWER PLANT ALLEGED DISCRIMINATION AGAINST A CONTRACTOR RADIATION WORKER FOR RAISING SAFETY CONCERNS IN A LAW SUIT REGARDING A RADIATION EXPOSURE DURING AN OUTAGE i Licensee: Case No.: 3-95-044 Centerior Energy Corporation Report Date: July 3, 1996 P.O. Box 94661 Cleveland, OH 44101-4661 Control Office: OI:RIII j Docket No.: 50-440 & 50-441 Status: CLOSED Reported by: Reviewed and Approved by: I k' t !VWb \\ NlkW ' Richard L.4eVitto, Special Agent Wililan, J. MNtYity, ting Director Office of Investigations OfficpofInvestigatins Field Office, Region III Field Office, Region II i l WARNING The attached document / report has not been reviewed pursuant to Title 10 CFR Subsection 2.790(a) exemptions nor has any exempt l material been deleted. Do not disseminate or discuss its contents I outside NRC. Treat as "0FFICIAL USE ONLY."

SYN 0PSIS I.- On November 2,1995, an investigation was initiated by the U.S. Nuclear Regulatory Commission (NRC), Office of Investigations (OI), Region III (RIII), to determine if a former contract asbestos worker at Centerior Energy Corporation's (Centerior), Davis Besse Nuclear Power Station (DBNPS), had been the victim of employment discrimination. The contract employee and five other' insulators, while removing insulation from the steam generator area of the DBNPS, were subject to an uptake of radioactive contamination. A subsequent NRC inspection disclosed that the worker's were subject to a radiological exposure and issued a Notice of Violation. Subsequent to filing a civil action under the Atomic Energy Act of.1954 in U.S. District' Ccert against Centerior, the insulators were barred from working at any Centerior facility. Based on evidence developed during this investigation, and upon a recommended decision and order of a U.S. Department of Labor, Administrative Law Judge, r it has been determined that the asbestos workers had been discriminated against by the licensee when their unescorted access was revoked and they were terminated from entering any Centerior facilities. i [ \\ i F i l l l Case No. 3-95-044 1

ACCOUNTABILITY The following p.>rtions of this Report of Investigation (Case No. 3-95-044) will not be included in the material placed in the Public Document Room. They consist of pages 3 through 11. .+c* Case No. 3-95-044 3

l -f r l TABLE OF CONTENTS j i,- t . -t Page 1 SYN 0PSIS............................................................... 1 I l ACCOUNTABILITY......................................................... 3 DFTA I LS O F I NV EST I GAT I ON............................................... 7 Appl i ca bl e Regul ati ons.......................................... 7 Pur pose o f Investi gati on......................................... 7 i 8ackground...-...................................................... 7 Summary.......................................................... 8 Interview of A11eger (Exhibit 2)................................. 8 Coordination with NRC Staff...................................... 8 i C l os u re In forma t i on....................................... '....... 8' SUPPLEMENTAL INFORMATION............................................... 9 LIST OF EXHIBITS....................................................... 11 l t I E t l 4 L L 1 6 F i t 1 I t t i f I l B r l Case No. 3-95-044 5 i 4

i DETAILS OF INVESTIGATION A_pplicable Regulations Allegation: Alleged Discrimination Against a Contractor Radiation Worker for Raising Safety Concerns in a Law Suit Regarding a Radiation Exposure Durina an Outage 10 CFR 50.7: Employee Protection. 10 CFR 50.5: Deliberate misconduct. 42 USC 5851: Protected Activities as established by Section 211 of the Energy Reorganization Act of 1974, as amended. Purpose of Investigation i On November 2, 1995, an investigation was initiated by the U.S. Nuclear Regulatory Conunission (NRC), Office of Investigations (01), Region III (RIII), ) to determine if a former contract asbestos worker, Dennis MALON Y, at i Centerior Energy Corporation (Centerior), Davis Besse Nuclear Power Station { (DBNPS), had been the victim of employment discrimination. MALONEY, and five { other insulators (0 wen McCAFFERTY, Sean KILBANE, Terry McLAUGHLIN, Sean i McCAFFERTY and Robert PR0HASKA), while removing insulation from the steam generator area of the DBNPS were subject to an uptake of radioactive contamination. A subsequent NRC inspection disclosed that the worker's were subject to a radiological exposure and issued a Notice of Violation. Subsequent to filing a civil action under the Atomic Energy Act of 1954 in U.S. District Court against Centerior, the insulators were barred from working at any Centerior facility.

Background

The complainarts are insulators and members of Local 3 of the Heat and Frost Insulators Union in Cleveland, Ohio. During the fall of 1994, the complainants were performing outage work at DBNPS in Oak Harbor, Ohio, as employees of Gem Industrial Services, a contractor of DBNPS. Their work included removing mirror insulation from steam generators and other components of the plant. On October 7, 1994, complainants were exposed to radioactive materials after removing a piece of insulation. The exposure was unplanned as 4 the area where they were working was supposed to be clean, in that a survey of the area supposedly determined that they would not encounter radioactive materials. The exposure prompted a NRC inspection by RIII, which resulted in a Notice of Violation to Centerior for not making proper surveys to assure compliance to control the concentration of radioactive contanination in the air. The complainants continued to work at the DBNPS until the refueling outage was completed. Subsequently, on August 7,1995, the complainants filed ^ a civil suit against Centerior in the U.S. District Court for the Northern District of Ohio under the Price-Anderson Act of the Atomic Energy Act (42 USC 2210). The complainants alleged that Centerior breached a duty owed to complainants by failing to take the necessary precautions to prevent unwarranted exposure to radioactive materials and included counts of negligence, intentional infliction of emotional distress, etc. In September ~ 1995, MALONEY was hired by Fishbach Power Services, Inc. (Fishbach) to perform maintenance at Centerior's Perry Nuclear Power Plant, Perry, Ohio. MALONEY Case No. 3-95-044 7

-SUPPLEMENTAL INFORMATION On July 3,1996, William P. SELLERS, Esq., Senior Legal Advisor for the , Regulatory Enforcement, General Litigation and Legal Advise Section, Criminal Division, U.S. Department' of Justice, Suite 200 West,1001 G. Street, N.W., Washington, DC 20001, was apprised of the results of the investigation. Mr. -SELLERS advised that, in his view, the case did not warrant prosecution and rendered an oral declination. Case No. 3-95-044 9

. -. ~ ~. - i L l l LIST OF EXHIBITS i l Exhibit j No. Description [ l Investigation Status Record (ISR), dated November 2, 1995. 1 2 Interview Report of MALONEY, dated November 16, 1995. 3 Documents furnished by Steven D. BELL, Ulmer & Berne,' Attorneys at { l Law, Legal Counsel for the complainants. 4 l 4 U.S. District Court Complaint filed in the Northern District of, Ohio against Centerior by McCAFFERTY, et al. l 1 5 Recommended Decision and Order of June 11, 1996, U.S. Department of Labor, Administrative Law Judge, in matter of McCAFFERTY, et al, v. Centerior Energy. l i ) i 1 1 1 i O~ d ) Case No. 3-95-044 11

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l LIMIT DISTRIBUTION -- NOT.FOR PUBLIC .3 CLOSURE i INVESTIGATION STATUS RECORD j l Case No.: 3-95-044 Facility: PERRY NUCLEAR POWER PLANT -Allegation No.: RIII-95-A-0128 Case Agent: DEVITT0 .t l Docket No.: 50-440; 50-441 Date Opened: ' NOVEMBER 2, 1995 l l Source of Allegation: ALLEGER (A) .I Notified by: OAC:RIII (FUNK) Priority: NORMAL (Coordinated with the RIII' l technical staff). -j Category: IH Case Code: RP L Subject / Allegation:. ALLEGED DISCRIMINATION AGAINST A CONTRACTOR RADIATION WORKER FOR l RAISING SAFETY CONCERNS IN A LAW SUIT REGARDING A RADIATION EXPOSURE i 1 DURING AN OUTAGE i . Remarks: i i Monthly Status Report. 11/02/95: On October 20, 1995, an alleger reported having received an uptake of radiation in approximately October,1994, while working at Davis-Besse Nuclear Power Station, and that the alleger had maintained a body burden since that . incident. The alleger subsequently went to work at Perry Nuclear Power Station for a few weeks. According to the alleger, this employment was terminated allegedly because rf an outstanding lawsuit the alleger has filed 'against the licensee, Centerior Energy, related to the radiation uptake received at Davis-Besse in.1994..The alleger also believes that he was " singled out".for a more extensive whole body count procedure upon leaving his employ at Perry Nuclear Power Station. STATUS:'FWP ECD (90 DAYS): (1/ n l l i l l / LIMITED DISTRIBUTION -- NOT FOR PUBLIC DISCLOSURE WITHOUT Og)(ggtpVAL CEE ND. Anc n. / ne e mr,m i . i!

i 4 i 1 s i i i l i 4 ), i i EXHIBIT 2 i CASE ND. 7 o s; _ n 3 g EIHIBIT 2 )

l REPORT OF INTERVIEW l WITH l DENNIS MALONEY l Mr. Dennis MALONEY, former contract asbestos worker for Fischbach Power Services, Inc. (Fischbach), assigned to the Centerior Energy's Davis-Besse l Nuclear Power Station (DBNPS), Oak Harbor, OH, was interviewed on November 16, 1995, at the law offices of Ulmer & Berne,1300 E. 9th Street, (Suite 900), Cleveland, OH by OI:RIII Investigator Richard L. DeVitto. Mr. MALONEY was interviewed regarding an issue of alleged discrimination for being discharged from his position after raising safety concerns in a civil action filed in the United States District Court for the Northern District of Ohio, Eastern Division. The suit, filed under the Price Anderson Act (42 USC 2014(q)), named Centerior Energy, et al, as defendants. Present during the interview was Steven D. BELL, legal counsel for Mr. MALONEY. MALONEY explained that on October 7,1994, while working at DBNPS as a contractor he was assigned, with 5 others, to remove insulation from the steam generator area of the plant. MALONEY said he was subject to an uptake of radioactive contamination, which became airborne during the removal of insulation panels. MALONEY indicated that he was not wearing a respirator, dust mask or protective clothing. MALONEY advised that the event was investigated by the plant and he took a whole body count. INVESTIGATOR'S NOTE: A subsequent NRC inspection disclosed that the workers were subject to Cobalt-58, Cesium 134 & 143 and low levels of Cobalt-60 radioisotopes. On November 23, 1994, the NRC issued a Notice of Violation to Centerior Energy for not making proper surveys to assure compliance to control the concentration of radioactive contamination in the air. On December 21, 1994, in response to the NRC inspection Centerior Energy admitted that they did not adequately evaluate and plan for changed or unexpected radiological conditions. MALONEY recalled that he was assigned to the DBNPS in September 1994, and was laid-off, with the others, upon the normal completion of the job in December 1994. MALONEY inferred no disparate treatment in connection with this lay-off. MALONEY said that on or about October 5,1995, he was re-employed with Fischbach Power Services, Inc. at the Perry Nuclear Plant (Perry), Perry OH, which is also owned by Centerior Energy. MALONEY recalled that upon assignment to Perry he was given a whole body count and that the graph registered high. MALONEY said that he was given a copy of the count (Exhibit 5 ) and then went to work and assumed that everything was as normal. MALONEY explained that on October 16, 1995, he was paged over Perry's plant intercom and told to see George BROUGH, a supervisor for Fischbach. MALONEY said he was accompanied by Chuck SCARL, the business manager for Fischbach. MALONEY stated that BROUGH advised him that his (MALONEY's) access had been revoked and didn't explain anything further. MALONEY related that he was then taken for another whole body count and was told by the technician to put on a Case No. 3-95-044 1 l b EXHIBIT once / nc 2-PAGFIS)

4 paper suit. MALONEY said he advised the technician that upon starting at Perry he was given the count wearing only his street clothes, however MALONEY was told.that by wearing the suit the results would be more accurate. MALONEY l declined the count. MALONEY advised that before leaving the plant on October 16, 1995, he also met with Don TIMS, Perry's ombudsman. MALONEY said that during the exit interview with TIMS he was advised that the reason he was being denied access was because-of the litigation he was involved in with Centerior. MALONEY explained that R.A. CLINE, Project. manager for Fischbach drafted a letter to Local #3 of the Heat & Frost Insulators & Asbestos Workers Union regarding MALONEY's access denial, as well as the other 5 original workers involved in the October 7, 1994, contamination event, at DBNPS (Exhibit Jr ). INVESTIGATOR'S NOTE: Attached to the exhibit 25 are memoranda / letters from Perry explaining that due to the fact thaE tenterior is involved in litigation with MALONEY and the other 5 named individuals they cannot be allowed to a work at any Centerior facility. Mr. Robert SCHRAUDER, Director or Perry Nuclear Services Department is the signatory. j J MALONEY said that CLINE, project manager for Fischbach, had advised him in the presence of Dan DEHANEY, local union representative, that Fischbach had nothing to do with the MALONEY'S access revocation. CLINE identified Centerior as the one responsible for MALONEY'S access denial. MALONEY recalled that he returned to Perry the following Friday (October 20, 1995), after he was laid-off and acquiesced to a whole body count, in a suit, 4 as a condition to being paid for the short time he was at Perry. MALONEY said that present with him during the whole body count was Jim FEATHERSON, a Fischbach pipe fitter and an all-trade representative. MALONEY stated that the technician administering the count said that MALONEY's levels looked like they were coming down. MALONEY in closing indicated that he has filed a grievance with his union regarding his lay-off for filing a law suit against Centerior. MALONEY has also filed a discrimination complaint with the U.S. Department of Labor under Section 211 of the Energy Reorganization Act which is actively being investigated by local Wage and Hour Division. This Report of Interview was drafted on November 17 and 20, 1995. 4 4 Richard L. DeVitto, Investigator Office of Investigations Field Office Region III 1 Case No. 3-95-044 2 4

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v Fischbach Power Services, Inc. A Fischbach Company Contract # 137643 i Correspondence Code: C95-529 - October 16,1995 Local #3 i Heat & Frost Insulators & Asbestos Workers 1617 East 30th Street Cleveland, OH 44114 Attentior-Mr. Chris Scarl BusinessManager

Subject:

Access Denial

Dear Mr. Scarl:

The following individuals have been denied access at the Perry Nuclear Power Plant by Centerior Energy. The supporting memorandums and field forms are attached. Current work for Fischbach Power Services, Inc. at Perry requires site access. Please ensure these individuals have resolved their site access restriction with Centerior Energy prior to be ng referred for work at Perry. McCafferty, Owen McLaughlin, Terrence McCafferty,_Sean Maloney, Dennis Kilbane, Sean Prohaska, Robert Sincerely, R.A. Cline Project Manager RAC/sr Attachments. cc: T. Pagan - Labor Relations G. Brown-Denver EXHIBIT _ h CASENO. 3-95-044 pggg y ops 4 PAGEN

7_,,__.m.. l l M T-1(- a nt ; D. I. C R.** V.%E h PcuEn W ilcs s to est Ef tci 64M 3 F.02 i i I THE CLEVELAAD ELECTRIC ILLUMINATING COMPA NY PERRY NUCLEAR POWER PLANT ) MEMORANDUM l TO R. DLINE ROOM *rr-1 FROM G.K. DUNN caTa 10/16/95 i PHONE 5126 ROOM PACP i BUBJECT ACCB88 followingiindividuaIn re'sp4nse to a lett.or sent to you on October 13th, i 1995. The liability concerne.ls are not employable at this time, due to car 5 Names McCaffektM 8 ty Numbers i NContietth,Owen Benn's i Kilbane' span r ' '- l McLaughkin,Tercance Maloneyg D>nnis j Proheskus Robert ict File Orsi DOnn Al so16 sic b a e e 1 h a f .= e 4 I i 4 1 e l l i e s1 s.d s' l s

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43BhrMEAd(>At l NNENCY j 300 h h 104s0a. OH 436524001 Juan P. geset l 41S 24S 2300 Yks Peseys. m m I l Docket Number 50-346 License Number NPF-3 Serial Number 1-1055 December 21. 1994 United States Nuclear Regulatory Commission Document Control Desk Vashington, D. C. 20555 Subj ec t: Response to Inspection Report 50-346/94010 (DRSS) Centlemen: Toledo Edison has (TE) received Inspection Report 94910 (Log Number 1-3109) and the enclosed Notices of Violation; the responses to which are provided below. As stated in the management meeting held in the Region III office on November 14, 1994, TE recognizes the significance of the two Radiation Protection (RP) violations and the po'tential for repeat occurrences without comprehensive corrective actions. Although overall RP controls were improved and total exposure was reduced during the ninth refueling outage. TE is committed to correct the weaknesses identified by those events to further improve performance in these areas. t violation 1: 10 CFR 20.1501 requires that each licensee make or cause to be made surveys that may be necesssry for the licensee to comply with the regulation. in Part 20 and that are reasonable under the circumstances to evaluate the extent of radiation levels, concentrations or quantities of radioactive materials, and the potential radiological hazards that could be present. Pursuant to 10 CFR 20.1003, survey means an evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, i disposal, or presence of radioactive material or other sources of radiation. OpewmgCom w es Cle=Wond Dectnc in mv@mo u fe f de 9 4 1 '.7/ vt:091 94'.

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Dock 3t Nurber 50-346 Liesns3 Nu:ber NPF-3 s Serial Number 1-1055 Page 2 Contrary to the above, on two occasions the licensee did not make surveys to comply with the i i regulations in Part 20. Specifically, 1 On October 7, 1994, the licensee did not perform a. surveys to assure compliance with 10 CFR 20.1701, _ j vhich requires that licensees use process or other engineering controls to control the concentration ot radioactive material in air. Specifically, an evaluation of the contamination levels underneath insulation on the east once through steam generator hot leg was not performed to determine if engineering controls were required to control the concentration of radioactive material in air. 4 b. On October 23, 1994, the licensee did not make surveys to assure compliance with 10 CFR 20.1201, which requires that licensees control the occupational total effective dose equivalent of adults to 5 rem annually. Specifically, a survey was not performed before workers entered the incore instrumentation tank drain line area on the 565' elevation of the containment Building, which had radiation dose rate levels up to 12 rem / hour (0.12 Sv/ hour) at 30 centimeters. This is a Severity Level IV violation (Supplement IV). Responses Acceptance or Denial of the Alleged Violation Toledo Edison accepts the alleged violation. Reason for the Violation The two examples identified in the violation vere caused by failure to adequately evaluate and plan for changed or unexpected radiological conditions. Prior to the October 7,1994 event, the potential for increased contamination under the insulation was not properly considered when the decontamination and mirror insulation removal plan was developed. As a result, the Radiation Vork Permit (RVP) for mirror insulation removal inside containment did not provide specific guidance with respect to additional surveys under the insulation, application of process or engineering controls, or proper respirator use designation during the course of insulation removal. Lack of detailed surveys for the specific area and deficiencies in RP personnel performance allowed the actual conditions to become the source of internal contaminations.

Docket Hu bar 50 346 i.icenno Hu2ber NPF-3 Serial Number 1-1055 a { Page 3 During the October 23. 1994 event, inadequate performance of the incore instrument cutting tool produced a potential for changed radiological conditions. Planning for final draining of the incore instrument tank (IIT) did not consider the impact of irradiated pieces of incore instrument cable entering the. drain line. Since the i potential for increased radiation fields was not recog-nized, adequate surveys of the IIT drain line area vere not performed.- \\ j Corrective Actions Taken and Results Achieved ) Immediate corrective actions for the October 7 event were initiated by providing instructions in containment building RP logs. These instructions reqdited additional t 4 personal dosimetry, increased RP technician coverage. l additional surveys and additional engineering controls for control of airborne activity produced by the insulation removal activity. The RVPs for insulation removal were subsequently terminated and reissued with additional 4 ) requirements. These requirements included additional assessment of radiological conditions, additional RP coverage, improved protective clothing requirements and l increased contamination control. requirements. A key j change to the RVP was to change the respiratory protection requirement to conditional, dependent on the results cf l radiological surveys. Dose assessment was completed for the individuals involved. Meetings were held with the insulator personnel to reassure them of TEs commitment to their personal safety. Pinally, RP personnel involved l vere counseled. As a result of immediate corrective action implementation, further unanticipated intakes did j not occur. Immediate corrective action for the October 23 event was l taken by temporarily excluding two Operations personnel from access to the Radiological Restricted Area (RRA) until preliminary dose assessment was completed. The IIT drain line area was re-established as a Locked High Radiation Area. A plan was developed and implemented for i retrieval and storage of the incore fragment. Interviews of all personnel involved vere conducted for the event 4 j vhich included a time / motion re-enactment study, after which dose assignments were calculated for each worker involved. Actions upon receipt of an Electronic Dosimeter (ED) alarm were reinforced to all site personnel entering the RRA by signs posted at the RRA entrance. As a result of immediate corrective actions taken for this event, I doses to individuals were maintained well within regula-1 tory limits. i I 6 .J

Docket Number 50-346 Liccnro Nunbar NPF-3 ) Serial Number 1-1055 .] Page 4 a h Corrective Actions to Prevent Recurrence 1 5 Toledo Edison believes the overall RP program is sound, i and includes guidance on completion of surveys before and j during work activities involving radiological hazards. However, a more conservative philosophy and approach to 1 planning for potentially changing radiological conditions must be established at DBNPS. Procedures that facilitate this planning vill be reviewed and modified as necessary. l specifically with regard to potentially changing condi-tions and conditions that may traaseend the boundary of proposed work activities. Date Vhen Full compliance Vill Be Achieved' 1 Full compliance was achieved upon completion of appropri-ate surveys for the insulation removal activity and the j IIT drain line area. Surveys for the insulation removal activity on the east steam generator hot leg were completed on October 7, 1994 Surveys for the IIT drain l line area were completed on October 23, 1994 and the area i i was redesignated and posted as a Locked High Radiation Area on October 23, 1994. Pracer'ures that facilitate planning for work activities that way involve poteatially changing radiological conditions vill be reviewed and modified, as necessary, by l May 1, 1995. i Violation 2: Technical Specification 6.8.1 requires that written procedures shall be established and maintained covering the applicable procedures recommended in Appendix A of Regulatory Guide 1.33, November 1972. Appendix A of this Regulatory Guide includes recommended procedures ' for limiting personnel exposures. Procedure DB-HP-01109, Revision 3, "High Radiation Area Access Control," Step 4.1.3 states, in part, that personnel shall exit the area immediately if, a pre-set dose limit is reached as evidenced by alarming dostae-try, and/or if, a pre-set dose rate alarm is reached. l' Procedure DB-HP-01901, Revision 3. " Radiation Vork j Permits," Step 4.1.2 states, in part, that all entries j into radiologically restricted areas require the use of an RVP. Step 6.5.3 states that workers shall be i cognizant of the requirements of their RVP each time they use their RVP. 1 i 1

_ _ _ ~ Dockot Number 50-346 'l Licenza Nu:ber NPF-3 l Seric1* Nurber 1-1055 l tage 5 Procedure DB-HP-00208. Revision 2. " Radiation Protection Program " Step 5.6.8 states that workers obey posted, oral, and written Radiation Protection instructions and procedures including instructions on Radiation Vork Permits. Contrary to tise above, the licensee failed to follov written procedures recommended by Appendix A of Regulatory Guide 1.33, November 1972. Specifically, ( a. On October 23, 1994, two workers entered the incore instrumentation tank drain line area of the t l -565' elevation in the containment Sullding on l three separate occasions and failed to exit the l area when either their electronic dosimeters ( alarmed for a pre-set dose limit and/or a pre-set dose rate alarm. l b. On October 23, 1994, one employee worked in the incore instrumentation tank drain line area of the l 565' elevation in the containment Building and was l n'ot cognizant of the RVP requirements in that he was signed on an RUP which was not for access into the Containment Building. c. On October 23, 1994, two workers entered the incore instrumentation tank drain line area of the 565' elevation in the containment Building without following posted instructions to notify Radiation Frotection before crossing a high radiation area boundary. This is a Severity Level IV violation (Supplement IV).

Response

Acceptance or Denial of the Alleged Violation Toledo Edison accepts the alleged violation. j Reason for the Violation Each of the elements of this violation involved failure of I l personnel to follow written procedures for limiting j radiation exposure to personnel. Overall, the performance l l of personnel did not demonstrate adequate discipline to i ensure management expectations for radiation protection i program procedural compliance were met. Contributing factors included lack of recognition of a potential radiation hazard and ineffective communication between Operations and RP personnel for entrance to the IIT drain line area. Conservative Electronic Dosimeter (ED) alarm

I Dock 2t Nurber 50-346 Liccn:o Nurb:r NPF-3 ) Serial

• Number 1-1055 Page 6 setpoints and the resultant frequent alarms caused a

'misperception of the significance of ED alarms. Coupled with this, confusion had developed among Operations personnel over when it is required to complete an operating evolution rather than exit the area in response to an alarming ED. Corrective Actions Taken and Results Achieved Corrective actions taken and results achieved are included in the response to Violation 1. In addition, personnel involved in these procedural violations were counseled. Corrective Action to Prevent Recurrence Management expectations and radiation worker practices for the use of EDs vill be assessed to ensure all procedures and training are consistent. This reviev vill focus on use of the ED, the philosophy behind establishment of the ED alarm setpoints and radiation worker response to ED alarms. Operator ED response vill be tempered with additional guidance to address the importance of placing the plant in a safe operating condition to protect the health and safety of the public and plant personnel. Training on the use of EDs vill be modified and provided through requalification and General Employee Training. As stated in the response to Violation 1, procedures that facilitate planning for potentially changing radiological conditions vill be reviewed and modified as necessary. Date Vhen Full Compliance Vill Be Achieved As a result of the immediate corrective actions imple-mented following the October 23, 1994 event, DBNPS has acnieved compliance with the current procedures. Assess-ment of management expectations and radiation worker practices for the use of EDs vill be completed by May 1, 1995. As stated in the response to Violation 1, proce-dures that facilitate planning for potentially changing j radiological conditions vill be reviewed and modified, as I necessary, by May 1, 1995.

i Dock 3t Number 50-346 Licen:o Nuxber NPF-3 Serial Number 1-1055 Phge 7 Should you'have any questions or require additional information, please contact Mr. Villiam T. O'Connor, Manager - Regulatocy Affairs. at (419) 249-2366. Very truly yours, i LM/ eld cc L. L. Gundrum, NRC Project Manager J. B. Martin, Regional Administrator, NRC Region III S. Stasek, DB-1 NRC Senior Resident Inspector Utility Radiological Safety Board e d N E t 4 3-4 l 4 4 A e e

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J y;:2. ' Radiation Work Petmits (RVPs) printed;by.the'HIS 20 software.unfortunately N , 'dsederi.hard' coded:tci;b -"Prbhibited"rivi"the resp'iratory' protection " field when 'hoMespiratory protsei:16n'Jhas beeri'.evaluatedito be necessary:for the working ~ ..yonditions..The use'.of respiratory: protection has been cvalsated.for each RVP' and the combination of.frotectlye;' clothing an'd equipment chosen:vhich vill keep -Tofdl-Dose to thd vork'er? As Lov. as : Reasonably : Achievable-(ALARA);. -For 5his L reasoni. the term [respirdtory '.protectiori "not' re' quired"] inore accuEately describes the intent'. of 'that portion o'f our vork permits.. The i.ntent that no - respiratory protection is required >by the working coriditions is. not changed. If work conditions change, th'e RVP must b.e re-evaluated by Radiation Protection .(RP)'.to ensure requi'rements are proper. Both RF and. the -vorkers. should' be alert to changing or unexpected conditions so that the worker's TOTAL DOSE is kept ALARA: The pen and ink correction has been made to the affected RVPs. TRH/ekg e [{% Concurrenc-) (> h& Date/ / R. A. Ure M od, CHP j Supervisor - Health Physics j l l \\ 1 l l 1 I ? d e 1 vi

1 November 16,1995 Mr. Ronald Grant International Association of Heat Frost Insulators and Asbestos Workers RE: Dennis Maloney

Dear Brother Grant:

Please accept this as a Step II Grievance. 1. It is unlawful to take job action against a person who has filed a law suit concerning his exposure to radiation. It was thus unlawful for me to be removed from ajob (and all future jobs) with Fischbach Power Services, Inc.). 2.- At the time I filled out the papers necessary to perform the work of Fischbach Power Services, Inc., I was never asked whether I was in litigation with any i other person or company. It was improper for Fischbach Power Services to take job action against me where they never asked for this information. 3. I want all back pay and other benefits to be restored to me. I also want the letter issued to me by Fischbach Power Services, Inc. stating that they treated me in an improper and unlawful manner, and that no job action should have been taken against me. I need this letter for future employment. Very truly yours, i Dennis Maloney I

.f . p2 "Gu<y UNITED STATES fi g NUCLEAR REGULATORY COMMISSION i ) 0 REGION til 801 WAnREtMLLE ROAD pj [ LISLE. ILLINOIS 6o532-4351 November 23, 1994 Centerior Service Company ATTN: Mr. John P. Stetz Vice President - Nuclear Davis-Besse c/o Toledo Edison Company 300 Madison Avenue Toledo,,OH 43652

SUBJECT:

SPECIAL RADIATION PROTECTION INSPECTION AT THE DAVIS-BESSE NUCLEAR POWER STATION AND SUBSEQUENT MAiuGEMENT MEETING HELD AT THE REGION III 0FFICE ON NOVEMBER 14, 1994

Dear Mr. Stetz:

This refers to the special safety inspection conducted by Mr. P. Louden and Mr. R. Paul of this office on October 24 through November 3,1994, and the subsequent management meeting held at the Region III Office on November 14, 1994. The inspection included a review of authorized activities at your Davis-Besse facility. At the conclusion of the inspection, the findings were discussed with those members of your staff identified in the enclosed report. These findings were further discussed with you and members of your staff during a management meeting held on November 14, 1994. Areas examined during the inspection are identified in the report. Within these areas, the insp.etion consisted of a selective examination of procedures and representative records, interviews, and observation of activities in progress. During this inspection, certain of your activities appeared to be in violation of NRC requirements, as specified in the enclosed IStice of Violation (Notice). These violations are of concern because they illustrate certain radiation protection program weaknesses. Although no regulatory dose limits were challenged during the events discussed below, these incidents, which led to the violations, illustrated weaknesses in the station's radiation protection program that necessitate management attention. During insulation removal on the east steam generator, radiation workers were exposed to unplanned airborne radioactivity conditions. This event exhibited weaknesses within your planning and radiation work permit programs and were contributing factors to the failure to adequately evaluate the radiological hazards incident to the workers involved. This failure to determine radiological conditions led to the accomplishment of work without engineering controls or respirators thus leading to the unplanned intakes. 0,1 N.I ?_))3v v '7n h 1 3 Y A i <q r. o

.c ) Centerior Service Company 2-November 23, 1994 The second incident involved the inadvertent external exposures to workers in - ~ the drain line area of the Incore Instrumentation Tank. This event was caused ' by the failure of workers to recognize the potential for changing radiological conditions which led to their failure to adequately evaluate radiological conditions in the drain line area. Other problems noted during this incident were. radiation workers' failure.to notify radiation protectioh prior to entering a high radiation area; an occurrence of a radiation worker on the wrong radiation work permit; and confusion concerning the appropriate response ' radiation workers should have taken when they received alarms from their electronic dosimeters. The proper response to alarming electronic dosimeters is an expectation which must be clearly defined by station management and understood by all radiation workers. We acknowledge your comments made during the November 14, 1994, management meeting of your recognition to these weaknesses and the actions you have already taken to address our concerns. You are required to respond to this letter and should follow the instructions specif',ed in' the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to provent recurrence. After reviewing your response to this Notice, including your proposed corrective actions, and the results of future inspections, the NRC will determine whether further NRC enforcement action is - m necessary to ensure compliance with NRC regulatory requirements. In accordance with 10 CFR 2.790 of the Commission's regulations, a copy of this letter, the enclosures, and your response to this letter will be placed in the NRC Public Document Room.- The response directed by this letter and the accompanying Notice are not subject to.the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980, PL 96-511. O ..n, .g., ,n -4

jv l l l Centerior Service Company l I l We will gladly discuss any questions you have concerning this inspection or the management meeting. Sincerely, i Original Signed by W. L. Axelson W. L. Axelson, Director Division of Radigtion Safety-and Safeguards \\ Docket No. 50-346 i

Enclosures:

1. Notice of Violation 2. Inspection Report No. 50-346/94010(DRSS) 3. Handouts from Management Meeting cc w/encls: D. C. Shelton, Senior Vice President - Nuclear 1 J. K. Wood, Plant Manager W. T. O'Connor, Manager Regulatory Affairs State Liaison Officer, State ) of Ohio Robert E. Owen, Ohio Department of Health A. Grandjean, State of Ohio, Public Utilities Commission i j l s ei

= NOTICE OF VIoIJLTION Centerior Service Company Docket ha. 50-346 Davis-Besse Nuclear Power Station License No NPF-3 During an NRC inspection conducted on October 24 through November 3,1994, violations of NRC requirements were identified. i In accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions," 10 CFR Part 2, Appendix C, the violations are listed below: i 1. 10 CFR 20.1501 requires that each licensee make or cause to be made surveys that may be necassary for the licensee to comply with the regulations in Part 20 and that are reasonable onder the circumstances to evaluate the extent of radiation levels, concentrations or quantities of radioactive materials, and the potential radiological hazards that could be present. Pursuant to 10 CFR 20.1003, survey means an evaluation of the radio-logical conditions and potential hazards incident to the production,. use, transfer, release, disposal, or presence of radioactive material or i other sources of radiation. Contrary to the above, on two occasions the licensee did not make surveys to comply with the regulations in Part 20. Specifically, On October 7,1994, the licensee did not perform surveys to assure a. compliance with 10 CFR 20.1701, which requires that licensees use process or other engineering controls to control the concentration of radioactive material in air. Specifically, an evaluation of the contamination levels underneath insulation on the east once through steam generator hot leg was not performed to determine if engineering controls were required to control the concentration of radioactive material in air. b. On October 23, 1994, the licensee did not make surveys to assure compliance with 10 CFR 20.1201, which requires that licensees control the occupational total effective dose equivalent of adults to 5 rem annually. Specifically, a survey was not performed before workers entered the incore instrumentation tank drain line area on the 565' elevation of the Containment Building, which had radiation dose rate levels up to 12 rem / hour (0.12 Sv/ hour) at 30 centimeters. This is a Severity Level IV violation (Supplement IV). 2. Technical Specification 6.8.1 requires that written procedures shall be established and maintained covering the applicable procedures recommended in Appendix A of Regulatory Guide 1.33, November 1972. Appendix A of this Regulatory Guide includes recommended procedures for limiting personnel exposures. w moo % J/F

d Notice of Violation ! i Procedure DB-HP-01109, Revision 3, "High Radiation Area Access Control," Step 4.1.3 states, in part, that personnel shall exit the area immediately if, a pre-set dose limit is reached as evidenced by alarming dosimetry, and/or if, a pre-set dose rate alarm is reached. i Procedure 08-HP-01901, Revision 3, " Radiation Work PermTts," Step 4.1.2 i states, in part, that all entries into radiologically restricted areas i require the use of an RWP. Step 6.5.3 states that workers shall be cognizant'of the requirements of their RWP each time'.they use their RWP. j ' Procedure'DB-HP-00208, Revision 2, " Radiation Protection Program," Step j. 5.6.8 states that workers obey posted, oral, and written Radiation Protection instructions and procedures including instructions on -Radiation Work Permits.. i Contrary to'the above,.the licensee failed to follow written procedures L recommended by Appendix A of Regulatory Guide 133, November 1972. Specifically, a. On October 23,-1994, two workers entered the incore instrumenta-tion tank drain line area of the 565' elevation in the containment 3 Building on three separate occasions and failed to exit the area i i when either their electronic dosimeters alarmed for a pre-set l dose limit and/or a pre-set dose rate alarm. f j b. On October 23, 1994, one employee worked in the incore instru-mentation tank drain line area of the 565' elevation in the i Containment Building and was not cognizant of the RWP requirements i { in that he was signed on an RWP which was not for access into the Containment Building. c. On October 23, 1994, two workers entered the incore instru-mentation tank drain line area of the 565' elevation in the Containment Building without following posted instructions to i j notify Radiation Protection before crossing a high radiation area l boundary. This is a Severity Level IV violation (Supplement IV). Pursuant to the provisions of 10 CFR 2.201, Centerior Service Company is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington D.C.. 20555, with a copy to the Regional Administrator, Region III, and a copy to j 3 ' the NRC Resident Inspector at the. facility that is the subject of this Notice, j l' within 30 days of the date of tiie*1etter transmitting this Notice of Violation j (Notice). This reply should.be tlearly marked as a " Reply to a Notice of Viclation" and should include for each violation: (1) the reason for the j violation, or, if contested, the basis for disputing the violation, (2) the .g l t s 4 // I

~ a-e Notice of Violation < 1 corrective steps that have been taken and the results achieved, (3) the i corrective steps that will be taken to avoid further violations, and (4) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued to show cause why the license should not be modified, suspended, or revoked, or why such other action as may be proper should not be taken. Where good cause is shown, consideration will be given to extending the response time. Dated at Lisle, Illinois this 13th day of November 1994 a Y n W l i i e-s e 4 d i d e f l

t a. 1 i U.S. NUCLEAR REGULATORY COMMISSION REGION III Report No. 50-346/94010(DRSS) Docket No. 50-346 License No. NPF-3 { i Licensee: Toledo Edison Company ~ Edison Plaza 300 Madison Avenue l Toledo, OH 43652 Facility Name: Davis-Besse Nuclear Power Station t Inspection At: Davis-Besse Site, Oak Harbor, Ohio Inspection Conducted: October 24 through pvember 3, 1994 8/ZF[f[ Inspectors: -^ P. L. Louden Date i Radiation Specialist R. A. Pauf ~ A/2Tl9 Date Senior Radiation Specialist Reviewed By: es ],e V Jg. McCormick-Barger, Chier Date Radiological Programs Section Approved By: [Z /M[ wm C p ia D. Pederson, Chief Date Reactor Support Program's Branch Inspection Summary Inspection on October 24 throuah November 3. 1994 (Report No. 50-346/94010 (DRSS)) Areas inspected: Special radiation protection inspection to review two radiological events which occurred during the current ninth refueling outage. One event involved the unplanned intakes of radioactive material by workers while removing, insulation from the east once through steam generator hot leg on October 7, 1994. The second event involved the inadvertent external exposure of radiation workers to unexpectedly high dose rate areas during the draining of the Incore Instrumentation Tank on October 23, 1994. Results: Two violations of NRC requirements were identified. The first concerned two examples of failure by the licensee to adequately evaluate &f,f-0-0-W~ h b 0/#' j n

[ radiological hazards incidest upon radiation workers. This failure led to the i unplanned intakes of r.2aactive material by insulators in one case, and the inadvertent external exposure of radiation workers to high dose rate areas in i another case. The second violation concerns three examples of radiation workers failing to follow procedures required by Technical Specifications. Several weaknesses were noted in association with the two events discussed above. Snecifically, I Weaknesses in the planning and radiation work permit programs which contributed to precautions not being provided to workers involved with the insulation removal. Failure on the part of the RP department to recognize the i potential for irradiated material to be transported down the drain line from the tank. l Confusion on the part of operations personnel as to the appropriate response to ED alarms balanced with maintaining safe operating conditions (evolutions) in the plant. Plant personnel not understanding the significance of ' changed radiological conditions. An operator made a survey of the drain i valve and line, noted dose rates of 5 to 8 rem /hr (50 to 80 mSv/hr), but did not recognize the significance of this reading and continued working in the area. The violations and weaknesses associated with the two radiological events illustrate a need for management attention to these areas within the radiation i protection program at the station. W* 2 4

DETAILS 1. Persons Contacted Toledo Edison Company

1. T. Barton, Corporate Radiological Assessor

• S. Byrne, Manager, Plant Operations

1. J. Dillich, Manager, Radiation Protection Department '
2. J. Feckley, Supervisor, Radiation Protection
3. R. Greenwood, Radiation Protection Manager j
4. M. Hale, Supervisor, Radiation Protection Operations
5. L Harder, Health Physicist
6. L. Lockard, Radiation Protection Training i
7. C. McCaken, Radiation Protection Technician
8. D. Miller, Senior Licensing Engineer i

i

1. J. Moyers, Manager, Quality Assurance
   • W. O'Connor, Manager, Regulatory Affairs
2. J. Polyak, Corporate Radiological Assessor
3. A. Rabe, Supervisor, Quality Engineering
4. J. Rogers, Manager, Maintenance
5. D. Schreiner, Supervisor, ISEG

• R. Scott, Manager, Radiation Protection / Chemistry Departments

{

1. P. Smith, Supervisor, Licensing Compliance
2. M. Snee, Radiation Protection Technician

• J. Stetz, Site Vice President, Nuclear
• J. Wood, Plant Manager j

Nuclear Reaulatory Connission

• W. Axelson, Director, Division of Radiation Safety and Safeguards
• R. DeFayette, Director, Enforcement and Investigation Coordination Staff
• J. Hopkins, Senior Project Manager, NRR
• J. House, Senior Radiation Specialist j
• H. Kunowski, Senior Radiation Specialist i
• R. Lanksbury, Chief, Division of Reactor Projects Section 3B j
• R. Lickus, Chief, State and Government Affairs

1. C. Lipa, Resident Inspector

• T. Martin, Deputy Director, Division of Reactor Projects
• H. Miller, Deputy Regional Administrator

1. • 'S. Stasek, Senior Resident Inspector The inspectors also contacted other licensee personnel during the course of the inspection.
2. Indicates those present at the exit interview on November 3,1994.

, Indicates those present at the management meeting held in the Region III office on November 14, 1994. 3 /.

l' l l 2. Licensee Actions to Previous Inspection Findinas (83750 & 84750) (Closed) Inspection Follow-up Item No. 50-346/93008-01: The licensee was to prepare a secondary system cater sample with chloride (Cl-), t fluoride (F'), and sulfate (50,*~) at concentrations of about 20 parts per' billion (ppb). The licensee analyzed the samples for the anions i-using both laboratory and jnline ion chromatographs and reported the values to the Region III office for comparison with the NRC reference laboratory's results. The licensee's. average results for Cl and F-were 22.1 and 20.2 ppb, respectively, and were in good ' agreement with i the NRC reference. laboratory's results (i.e. 25 ppb Cl and 22 ppb F'). Because of poor statistical accuracy in the NRC's sulfate analysis,- the sulfate results could not be compared. This item is closed. i

3..

Reviews of Radioloaical Events During the current refueling outage, two significant radiological events ~ occurred which were reviewed by the inspectors ~ The first event involved the unplanned exposures of radiation workers to airborne radioactivity and the subsequent internal doses received by the workers. The second event involved the external exposure of radiation workers to unexpectedly high dose rate areas while manipulating a valve on the drain line from the Incore Instrumentation Tank (IIT) following the cutting of incore detector cables. i Unplanned Intake Event During the midnight shift on October 7,1994, a crew of five insulators 1 reported to the containment control point to remove mirror insulation from the hot leg area of the once through steam generator (OTSG). The i work was delayed so current survey information could be gathered by the radiation protection (RP) staff. Surveys indicated smearable contamination levels between 80 and 800 mrad /hr/100 cm* (0.8 to 8 mGy/hr/100 cm').on the outside surface of the mirror insulation. A decontaminstion crew was sent to the area to wipe down the mirror insulation. Decontamination efforts reduced the contamination levels to approximately 10,000 to 40,000 dpm/100 cm* (166.67 to 666.67,Bq/100 cm ). Radiation levels in the area ranged from 10 to 60 mrem /hr (.10 to .60 mSv/hr). The insulation crew was assemble.d and briefed by the_ lead radiation protection technician (RPT) responsible for the area. The briefing included specifics for entry into a high radiation area but did not address the need for surveys under the insulation after the first piece was removed. The pre-job brief also did not address the need for a RPT to be present during the insulation removal nor was the need for engineering controls, air monitoring, or respiratory protection evaluated. The insulators entered the area and commenced to remove the mirror insulation. One insulator donned a dust mask of his own volition. Upon exiting the area, an RPT in the area " quick frisked" the worker's dust i mask which indicated a direct reading of 60 mrad /iir (0.6 mGy/hr) on the outside of the mask. The insulators were sent to the personnel whole s 4 -o

body friskers located near the decontamination facility. Four of the five crew members alarmed the whole body friskers and all five were instructed to take a shower.. The crew was subsequently whole body counted. Four of the five workers displayed positive whole body counts and were instructed to return in twenty-four hours for additional countings. Whole body counts were continued for seven days which indicated the presence of Cobalt-58, Cesium-134, Cesium-137, and very low levels of Cobalt-60 radioisotopes. Dose assignments were computed for the workers which ranged from 0 to 212 mrem (0 to 2.12 mSys) CEDE. Deep Dose Equivalents for the workers ranged from 22. to 62 mrem (.22 to .62 mSv). Licensee Response to the Event l The licensee immediately gathered statements an[I information regarding the event and a full investigation was conducted by the Radiation 3 Protection Manager. The licensee's investigation noted four weaknesses which led to the unplanned intakes. The following briefly summarizes the identified weaknesses: The radiation work permit (RWP) did not specifically identify a. areas for insulation removal. Rather, it was a single broad RWP for all insulation work within containment. b. Detailed surveys were not recorded of the specific area in i question. This area was not decontaminated during the initial containment decontamination which took place at the beginning of the outage. The RWP did not include instructions for workers to stop work c. after the first piece of mirror insulation was removed so that RP could perform surveys under the insulation to evaluate the radiological conditions. Had these surveys been performed, the high levels of contamination (later found in the rad (10+ mGy) smearable range) would have prompted the need for engineering controls or the use of respiratory protection. d. The lead RPT failed to followup on the insulation removal by sending another RPT'into the area. The RPT's statement suggested that the work activity at that time was hectic and he lost track of the workers removing the insulation. Recional Review of the Eyeot s The inspectors review of the event included an assessment of the licensee's investigation and interviews conducted with licensee personnel involved in the event. Interviews with the cognizant ~RPT in charge of that area of the containment indicated that he was aware of the potential for higher contamination levels underneath the insulation but failed to ensure that an RPT was assigned to the work crew to evaluate the contamination conditions after the first piece of insulation was removed. The root causes and corrective actions 5 $/ a o

discussed in the licensee's investigation appeared to adequately address the event. The inspectors verified the licensee's calculations of CEDES assigned to the workers. No problems were noted with respect to the internal dose assignments. The failure to perform an adequate evaluation of the radiological conditions under the mirror insulation is a violation of 10 CFR 20.1501. Specifically, the licensee's failure to perform a survey led to the failure to use to the extent practicable, process or other engineering controls to control the concentrations of radioactivity in air as required by 10 CFR 20.1701. (Violation 50-346/94010-01a) _ Inadvertent Exposures Durina Incore Instrumentation Tank (IIT) Draining On October 23, 1994, the licensee was performing cleaning operations in the.IIT following the cutting of 25 incore detector cables which was performed a few days earlier. During the cutting process pieces of the incore cables had fallen out of the holding cask and to the bottom of the tank. Foreign object search and retrieval (FOSAR) equipment was used to locate the pieces which were subsequently retrieved and placed into the holding cask. The tank was further surveyed and cleaned via an underwater vacuum. Draining of the tank commenced during the afternoon of the same day. An equipment operator (0p A) was sent to open a valve (DH-93) located below the tank in the drain flow path to complete the draining process. Op A attempted to use a reach rod device (located remotely on another elevation to manipulate the valve. Due to Op A's uncertainty of the valve's po)sition, he proceeded to the immediate area of the val 9hysically verify its position. The area where the valve was located vias a posted high radiation area. Op A was wearing an electronic dosimeter (ED) which had alarms set at 25 mrem (0.25 mSys) for accumulated dose and 100 mrem /hr dosimeters were worn into the area (1 mSv/hr) dose rate. No extremity and the location of Op,^'s ED was on his chest. Op A entered the area, placed the valve in a one third open position, and left the area. At this point his ED was alarming for both dose and dose rate. He returned to the equipment hatch area of containment to log out of an exclusion area where he had been earlier in the shift and was preparing to inform RP of his alarming ED. RP personnel approached 0p A while he was logging out of the exclusion area and told him to exit the containment and report to the RP desk. During this time, the water in the IIT had reached the six inch level and a survey was conducted by the RPT covering the job. He noted dose rates in one area of the tank in the 2 to 6 rem /hr (20 to 60 mSv/hr) This didn't prompt any immediate concern because the As-Low-As-range. Reasonably-Achievable (ALARA) briefing contained a 10 rem /hr (100 mSv/hr) hold point. Following this survey another equipment operator (0p B) was sent to close the valve opened by Op A. He entered the immediate area of the drain valve with about 2 mrem (.02 mSys) remaining below his ED alarm set point for dose. His ED settings were the same as Op A's. 6 fr

I l Op B attempted to close the valve but could feel something binding the valve and never got the valve.to close. During this time his E0 went 1 into alarm for both dose and dose rate. the containment acer:; point to reset his ED.Op B left the area and went to While resetting his ED he noticed that it W s approximately 12 mrem (.12 mSys) over his alarm set point. This prompud him to approach an RPT and convey his noted dose to the _RPT. The RPT offered to accompany him to the area because the dose rates in the area appeared, based on his.ED results, to be much higher than anticipated. Op B and an RPT proceeded back to the drain [ valve area. 'During this time, plans were being made to-flush the drain !i valve which was sticking during Op B's initial entry to close the valve. As Op B and the RPT approached the area, the RPT was paged and told to report to another area of containment. The RPT told 0p B that he would

• i be back in a few minutes and asked if he was "m,eter qualified". Op B i

acknowledged that he was " meter-qualified" and the RPT handed him his i .teletector and left the area. Op B entered the area and surveyed the drain line and the valve. The highest dose rate reading Op B noted was a contact reading.of about 5 to 8 rem /hr.(50 to 80 mSys/hr) on the drain i . valve. Op B noted his ED alarming for dose rate during this time. Op B t placed the meter in a nearby area and communicated to the decontamination crew to start flushing the valve. While Op B was in the area to communicate to the_ decontamination crew, he noted that his ED stopped alarming. Op B then went back over to the valve to attempt to close it. During this time the RPT returned to the area and heard 0p B's ED alarming. The RPT took his meter and began surveying the drain pipe. At this point he noted contact readings on the pipe in a localized area about 450 rem /hr (4.5 Sys/hr) and immediately motioned to Op B to leave the area. At this time both the RPT's and op B'r EDs were i in alarm for dose and dose rate. Followup surveys performed on the pipe indicated a contact reading as high as'650 rem /hr (6.5 Sys/hr) on the-bottom of the pipe and a 30 cm measurement as high as 12 rem /hr (.12 Sv/hr). The hot spot was very localized and general area dose rates were in the I to 2 rem /hr (10 to 20 mSys) range. ED logs for the three individuals involved (0p A, Op B, and the RPT) indicated the following: Dose Highest Dose Rate Op A 47 mrem (.47 mSys) 334 mrem /hr (3.3 mSys/hr) Op B 110 mrem (1.1 mSys) 3.3 rem /hr (33 mSys/hr) RPT - 25 mrem (.25 mSys) 2.9 rem /hr (29 mSys/hr) Licensee Resoonse to the Event i The licensee took immediate corrective actions by excluding the two operators access to the radiologically restricted area (RRA) and provided appropriate controls to the drain line area by designating it a locked high radiation area. The licensee did not immediately perform formal dose evaluations for the workers but performed "back of the 7 ,] \\ o ~.

,,~- 1 y - c envelope" computations to ascertain approximate external dose hazards. During the next' five days, the licensee conducted interviews with all individuals involved in the event and subsequently performed a time / motion re-enactment study with the operators and RPT involved to determine if whole body and extremity dose assignments for these workers needed to be modified from those doses measured by the EDs which were worn on their chests. Final dose assignments to the workers involved . based on the re-enactment were as follows: 1 TEDE Extremi'ty Op A 75 mrem (.75 mSys) 105 mrem (1.05 mSys) Op B 154 mrem (.15 mSys) 300 mrem (3.0.mSys) RPT 25 mrem (.25 mSys) None Assigned The licensee was_ still finalizing short and long term corrective actions 'at the conclusion of the inspection. i 1 Reaional Review of the Event ,The inspectors were onsite the day following the event and initiated an 1 j independent review of the incident. Interviews were conducted with i station workers involved, RP management and station senior management.. Additional contact was made with the Site.Vice President through a phone call from the Region III Director of Radiation Safety and Safeguards. Regional review of the event indicated a violation of 10 CFR 20.1501 for failure to adequately evaluate radiological condition incident upon the workers who entered the drain line area (Violation 50-346/94010-Olb). 4 1 Procedural violations were also noted including; both operators entered _ i a high radiation area without notifying the RP department as required by the radiological postings in the DH-93 valve area; both operators did not leave the work area.immediately upon receiving an alarm from their EDs; and 0p B was on the wrong RWP for containment. access (Violation 50-346/94010-02a, 02b, and 02c). Weaknesses identified by the inspectors included the following: i i Failure on the part of the RP department to recognize the potential for irradiated material to find its way down the drain line from the tank. It was known that material had spilled out of the holding cask, which led to an extensive cleanup effort to retrieve all the cut material and debris. However, the overview of the job appeared to focus on the tank itself and did not take into account the potential for material to migrate from.the tank into the drain line once draining of the tank commenced. U Confusion on the part of operations personnel as to the appropriate response to ED alarms. Training specifically states that any alarm should be reported to RP. However, in practice, during normal operations, operators may have periodically encountered dose rate areas which may have caused a dose rate 8 o e e

~ i ~ l alarm from their ED...The operators would then back out of the l' high dose rate area if it was previously discussed with R. P. This confusion suggested'that the licensee may need to re-think l their decision process for establishing appropriate alarm set, 1 6 points. for EDs. Additionally, this confusion was compounded by Op'- 1 B's hearing his alarm but,:because he had a dose rate meter with l him, believed he understood the radiological hazards.and remained l l in.the area. i l Similar to the preceding weakness, confusion was also identified. i l-concerning the perception operators may have with respect to not leaving an evolution until it is completed. Apparently, [ Operations Department supervision has frequently reminded. operators of their responsibility..to see,an evolution through completion. This. topic was normally addressed to mitigate spills of. radioactive water but appears to have been taken by the i operators to ' include all actions taken within the plant. i A weakness on the part of the RPT who upon being requested'by Op B to accompany him to the drain valve area because he believed dose rates had risen, left the operator and provided him'with his meter. This part of the incident also suggests an apparent perception problem with the licensee's meter qualification program for operators. This weakness was further illustrated during Op B's use of the acter. He apparently surveyed the valve and noted higher than expected dose rates but this did not prompt him to recognize.anything unusual and leave the area, instead he continued with his assigned task. J The licensee initially took a less than aggressive approach in investigating the incident. Particularly, regarding ascertaini.'q whole body and extremity doses of the workers involved, and a review of the appropriateness of the ALARA hold point which was used for the draining evolution. Both operators apparently did not.have confidence in the use of the reach rod which was available to remotely manipulate the valve. At the end of the inspection the functionality of the reach rod was still in question, however, it raised the question as to how effectively ALARA tools, such as reach rods, are used when available. Two violations of HRC requirements were identified. 4. Manaaement Meetina A management meeting was held in the Region III Office on November 14, 1994, following the inspection. Licensee management presented the results of their investigations and proposed corrective actions to the two radiological events discussed in Section 3 of this report. A third event was briefly discussed which involved a welder working in containment. The welder received higher than planned external exposures 9 l

4 ~ because he could not hear his ED alarming due to the high noise conditions in the area. Other non-radiological issues were also discussed during the meeting. These issues included the mis-positioning of a fuel assembly during fuel movements; movement of the spent fuel pool gate while the emergency ventilation was inoperable; foreign material exclusion problems; i refueling canal cleanliness inspection issues; and nozzle dam temporary i modifications. 1 ) 5. Exit Meetino The scope and findings of the inspection were discussed with licensee representatives (Section 1) at the conclusion of the inspection on November 3, 1994. Licensee representatives did not identify any 4 processes or documents reviewed during the inspection as proprietary. Specific items discussed at the meeting were as follows: Apparent violations and circumstances surrounding the intake events. Apparent violations and weaknesses noted with respect to the draining evolution of the Incore Instrumentation Tank. 10 <" /

Ef4 CLOSURE 3 i 3 l l \\ CENTERIOR l ENERGY I j y 4 i l TE/NRC 9RFO INFORMATIONAL MEETING 1 i ) { .\\'OVEM B E R ' z ' 99z-j i 4 dIIP <'t

a 4 1 INTRODUCTION i Discuss Raciation 3ro:'ec~ ion 2 v e n':s t i Causes anc Lessons Learnec i. i 4 4 Correc"ive Actions i 4 i i Overa Ou: age Per~ormance 4 4 1 ( 3 CENTERIOR ENERGY DAVts-BESSE NUCtf.AR POWER STAllON \\ Y i 35~ w -4 86,

o i. i INSULATION REMOVAL EVENT ~ 1 . Insulation removal resulted in unplanned internal contaminations 1 CAUSES o Planning - Radiation Work Permits - Decontamination plan - Respirators DAVIS 4 ESSE NUCLEAR POWER STATION ,,,,,g 54

INSULATION REMOVAL CAUSES - cont. ~ o Control.of Work i - Survey requirements I - Preventive measures i - ALARA briefing - RP coverage u ) o Adequacy of RWP - Survey requirements - Respirator use designation DAVIS-BESSE NUCLEAR POWER STATION y, + &

INSULATION REMOVAL l CORRECTIVE ACTIONS l o Night Orders issued to add additionaI monitoring 4 and preventive measures o Meetings with insulators o Revised RWPs for insulation removal with additional instructions radiological condition assessment 1 protective clothing requirements contamination control requirements continuous RP coverage o Counseled RP Personnel 4 t a 4 j N*

l 1 u INSULATION REMOVAL RADIOLOGICAL SIGNIFICANCE . Worker dose was a small fraction.of federal limit INDIVIDUAL DOSES WORKER CEDE (mrem) % ALI DDE (mrem) A 102 2.04 25 B 0 0 62 C 212 4.24 31 D 21 0.42 41 E 3 0.06 22 F 3 0.06 28 G 8 0.36 28 H 33 0.66 33 1 3 0.06 0 I l f -h ERGY DAVIS-DESSE NUCLEAR POWER STATION , f pa

INCORE TANK FLUSH EVENT ~

• Incore Tank draining and subsequent drain pipe

' flushing captured a hot particle which resulted in a potential for higher than expected doses CAUSES o incore cutting tool performance o Planning for potentially changing radiological conditions during the incore tank flush o Response to actual changing radiological conditions' i j CENTER DAVIS-DESSE NUCLEAR POWER STATION OQ

se INCORE TANK FLUSH RADIOLOGICAL SIGNIFICANCE l Worker dose WORKER A B EAD RECORDED 46 107 EXPOSURE (mrem) ) ) CALCULATED WHOLE 74 155 BODY (mrem) CALCULATED 60 120 EXTREMITY (mrem) TOTAL OUTAGE 130 263 l CALCULATED WHOLE BODY (mrem) i l CENTE OR DAVIS-DESSE NUCLEAR POWER STAT 10N o } ~ V/ d 5 I

l INCORE TANK FLUSH 1 i LESSONS LEARNED ~ o Operation of Incore Tank drain valve (DH93) l o Use of electronic alarming dosimeters o Operations /RP Interface j o RWP coritrol o Operator radiation meter qualification j o Management sensitivity and response to RP l issues + CENTE R DAVIS-DESSE NUCtIAR FOWER STATION

h INCORE TANK FLUSH n CORRECTIVE ACTIONS 4 l

• Posted and controlled the area as a Locked High Radiation Area i
• Performed dose assessment
• Denied access to involved personnel 4
• Retrieved and stored the particle

{

• Formal dose assessment i
• Operations personnel briefed including j

revised expectations i l l I f h E GY f DAVIS-DESOC NUCLEAR POWER STATION 1 L'

l WHIP RESTRAINT l l l MODIFICATION WELDING s 1 EVENT i {

• Welder working on pressurizer surge line whip

{ restraint received more dose than expected j CAUSES

• Job planning l
• RP controls i

( D YRGY DAVIS 4 ESSE NUCLEAR POWER STATION yy / -

WHIP RESTRAINT MODIFICATION WELDING RADIOLOGICAL SIGNIFICANCE l i o Workerdose i DDE PLANNED DOSE (mrem) 300 ACTUAL DOSE (mrem) 256 ADMINISTRATIVE LEVEL (mrem) 1300 l o Administrative level had been adjusted CORRECTIVE ACTIONS-o Detailed investigation r m ~ CENTER tr# E

i RP OVERVIEW Events icentifiec some weaknesses Vanagement concerns J j Overa ' RP 3er'ormance High quality technical staff Positive contractor feedback 9RFO RP improvements l n 4 F CENTERIOR ENERGY DAVIS BESSE NUCLEAR POWER STATION fG9o[

9RFO OVERVIEW o Acvancec racwor(er training l o increasec use of moc<uas \\ o Aggressiv.e olanning o Installed telecosimetry anc remote monitoring o ncreasec use of tem 3orary slie cing i o Containment cecontamination 1 o marovec c'ose tracking

j i

( h $NYRGY DAVIS-DESSE NUCLEAR POWER STAT 10N i V 70+ N

) i-1 i COMPARATIVE DOSES REACTOR HEAD WORK i l l . 50,9 - ) 41.2 -== i d } 5 22.9 f n l t a f 7RFO BRFO 9RFO STEAM GENERATOR WORK { w 2a.3 1 j 23.8 i I ,o _da 13.5 g0 ~ * * " * * * ' i 7aro caro enro s i CENTERIOR l ENERGY DAVISBCSSE NUCLEAR POWER STADON J i Of 1

ii i l l COMPARATIVE DOSES i I ~ NOZZLE DAM INSTALLATION 3 l e 2.1 2 m m 1.3 i 4 o. 08RFO 09RFO With Respirators Without Respirators i Lower Steam Generator Dose Rates approximately 12 Rem /Hr. l l l 1 1, ie r '3 { CENTERIOR ENERGY i DAVIS-DESSE NUCLEAR POWER STADON L J Yf <. t

~~ l [.., COMPARATIVE DOSES 3 i I i INSERVICE INSPECTION I 16.5 16,4 is i 4 l gi. 1 0.1 j s 1 I I o 7RFO BRFO DRFO SCAFFOLD SUPPORT 34.8 I 1 u l 24.a g. l 11.c f 7RFO BRFO DRFO r m \\ ] CENTERIOR ENERGY ,3 i DAVIS-DESSE NUCLEAR POWER STATION ( ) e i O9 n,- 4 c

i l MAN REM i 4 M A O O O N A a a o l O O o o o o o O O O O n i i I I l l l I I e i i i i l 3 3 3 4 4 4 4 4 I I I i i j l g g g~p g g y READING TAKEN AT*0000 booURs * =n s N. g s g o f .\\ o a h.$ \\ m m i w y = \\ co s. .o. a s: m l s s o .s s.: c.:x m i m

s:

2.1 m .s o = s. .o .n .N .o 1 o s o. I .o.o oC \\ 11) m s v t e 2

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o ~ m g e $ 0 DEGIN CYCLE 10 I ( g u s ,o Y O m u m. m u Y Z c Q = 0 7 2 w m O 3 Mg " Z. MO* i M 30 z < J b M rz,

4 ISSUES l EVENT t . One fuel assembly and 3 control rods out of planned positions i CAUSES o Fuel Assembly indexing error i o inadequate independent verification SAFETY SIGNIFICANCE o Shutdown Margin Reauired Actual Keff s;0.95 Keff = 0.91 o Adequacy of T.S. 3.9.1 c DAVIS 4 ESSE NUCLEAR POWER STATION h] ob

i= ISSUES CORRECTIVE ACTIONS . Returned core to planned configuration . Video inspection to confirm configuration 1 o Reviewed event and reinforced significance { with refueling crews o Performed confirmatory analysis which demonstrated no margins exceeded o initiated PCAQRs and assembled independent review team ""'"El?n"nar DAVIS 4 ESSE NUCLEAR POWER STATION ~ Sboh

i ISSUES

• SPENT FUEL POOL GATE

- Spent fuel pool gate moved while emergency ventilation inoperable

• FOREIGN MATERIAL EXCLUSION
• REFUELING CANAL CLEANLINESS INSPECTION

.9 NOZZLE DAMS TEMPORARY MODIFICATION - Shutdown Risk enhancement by adding computer alarm in addition to annunciator i I o^vis-otsse nuctEAR cowen station $ o! \\

9RFO OVERVIEW 1 o Shutdown on 10/d1/94 after 356-day Run j - Scheduled 46-day outage o Major Outage Activities - Replace low pressure turbine rotors - Steam generator tube inspection and preventive sleeving .- 906 maintenance work activities - Generic letter 89-10 MOV testing - Fuelinspections ( h CENTER OAVIS-BESSE NUCLEAR POWER STATION j[h

9RFO OVERVIEW

• Emergent Issues _

- Polar crane - Feedwater heaters - Main steam isolation valve - Modified core design - Reactor coolant pump 2-1 seal replacement

• Results

- Within one day of schedule - Outage scope increased by 13% due to emergent work - Only 3% of originally planned work was deferred DAVIS-BESSE NUCLEAR POWER STATION ~ .fp th

1 1 } t t A .I i i i 1 l 1 i i i 1 EXHIB T 4 4 7 4 1 1 4, ) I 4 4 t 4 1 l 1; 1 f 1 4 1 l 1 i 1 i 1 i CASE NO. 3-95-044 FYST T Tt T P d I

5 e,

• ~

23 /WG -7 pli I: 16 i L,!:. 'OliiiGN uls';in jyjy'j,l 0 IN THE UNITED STATES DISTRICT COURT CLEVELAliD J FOR THE NORTHERN DISTRICT OF OHIO ~ EASTERN DIVISION., f3y y, A. UI' b )'. CASE NO. b ['h OWEN McCAFFERTY, DENNIS MAIANEY, i 4 SEAN KILBANE, TERRY McLAUGHLIN, ) J j SEAN McCAFFERTY, AND ) JUDGE: ROBERT PROHASKA ) .iJ CN.[ I ) ..c;. - Plaintiffs, ) ' ' " LeM i U:N c h ) v. ) ) COMPIAINT CENTERIOR SERVICE COMPANY and ) TOLEDO EDISON COMPANY ) ) (Jury Demand Endorsed Hereon) Defendants. ) Now come plaintiffs OWEN McCAFFERTY, DENNIS MAIANEY,. SEAN KILBANE, TERRY McLAUGHLIN, SEAN McCAFFERTY, AND ROBERT PROHASKA, and state for their Complaint as follows: I. PARTIES 1. Plaintiffs OWEN McCAFFERTY, DENNIS MALONEY, TERRY McLAUGHUN, SEAN McCAFFERTY AND ROBERT PROHASKA are current residents of Cuyahoga County, Ohio. 2. Plaintiff SEAN KILBANE is a current resident of Lorain County, Ohio. 3. Together these plaintiffs bring claims arising out of their unwarranted exposure to radioactive materials at the Davis-Besse Nuclear Power Station in Oak Harbor, Ohio. EXHIBIT I ~ CASENO. 3-95-044 PAGE ! 0F /IPAGEIS)

4. Defendant Centerior Service Company is a corporation existing under the laws of Ohio with its principal place of business at 6200 Oaktree Boulevard, Independence, Ohio. 5. Defendant Toledo Edison is a corporation organized and existing under the laws of the State of Ohio with its principal place of business at 300 MADISON AVENUE, TOLEDO, OHIO 43652. Toledo Edison owns and operates the Davis-Besse Nuclear Power ' Station (" Davis-Besse") in Oak Harbor, Ohio. II. JURISDICTION i

6. Jurisdiction over this matter is appropriate pursuant to the Price-Anderson Act, 42 U.S.C. 2210. The Plaintiffs' exposure to radioactive materials, as further described in this Complaint, was a " nuclear incident" as defined by 42 U.S.C. s2014(q). Venue is proper in this Court.

III. STATEMENT OF FACTS 7. All Plaintiffs are insulators working in the Davis-Besse Nuclear Power Station i at all times relevant to this Complaint. None of the Plaintiffs were an employee of the Defendant. 8. On and after October 7,1994, Plaintiffs were working as contractors at Davis-Besse. Their work assigmnent was to remove insulation from the steam generator. 9. The work activity was delayed at the control point entrance to the radiologically restricted area in the containment building by the radiation protection staff employed and/or controlled by Defendants Toledo Edison and/or Centerior Service Company. De delay was allegedly to collect radiation survey information from the work area so that the radiation protection technician could brief the plaintiffs on safe work

L j L l I. j practices prior to entry into a high radiation work area. 1 i l-10. The pre-entry work safety briefing by the radiation protection technician failed l fo address and evaluate: l a. the need to survey underneath the mirror insulation after the first panel was removed; b. the need for the radiation protection technician supervision of the work assignment; c. the need for engineering controls to minimize radioactive contamination or radiation exposure; d. the need for air monitoring of radiation exposure during the work assignment, and; e. the need for respiratory protection to prevent i inhalation of radioactive contamination and internal radiation exposure. 11. Plaintiffs entered the high radiation work areawithout radiological respiratory i protection and commenced their respective work assignments, which included the removal of insulation. 12. During removal of the insulation panels, highly radioactive contamination from underneath the panels was released into the work area, became airborne, and was taken internally into Plaintiffs by inhalation. 13. Plaintiffs received external and internal exposure to Cobalt-58, Cobalt-60, Cesium-134, and Cesium-137 radioisotopes. 14. Davis-Besse Procedure DB-HP-00208, Revision 2, " Radiation Protection Program", Step 5.6.8 requires all plant workers to obey posted, oral and written Radiation Protection instructions and procedures, including instmctions on Radiation Work Permits. o r n

i The Radiation Work Permit for the work performed by Plaintiffs expressly prohibited t Plaintiffs from using respiratory protection equipment. t 15. Defendant Toledo Edison is the Licensee for Davis-Besse under the United 1 States Nuclear Regulatory Commission ("NRC") License No. NPF-3, Docket No. 50-346, f effective April' 22,1977. r 16. On November,2'.1994, the NRC issued a Notice of Violation to Defendant Centerior for the unwarranted radiological exposure to the named Plaintiffs described above l and more specifically as follows: On October 7,1994, the licensee did not. perform surveys to assure compliance with 10 CFR 20.1701, which requires the licensees use process or other engineering controls to control the concentration of radioactive material i in air. Specifically, an evaluation of the contamination levels underneath insulation on the east once through steam generator hot-leg was not performed to determine if engineering controls were required to control the concentration of radioactive material in air. l This is a Severity Level IV violation (Supplement IV) IV. COUNT ONE Medical Monitorine Fund 17. The allegations contained in Paragraphs 1 through __ inclusive are hereby incorporated as though fully rewritten herein. 18. As a result of the internal doses of the radioactive materials Plaintiffs were unwarrantedly exposed to, Plaintiffs are entitled, pursuant to Ohio common law, to the establishment of a fund to effect the medical testing necessary to diagnose and properly treat any adverse human health effects resulting from their exposure to these radioactive materials. l l l .4 6 n

V. COUNT TWO Neglicencc 19. The allegations contained in Paragraphs 1 through _ inclusive are hereby realleged as though fully rewritten herein. 20. Through their respective acts and omissions at the Davis-Besse Nuclear Power Station, Defendants Centerior Service Company and Toledo Edison have been negligent, and this negligence has proximately caused each of the plaintiffs to be injured. Although Defendants knew, or should have known, that these Plaintiffs were likely to be injured as a consequence of their exposure to radioactive materials, Defendants failed to confonn its conduct to the standard of reasonable care in light of these risks. 21. Defendants owe a duty of care toward the plaintiffs. Defendants have breached that duty by failing to take the necessary precautions to prevent Plaintiffs' unwarranted exposure to radioactive materials, when Defendants knew, or in the exercise of reasonable care should have known, that these radioactive materials presented an actual or potential health hazard to the Plaintiffs. 22. Defendants knew, or in the exercise of reasonable care should have known, that there was radioactive contamination underneath the mirror insulation panels which Plaintiffs removed and/or handled under the work assignment. 23. Defendants failed to exercise reasonable care by: a. failing to decontaminate underneath the mirror insulation prior to Plaintiffs implemendng the work assignment to remove the mirror insulation panels, a ad; 5-

I i l 1 l b. failing to perform radiological surveys under the mirror insulation after the first panel was l removed. c. prohibiting the use of respiratory protection as Edison's Radiation Work Permit which Plaintiffs were required t'o. obey in accordance with Defendant Toledo Edison's Radiation Protection

Program, 24.

Defendants failed to exercise reasonable care by failing to address and - j evaluatef j the need to survey beneath the first mirror a. insulation panel removed; i b. the need for the radiation protection technician supervision of the work assignment; i c. . the need for engineering controls to minimize radioactive contamination or radiation exposure, and; ) i i d. the need for air monitoring of radiation exposure during the work assignment, and; the need for respiratory protection to prevent c. inhalation of radioactive contamination and internal radiation exposure. 25. Defendants knew, or in the exercise of reasonable care should have known, i that by prohibiting the use of respiratory protection, the radioactive contamination underneath the mirror insulation panels presented actual and/or potential health hazards to the plaintiffs, and that by their acts and omissions, it unreasonably exposed the plaintiffs to radiation which increased their risk of contracting illness, and interferes with their comfortable enjoyment of life. l 1 l 6-

I 'l 1 26. As a direct and proximate result of D,efendants' wrongful conduct, Plaintiffs have suffered, are suffering, and will continue to suffer harm in the form of: a. Emotional distress; j I b. Increased risk of future bodily harm; c. Loss of future income; 1 d. Economic and financial harm due to additional ) medical diagnosis and treatment required, and; J Other consequential, incidental, general and e. special damages, the full extent of which has not yet been determined. 4 i L 27. Plaintiffs seek money damages to compensate, them for these wrongs. 1 VI. COUNT TIIREE Strict Liability in the Conduct of an Ultrahazardous Activity k 28. The allegations contained in Paragraphs 1 through _ inclusive are hereby. i. i realleged as though fully rewritten herein. [ 29. From 1977 and continuing until the present, Defendants owned and/or 4 i operated the Davis.Besse Nuclear Power Station at Oak Harbor, Ohio. 30. The operation of a nuclear power station or plant is an ultrahazardous activity l under Ohio law. The mirror insulation panel removal activity Plaintiffs engaged in at the i 4 direction of and under the control of Defendants is an ultrahazardous activity under Ohio l law. 1 1 y i i i

. _.s } l

e.

? 31. 'Ile release of Toledo Edison's radioactive materials into Plaintiffs' work area : + by the work activities performed by Plaintiffs at the. direction and under the control of i i i. Defendants constitutes an uhrahazardous activity for purposes of strict liability, constituting j an absolute nuisance or nuisance p_e.t ss. 2 l. 32.i: As a direct' and proximate result of Defendants' ultiahazardous activities, l Plaintiffs have suffered, are suffering, and will continue to suffer harm. Plaintiffs seek money damages to compensate them for these wrongs. I 1. VII. COUNT FOUR j Intentional Infliction Of Emotional Distress ~33. The allegations contained in Paragraphs 1 through _ inclusive are hereby [ realleged as though fully rewritten herein. 34. Defendants knew of the existence of a dangerous process, instrumentality or condition within its respective business operation. 35. Defendants knew that if the Plaintiffs were subjected by their work to such dangerous process, instrumentality or condition, then hann or injmy to the plaintiffs is a

substantial certainty.

36. Defendants, under such circumstances, and with such knowledge, did act to require the Plaintiffs to continue to perform the dangerous task. i b. 1. 37. Defendants had actual knowledge of the presence of and accumulation of radioactive contamination beneath the mirror insulation panels from experience gained l 'during the Refueling Outage in which Plaintiffs were injured (RFO#9), the Refueling 1 ,g, I i

4 Outage immediately preceding (RFO#8) and prior Refueling Outages. i 38. Defendants had actual knowledge of the fact that Plaintiffs would perform the L dangerous task without respiratory protection and that performing the task would cause an airborne release of the radioactive' contamination present beneath the mirror insulation and I that Plaintiffs would each receive an internal dose of these radioactive materials into their l 1 l unprotected lungs by ialialation. l l . 39. Defendants had actual knowledge of the exact dangers which ultimately caused 1 the plaintiffs' injuries. l \\ l 40. Defendants' conduct was extreme and outrageous, and so beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. 41. As a direct and proximate result of Defendants' intentional, tortious misconduct, Plaintiffs have suffered, are suffering, and will continue to suffer harm in the i form of emotional distress. Plaintiffs seek money damages to compessate them for these wrongs and punitive damages so as to deter the defendants from this future reprehensible conduct. l VIII. COUNT FIVE l Reckless and Wanton Misconduct 42. ' Hie allegations contained in Paragraphs 1 through _ inclusive are hereby realleged as though fully rewritten here. 43. By requiring Plaintiffs to perform a dangerous task and prohibiting them from wearing respiratory protection while performing such dangerous task, Defendants intentionally and knowingly, recklessly and wantonly disregarded the injurious consequences 9 6 ,m

e to the Plaintiffs and have acted in a manner presenting a risk of grave injury to the Plaintiffs. 44. As a direct and proximate result of these intentiorial or reckless activities by Defendants, the Plaindffs have suffered, are suffering and will continue' to suffer harm. 45. The Plaintiffs seek money damages to compensate them for these wrongs, and k l seek punitive camages to deter the Defendants from this future reprehensible conduct. 1 a l IX. COUNT SIX j Neelicent Infliction Of Emotional DistrmJ 4 j ~ 46. The allegations contained in Paragraphs 1 through _ inclusive are bereby realleged as though fully rewritten herein. 1 47. Defendants owe a duty of care toward the Plaintiffs. This duty is based in part l on the special relationship between the Defendants Centerior and Toledo Edison and the Plaintiffs where Plaintiffs are entitled to some measure o protect on rom Defendants. f i f 48. Defendants breached that duty by failing to take the necessary precautions to prevent Plaintiffs' unwarranted exposure to radioactive materials,when Defendants knew, 1 I or in the exercise of reasonable care should have known, that these radioactive materials presented an unreasonable risk of harm to the Plaintiffs. 49. Through their respective acts and omissions at the Davis-Besse Nuclear Power Station, Defendants have been negligent, and this negligence has proximately capsed each 1 i of the Plaintiffs to be physically injured. Plaintiffs have each suffered a physical invasion of their bodies by inhaling 50. 4

i l adioactively-contaminated particulate matter into.their lungs and subsequently have suffered a contemporaneous physicalinjury by exposure to internal doses of radiation. 51. As a direct and proximate result of Defendants' wrongful conduct, Plaindffs have suffered, are suffering, and will continue to suffer emotional distress. 52. Plaintiffs seek money damages to compensate them for these wrongs. X. COUNT SEVEN Neelicent Infliction Of Severe and Debilitatine Emotiona! Distress 53. The allegations contained in Paragraphs 1 through _ inclusive are hereby realleged as though fully rewritten herein. 54. Defendants owe a duty of care toward the plaintiffs. This duty is based in part on the special relationship between the Defendants and the Plaintiffs where Plaintiffs are entitled to some measure of protecdon from Defendants. 55. Defendants breached that duty by failing to take the necessary precautions to prevent Plaintiffs' unwarranted exposure to radioactive materials, when Defendants knew, or in the exercise of reasonable care should have known, that these radioactive materials presented an unreasonable :isk of harm to the Plaintiffs. 56. Through their respective acts and omissions at the Davis-Besse Nuclear Power Station, Defendants have been negligent, and this negligence has proximately caused each of the plaintiffs to suffer harm. 57. Notwithstanding the contemporaneous physical injury alleged above in Count Seven, as a direct and proximate result of Defendants' wrongful conduct, Plaintiffs have i,..

i suffered, are suffering, and will continue to suffer harm in the form of serious emotional distress that is both severe and debilitating. 58. Plaintiffs seek money damages to compensate them for these wrongs. WHEREFORE, the Plaintiffs pray that: 7 -(A) the Plaintiffs recover from the Defendants their past and future monetary damages and such funds necessary to establish a medical monitoring fund under Ohio law, as alleged in Count One; and (B) the Plaintiffs recover from the Defendants the general and special compensatory damages as alleged in Counts Three, Four and Five in i the amount of Ten Million Dollars ($10,000,000.00); and (C) the Plaintiffs recover from the Defendants the general and t l special compensatory damages as alleged in Counts Two, Six and Seven in the amount of Ten Million Dollars ($10,000,000.00); and (D) the Plaintiffs recover from each of the Defendants punitive damages as alleged in Counts Three, Four and Five in the amount of Ten 4 Million Dollars ($10,000,000.00); and (E) the Plaintiffs recover from the Defendants the costs of suit, including, without limitation, their attorney's fees and expert witness fees under Ohio law; and (F) the Court grant such other, further and different relief as may be deemed just and proper. Respectfully submitted, Steven D. Bell (0031655) ULMER & BERNE Bond Court Building, Suite 900 1300 East Ninth Street 900 Cleveland, Ohio 44114-1583 (216) 621-8400 Counsel for Plaintiffs I i n 12-I

t i i ' JURY DEMA D Plaintiffs hereby demand a trial by jury. Stbven D. Bell (0031655) 6 l 1 ? l i I I' i 1:\\WPDOC\\GARMI\\1444%C1 .. i I l

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~ .o: 2u-:r r ain n.:. g:;, sm pas, sexuices to ,,,y; 3,,,, 3 p,h (c, The Cleveland Electric)lluminating Comp any Perry Nuclear Power Plant i REVOCATION OF UNESCORTED AC rutow,masya emo CESS , cmy , N-ar AMb M b $1,c.'t.P. ?.<:49i /4 /M. /99 (' s A tyny rivessar Ppar P: ant N)i14)By y c-nof M.44AS'. d40//4/) Rsce,w a Dy ' / e (p, non gy e s CHECK ONE -l 8'rry. O H seosi Phone: (215) 2M.37U E PACTECTED AREA l f &TE 8 MC'fECTED AREA _- i EMplopet(s) Name 37 mwir7md &y No. ooe MSF Soctal Secunt ' Reason Code 8td96/K. hard ,.s g,.., I I 1 l

• Reason Codes 001 Laid Of! Eliptble for Behlte Terminitted ' rom Company 005 Temporarysuspension (explain below) 002 f

i 006 Unesocried Apotes Ne Longer Required 003 Term!nated for coute (erptin below) 007 Leave of Absence 004 Transfer to anotherjob site 'omments: i i 1 = 1 i i g 4 For CEl, site Protection Use Only .I

evoked on Datei B:

i / c L n

4 l I 1 1 1 i EXHIBIT 5 1 1 ) 1 i i 1 m a me-4.c a. ai, p. PTMTRTT 5 -w

I f I U.S. Department of Labor Otr.ce of Administrative Law Judges [ ]g \\,) l Seven Parkway Center j Pinsburgh, Pennsylvania 15220 i,. 412 644-5754 \\' j/ DATE: June 11, 1996 CASE NO: 96-ERA-6 In the Matter of l OWEN McCAFFERTY, I l DENNIS MALONEY, SEAN KILBANE, l TERRY McLAUGHLIN, l SEAN McCAFFERTY, AND ROBERT PROHASKA, Complainants i v. CENTERIOR ENERGY, _ Respondent j Appearances: Steven D. Bell, Esq. Lynn.Rogozinski, Esq. [ F'or the Complainants l Mary E. O'Reilly, Esq. David R. Lewis, Esq. For the Respondent Before: THOMAS M. BURKE Administrative Law Judge RECOMMENDED DECItION AND ORDER This is a proceeding brought under the Energy Reorganization Act of 1974 (" ERA"), 42 U.S.C. S 5851 and the regulations promulgated thereunder at 29 C.F.R. Part 24. These provisions protect employees against discrimination for attempting to carry out the purposes of the ERA or of the Atomic Energy Act of 1954, l as amended, 42 U.S.C.A. 5 2011, et sea. The Secretary of. Labor 'is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC") who are discharged or otherwise discriminated against with regard to their terms and ] conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by the NRC. 1 .s EXHIBIT l CE-HO. 3-95-044 PAGE / Ek PAGE(S) OF

I i 2 - 7 This proceeding involves complaints filed on October 26, l 1995 by complainants, Owen McCafferty, Dennis Maloney, Sean Kilbane, Terry McLauglin, Sean McCafferty and Robert Prohaska, j against Centerior Energy ("Centerior") alleging that Centerior l discriminated against them in violation of Section 211 of the ERA' by barring complainants from employment at any Centerior facility, and by revoking.a security clearance that had been granted to complainant, Dennis Maloney. The complaints assert l that the sole basis for the adverse actions was the commencement-l of a proceeding by the complainants against Centerior under the Atomic Energy Act of 1954 in the United States. District Court for the Northern District of Ohio. .The October 26, 1995 complaints were investigated by the 1 District. Director of the Cleveland, Ohio, regional office of the Wage and Hour Division of the United States Department of Labor. The District Director notified Centerior by letter dated 1996 that its fact finding had determined that the f 13anuary-9, complainants were protected employees-engaging in a protected l activity within the scope of the ERA and that discrimination as i factor in the aforesaid actions taken defined-by the ERA was a against the complainants. + Centerior filed an appeal with the Office of Administrative 'i Law Judges on January 16, 1996. Complainants filed a cross-appeal on January 16, 1996, requesting additional relief to that l ordered by the District Director. Specifically, complainants 1 to their loss.because requested back pay and benefits equivalent of the discriminatory actions of Centerior. j 1996 in~ Cleveland, l A hearing was held on February 26 and 27, 1996. Ohio. Post-hearing briefs were received on April 5, i 4 FINDINGS OF FACT 1 I centerior Energy Corporation is the parent holding company of the Cleveland Electric Illuminating Company, The Toledo Edison l Cleveland Electric Company and Centerior Service Company. l Illuminating company and Centerior Service company are jointly licensed by the NRC as the operator of the Perry Nuclear Power l The Toledo Edison Company and Centerior Service Company Plant. I are jointly licensed by the NRC as the operator of the Davis-Besse' Nuclear Power Station. ' The employee provisions of the ERA were originally l- ' located at S 210 of the ERA but when the ERA was amended in 1992, the' employee protection provision were redesignated as 5 211. r

i .3 Complainants are insulators who are members of Local 3 of the Heat and Frost Insulators and Asbestos Workers Union in i Cleveland, Ohio. Periodically, approximately every 18 months to two years, nuclear power plants are shut.down for refueling and maintenance. L During these outages, Centerior performs substantial maintenance and modification work that can not'be done while the facility is operating. Nearly all of this work is performed in radiologically-restricted. areas, that is, areas where there is l exposure to radiation. During the fall of 1994, complainants. l-were performing outage. work at the Davis-Besse Nuclear Plant in L Oak Harbor, Ohio as employees of Gem Industrial Services, a l-contractor at Davis-Besse. Their work included removing mirror. insulation from steam generators and other components of the' l plant. Mirror insulators are removable panels made out of L stainless steel with reflective insulation on both sides. (Tr. .19) On October 7, 1994, complainants were exposed.to radioactive _ materials after removing a piece of the insulation. The exposure [ was unplanned as the area where they were working was supposed to l be " clean," in that a survey of the area supposedly determined l that they would not encounter radioactive materials. i The exposure by complainants to the radioactive materials prompted an investigation by the NRC. Following the investigation, the NRC issued a notice of violation to Centerior. l The notice of violation asserted that Centerior did not take the E steps necessary to assure compliance'with the regulations L requiring engineering controls to control the concentration of radioactive material in the air. Specifically, the notice stated: On' October 7, 1994, the licensee did not perform surveys to assure compliance with 10 C.F.R. 20.1701, which requires that licensees use process or other engineering controls to control the concentration of E radioactive material in air. Specifically, an evaluation of the concentration levels underneath insulation on the east once through steam generator hot leg was not performed to determine if engineering controls were required to control the concentration of radioactive material in air. (Respondent's Exhibit No. 2, enclosure 1,

p. 2)

In response, Centerior accepted responsibility for the violation. (Complainant's Exhibit D, p. 2) l Complainants continued to work at the plant for another six weeks, when they were laid off because the refueling outage was i completed. I i

~ m._ _.___..._ _ _ _ _ _.. _ _. _ _ _ f l l I -4 t Complainants filed a civil complaint against Centerior in the United States District Court for the Northern District of Ohio on August 7, 1995. Jurisdiction was asserted under the Price-Anderson Act, 42 U.S.C. 5 2210. The Price-Anderson Act is The complaint alleged, inter - a part of.the Atomic Energy Act. breached a duty owed to the complainants by l alia, that Centerior l failing to take the necessary precautions to prevent unwarranted exposure to radioactive materials when complainants' Centerior knew or should have known that the radioactive l materials presented an unreasonable risk of harm to the complainants. The complaint includes. multiple counts, including claims of negligence, strict liability, intentional infliction of emotional distress, and negligent infliction of emotional 1 distress. In' September, 1995, one of the complainants, Dennis Maloney, j i was hired-by Fishbach Power Services, Inc.-("Fishbach") to perform maintenance work at Centerior's Perry Nuclear, Power Plant in Perry, Ohio. Maloney had worked at several nuclear and non-nuclear. facilities owned or operated by Centerior including Perry Nuclear Powerhouse,.Avon Powerhouse, East Lake Powerhouse, East-Astabula and Davis-Bessie. (Tr. 18) Maloney has had 72nd Street, No no. discipline problems while working for Centerior. complaints have been filed against him and no concerns were raised regarding his professionalism. (Tr. 19) Maloney was working for Fischbach removing insulation and of work at Perry as he had been otherwise doing the same sort doing at Davis-Besse. (Tr. 34) Maloney was permitted to enter which require safety clearances.and into restricted areas, He testified to meeting with a member certain training. (Tr. 37) of the radiological protection staff and~ submitting a suggestion- ~ on minimizing risk of exposure to radiation which was appreciated and-accepted. (Tr. 40, 41) Complainant did not refuse any jobs, and did every thing he was told. did not stage any protests, On October 16, 1995, Maloney was called from his job by the for Fishbach and informed that his access to field superintendent Perry had been revoked by Centerior. Maloney could not get a the plant reason for the revocation until he talked to Don Timms, The ombudsman asked Maloney ombudsman, during the exit process. the reason for the-revocation. Maloney replied that he did not ion with Centerior. .except that he was-involved in litigat

know, After making a telephone Timms offered to find out~the reason.

call, Timms informed Maloney that the reason was " biting-the hand feeds you." (Tr. 42) Maloney understood Timms to mean that that he was out because he had filed the lawsuit. (Tr. 43) Timms testified that he made a telephone call to Jim l the Fishbach representative to determine why Featherstone, Timms was informed by Maloney's employment was being terminated. i m y-s- g-m-s y

~ . ~ -. - I I r l-l l l l i Featherstone that he had received a letter stating Maloney should be let go. (Tr. 274) l t About'two days later while at his union hall Maloney was i shown a letter dated October 13, 1995 from Robert Schrauder, Director, Perry Nuclear Services Department, to Richard Cline of Fishbach stating: Due to the fact that Centerior is currently involved in l litigation with the following six individuals we cannot,-at this time, allow any one of them to work at any Centerior facility. [Six complainants named) Please insure none of these individuals are currently assigned to the Perry Nuclear Power Plant. In addition, please do not assign any of them to the Perry Plant at least until this litigation is resolved. (Complainants' Exhibit B) l I The Ombudsman's statement and Schrauder's letter provided the only reasons given to Maloney for being fired from Perry. Pat Volza is the site radiation protection manager at Perry. On about the 5th or 6th of October, 1995, he was informed by a member of his staff that Maloney had requested a copy of Maloney's incoming whole body count. Whole body count is a monitoring program whereby any employee who is going to be subjected to external or deep dose radiation is required to undergo a bioassay to determine the level of radioactive material, if any, he is bringing with him. It allows for the establishment of a baseline prior to the incoming employee being exposed to radioactivity. (Tr. 150, 151) Maloney's request was considered unusual by someone on Volza's staff; it prompted the staf f member to alert Volza of the request and of Maloney's involvement "in the insulator issue at the Davis-Bessie plant." (Tr. 151) Volza in turn contacted, Ron Scott, his counter part at Davis-Bessie to discuss Maloney's involvement in the insulator matter. Volza testified that Scott told him about Maloney's civil complaint against Centerior and a discussion ensued regarding whether, in light of the allegations of the complaint, Maloney would suffer emotional distress on the job or would in l someway have a problem with complying with Centerior's programs l and policies. (Tr. 152) Volza testified that he then contacted Schrauder to express concerns about Maloney's request for whole body count levels and the possibility Maloney might make use of such information to buttress his lawsuit, and also the concerns he had discussed with Scott regarding whether the allegations of the lawsu'it meant Maloney could not comply with Centerior's programs and procedures. (Tr. 152, 168) i Schrauder subsequently instructed Fishbach to remove Maloney from employment at Perry, and to not hire for work at any Centerior facility the plaintiffs to the Davis-Bessie lawsuit. 1 ~m

~ m _ _- -.. l t When Fishbach requested the instructions in writing, Schrauder f forwarded the aforesaid October 13,, 1995 letter to, Richard Cline, identified as Complainant's Exhibit No.

2. (Tr. 207)

Schrauder testified that he terminated Maloney's employment and barred the other complainants from working for Centerior because of allegations in the complainants' lawsuit against Centerior. He i -stated that he took the complainants' word that-they had_been debilitated and suffered emotional distress as a result of the unplanned exposure at Davis-Bessie. (Tr. 207, 208) Schrauder testified that he did not convey.his " full rationale" in the October 13, 1995 letter because he wanted to l keep the letter short, (Tr. 209) and that he only barred the i' complainants until'the litigation was resolved because he thought tthat.by that time they-may have overcome their concern regarding .f the use of respirators. (Tr. 209) 1 -Protected Activity I The initial question is whether the complainants' civil lawsuit against Centerior in the United States District Court for i the' Northern District of Ohio constitutes protected activity under S 211 of the ERA. Section 211 provides: (1) No employer may discharge any employee or otherwise discriminate against any. employee with respect to his l compensation, terms, conditions or privileges of employment 3 because the employee (or any person acting pursuant to a j request of the employee) (A) notified his employer of an alleged violation of -this chapter or the Atomic Energy Act of 1954 (42 U.S.C. 5 2011 gi seo.); (B) refused to engage in any practice made unlawful by this chapter or the Atomic Energy Act of 1954 l (42 U.S.C. 5 2011 el sec.), if the employee has identified the alleged illegality to the employer; (C) testified before Congress or at any faderal or State proceeding regarding any provision (or proposed provision) of this chapter or the Atomic Energy Act of 1954 (42 U.S.C. S 2011 gi sec.), (D) commenced, caused to be commenced or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954 as amended (42fU.S.C. S 2011 el sec.) or a proceed-ing for the administration or enforcement of any l

l l I i l requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended; testified or is about to testify in any such (E) proceeding or; (F) assisted or participated or is about to assist in any manner in such a proceeding or participate or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended (42 U.S.C. 5 2011 et sea.). 42 U.S.C. S Ss51(a). Complainants' civil complaint against Centerior asserts 42 U.S.C. 5 2210. The jurisdiction under the Price-Anderson Act,that Centerior breached a duty inter alia, complaint alleges, owed to the complainants by failing to take the necessary unwarranted exposure to precautions to prevent complainants'when Centerior knew or should have known radioactive materials, that these radioactive materials presented an unreasonable risk of harm to the complainants. The Price-Anderson Act, enacted in 1957, added Section 170 to the Atomic Energy Act, 42 U.S.C. S 2210. civil complaint against Centerior is an As complainants' action under the Atomic Energy Act, it would appear that there could be little room for argument that filing the complaint is (D) and (F) of 5 211 of the protected activity under subsectionsthe civil action constitutes a proceeding, or that is, that Centerior,

ERA, "any other action" under the Atomic Energy Act.

however, argues that 5 211 does not mean what it says. Centerior argues that Congress only intended S 211 to protect notifications to the NRC or licensee management of safety concerns or regulatory violations, in order to protect the free flow of regulators. In support of its safety information to governmentCenterior presents three arguments: construction of the statute, the ERA has never been applied to protect private lawsuits (2) the courts have found the (1) filed under the Atomic Energy Act; the term " proceeding" to be ambiguous and definition of undefined, therefore the legislative history of the ERA must be intent of Congress; and (3) protect-considered to determine theactions under the Atomic Energy Act would not ing private tort the purpose for which the ERA was promulgated. serve Centerior is correct that there is no history in the case being applied to a private action under the Atomic l law of S 211 is mcre than likely that prior to the it

However, Energy Act.

no employer had fired an employee because of the instant case, employee's filing of a civil suit under the Atomic Energy Act.

_._._.m i l i It is a basic _ tenet of statutory construction that if i statutory language is clear and unambiguous on its face then it be given its plain meaning and no resort to the underlying i must legislative history is appropriate. Kansas & Electric Co. v. ~i Block, 780 F.2d 1505, 1510 (10th Cir. 1985), cert. denied, 478 U.S. 1011'(1986); Chevron, U.S.A.

v. Natural Resources Defense Council, 932 F.2d 985 988 (D.C.Cir. 1991), 467 U.S.

837, 104 l S.Ct. 2778, 81 L.Ed.2d 694 (1984). Centerior's argument that a review of the legislative f history of 5 211 is necessary to interpret the meaning of the term " proceeding" because the Courts have held-its meaning to be ambiguous is rejected. Centerior is correct that some courts have found ambiguity in the term. However, in every instance, the court's intent was not to narrow the definition to exclude a specific legal proceeding such'as the present civil action, but to expand the definition to include activity not normally j considered a proceeding or action. In Kansas & Electric Co. v. -l Block, supra, the Court held that the intent of Congress is' i reflected by an expansive reading of the term " action" to include the filing of internal complaints. Id. at 1413. The Court in Bechtel Construction Company v. Secretary of Labor, 50 F.3d 926 1 t (11th Cir. 1995), interpreted the term " proceeding" and the phrase "sny other action" to include raising particular concerns about safety with an employer. Id. at 931-933. In Passaic l Valley Seweraae Com'rs v. United States Department of Labor, 992 F.2d 474 (3d. Cir. 1993), the Court interpreted the term proceeding as used in the whistle blower provision of the' Clean Water Act to include intracorporate complaints. Id. at 478. The whistleblower provision of the occupational Safety and Health Act, 29 U.S.C.A. S 651, which provides that "the institution of a proceeding" is' protected activity, has been interpreted to cover a complaint to an employee's union, Donovan v. Diplomat Envelope C o r p._, 587 F.Supp. 1417 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir. 1985), a communication ~with a newspaper, Donovan v. R.D. q 552 F.Supp. 249 (D. Kansas 1982), and a decision to

Anderson, retain counsel to represent him in rectifying what he considered to be unsafe working conditions.

Accordingly, the case law interpreting the meaning of a " proceeding" or "any other action" as used by 5 211 of the ERA reveals no ambiguity about their application to a civil action under the Act. Thus, a resort to the ERA's legislative history is not appropriate. Moreover, even if its legislative history is l considered there would be no reason to deviate from the plain i meaning of the ERA. The complainants point out in their post-hearing ~brief that a review of the legislative history of the 1992 amendments to S 211 confirms that Congress intended the ERA under the Atomic to protect employees who file a civil suit Its legislative history provides in part: Energy Act. a

~. - ..-~ 7 ? l l 1. This provision (5 211) adds a new section to the Energy Reorganization Act of 1974. This section offers protection to employees who believe they have been' fired or discriminated against as a result of the fact they have testified, given evidence, or brouaht suit under that act or the Atomic Enerav Act. Any worker who is i called upon to testify or.who gives information with l respect to an alleged violation of the Atomic Energy L Act.or a related law by his employer or who files or institutes any proceeding to enforce such law against an employer may be subject to discrimination. S. Rep.No. 848, 95th Cong., 2nd Sess. at 29-30, U.S. Code.Cong. & Admin,-News 198, pp. 7303, 7304. (emphasis added) Centerior also argues that Congress could not have intended 5'211 to apply to a private action under.the Atomic Energy Act because "until amendments in.1988, Price-Anderson did not create any. federal cause-of action-or Federal jurisdiction for. injury relating to nuclear incidents."? Centerior's argument fails for . Initially, a private right of action did exist two reasons. in 1974. under Price Anderson prior to the enactment of the ERA Price-Anderson was amended in 1966 to provide for a private right-See O' Conner v. of action for extraordinary nuclear occurrences. Commonwealth Edison Co., 13 F.3d 1090 (7tb Cir. 1994) where the court noted that.the 1988 amendments expanded the reach of 42 U.S.C. 5 2210(n) (2) to provide for removal of, and original federal jurisdiction over, claims arising from any.' nuclear instead of actions arising from only extraordinary incident' nuclear occurrences. Secondly, when 5 211 was amended in 1992 Congress had the opportunity to remove civil actions under the-Atomic Energy Act as a protected activity. Instead, the amendments expanded the activities protected. Centerior also. argues that Congress would not have intended to protect the filling of private civil actions under the Atomic j Energy Act.because no purpose would be promoted thereby. However, protection of the public is one of the reasons for prohibiting an employer from discriminating against an employee .because the employer was the recipient of a civil _ action under j the Atomic Energy.Act alleging a breach of duty by failing to take'the necessary precautions to prevent unwarranted exposure to radioactive materials. The Court in O' Conner, discussed Price-j Anderson's role in Congress' attempt to both encourage private in the nuclear industry and simultaneously to sector. involvement -protect the public. O' Conner, sunra, 13 F.3d 1090 at 1105.. See 42 U.S.C. 55 2012, 2013.

• Centerior's post-hearing brief p.

20.

~.- - - - -.. - =. . -. ~.. .~ .. ~ _ - ! Accordingly, it is determined that the plain language of precludes Centerior from taking retaliatory action against S 211 complainants because they filed the civil action against Centerior under the Atomic Energy Act. Prima Facie Case The requirements for establishing a prima facie case under Section 211 of the ERA were set out by the Secretary of Labor in l Darty v. Zack Co. of Chicago, Case No. 82-ERA-2, Secretary of l Labor, April 25, 1983, slip pnt at 8. They are: (1) the complainant engaged in protected activity; (2) the complainant (3) that the respondent was was subject to adverse action; andaware of the protected activity when.it to The complainant must also present sufficient against him. evidence to raise the inference that the protected activity was 2 likely reason for the adverse action. the As previously discussed, complainants engaged in protected activity under S 211 when they filed the civil action under the Atomic Energy Act against Centerior. i . ADVERSE ACTION t Maloney suffered an adverse action by Centerior y l Complainant, when Schrauder instructed Fishbach to remove him from employment The other five complainants suffered adverse actions by Centerior when Schrauder instructed Fishbach to not hire them at Perry. for work at Perry. See Complainants' Exhibit B. i KNOWLEDGE OF PROTECTED ACTIVITY f show that Centerior had knowledge of their complainants mustthe time of the adverse employment action. Hassell v. Industrial Contractors. Inc., Case No. 86-CAA-7, protected activity at That Centerior had such Secretary of Labor, February 13, 1989. knowledge is undisputed. l i ants' lawsuit .Volza testified that he was alerted to comp a n the 5th or-6th of October, 1995, and against Centerior on aboutprompted him to contact Schrauder to expre that it that the allegations of the law suit comply with the Centerior's programs and procedures. Schrauder took the action terminating Maloney's employment and not barring the other complainants from working at any Centerior facility within a few days after his conversation with Volza. ) L REASON FOR TERMINATION complainants have shown that they engaged in protected i they suffered adverse action when they were activity and that and that Centerior knew of the subsequently fired or banned, f me--e:-d Ts3 -=r'

~. ~.-. - i P 1 e . protected activity when it took such actions. Complainants must, to establish a prima facie case, present evidence to raise the inference that the protected activity was the likely reason for the adverse actions. Dean Dartev v. Zach Company of Chicaco, Case No. 82-ERA-2, slip op., Secretary of Labor, April 25, 1983. Stack v. Preston Truckina Co., Case No. 86-STA-22, slip op., l Secretary of Labor, February 26, 1987 and Haubold v. Grand Island i Express Inc.,. Case No. 90-STA-10, slip op., Secretary of Labor, April 27, 1990. The temporal proximity of the adverse actions to the protected-activity-is sufficient in itself to raise the inference l that the protected activity was the reason for the adverse actions. The Court of Appeals in Coutv v. Dole, 886 F.2d 147 (8th Cir. 1989) held that the temporal proximity of " roughly-thirty days" is sufficient as a matter of law to establish ~an ' inference of retaliatory motivation. See also the Secretary's decision in Goldstein v. Ebasco Contractors Inc., Case No. 86-ERA-36, Secretary of Labor, April 7, 1992. l Also, Schrauder's October 13, 1995 letter states that the Complainants' lawsuit was the reason for Maloney's termination and the ban on the other complainants' employment. j i Respondent's Reason for Termination l As the complainants have established a prima facie case, Centerior has the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, .nondiscrimatory reasons. Significantly, the employer bears only a burden of producing evidence at this poinc; the ultimate burden .of persuasion of the existence of intentional discrimination rests with the employee. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-255 (1981). Dartev v. Zack Company of l Chicaao, Case No. 82-ERA-2, Secretary of Labor, April 25 1983. Once a respondent satisfies its burden of production, the complainant then may establish that respondent's proffered reason is not the true reason, either by showing that it is not worthy of belief or by showing that a discriminatory reason more likely l motivated respondent. Shusterman v. EBASCO Services. Inc., Case No. 87-ERA-27, Secretary of Labor, January 6, 1992. j Centerior contends that it had legitimate non-discriminatory reasons for terminating Maloney's employment and barring the other complainants from further employment at any of Centerior's facilities. Centerior stated reasons are that it was concerned that complainants would be unwilling to work without respirators, that complainants claimed to be suffering from-severe and debilitating emotional distress stemming from exposures which federal' regulations specifically permit and which complainants would likely again receive, and that the complainants might .~..

.12 - therefore seek to pick and choose the work they would perform, and that this could disrupt the busy outage schedule. Centerior's argument relies solely on the averments of the complaint in complainants' civil action. The argument assumes from the averments of the complaint that the complainants' employment at Perry would be disruptive and proceeds to offer case law showing that disruptive employees may be denied employment even if they engaged in protective activities. Centerior attempts to argue the merits of the complainants civil case in this proceeding. The gist of Centerior's argument is that the dosage of radiation received by the complainants ) because of.the October 7, 1994 incident was within the level approved by the NRC, therefore complainants' averments in the civil suit that they suffered injury and emotional distress. compel the conclusion that complainants in the future may suffer emotional distress, refuse to wear a respirator or insist on a change of job even though the potential radiation dosage to which they will be subjected is within NRC approved limits. For example, Centerior argues that "Centerior cannot hire individuals who appear unwilling to accept the NRC's regulations, the radiation philosophy underlying those regulations, or Centerior's radiation protection program. Centerior is required to implement its program in accordance with NRC requirements and has no leeway to violate those requirements in order to accommodate an employee's personal views and preferences."' i Centerior has not produced any evidence to support its contentions. Each of the complainants continued to work at the Davis-Bessie plant after the October 7, 1994 incident until early December when their work was completed and they were laid off. I Nothing that could be considered disruptive occurred. No complaints were brought to the attention of their union. (Tr. 112) Their supervisor complimented them on doing a good job q and told them they were welcome to return to work on future outages. (Tr. 28, 29) Maloney worked without incident at Perry until his job was terminated. Volza agreed that nothing in i Maloney's behavior indicated any emotional problems that would j effect his work. (Tr. 172) Neither Volza nor Schrauder interviewed complainants, or in any other way attempted to determine if their past behavior was disruptive or predictive of disruptive behavior in the future. Volza contacted Scott, his counterpart at Davis-Bessie plant, to discuss Maloney's status as a plaintiff in the civil complaint. Volza testified that Scott told him about Maloney's civil complaint against Centerior and a discussion ensued regarding whether, in light of the allegations of the complaint, Maloney would in someway have a problem with complying with Centerior's programs and policies. (Tr. 152) Centerior's post-hearing brief, p. 26. 3

~ b t I l However, Volza did not discuss with Scott, Maloney's actual understanding of and willingness to abide by Centerior's l l respirator policy. (Tr. 154) l To support its argument that the actions of Centerior toward the complainants were made dispassionately, Centerior asserts in l its brief that the record shows not one whit of evidence of l hostility towards the complainants. Centerior overlooks the l reason given by the plant ombudsman to Maloney for his discharge, l - and the testimony of Schrauder on his reason for terminating Maloney's employment. The ombudsman told Maloney that he was out because he was " biting the hand that feeds you." (Tr. 42) l ' Schrauder was asked on direct examination why he didn't interview Maloney before having his employment terminated. Schrauder answered: Q. Why didn't you seek for example to interview Mr. Maloney (one of the complainants)? A. I didn't feel I had a need to. I read the complaint and I thought the complaint was f clear enough that someone that needed 30 million dollars to compensate for a low level of radiation and that they had debilitating and emotional stress over that I didn't think I needed that kind of person working the outage for me. (Tr. 209-210) i The dosage level of radiation received by the complainants l on October 16, 1995 is not relevant to this proceeding, nor is the extent of injury caused thereby. Nevertheless, Centerior argues that the dosage level of radiation received by the complainants and the complainants' resulting. request for damages for emotional distress is a predictor that the complainants will y claim future emotional problems and is therefore a legitimate basis for the firing. Centerior's argument shows a lack of l understanding or concern for the basis of complainants' lawsuit. l Maloney tastified generally to his reaction to the October 16, l 1995 radiation incident. His emotional distress did not result l from knowledge of the level of the radiation but the total l circumstance surrounding the incident. Maloney was asked how he l first knew he was the subject of an unplanned exposure to -radioactivity. Maloney responded that at the completion of their shift, when they left their worksite, undressed and approached i the portable monitors, they set them off without even being around them. "All the monitors were going off and the RP's and the HP's...came running down to the area where we exit and they I made'us shower several times, clean out our noses. They took 2 I masks. They had high count ratings on everything." Maloney testified that they continued to set off alarms for approximately a month. When complainants arrived at the plant they showed a slip of paper which permitted them to enter and exit the plant l

14'- going through the monitors because they would set _them without off before they got to them. At the end of the shift, earlier than the other workers so they wouldn't complainants left "We jam up their fellow employees. passing through the monitors. feet of them without setting those couldn't go within a couple of monitors ofi." (Tr. 93) Maloney was asked: Q. And in your couplaint when you say that you've had emotional distress does the fact that'you set off every alarm in the plant for_a month after the incident have anything to do with your emotional distress. that's where the emotional distress is. A.

Yes, You mean it goes to bed with you at night.

I think of your family. You think of everything that it could possibly could be doing inside You-of you no matter what they tell you. don't know. Especially if you're s'etting monitors off.before you even walk in them, that's not something they teach in those. classes. (Tr. 93) .If Centerior's argument is found to prevail in this case, not from his filing of and Maloney's firing is found to result nondiscriminatory motive but from a legitimate, the civil action, injury Maloney alleged'in the civil action may be because the and inconsistent with an considered a predictor of future injury, " employer's legitimate demands for loyalty, cooperation and a then all protected generally productive work environment," injuries to the employee actions that include an allegation of could no longer be protected. Mere allegations of injuries-in a even if the by an employee against his employer, complaint complaint was protected by "whistleblower" statutes such as the as here, OSHA, or Tit 2A VII of the Civil Rights Act, would

ERA, constitute cause for terminating the employee.

is determined that the complainants have met Accordingly, it their-burden of showing that.Centerior's proffered reasons for the firing of Maloney and banning of the other complainants are They have shown by the clear preponderance of the _pretextural. evidence that Centerior's actions terminating Maloney and banning ion for .the.other five complainants were a deliberate retaliat their filing the civil complaint under the Atomic Energy Act. DAMAGES 42 U.S.C. S 5851(b) (2) (B) provides that once discrimination is found: that is prohibited by the Act

...the Secretary shall order the person who l committed such violation to (i) - take af firmative j 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. If an i order is issued under this paragraph, the Secretary, at the request of the complainant shall assess against the person against whom the order is issued i' a sum equal to the aggregate amount of all costs and expenses (including attorneys and expert witness s fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection j with, the bringing of the complaint upon which the order was issued. The Court in Deford v. Secretarv of Labor, 700 F.2d 281 (6th Cir. 1983), interpreted the above-quoted section as permitting an award of reinstatement to a former job; restoration of all back pay, benefits and entitlements; compensatory damages insofar as they are thought to be appropriate; and reasonable-attorney fees and costs. REINSTATEMENT Christopher Scarl is the business manager for the Asbestos Workers Heat and Frost Insulators Union,-Local 3, of Cleveland Ohio. He testified that a refueling outage is scheduled to commence at Davis-Bessie on April 8, 1996, as soon as Perry goes back on line, and the complainants would have been eligible to work that job but for the October 13, 1995 letter barring their employment pending the outcome of their lawsuit. (Tr. 112) If Centerior commenced the work at Davis-Bessie testified to by Scarl, or any work for which the six complainants would have been hired but for the October 13, 1995 letter barring their employment, the six complainants shall be immediately hired for y i those insulator positions as if Centerior had never issued the iban"on their employment with Centerior. l Centerior contends that Sean McCafferty is not qualified to I work at Centerior's nuclear plants because he falsified a self-disclosure questionnaire by failing to disclose a prior drug test. In support'of its contention, Centerior refers to [ November 28, 1994 letters to McCafferty and Gem Industrial stating.that McCafferty is denied access to the Davis-Besse Nuclear Power Station due to falsification of a Toledo Edison Self Disclosure Questionnaire. Initially, the record does not support Centerior's argument as the aforesaid letters refer only to denial of access to Davis-Bessie, not all of Centerior's

! nuclear plants, or Perry. Moreover, McCafferty testified that he was eligible for reinstatement after a year from the issuance of the November 28, 1994 letter, and was told by Centerior that he would be reinstated upon the completion of a professional assessment to determine whether a treatment program is required. McCafferty has not requested the professional assessment because-of Centerior's ban on his employment as a consequencelof his {- lawsuit under the Atomic Energy Act. Accordingly, Sean McCafferty's eligibility to work at Centerior'shall be reinstated as'if the' October 13, 1995 letter barring hi's employment had never been issued. His reinstatement shall comply with NRC requirements. If those requirements mandate'a. professional assessment before his reinstatement, he shall be given the opportunity to pursue the assessment. l BACK PAY l-Dennis Malonev Had Maloney's employment not been terminated on October 16, 1996, he would have been working on the outage at Perry on the day of the hearing, February 26, 1996. He was the fourth man hired out of about thirty or thirty-five. (Tr. 47) Maloney testifi'ed that work on the outage was projected to continue until l l April 6, 1996. (Tr. 260) Richard Cline testified for Centerior. Cline is the site Cline project manager for Fishbach Power Services at' Perry. testified to the work of insulators employed by Fishbach from copies of. records. submitted to the local union for payment of l benefits. Cline testified that six insulators. worked on site until October 30, 1995.when the number was increased to eleven. These eleven. insulators worked until December 18, 1995, when they L were laid off.for two weeks. (Tr. 281) According to Cline, they l-worked a 40 hour week at straight time. (Tr. 279) Maloney testified that his wage rate was $31.48 per' hour. Thus, Maloney lost ten weeks of work at $1,259.20 per week (40 X $31.48 = l S1,259.20) during the period October 16, 1995 through December 22, 1995 for a total of S12,592.00. I Cline testified that the insulators were called back to work His records show that the average insulator I on January 2, 1996.. 9 time and a. half hours, and one worked 29 straight time hours, double time hour per week. It is assumed that Maloney would have worked a full 40 hour straight time week and would have earned the overtime the average insulator earned during that period, i that is, 9 time and a half hours and one double' time hour per i { r j

l t-. week, for a total of 55.5 hours (40 + 13.5 + 2) per week.' There were-six weeks during the period January 2 through February 11, j 1996. Thus, Maloney lost 333 hours.of work-at $31.48 per hour, l or $10,482.84 from January 2 through February 11, 1996. l Cline projected that the insulating work.would continue until April 6, 1996 with a' steady. decreasing number of insulators r from a high of' sixty to eighteen the last two weeks. (Tr. 281) As Maloney was the fourth hired it can reasonably be assumed that he would have been one of.the last eighteen on the job. Cline I L testified that the work would be done on a 60 hour-a week basis '(40' hours of straight time and 20 hours of time and a half, or 70 hours-of compensation). As there are eight weeks during the ' period February 11, 1996 to April 6, 1996, Maloney lost 560 hours l of work (8 weeks X 70 hours) at $31.48 per hour, or $17,628.80 r Accordingly Maloney lost a total of $40,703.64 ($12,592.00 + l $17,628.80) because he did not work at Perry during l $10,482.84 + the period' October 16, 1995 through April'6, 1996, i Centerior argues that Maloney should not recover the full union wage of 31'.48 per hour because he would not be required to l make contributions for union dues, apprenticeship fund or pension. Christopher Scarl, the business manager for Local 3, testified that the union assesses.a dues payment to its members l of 4.9%, and an apprenticeship fund payment of 50.05 per hour. l Scarl-does not believe that the union assesses those payments j against an award of damages; he does not know whether an assessment would be made for the pension. (Tr. 117, 118) l Centerior's argument is rejected. These' fees subtracted from the l complainants' wages derive.from arrangements between the complainants and their union for the upkeep and betterment of the-l union. They are paid with monies earned by the complainants. Centerior has no say in such an agreement. The purpose of a l union policy to not tax damage awards should not enureito the benefit of the employer. j i Maloney testified that he, worked for BP Oil Company Refinery in Toledo, Ohio from October 24, 1995 until January 5, 1996 and i for other employers from January 6, 1996 until the date of the. hearing. His compensation during that period equaled $16,152.64 l and must be subtracted from his lost earnings to determine wages lost. Also, any wages that Maloney earned between the date of the hearing and April 6, 1996 must be subtracted from the compensation lost because of not working at Perry. Maloney. testified that he was available for work at all times from October 16, 1995 until the hearing. He was not on vacation or ill. (Tr, 88)

_.. _ _ _ -. _. _.. _. _ _ _ _ _. _ _. _. _ ~. _. - 4 i Maloney testified that traveling to Toledo,' Ohio to work at BP Oil _resulted in additioaal expenses of travel of 10,500. miles r i i i at S0.30 per mile or S3,150. Maloney is; entitled to reimbursement for his travel expenses. Maloney also requests compensation for theitime that it took him to travel to Toledo, l Ohio,-125 hours, at an hourly rate of $31.48 per hour.

However, It does not i

Maloney offers no rationale for such compensation. j compensate for a loss of earnings or opportunity for earnings. 1 Maloney is receiving credit for working more than an eight hour 1996 j work day at Perry,' including a ten hour day after January 2, I, whereas the earnings at Perry are offset by only eight hour days i at BP Oil Company. Maloney's request for compensation for the i time he took-to travel to BP Oil is. denied. j I As additional back pay damages, Maloney.is entitled to ~ l i reimbursement for wages he would have earned if he would had l returned to_ work atua Centerior plant after April 6, 1996 but for F the ban on his employment. Thus, Maloney's damages from loss of pay are: $40,703.64 -S16,152.64 l j +5 3.150.00 j $27,701.00 i plus any wages he would have earned from Centerior after April 6, 1996 but for the ban, minus any offset for employment after L i-April 6, 1996 (compensation minus expenses). i Five Complainants Barred From Employment i n i Maloney testified that if the other five complainants had not been barred from employment at Centerior, they would all have l He was been working at Centerior on the date of the hearing. ] j this because his union had called in " travelers" from l certain of l sister unions in other areas to work at Perry, and travelers l local members would_not be called in as long as there were available to work. At the time of hearing there were about 20 to l 25 travelers working at Perry. six insulators worked on site until Cline testified that 1995 when the number was increased to eleven. October 30, It'is assumed that the other five complainants would have been There is no way of determining from the brought on at that time. record whether the seniority of the complainants would have 1995 enabled them to be hired on October 30 or on December 19, when an additional 19 insulators were hired. However, because will necessarily involve a degree of " recreating the past approximation and impression all doubts are to be resolved against the proven discriminator rather than the innocent employee." Woolridae v. Marlene Industries Corp., 875 P.2d 540,

~ -. . 546 (6th Cir. 1989). Under the same reasoning, the five complainants are considered to be among the eighteen insulators who worked until April 6, 1996. Accordingly, the five banned complainants are considered to have lost work at Perry from October 30, 1995 until April 6, 1996, minus the two weeks from December 22, 1995 to January 2, 1996 when all the insulators were laid off. Their wages are determined to be the same as Maloney, $40,703.64, minus the two weeks from October 16 to October 30, or $40,703.64 minus $2,518.40 = $38,185.24. Robert Prohaska Robert Prohaska's loss of wages from Perry are offset by income of S19,139.84 up to February 27, 1996 at PCI Michigan. He had expenses for living in Detroit of $3,000.00 ($250 per week for 12 weeks) that must be deducted from the offset. Prohaska's i damages from loss of pay are: $38,185.24 -$19,139.84 +$ 3,000.00 i $22,045.40 plus any wages he would have earned from Centerior after April 6, 1996 but for the ban, minus any offset for employment after April 6, 1996 (compensation minus expenses). Owen McCafferty Owen McCafferty's loss of wages from Perry are offset by income of $20,147,20 up to February 27, 1996. McCafferty's i l damages from loss of pay are: l $38,185.24 -$20,147.20 $18,038.04 i plus any wages he would have earned from Centerior after April 6, 1996 but for the ban, minus any offset for employment after April 6, 1996 (compensation minus expenses). Terry McLauolin Terry McLaughlin's loss of wages from Perry are offset by income of $13,599.36 up to February 27, 1996. McLauglin's damages from loss of pay are: $38,185.24 -$13,599.36 $24,585.88

I l 1 plus any wages he would.havq earned from Centerior after npr21 6, 1996 but for the ban, minus any offset for employment after April 6, 1996 (compensation minus expenses). Sean Kilbane Sean Kilbane's loss of wages from Perry are offset by income of $24,176.64 up to February 27, 1996. Kilbane's damages from loss of pay are: $38,185.24 -S24,176.64 $14,008.60 plus any wages he would have earned from Centerior after April 6, 4 1996 but-for the ban, minus any offset for employment after April 6, 1996 (compensation minus expenses). Sean McCafferty Sean McCafferty's loss of wages from Perry are offset by income of $6,552.00 up to February 27, 1996. McCafferty's j damages from loss of pay are: l i $38,185.24 1 1 -1 6.552.00 $31,633.24 l plus any wages he would have earned from Centerior after April 6, l 1996 but for the ban, minus any offset for employment after i l April 6, 1996 (compensation minus expencas). l INTEREST Interest is assessed on back wages in order to make whole l the employees who have suffered an economic loss as a result of i l l an employer's illegal discrimination. Interest is calculated in f accordance with 29 C.F.R. 5 20.58(a), at the rate specified in the Internal Revenue Code, 26 U.S.C. 5 6621. Blackburn v. Metric i Co n s t ru c t, o r s, Inc., 86-ERA-4, Secretary of Labor, October 30, l 1991. l l ATTORNEY FEES Attorney Fees under the ERA in cases where the Administrative Law Judge issues a recommended decision on the 4 merits finding that the respondent violated an employee protection provision are awarded to the complainant from the respondent as' fees reasonably incurred. In calculating attorney fees under the statute, the Secretary employs the lodestar method, which requires multiplying the number of hours reasonably expended in pursuing the litigation by a reasonable hourly rate. 4

l See l 5' 5851i(b) (2) ( A) and (B); Gaballa v. The Atlantic Group,.94-E RA'- 9,. Secretary of' Labor Interim Order, December 7, 1995; 1 Tinslev v'. 179 South' Street Venture' 89-CAA-3, Secretary of Labor ' Order of Remand, August, 1989. RECOMMENDED ORDER I IT..IS HEREBY RECOMMENDED THAT Respondent, Centerior Energy, I be ordered toi , l '. Remove denial of access flag from all records of the complainants. -2. Reinstate complainants,.Owen McCafferty, Dennis.Maloney, I Sean Kilbane, Terry ^McLaughlin,.Sean McCafferty and Robert' Prohaska, in accord with the' directives under Reassianment, at pages 15 and 16, herein. 3. Pay to the complainants, Owen McCafferty, Dennis Maloney, Sean Kilbane, Terry McLaughlin, Sean McCafferty and Robert Prohaska, back pay in accord with the directives under Back Pav, at pages 16 through 20, herein. 4. Pay to the complainants, Owen McCafferty, Dennis Maloney, Sean Kilbane, Terry McLaughlin, Sean McCafferty and_ j Robert.Prohaska, interest on back pay from the date the payments were due as wages until.the actual date of payment. The rate of interest is payable at the rate established by section 6621 of' j the Internal Revenue Code, 26 U.S.C. 5~6621; and i '5. Pay to complainants, Owen McCafferty, Dennis Maloney, Sean Kilbane, Terry McLaughlin, Sean McCafferty and Robert Prohaska, all costs and expenses, including attorney fees, reasonably incurred.by them in connection with this proceeding. Thirty days is hereby. allowed to complainants' counsel for submission of an application of attorney fees. A service sheet showing that service has been made upon the respondent and complainants must accompany the application. Respondent has ten j days following receipt of such application within which to file any objections. wu M1 lbuA w.~ - THOMAS M. BURKE. i Administrative Law Judge ~ TMB:mr J

T - NOTICE: This Recommeaded Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U. S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington, DC 20210. The Administrative Review Board was delegated jurisdiction by Secretary Order dated April 17, 1996 to issue final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 61 Fed. Reg. 19978 (1996). I l i

2.3 1 SERVICE SHEET Case Name: OWEN McCAFFERTY, DEtJNIS MALONEY, SEAN KILBANE, TERRY McLAUGHLIN, SEAN McCAFFERTY AND RICHARD PROHASKA Case No.: 96-ERA-6 Title of Document: RECOMMENDED DECISION AND ORDER I hereby certify that on June 11, 1996 a copy of the above-j captioned document was mailed to the following parties: i

1. .7-4 ; 1.,

, b t m MADELINE RINGLING f Legal Technician CjpiTJFIED MAIL REGULAR MAIL 1 1 l Steven D. Bell, Esq. Administrator j Lynn Rogozinski, Esq. Employment Standards Ulmer & Berne Administration Bond Court Building Wage and Hour Division 1300 East Ninth Street U.S. Department of Labor Suite 900 Room S-3502, FPB j Cleveland, OH 44114-1583 200 Constitution Avenue, NW Washington, DC 20210 Mary E. O'Reilly, Esq. Barry J. Haber Legal Services Department District Director Centerior Energy Corporation Wage and Hour Division 6200 Oak Tree Boulevard U.S. Department of Labor l Room 448 817 Federal Office Bldg. Independence, OH 44131 1240 East Ninth Street t Cleveland, OH 44199-2054 David R. Lewis, Esq. Deputy Associate Solicitor Shaw, Pittman, Potts & Division of Fair Labor Trowbridge Standards 2300 N Street, NW Office of the Solicitor Washington, DC 20037 U.S. Department of Labor Room N-2716 200 Constitution Avenue, NW Washington, DC 20210 l l i l l

f REG _UJJ AR MAIL -REGULAR MAIL i 11RC Enforcement Coordinator Director, Office of 801 Warrenville Road Enforcement Lisle, IL &O532-4351 U.S. Nuclear Regulatory Commission Washington, DC 20555 D. C. Shelton Deputy Assistant General Centerior. Energy Counsel for Enforcement d/b/a Perry Nuclear Power Office of General Counsel Plant U.S. Nuclear Regulatory SR VPNuclear Commission 10 Center Road-Washington, DC 20555 Perry, OH 44081 t ,}}