ML20133L232

Responds to 850812 Notice of Violation & Proposed Imposition of Civil Penalty (EA-84-137),per 10CFR2.201.Allegations Re Discrimination & Harassment of Rd Parks Denied.Civil Penalty Protested

ML20133L232
Person / Time
Site:	Three Mile Island
Issue date:	10/21/1985
From:	Phyllis Clark GENERAL PUBLIC UTILITIES CORP.
To:	Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE)
References
4410-85-L-0209, 4410-85-L-209, EA-84-137, NUDOCS 8510240061
Download: ML20133L232 (8)

Text

ye .c.,' pg GPU Nuclear Corporation NNOIMI 100 Interpace Parkway Parsippany, New Jersey 07054 1149 (201)263-6500 TELEX 136-482 Wnter's Direct Dial Number:

October 21, 1985 4410-85-L-0209

)*r. James M. Taylor, Director Office of Inspection and Enforcement U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of GPU Nuclear Corporation Three title Island Nuclear Station, Unit No. 2 Docket No. 50-320, EA No.84-137 Response to Notice of Violation and Proposed Imposition of Civil Penalty

Dear Mr. Taylor:

By letter dated August 12, 1985, the NRC Staff issued a Notice of Violation and Proposed Imposition of Civil Penalty (EA 84-137) against GPU Nuclear. The notice alleged acts of discrimination agair.st Richard D. Parks, a Bechtel employee, for raising safety concerns associated with the TMI-2 polar crane refurbishment, and directed GPU Nuclear to respond under oath or affirnation. On September 9,1985, GPU Nuclear requested that it be provided with an unredacted version of the Department of Labor compliance of ficer's report which formed the basis for the Notice of Violation (and with any other material on which the staff was relying), and also requested an extension of time in which to respond. By letter dated September 20, 1985, the NRC Staff granted GPU Nuclear thirty days to respond, but declined to provide GPU Nuclear with a complete (unredacted) version of the compliance of ficer's re po r t. In accordance with the NRC's instructions, GPU Nuclear herewith responds.

GPU Nuclear's Response to the Notice of Violation in Accordance with 10 C.F.R. 9 2.201 GPU Nuclear denies the allegations in the Notice of Violation. GPU Nuclear views such allegations with the utmost seriousness. Harassment and intimidation have never been and are not now tolerated by GPU Nuclear. Such conduct is inconsistent with the Corporate Mission and Corporate Objectives and Goals. GPU Nuclear has longstanding formal mechanisms, such as its Ombudsman program specifically designed to ensure that any employee of GPU Nuclear or of its subcontractors feels free to raise any safety concern k

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GPU Nuclear Corporation is a subsidiary of General Pubhc Utihties Corporation

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! Mr. James M. Taylor

October 21, 1985

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without fear of reprisal. This objective has been emphasized and reemphasized by GPU Nuclear management, both before and after Mr. Parks' allegations. See Letter f rom P. R. Clark, President, GPUNC, to Darrell G. Eisenhut, (June 29,

1984) (Exhibit A hereto). t j Hr. Parks' allegations were thoroughly investigated by Bechtel and GPU Nuclear. GPU Nuclear retained Edwin H. Stier, an attorney and former prosecutor, initially to conduct an independent investigation of related allegations and later to evaluate Bechtel's investigative report and to identify evidence relevant to Parks' harassment allegations not cited by the l Staf f in Supplement 5 of NUREG-0680. The results of the Stier and Bechtel

] ef forts have been provided to the NRC. See, for example, TMI-2 Report, d

Management and Safety Allegations (Nov. 16, 1983) (Stier Report); Report of

dechtel North American Power Corporation Regarding the Allegations of Richard D. Parks (Oct. 1984); Memorandum dated Nov.1,1984, from E. Stier to P.

Clark; Letter dated January 3,1985, from P. Clark to H. Denton (transmitting Dac. 26,1984 letter and Nov. 9,1984 af fidavit of K. Richardson, Bechtel's counsel); Letter dated March 8,1985, from P. Clark to H. Denton (transmitting a report dated Feb. 27, 1985, by Edwin Stier on TMI-2 polar crane procedural violations); Letter dated March 6,1985, f rom K. Richardson to P. Clark 4

(transmitting supplemental information); Memorandum dated March 29, 1985, from l E. Stier to P. Clark.

i' Based on the results of these investigative ef forts, GPU Nuclear believes that the allegations in the Notice of Violation are untrue.

I The Notice of Violation appears to be based on the Staff's review of an l 01 investigation, which in turn was based upon a Department of Labor (DOL)

{ compliance of ficer's 30-day investigation. Though the results of that  :

j investigation have not been fully disclosed, we question the completeness of the DOL compliance of ficer's preliminary review and the Staf f's reliance thereon.

First, the compliance cificer's findings were preliminary and hurried.

Because Parks' complaint was subsequently settled -- resulting in the j dismissal of the complaint "with prejudice" in exchange for Parks' transfer to a Bechtel project in California -- those preliminary and cursory findings were neither adjudicated nor reviewed. Consequently, those findings are not net-*garily reliable.

j Secogi, the DOL compliance of ficer's report predates a substantial body

{ of new and additional relevant evidence, including the Stier report of

! November,1983, and the af fidavits provided by Bechtel representatives in j October, 1984. GPU Nuclear believes that this evidence demonstrates that the DOL compliance of ficer's preliminary findings are simply incorrect, and that l

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! Mr. James M. Taylor

October 21, 1985 >

l Page 3 both the 01 report and the current enforcement action lack an adequate factual l and legal basis. We believe that the total evidence indicates the following

with respect to the four alleged retaliatory acts:

4 (1) The Purported retaliatory Removal of Parks' Duties as Alternate Start-up and Test Supervisor.

This purported act of retaliation was in fact a proper organizational change designed to restore the membership of the TM1-2 Test Working Group (T.W.G.) to the composition called for in the governing procedure (AP 1047).

The T.W.G. was established in January 1981 as an interdisciplinary committee comprised of representatives of the Start-Up and Test ("SU&T"), Plant j Operations ("P0"), Plant Engineering ("PE"), Site Engineering ("SE", at one

time called Recovery Engineering) and Quality Assurance ("QA") departments at

! TMI-2. P0 and PE were and are part of Site Operations; SU&T was initially part of Site Operations, but was made a part of Site Engineering in 1981, l

t In late 1982, Mr. KLtler, the SU6T supervisor, needed an alternate SU&T

supervisor to act in his absence, but there was no one assigned to SE (other

than Kitler) qualified to be the alternate. Parks, who was assigned to SLte Operations, was qualified and was therefore appointed on December 6,1982 as alternate SU&T supervisor. As SU&T supervisor, one of Kitler's duties was to

chair the T.W.G. , and as Kitler's alternate, Parks would have chaired the

T.W.G. in Kitler's absence. (in fact, there were no T.W.G. meetings held

, during Parks' tenure as alternate SU&T supervisor.) This arrangement, however, unfortunately would have skewed balanced departmental representation

. In T.W.G., by increasing Site Operations' representation and decreasing Site j Engineering's representation when Kitler was away. An opportunity to restore i the system of checks and balances and to assure that SE was properly represented presented itself a short time later, when Mr. Walker, a qualified ,

t test engineer, was assigned to SE; and in February,1983, af ter consultation 4

with the SE department head, Kitler replaced Parks with Walker as alternate l SU&T supervisor. Kitler expected at the time that Parks would remain on the 1 T.W.G. as a Site Operations representative appointed by Mr. King, Director of

{ Site Operations. In fact, Parks was immediately appointed as a member of T.W.G. by King, providing Parks with virtually continual opportunity to present his concerns to the T.W.G.

, At the time Parks was replaced as alternate SU&T supervisor, he made no complaints of retaliation and did not express dissatisfaction with this logical and appropriate organizational change. The concerns that Parks had previously voiced to his colleagues regarding polar crane refurbishment had

been aired and were being addressed. This sequence of events simply does not I constitute retaliatory or discriminatory conduct.

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Mr. James M. Taylor

October 21, 1985 Page 4 (2) The Purported " Improper and Intimidating Interrogation" of Parks R_egarding e His Involvement with Quiltec.

This purported act of discrimination was in fact a resonable and appropriate investigative measure undertaken to ensure compliance with Bechtel conflict of interest policies. In approximately late February,1983, GPU

Nuclear's upper management became aware of the activities of Mr. King, Parks'

{ supervisor, on behalf of Quiltec, Inc. King was terminated on March 23, 1983 due to the obvious and serious conflict of interest between Quiltec and GPU Nuclear, and the NRC Staf f has found that King's termination was justified and i non-discriminatory. Prior to King's termination, it had come to light that, at Parks' request, a secretary at the El plant of fices had performed some typing for Quiltec. GPU Nuclear's loss of valuable engineering personnel to

, Quiltec was of great concern to GPU Nuclear, and it was likewise of utmost I importance to Bechtel that none of its personnel engage in improper activities l conflicting with the interest of its client GPU Nuclear. Because of Bechtel's

concern as to possible violations of its conflict of interest policies based

on the clear evidence of Parks' involvement with Quiltec, and in support of j GPU Nuclear's ongoing investigation of King's activities, Parks was asked to 3

attend a meeting with Mr. Wheeler, his administrative supervisor, and Mr. Ice Hofmann, from the Bechtel Internal Auditing Group in San Francisco. One of

,I the functions of the Bechtel San Francisco Internal Auditing Group is to investigate such potential conflicts of interest. All persons other than Parks who attended the March 14, 1983 interview, including Mr. Kobi, the impartial witness selected by Parks, have confirmed under oath that Mr.

j Hofmann conducted the interview in a professional and non-intimidating j manner. The March 15 meeting requested by Parks with Wheeler. Hofmann and Mr.

i Sandford, a Bechtel vice president, was likewise conducted in 'a professional I

and non-intimidating manner, and Mr. Sandford explained that Pa'rks' conduct violated Bechtel conflict of interest policies. During the investigation,

Parks claimed to be unfamiliar with Bechtel conflict of interest Iblicies, l explained that his involvement with Quiltec was limited to the one request for

clerical assistance, and maintained that he had received no pecuniary gain from Quiltec. Within one week of his interview, Parks was promptly iuformed i by Bechtel that no disciplinary action would be taken against him.

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Thus, the evidence shows that the investigation of Parks' possible involvement with Quiltec was appropriate, reasonable and conducted in a i professional, non-intimidating and non-discriminatory manner.

(3) The Purported Retaliatory " Removal" of Parks as Site Operations

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Representative of T.W.G.

This purported retaliatory act was in fact initiated and voluntarily undertaken by Parks himself. On March 17, 1983, Parks approached Mr.

j Chwastyk, GPU Nuclear's Manager of Plant Operations at WI-2 and at the time Acting Site Operations Director, to discuss his concerns regarding the Nautor 4

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Mr. James M. Taylor October 21, 1985 Page 5

, building polar crane. During this discussion, Parks stated that he had become too close to the polar crane project to distinguish between real and perceived problems. Chwastyk suggested that one possible solution would be to remove Parks from the T.W.G. for the polar crane project only. Parks readily volunteered to be removed from that role in the polar crane project and, in fact, participated in preparation of the memorandum announcing his removal from the T.W.G. for that project. Chwastyk informed Mr. Kanga, Director of TMI-2, of his plan for issuing a memorandum replacing Parks as a Site

! Operations member on the T.W.G. for polar crane testing. Mr. Kanga, who knew from a prior discussion that Parks claimed to have felt intimidated, personally met with Parks to make sure that Parks agreed with the removal and

would not view it as an act of harassment. Parks indicated to Kanga that he understood the memorandum, had no concerns about it and did not consider it as a reflection on his performance or as an act of intimidation. Parks' removal from the T.W.G. for the polar crane project was voluntary, was based on his own assurances that he agreed and did not view it as harassment, and can in no way be viewed as an act of retaliation.

(4) The Purported Retaliatory Suspension with Pay.

On March 23, 1983, Parks held a nationally publiciaed press conference at which he released a 56-page affidavit prepared with the assistance of the Government Accountability Project. In the news conference and af fidavit, Parks went far beyond his alleged safety concerns and made sweeping and i

malicious personal attacks on his co-workers, supervisors and managers.

Parks' ad hominem public statements unrelated to any safety concern are perhaps best exemplified by Parks' unsupported and irresponsible accusation that George Kunder, Chairman of the Plant Operations Review Committee and Safety Review Committee, was the supposed " mystery man" who ordered the safety injection pumps shut of f during the March 1979 accident. As demonstrated by the Bechtel Report (at pp. 35-38) and the Stier Report (Volume II), this accusatina was frivolous (there was no mystery man) and bordered on maliciousness.

By making such inflammatory personal attacks at a carefully staged and widely publicized press conference, Parks destroyed his credibility with his colleagues and created a poisonous atmosphere. His continued presence threatened to stifle communication and cooperation, and was therefore deleterious to the TMI-2 organization's ability to protect the public health and safety. Bechtel's suspension of Parks with pay pending investigation of his charges was not a retaliatory act in response to safety complaints, but rather was a reasonable personnel action which was necessary (1) to assure the continued and necessary effective functioning of the TMI technical and management team, (2) to facilitate the investigation of Parks' safety-related allegations by establishing a dispassionate and unemotional atmosphere in which to conduct the investigation, and (3) to prevent even the appearance of harassment or retaliation against Parks.

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Mr. James M. Taylor October 21, 1985 Page 6 Based on the facts described above, GPU Nuclear believes that none of the four alleged retaliatory acts constitute reprisal, harassment, or intimidation. Each of the acts was properly motivated to ensure the proper functioning of the TMI-2 organization. The Notice of Violation appears predicated on the assumption that once a safety concern has been voiced (and regardless of how that concern is greeted), any subsequent organizational change affecting the individual who raised the concern demonstrates retaliatory animus. GPU Nuclear, however, cannot subscribe to this view. GPU Nuclear has an obligation to ensure that its divisions function ef fectively; indeed, such proper functioning is required to protect the public health and safety. Necessary actions, including personnel actions, must be carried out.

GPU Nuclear submits that the compliance officer's report, and hence the Notice of Violation, failed to properly recognize these legitimate motives, and, thus, are in error, in addition to admission or denial of the allegations, the Notice of Violation required GPU Nuclear to address the reasons for the violations if admitted, the corrective steps which have been taken and the results achieved, the corrective steps which will be taken to avoid further violations, and the date when full compliance will be achieved. Because GPU Nuclear denies the allegations in the Notice of Violation, these itees are inapposite. Since there is no acknowledged violation, GPU Nuclear does not characterize any of its actions as " corrective steps." As described below, however, GPU Nuclear has from its inception taken a number of actions to ensure that all safety concerns may be freely raised.

As discussed in Exhibit A, GPU Nuclear has established a variety of formal groups within the Corporation whose purpose is to seek out, identify, and obtain resolution of safety issues. ~;hese include the General Of fice Review Board, whose primary responsibil t .y is to investigate potentially significant nuclear and radiation safety matters -- including management aspects of those matters -- and to report the results of their investigation to the Of fice of the President; the Safety Review Group (SRG), a full time onsite group of engineers on the THI-2 staff, which has authority to report any unresolved safety issues directly to the Office of the President; and the Nuclear Safety Assessment Department, which is located at GPU Nuclear Headquarters and which reports to the Vice ' President Nuclear Assurance. These

groups are available to all employees as an avenue to identify safety concerns, and the existence of these groups have been made known throughout the organization. All of these groups were in place prior to the end of 1982.

GPU Nuclear also operates an Ombudsman Program, which provides a method for employees to raise safety concerns in confidence. The Ombudsman Program is explained in General Employee Training and is publicized by posters and by articles in newsletters. In addition, GPU Nuclear's corporate policy and the legal prohibition against reprisal are emphasized during training. Contractor

1 Mr. James M. Taylor October 21, 1985 j Page 7 employees who work on-site are also notified of the corporate policy and legal requirements and are informed of the Ombudsman Program as part of the same General Employee Training given to GPU Nuclear's employees. In addition, GPU Nuclear has reemphasized its policy in a number of memoranda, including:

i Memo from R. C. Arnold to employees dated October 9, 1981 l l

Memo from R. C. Arnold to THI-2 personnel dated April 13, 1983 Memo from P. R. Clark to employees assigned to nuclear activities dated February 27, 1985 Memo from P. R. Clark to Directors dated May 21, 1985

- Memo from P. R. Clark to Directors of GPJN Divisions dated July 6, 1984 Memo from B. K. Kanga, Director THI-2, to' THI-2 Division Managers and supervisors dated July 12, 1984 '

GPU Nuclear's overall performance over the last several years has demonstrated the effective implementation of these policies and its strong commitment to open communication and safety. In the NRC's November 15, 1982 SALP Report for TMI-2, GPU Nuclear achieved a Category I rating in five of the ten functional areas, including QA as well as surveillance (which covered preoperationsl testing). Similarly, in the NRC's May 15, 1984 Performance

, Appraisal Inspection Report at IMI-2 conducted as a direct result of these l safety allegations, GPU Nuclear achieved a Category I rating in quality assurance and fully satisfactory ratings in the other functional areas I

evaluated. In addition, the NRC inspection team stated that it "...was favorably _impressed with the licensee's support and commitment to upgrade programs.

CPU Nuclear's Response to the Proposed Civil Penalty in Accordsnce with 10 C.F.R. @ 2.205.

s GPU Nuclear protests the proposed civil penalty. As discussed above (which discussion is incorporated herein by reference) GPU Nuclear denies the allegations on which the proposed civil penalty is based.,

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s Mr. James M. Taylor October 21, 1985 Page 8 Conclusion Harassment and intimidation are anathema to GPU Nuclear. Because of their seriousness, the allegations in the Notice of Violation have been extensively investigated. The vast bulk of the evidence from these investigations indicates that the allegations are not true. Based on the investigations, GPU Nuclear believes that Mr. Parks was not retaliated against for having raised safety concerns. The investigations confirm that management actions with regard to Mr. Parks were responsible, appropriate, and do not constitute retaliation. Accordingly, GPU Nuclear denies the allegations in the Notice of Viollation and protests the proposed civil penalty.

We have addressed above the specific activities which are the subject of the Notice of Violation. In a broader context, it is our opinion that the NRC reliance on preliminary D0L findings threatens to deter future settlements in Section 210 proceedings. If a preliminary report contains adverse findings, licensees and their contractors may well not dare settle -- even as in this case on the basis of a dismissal with prejudice -- lest the unrebutted preliminary findings be used by the NRC against them. GPU Nuclear therefore believes that such Staff reliance on preliminary findings of a DOL compliance officer tends to promote protracted litigation and to hinder speedy remedy of employee's complaints, and thus seems contrary to sound public policy.

I affirm that the matters stated herein are true and correct to the best of my knowledge.

Respectfully submitted, P. R. Clark

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Subscribed and sworn to before me this ef/of day of October,1985.

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Enclosure N M' 8N N CO5WISSION DFIRES BARCH 20,1W9 membw. Pese:Wrah Au cieties et seiwies cc: Regional Administrator, Region 1 - T. Murley