ML20140F180
| ML20140F180 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/10/1984 |
| From: | Mulley G NRC OFFICE OF INSPECTOR & AUDITOR (OIA) |
| To: | NRC OFFICE OF INSPECTOR & AUDITOR (OIA) |
| Shared Package | |
| ML20140B822 | List: |
| References | |
| FOIA-85-584 NUDOCS 8603310118 | |
| Download: ML20140F180 (30) | |
Text
{{#Wiki_filter:(~ d.S. NUCLEAR RECULATORY COMMISSit. Office Of inspector and Auditor
- o. .. i, ,ui.u. Ja nua ry 10, 1984-Report of Interview
.Ms. Billie Pirner Garde, Director, Citizens Clinic, Government Accountability Project (GAP), Institute for Policy Studies, was interviewed concerning allegations about Catawaba Nuclear Power Station (CNPS), Units 1 and 2, made i by GAP in their September 14, 1983, letter to the Commission. During the interview, Garde provided the following information:
Garde possessed a copy of testimony taken during recent hearings before the Atomic Safety an'd_ Licensing Board Panel (ASLBP) in the matter of Duke Power Company (DPC) and CNPS, Units 1 and 2 and had reviewed the testimony of NRC Region II Resident Inspectors and DPC welding inspectors at CNPS. During the hearings, matters presented in the GAP letters to the Commission on April 21 and September 14, 1983, were discussed and testimony of both NRC and DPC employees regarding these issues was recorded. Among these testifying about welding inspector concerns at CNPS were the welding inspectors who presented their concerns to NRC Resident Inspectors G. F. Maxwell and P. K. Van Doorn. Garde stated that testimony taken on December 2, 5, and 6,1983, .' pertained to the allegations of NRC misconduct which were included in GAP letters to the Commission. Garde suggested that to simplify the OIA investigation, the ASLBP testimony considered pertinent to the allegations be incorporated as part of the OIA Report of Investigation. OIA interviews of the various individuals would elaborate on the testimony already given before the ASLBP. Garde then summarized GAP concerns about CNPS which she stated were documented in a September 18, 1983, letter to the Commission. Essentially, in the letter GAP alleged that NRC Region II, in the persons of Maxwell, Van Doorn, the Regional Administrator James O'Reilly, and others, were aware of allegations (1) of violations of 10 CFR; (2) undemining of the quality assurance program at CNPS by Duke Power Company; and (3) harassment and intimidation of CNPS quality control inspectors by Duke Power Company management. However, NRC did not take appropriate corrective action on these complaints; instead, NRC informed DPC management of the allegations and allowed DPC to address the problems in their own way. GAP alleged that by doing.this, Region II did not fulfill its regulatory responsibilities in that many of the complaints received by Region II about CNPS required an NRC investigation or inspection to ensure appropriate corrective action was taken. Garde explained that the GAP letter also alleged that Region II resident inspectors violated the confidentiality of DPC welding inspectors who brought problems to the attention of NRC. The breach of confidentiality occuired because the NRC resident inspectors allegedly identified the welding inspectors to DPC management. Although not a matter for 0IA investigation, Garde also questioned the enforcement policy of Region II Administrator, O'Reilly. Garde stated that Region II enforcement actions were consistently at a lower level than those of other NRC Regions for similar violations. Garde alleged the reason for this January 5,1984 in ,o uon on 10 a .m.-12 :15 o.m. .i Bethesda. MD F u. a 83-52 George A. Mulley, Jr. JhfM o,,, ,,,,,, January 10, 1984 THIS DOCUMENT IS PROPERTY OF NRC. IF LOANED TO ANOTHE R AGENCY f f AND ITS CONTENTS ARE NOT TO BE DISTRIBUTED OUTSIDE THE RECElvlNG AGENCY WITHOUT PE RMISSION OF THE OFFICE OF INSPECTOR AND AUDITOR. 8603310118 860124 0 (10-821 PDR [
i 2 was to enable Region II to resolve all problems at region level without interference from NRC Headquarters. Garde questioned the rationale provided by Region Il for this enforcement policy, i.e. since the deficiencies were identified by licensee employees (welding inspectors) then elevated enforcement action was not required by regulations. Garde contended that the welding inspectors forced the issue by going to the NRC to report their concerns thereby forcing DPC to acknowledge the problems. Garde did not think DPC deserved the credit for exposing these deficiencies. At the conclusion of the interview, Carde stated she realized the CIA investi-gation already had been ongoing for some time; however, GAP was not pressing for a quick resolution to their concerns regarding CNPS. GAP considered it more important that the problems at CNPS receive a thorough investigation by OIA. I e
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I Duke Power Company's Response to CAP's September 27, 1984 Enforcement Action pequest
- t. introduction On September 27, 1984, the Government Accountability Project
...~, .
(* GAP *) submitted a letter to the NRC's office of Inspection and Enforcement .* questing the issuance of a 5250.000 civil penalty I against Duke Power Company (* Duke *) for alleged
- deliberate and j persistent harassment of quality control (QC) inspectors" at i
i Duke's Catawba wuclear station (Petition at 1). As will be demonstrated below, Duke submits that the requested penalty Le unverranted.
!p The basic thesis of CAP's petition is that haras sment (such as alleged at Catawbe) affects the willingness of workers to come forward to the NRC with safety concerns and thus the requested relief is necessary to send a message not only to Duke, but to
, . - i the industry at large (e.g., Petition at 2). The lengthy record already compiled before the Catawba Licensing Board, and the Board'sconclusionsbaseduponthat evidence, contradict this
) thesis, however. In the case of the welding inspectors, the Licensing soard found that they did not hesitate to espress all
_ _ . ~ . of their concerns to Duke and to the NRC. See 19 NRC at 1452-53, 1531-32, 1508-11. In the case of the craftsmen interviewed during the
- foreman overide* inspection, a review of the 300 some affidavits in evidence demonstrates that these workers stated all of their concerns as well. M App. Es. 111! 20 NPC at 1492-93, 1506-07 Indeed, the Board's questioning of those craf tsmen when n r. P 9i! a g So q 9, SDIb L.
m 6 L i,.,;d. /,, , t h; j .a l v ,4 . ggr,5g o C5 9 f. Va a kJ V Aow " 4ML h Q2T.O
, [ the inttrv'nors feceitted by CAP) ca.11ed to tcatif y demonctettss LLat these workers did not raise concerns earlier with either Duke, the NRC, or the Licensing Board staply because they did not view the matters to which th*T testified as anything significant that would aske the plant unsaf e.5 3, e.g. , Tr. 14146-47, 14189-91 (10/12/84); sy also 19 NRC 1$41-43 (access of Mr.
Hoopingerner, a craf t employee, to NRC). Thus there is no basis for the thesis underlying CAP's proposed civil penalty request. i.e., that a ' climate of fear
- has prevented Catawba workers from bringing forward concerns. 53 also 20 NaC at 1506-07 Duke notes that all of the information upon which CAP's present enforcement request is based has previously been evaluated by the FMC -- either the Office of Investigations
(*0t*), the office of Inspection and Enforcement (*t&E*), and/or the Atoalc Safety and Licensing Board (* Licensing Soard*) la the
. .p *' 3' "- * ~ "'
Catawba licensing proceeding.1 This fact is not immediately
, obvious from GAP's petition, which refers to numerous incidents and allegations from the evidentiary record of the Catawba licensing proceeding without any citation. When tnese citations
~1/ See July 11, 1984 Of Report, entitled " Duke Power Company U tawb4 Nuclear Station, Harassment and Intimidation.* Case No. 2-83-038: July 6, 1984 !&E Director's Decision. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 00-34-16, 20 mRC 161 (1984)(issued in response to a september 1983 GAP petition on these same issues): June 22, 1984 Licensing Board Partial Initial Decision (*P!D*). Duke Power Co. (Catawba Nuclear Station. Units 1 & 2), LBP-64-24, 19 NRC 1418 (1964):
November 27, 1984 Licensing Board P!D, Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), lap-44-52, 20 NRC 1484 (1984).
~
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Cro tupplied and tha recard is esamined, it is immediately obvious that CAP has misrepresented many of the moard's findings and taken them significant1r out of content. Additionally. four seperate Duke task forces and at least eleven NRC IEE inspection reports investigated and evaluated Quality Assurance at catawba. The results of these investigations were all evaluated by the Licensing maard.E To assist !&E in addressing the assertions contalned in CAP's
, petition, Part It of this response provides, wherever possible.
record citations for the specific allegations sede in the petition. A review of this record evidence provides a more accurate characterisation of each incident,, places each incident in its proper perspective, and is helpful in evaluating the significance of each incident. In Part til of this response, e .g. ..e
- ' * *"*
- Duke presents a legal analysks explalntng why the civ41 penalty requested by CAP would be improper.
~2/ See App. Ea. 10. McNeekin, Att. 4 (Duke's Task Force t Report)3 App. Es.11, Cobb. Att. 4 & 5 (Duke's Technical Tash force Report)g App. Ea. 12, Alexander, Att. 3 (Duke's kontechnical Task Force Report); App. Ex. 116 (Duke's
" Foreman override
- Investigation Reportis Staff Esh. 3 (Insp.
Report 40-12); Staff Ea. 4 (Insp. Report 79-21) Staff Es. 5 (Insp. Repo*t 82-21, 82-19); Staff Es, 10A (Insp. Report 79-18): Staff Ex. 108 (Insp. Report 81-04): 5t'aff Ex. 22 (Insp. Report. 83-53,.83-40): Staff Es. 26 (Insp. Report 44-03): Staff En. 30 (Insp. Report 84-07, 84-06)# Staff Ex. 3' (Insp.
-Report 84-31, 44-17): Staff Es. 32 (Insp. Report 84-73. 84-321 Staff Ex. 3 3 (Insp. Report 8 4-88. 4 4-19 8.
9
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, It. . Fact"*1 Mat t"rn P
CAP's attempt to demonstrate that Duke Power Company undertook a deliberate and widespread " pattern of harassment, intimidation and discrimination * (Petition at 5) against certain of ' its employees seriously misrepresents the evidence heard in the Catawba licensing proceeding. As GAP correctly notes k i (Petition at 1) the Licensing Board did find that some QC welding inspectors *were subjected to harassment by craft workers and I
~
i craf t forenen for doing their job.* June 22, 1984 PID, 19 NRC 1418, 1531. The soard went on, however, to place this problem in ; its proper perspective, stating that: *the dimensions of the harassment probles . . . should be viewed in the content of the duration and magnitude of the Catawba project -- some nine years of construction involving thousands of esployees. In that perspective, the number of significant harassment inqidents is e A v.c.*-pJ +"- ~ * - relatively small.* M. Given all of the circumstances, the soard
, concluded, correctly, that
- harassment wesenot a widespread phenomenon at Catawba.* M. at 1532 see also Id. at 1439-40.
1 The ".icensing soard concluded that in the few incidents where Lt found harassment had occurred, f aulty conditions did not go I uncorrected, and seasures had been taken by Duke to ,laprove working relations and reduce harassment. 19 NRC at 1530-31; sa also Apps. Eth. 12,'Att. 3, at 6-7, corrected at Tr. 3049, Alesander (10/13/83); Apps. Esh. 2, Grier, p. 54: Apps. tah. 14, Davison, p. 35; Tr. 3139,1541, 3597, Alexander (10/14 & 18/83); em 9 9
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} . Appa. Eth. 24 CLck. pp. 7-9, 12-13: Tr. 5341, 5616-17. Dick
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.[ (11/01 6 02/833 The Board further concluded that these seasures were generally appropriates *( Lin most cases, the Applicants acted in a reasoned manner to discourage repetition.* 19 NRC at 1532. While the Soard did find that it would not have been unreasonable for Duke to have taken more
- severe
- corrective action, and that the company might have publicited their corrective actions more widely on the site, the Soard concluded that clarification of Duke's harassment policy. constituted an adequate remedy. M.
With respect to CAP's assertion that there must now be a
- severe
- penalty issued against Duke to ensure that harassment does not recur (Petition at 3), Duke subalts that the corrective measures imposed by the Board in the Catawba proceeding are both i adequate and appropriate to assure such a result.3 .while CAP is
.g:w - p. .e: - -
~~ - ~
. free to disagree with the Board's (Lndings 01 the harassment and Intialdation issue, this does not impugn the validLty of the 3/ The correctlee action required by the Licensing Board's P!D was that Duke revise its written harassment policy (19 NRC at
+ 1532). The only other corrective action required by the Soard (19 NRC at 1545) was that Duke upgrade its weldlng filler material control procedure (19 NRC at 1474), contLrs to the Staff investigation of socket weld gaps (19 NRC at 1496), and modify les M-4 inspection procedures if necessary (19 NRC at 1527). This correctLve action is now complete and has been reviewed and approved by the NRC Staff. See inspection Report 84-82, 84-36 and Inspection Report 44-102, 64-47. Duke's response to the harassment concerns included
- m. ,
leplesentation of a harassment recourse procedure, and gg.-a ,.e.,., %.,,c , - cow 3fi4* m "a# - improving lines of communication, which produced posit tve results. 53 19 NRC at 1530-31. em 9 l s
,. M% ** #
l
- ..- - -U-soard's finding, which eco based upon apprsalaatcly fif ty Ccy3 sf hearing 2 2n the irt;rvinorc' quality aruranco ctntention.
I During these hearings fif teen QA welding inspectors ' testified and
=
s were cross;emanined at length by counset for intervenors additional inspectors submit ted pre-filed testimony.
- On pp. 3-4 of its petition, GAP lists seven alleged
- actions taken by (Dukel management to negatively influence the reporting of Nonconforminq f ten steparts twCtl by QC laspectors.* The t.icensing soard's discussion of these incidents' is summertred below. f t should be noted that GAP has failed to provide any evidence that these incidents isome of which did not involve management at a111 reflect management attempts to limit the writing of NCts.
(The numbers refer to those in GAP's petition.) ~ (1) The soard's findings on several incidents wherein inspectors interpreted instructions to mean
- ease of f
- on inspections are set forth in the June 22, 1944 P!D, 19 NBC at 1511-13. The soard concluded that these allegations were symptomatic of
- problems with procedures and communication
- because the inspectors felt they had to follow a procedure to the letter, while management felt that the inspectors should be accepting reasonable tolerances and using procedures other than
-4/ Since GAP provides no citations to the record for any of these allegations and couches its assertions in broad terms.
it is dt!!! cult to pinpoint with absolute certainty the enact incidents to which GAP la referring. Duke has matched each of the alleged *acticis* with what appears to be the proper referent in the soard's June 22, 1944 FID. II. Marass**t and lattaf dstion at the Cata-se auc& ear po-er plaat s' elates 10 C.F.#. $0.7 and $210 of the teoleyee Protection Ac t . Ihe evidence is clear that Dute, in fact, did stelate the above named rules and replattoas. Further. that the veelatleas began in the std.1970's v and coatta ed up to aad f acludtag the time perted of the A5LS heartats. This harassment laclude$ a range of actions tesea by manageneat to negatively laf twence the reportleg of moaconformf ag item peports (mCl) tr Oc taspectors. Some o f the se actions ar,,ilsted beto.. 1. Worsers belag told or ordered to stect of f on their taspec. y tions or there would ee retallation; 4 y. . . >> w , 4 .v:
/
e.. e
NCts. Th2 So. trit also found 'considsrcile evidssce* th!t tha inspectors tended to impose requirements on craf t beyond those { set forth in the procedures. The Board ruled that there was no
- attempt by management to accept unsafe work
- and concluded that the' confusion regarding procedures had been alleviated by changes made in these procedures. M. at 1513.
(2) This allegation apparently refers to the soard's finding of discrimination agelnet welding inspector supervisor seau Ross in his internal performance evaluatione. 11 MnC at 1513-1520. The Board concluded (based in part upon Mr. Ross' own testlaony) that Mr. Ross' performance of his work was not negatteely affected and that *the inspection process was not comproelsed.* M. at 1511.8 (3) A Catawbe ironworker whose fit-up of containment plates
, .., . . #. , had been repeatedly rejected by QC inspector Deaton pointed a rifle at Deaton f rom a passing car while both were on the way home from work. The ironworker was allobed to resign the neat
, day rather than 'being fired because Duke was uncertain of its l
~5/ The Board's finding (11 FRC at 1518), based solely on a memorandum to flle written by Mr. Grier af ter a meeting with Mr. Ross (pA Esh. 33), that Duke's Corporate QA Manager George Grier *attempsted) to influence (Ross'] future testimony in this proceeding,* is directly contrary to the record evidence. Not only did Mr. Grier deny any leproper intent to influence testimony (Tr. 3833-85 (10/19/83); 4206-07 (10/20/831), but Mr. Ross himself tescified that Mr. Grier had made no attempt whatsoever to influ<ince his testimony.
< s., s m. . %wa ~JewM'** ' * *" Tr. 7041-50 (11/11/83). Indeed, Mr. Ross . stated that he felt that his meeting with Mr. Grier was he.1pful. Tr. 6718-11 (11/10/83). Nke has asked the Atoele saf ety and Licensing Appeal Board to reverse this finding.
2. Filing of 644 perforeence rattags and reports ogstatt on. Spectort .mo fo ad prettees with proces res 4 4 m a re..,,; 3. An intpecter eAO meet threatened of th a r$fje for egjeggg.g work 45 untafg; s+ r
,) P 64A , A #
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teq:1 poaition la en effsite incidInt. Sao 19 ftRC at 1525-26 for
. 'j th3 Detrd's discu;sion of thle incident. Th* Bosrd (sund that f
Duke 'took a reasonable approach
- which allowed the protiles to be t
resolved quickly. It went on to pote that it had no doubt about 4 the- company's
- authority to discipline employees sur of f site acts of harassment.* M. at 1526.
(4) The Jackson-McKenate incident. In which pipetitter 47 g supervisor McKenale threatened to strike QC inspector Jackson. is described in detail at 11 smC at 1443, 1522-2$. While the soard.
, ruled that this incident did constitute harassment, the testimony s also indicated that neither individual was entirely blameless.
t M. at.1$23. The Board also found that the corrective acticas 3 taken by Duke *were much more forceful and supportive of inspectors than the general perception on the job.* suqqesting that the reprimand to McKenste's crew and the warning to McKenzie
~
should have been communicated to all of the welding inspectors. M. at 1525 , (5) This incident apparently refers to oc inspector Cauthen. although this is not entirely clear. The soard found that I cau'then was harassed by other weldino inspectors, whose prior i e r inspections had approved welds that Cauthen found to be ; substandard, and who did not like another inspector criticising their work. M 19 stRC at 1$26-21 The Board further noted that i
- craftsmen were not involved and there is no suggestion of a
- construction scheduling pressures.* M . at 1526. Cauthen 1
t. Meests to *taoch an Inspector's eres out;* ik 1. An Inspector setag tareatewe ita not jos
- e l te v tto naC procederel la his inspeg i i i i
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, testified th:t th3 rescntmeXt of some follsw intpectore did nog maks his.*stop looking harC' far dsfects. t, d .
(6) The incident in which Leonworker foremen Mullines threatened to
- whip
- QC inspector marris or
- knock his teeth out*
if Warris did not *1 eave his men alone* is discussed at 19 p c at 1521-28. This disagreement was referred by each individual to his supervisor. and the parties' relationship improved in a subsequent meeting. M. at 1527. The Job Superintendent at Catawba also eratly reprimanted Mullines and cautioned him against any repetition. narris had no continuing conce as and testified that. his inspections were not effected. The Board found that Duke's corrective measures *were in the right direction,* but should have been communicated to the welding inspectors. M. at 1528. (7) The Board's findings on the issue of alleggst retaliation
, against inspectors for going to the NRC are set forth at 19 NRC at 1508-11. It concluded that while Duke ' felt uncomfortable with complaints being made directly to the NRC* and urged employees to first take their problems to Duke management.0 *we V'
find no atteopt to punish inspectors for going directly to the NRC.* M. at 1511. The testlaony
- reflected an understanding that esplayees could contact NRC without retribution * ~~ and some inspectors contacted the NRC frequently. M . Thus, contrary to 1/ Such position is' consistent with the NRC notice (Form 34.
App. Es. 37, Att. El m 19 NRC at 1508-11.
; -n.
- 6. Anot%ee taspectee was threateas
*nts teeth taoe. nee evt* If he e hCI't; 7 Some employees dad weldtag las-for tattag thete teateras Is t g g, .s h e ,f'.
q CAP's citesction, thero w:s contacting th' M8C-meIt Cf insp;cttre for The allegation of Mr. H< r , a former Catawba employ. who testified for intervenor. A111ance, that he was tote k not to talk to the wsC is di sua, the Board found that No 19 NRC at 1541-43. In that he should not approach was improp W W W W 4, was witMrawn at least twice ector that this directiv
, y thereafter, that the erroneous instruction was *4' occurrence . not part of a pattern of restricting access 2.* and that Mr.
Hoop [ngarner was clearly "O% 'on contacting the N
- g. at 1542. Indeed, he
- wen i
nd any reasonaute standard
- in raising concerns itC during wartilng hours.
M. at 1548 The Board did n' t Moopingerner was harassed. on pp. 4-s of its petitiot, ( g,n,1ggggon,g incidents (88-17) involving Os s. atnut gtg g .intialdatto, their freedom to bring t, threat of some type of retalia ns to the WRC und er
.he company
- The Board's findings on these all'
( s w arin d bel ow, m
- has f ailed to demonstrate how j
a to access to the NPC. te incidents are relate (8) It is not clear wheth' s;ation refers to the welding inspectors or the crafi
,ent ,
the t.lcensing Board fully discussed access t inspectors, as detailed in f Fl. both craft and QC f 8,
& mymier o f wurters felt that ("f y wft, esaneymfet for beingtng their toecera
/
i l i 4 1
19) The meeting between QC welding istpecte o a r cnd Duts trecutive Vito Precifent Con:tructica owen, tnd E ngineering, Warren it.
/[ is discussed at 19 erac at 1510-11 .
\ L i.
testified that Mr. Owen's words suggest e d While ona inspector to the unC, other taspectors present that he should not go interpretation. at the meeting rejected this owen's speech andThe foundsoard that itself also itstened to pe aof ta Mr. as threatening.* td,.* at
. 1510
*Mr. owen's talk did not come across (10) This allegation apparently tef involving inspector surr and his superviers to an (ncident f[ discussed at 19 arac at 1611-12. sor Mr. Ledford, vfitch is
,1 [
' (ndividual had afstaterpreted theThe Board found eachthat other, that t.edford had not inteMed to threaten surr about Letfoed did not esert pressure on surr *tfuture promotio
- vloistione go undocumented or uncorrect do let procedural above. e .* M . at LS12. See (18, Surr continued to do his job. 15 pc at 31, $933,1937, surr (11/3/83): App. Es. 1511; Tr. SS10a
- 29. Burr, p. 4 (til this allegation apparently r f poss' convertstion with George Grier e ers to inspector Beau
} 1518-19.
,f discussed at 19 N1tC at
'h- Duke disputes the soard's finding that
- person would interpret (Grier's) comments asa reasonable an atteopt to influence future testlaony in this proc (2),
above, and footnote S. eeding.* M. at 1518, see , n M (12) This allegation apparently r f tavolving inspector Bryant and a weldere ers to an incident
, discussed at 19 p c at 9.
A meettag at .htch QC taspetters levet ennuttees act to,tene.ere warned by tea. their teat erai ta
- j mAC at a meettag between e the bec ttve vice e 4, 4a4.eldtag QC inspecter${
; 10.
i so e easpectors .ere tarestened, tieta, tela taa ta er ein ie at at e.se es..we ort in ** ir saicections *tw se e.,te,.eati , 11 Cae latpector .he was getag to atettify at hearta s
.at e ..te ,e , . t.,,e,.te e nitt.i lettlacay et that heartag or .. , era.., ,,,
I
- u. s. e.,i.,ee ia,e,tene4 c. future hearing u
. .. n ou r., 4. i., .. ...n .t .ie.ei.ia, ia.,,et. , e ,,
e r u, ,.. i l t 9 0e e
1528-21. Th3 situation was amicably resolved and the wald er I apologised to Mr. Bryant, g at 1528. (13) See (2),
/ above, relattnq to welding inspector supervisor w f seau Ross im especially 19 WC at
)
above, 1517-18). See also (5), relating Oc at 1526). to welding inspector Cauthen (m espeela!!y t-
'I (14) This allegation apparently refers t
.p ... ,5>. . m.e. o inspector Cauthen.
(15) The vaqueness of this allegation ash es it difficult to tie to the PtD. 619 nc at 1511-13.
- See also 19 nc at 1505-CS, wherein the soard discussed the welding in spectors*
suspicions of Mr. Daelson.
\
The soard found 'no substantial ! evidence that Mr. Davison actus11 7 did reta1 Late against > welding 3 inapectors for espresstrkg their concerns . *M
. at 1507-04.
. (16) See (5), above.I Iri response to the welding inspectors ** concerne
, Duke promptly resporded by the creation of three separate t 3
5 19 o c at 1414-17 ask forces. 5), Ccntrary to CAP's assertions (Petition at the Licenstnq soard found that inspectors' concerns Indeed were triqqered y the bespression of reclassification. 53 11 n c at 1446-47 inspectors
- pay 1441-50. In tact,
~7/
CAP asserts (Petition at 5) that Catawba incidents were Licensing soard concluded tsE t . The only four otherwises Oc a t 1441 1522-25 identi!!ei as constituttn i (Destoni See Hullin a s),, 1526-2 7 (Cautten t,f.*actisen-Heltens 1443, tel,1 harass 1443-44 1527-28 (Harris-j I). f)ther esemplet of 18tpet tort were t*
*etitae) with trealfer if they (08tle ed w to CON 4 .tt I4 .'Uer lPtre(tl49%.
latpeCtort were repeatedly heralle1 tf et9er y s e*ptc te a f ter they br0ug91 their COM(eral 3wpervflers; 101:*e of their e
; \ n . res pect.r. we,e repe. ten, e.r.e4 , .. .;e ra t t .t \
s ae, were e.er.easpecting;
<. d 14.
a foremer of inspetters one threateaet .its their jobs coas.t tlag procer tasset tlons, eae II. latpe(tert were repeatedly heralled ga* '4tgled for 4014j thele jobt, i l 9
- during the courso af th3 Ct inv3ctigition. some'er the in Pectsrs
, acknowledged that pay was the root cause of the welding inspectors' concerns. 5y Of Report #2-03-034 Summary at p. 2.
j CAP's assertion (retttion at Si that harassment of an entire crew of inspectors was
- condoned
- bF Duhe management and
- promulgated
- by the Catawba QA Manager for five yee'rs is simply unsupported by the record in the Catawbe proceeding. 53 11 NRC at 1505-48 (Davison's relationship with inspectors pockholt and Bryanti: 1511-13 (Cauthen): 1520-32 (discussion of harassment Lacidents). As noted above, the Board did find discrimination against inspector supervisor Ross in his Duke performance evaluations. but this did not adversely affect.the work done by Mr. Ross or his Crew, let alone the nuserous other aspects of the Catawba QA program unrelated to Mr. mons 53 19 Nac at 1111-20.
In an attempt to show perwestve QA problems, Part 18I of
& , p M., *.9 4 21 .t -*
- CAP's petition quotes a portion of Welding Inspector Supervisor Ross' statement in the O! report alleging harassment and intimidation of- two QC civt1 inspectors, Jim Norris and Wrenn vasser (Petition at 6). GAP f alls to mention that O!
Investigated Ross' statement, interviewing both Norris and Wassey, and both of them flatly denied that they had never been harassed or intimidated. 53 of Report. 82-03-038, at pp. 72-71. The LLconsing Board's conclusion that harassment was not a
) widespread probles at Catawba is fully supported by the estensive
, , , , ,% ,g,,,,,,, hearing record and sound reasoning. Sy 15 NRC at 1531-32. No i 1
,, + , aa *- 4 t
r I
, witnies, including a. McAfoo, a farmer QC electricc1 intpectsr called as a witness by Palmetto Alliance, raised harassment or intimidation as a concern outside the area of welding inspection, s
y 13 wpc at 1532-19. No record evidence supports CAP's allegations of a broader harassment probles at Catawba. g- At the top of page seven of its petition, CAP apparently ref ers to the practice of
- verbal voiding
- of NCI's. After a thorough review of the record, the Licensing Board concluded that this was not a problem. 11 NRC at 1481, 1483-92, 1504.8 In part IV of its petition, CAP refers to what it purports to be *new evidence of an atmosphere of harassment ' and intimidation *
(Petition at 8). The evidence CAP relles on is a series of over 300 affidavits taken by Duke investigators from approstaately 217 Catawba construction workers, all done under the oversight of Region If. See 20 WDC at 1490-94. All of the affidavits. inc1w11ag those to which CAP alludes (see Petition at 4), were subseg.ent1T received in evidence by the Cicensing Board as Appilcants' Eahlbit 118 (* App. Es. 118*), with the identity of each affiant indicated bT a code number. 5 3 20 NRC at 1414: App. Es. 118. This evidence was fully evatusted by the Licensing 8f See also App. Es. 2, Grier, p App. Ex. 9. Wells, p. ITI App. Es. 14. Davison, pp.p.30-1; 41-43: App. Es. 18. Horgan. pp. 8-93 App. Ex. IS, Shropshire, pp. 5-6 App. Es. 20, saldwin. pp. 7-43 App. Ea, 21, Allus, p. 43 Tr. $142-4 3. Van Doorn (12/06/83): Tr. 4914-95, Baldwin (11/27/83): Tr. 5814-95, 5154. Surr (11/03/83) Tr. 5822-23 Deaton (11/13/83): Tr. 6186-87, 7052, Ross (11/11/83): Tr. 6 36 5-6 7, 6 3 79. Rockholt (11/08/83): Tr. 6160-62, Gryant.(11/04/81): Tr. 8551. Cantt (11/21/83). 4 5 E o
'es e i 'k $ %- W
- f e
soard (c 20 IntC Lt 1494-1122), which prcperty concluded thst I '
.I -
the evidence does not indicate a significant breakdown in quality j assurance at catewtna. M . at 1506-07 The specific incidents that CAP mentions are put in the Content of the rest of the record below. The incident involving a vlotent statement (incorrectly. quoted by CAPI by a foreman (Mr. Moore) was not connected with violating procedures. See App. Es. 118. t70 at p. 2 (4/17/853. A second worker who was also present when the fores.an made the statement did not view the incident as threatents.g anyone. App. Es. 118, #32 (6/20/04). Mr. Moore was identitled by both the NRC and Duke (20 entC at 1489: see also id. at 1495) and Duke removed his from his supervisory position as a result of the investigation. [d,. at 1507. soth above-sentioned workers are 2 @ im- .HWM , ei;; J ew " + satisfied with Duke's resolution of the situation.
~
App. Es, 118, 832 (9/20/84), 870 (8/21/84). The two individuals who espressed fear of losing their jobs nonetheless raised with the Duke investigators those concerns that they had. App. Es. 118, #8 (6/4/84), #192 Individual #8's
/
only concern was with his general foreaan, saith, who was removed s-as a result of the investigation. App, ts. 118, #8 (6/14/86) 20 NRC at 1492-93, 1507 Individual 8192 is satisfied with the resolution of his concerns. App. Es. 118, #192 (8/22/04). Only one worker speculated that his foreman (again, on-foreman Moorel was on drugs, a charge that was never 4 9
, ,g . == --* -
- 4
g , (ubstantitted er la any v:y c rr:bar ted. App, ts. 118 8196 at
"' ' ~ ' '
- p. 3 (6/15/94). This individual testified M camere at the 1(consing hearings and did not even sention any concern about foreman drug use, tc Tr. 2014-98 (10/12/84). All of his concerns were resolved terough Duke's investigtton. App, ts.
118. #196 (4/17/84). The general allegation of pressure to meet construction schedules without regard to work quality was the basic thesis of Palmetto's contention 6, which was litigated during nearly fif ty daws of hearings arki rejected by the Licensing Board as unsubstantiated. 5y 19 NRC at 1439-40, 1583-84; 20 NRc at 1507 The issue of alleged excessive force on pipes (* cold springing *) was litigated twice and found *.o be without safety significance. 53 19 NRC at 1552-53 20 NRC at 1499-1500. Alleged weldinq interpass temperature viutations were the
. ..pw-,..~...--s primary subject addressed in the last phase of the Licensing woswu s.co w w soard hearings. Af ter considering all the ' evidence (including t, hat alluded to bT CAP in its recent request for a civil
, penalty), the Licensing Board found instances of interpass
, violations to have been isolated and rare, involving only two foresen (primarily es-foreman wrel, both of when have been removed f roe supervisory positions. M 20 NBC at 1495-96, 1506.
These incidents are without safety significance. See (d. at 1503-06. e >' t
The concrrn ov:r the adequacy Ef night thift inipecttr staffing was unfounded. The inspector who raised this concern is satisfied with Duke's investigation into the issue. 6 App. Ea. 118, #32 (1/20/84): s_ee,also e fat. Es. 151.8 GAP's allegations iPetition at 8) of impropriety and lack of real during the Pegion It investigation are belied b'y the Licensing Board record. See,20 NRC at 1488-81, 14133 Staff Es. 33, J6: m also.11 WRC at 1411 n.11. tit. Lege1 Analysis Apart from the f act that the leposition of a civil penalty is clearly upwarranted on the facts in this case, such a sanction also cannot be justified as a legal matter. Whatever else may be r said about CAP's representations, an assertion that Duke has ever been held by the Department of t. abor to have violated sectlon 210 4 :e m a. e . , 6 s - W -~~ of the Energy Reorganlaation Act, 42 (1.5.C. t 5851, is conspicuous by its absence. ror this there is good reason. because in fact no such finding has ever b,een made. To the estent that to C.F.R. S 50.7 purports to create independent authority to impose sanctions for violations of section 210, it is clear that the Commission never intended to
< place itself in the position of determining in the first instance that such a violation has occurred. This is apparent, first, from the structure of the requistion itself, in which the
% _ %-%%c -worw 4p.gpo 1/ GAP's allegation of bias in Duke's investigation was
*% specifica11 refuted by essert testluony before the t.icensing Board. M 0 NRC at 1410-14.
%u e #
4 3 .r - s - + .s
, __-. m..-.
13 description of proscribed acts set forth in section 50.7&al is lamediately followed by a description in subsection (b) of the procedures available in the Department of Labor for employees believing themselves to have been the sub}ects of discrimination made unlawful by section 210. Moreover, the Statement of Considerations accompanying the promulgation of section 50.7 expressly couched the authority provided for in the regulation in conditional terms: In addition to redress being avaltable to the individual employee the commission say, u m learnine of an adverse findine against an emplorer by the Department of r Wr, take enforcement action against the employer because the employer engaged in illegal discrimination. 47 yed. Iteg. 30452 (1982). Further evidence of an intention that atac jurisdiction under section 50.7 was not to be exercised preemptively, but rather only in consequence of findings adverse to en employer initially made by the Department of Labor, is to be found in the response provided in the Statement of Considerations to concerns raised in comments to the proposed rule that it would engender harassment of employers by allowing esployees to assert frivolous allegations. The Commission disatssed this concern out of hand, finding all necessary reassurance in the fact that *it appears that at an early stage, DOL dentes complaints that are without merit.' id. at 30454. This observation would, of course, only beg the question if NRC jurisdiction under se tion 50.7 could be e
$# g a
n_
19 invoked irrespective of whether there had first been a finding of a violation of section 210 by the Department of Labor. The position assumed by the Commission in its Statement of Considerations on 10 C.F.R. 150.7. furthermore, is in all respects consistent with views espressed within the NRC at the time that the Commission was asked to comment on the bill (S. 2584) containing the provision that, with minor modifications not pertinent here, became section 210 of the Energy Reorganisation
- Act. In a contemporaneous memorandum for the Commission. Howard K. Shepar, Executive Legal Director, gave voice to the conclusions that became the NMC's position on the pending legislation.10 There are two aspects of the positions enhraced in that memoranda that are of particular relevance for the present f
discussion. First, one of the options evaluated was that the a Commission support the conferral of the "whistleblowers* protection authority upon NRC. In rejecting that alternative. CELD acknowledged the clear desirability of deferring to the espertise of DCL with regard to questions concerning employment relationships: ,
~10/ The memorandum is appended hereto as Attachment A. In addition, a September 18, 1978, memorandum from CELD is appended hereto as Attachment 3. The latter confirms that the Commission endorsed the contents of CELD* s original memorandum, and that CELD was directed to communicat'e the positions set forth in the memorandum to both majority and minority representatives of the Senate Comalttee on Environment and Public $3cras.
4 S O e
$ B
c w~ . - s 4 As a second option. one could provide authority for NRC to investigate and take administrative action for discriminatory actions. *** !&E, SD, NRA and ELD all agree that any legislation dealing with employer-waployee relations (as would be the case if the remedies to be made available to the employee included reinstatement and backpay) should be implemented by an agency (such as the Department of Labor) with more espertise than NRC has on labor management relations. Attachment A at p. 4. Thus, the decision to support S. 2584 as proposed, with its provision for reposing authority for determination of when unlawful discrimination had occurred solely in DCL, reflected a conscious recognition that the Commission possesses no special espertise that would qualify it *to investigate and take administrative action for discriminatory actions.* rd. This clear and conscious. choice to endorse a legislative scheme reposing authority only in the agency with the admittedly greater expertise with respect to such questions would be perverted if, as GAP's letter suqqests, NRC were free to make its own determinations in such cases. . The second relevant point in the memorandum is its consideration of the necessity for and the desirability of providing for the imposition of civil penalties. presuming that the Commission already had authority at the time by virtue of the then-current version of 13 C.F.A. part 1911 to tapose civil
~~11/ The version of 10 C.F. A. part 19 that was current in late 1978 bore the title
- Notices, instructions and Reports to Workers; Inspections.* and addressed the occupational health (footnote 11 continued on neat page)
O .* g 4
3 . penalties on licensees that discriminated against employees for providing WRC information on radiological working conditions, the memorandus addressed the issue of whether 'the bill (s. 2$a4] should be broadened as.to non-licensee-eeployers who discriminate I against their employees for providing information to NRC so as to not only subject them to Department of Labor proceedings leading to remedial actions that would compensate the employee, but subject them to wpc or t,4bor civil penalty proceedings as well.* Attachment A at p. 5. The CE.3 semorandus points out two dif fleulties with that approach: (footnote 11 continued from previous page)
- and safety of employees of nuclear licensees as they were.
af f ected by radiological working conditions. Section 19.16 provided, in relevant parts (a) Any worker or representative of workers who believes that a violation of the Act, the requistions in
. this chapter, or license conditions esists.or has occurred in license activities witd regard to radiological working conditions in'which the worker is engaged, may request an inspection by giving notice of the alleged violation to the Director of Inspection and Enforcement, to the Director of the appropriate Commission Regional Of fice, or to commission inspectors.
Any such notice shall be in writing, shall set forth the specific grounds for the notice, and shall be signed by the worker or representative of the workers. (b) No licensee shall discharge or in any manner discriminate against any worker because such worker has filed any complaint or Instituted or caused to be instituted any proceeding under the regulations in7.is chapter or has testified or is about to testify in any such proceeding or because cf the esercise by such worker on behalf of himself or others of any option af forded by this part. e f 9 0
Whether a civil penalty, when added to the
' penalties" of employee reinstatenent, awards of back pay and damages to the employee. and assessment of the costs of the proceedings before the Department of t. abor, would provide any further dissuasion to employers considering discriminatory acts, is problematical. An KRC civil penalty provision would have the disadvantage of making the employer subject to two proceedings before two separate agencies on the same f actual circumstances.
- 14. In conclusion, the memorandum empressed opposition to the notion that S. 2$84 should be amended to provide for civil penalties. The opposition of ELD, NRR and !&E was said to have been based on the perception that civil penalties would add no additional deterrence to that provided by the sanctions already provided for in the bill, and the memorandum noted that *s3 believes that no showing has been made that such an employee protection program is needed, but that . . . S. 2584 . . . is adequate." M . at p. 7.
o Again, the clear and conscious decision of the Commission tu eschew support of a civil penalties provision in the legislative proposal that was to become section 210 undercuts the application of 10 C.F.R. 550.7 that CAP seeks in this case, for one thing, the failure to pursue through the' legislative process an acknowledged opportunity to obtain express congressional authority for additional administrative sanctions casts serious doubt on any argument that such authority esisted implicitly all ' along. More to the present point, however, it is at best highly doubtful that the same agency that embraced the consignment of S e 0# e e
r emplorment disputes to DOL's superior espertise and spurned the opportunity to seek a civil penalty provision on the ground that such a provision could not laprove on the proposal then before the Congress, would just over three years later promulgate a regulation arrogating to itself the power to decide in the first instance whether an employee had been discriminated against and. If so, then to impose a civil penalty. Quite apart from this, however, the memorandum provides eloquent testimony to the fact that NRC has long since recognised that civil penalties can be employed only for remedial not punitive, purposes. The consideratson that figured moet prominently in the Commission's decision not to seek a civil penalties provision in section 210 itself was the perception that the deterrent effect of such a provision was, to use the memorandum's tera,
- problematic.* Yet GAP's entire argument for the imposition of a massive civil penal)y on Duke is couched in terms of deterrence -- for Duke and for all of the rest of the nuclear industry. Where the Commission itself has espressed doubt about the incremental value of civil penalties in such cases and the AsLa has espressly found that any harassment was isolated and did not perceptibly diminish the effectiveness of the Catawba CA programs, however, deterrence is at most a weak reed on which to lean in justifying the imposition of a civil penalty.
0 4 e 9 e' e
^6, k
. _ - T -
, yW.
yinally, it must be noted that most of the allegations raised by GAP in its effort to obtain the taposition of a penalty by their terna have nothing whatever to do with interference with an employee's right to provide information to the KRC. Indeed, only numbered allegations 7, 8,1, and 11 even carry any suggestion of such interference. As has been pointed out supra (see p. 7), the first three of these were soundly refuted by espress findinga of the ASL3. The allegations that employees were
- harassed
- and
- reprimanded" (nos. 7 and 8) for taking their concerns to the KRC can provide no basis for sanctions, inasmuch as the Board, after a lengthy esaatnation of the issue in a full-blown trial, fou%d
*no attempt to punish inspectors for going directly to WRC* and that "the testimony reflected an understanding that esployees could contact NRC without retribution.* 19 NRC at 1511.
Slailarly, the allegation that *QC inspectors were warned by top-1evelesecutivesnottotaketheirconcyrnstotheKRCat 4 seeting between the Esecutive vice president and welding QC inspectors * (no. 91 cannot justify a civil penalty in the f ace of the Asta's finding, after listening itself to a recording of the meeting in question, that the
- talk did not come across as threatening.* Id. at 1510.
Only with regard to the allegation (no.11) of "intinidation* of an inspector scheduled to testify at a hearing was there any finding by the Board of an attempt to interfere with an employee's providing information to the NRC. As was pointed out e f
- g V --
- 25 -
-g (m p. 7), however, this finding is manifestly at odds with the evidence of record, and cannot,in any event be reconciled with the employee's o<n contrary testimony that no attempt was made to influence his testimony. Tr. 7049-50.
As to all of the remaining allegations, no sanctions muy be imposed because it is clear that 10 C.F.R. 150.7 was intended only to authorize sanctions for reta11ation against employees for providing information to the NRC. The very first sentence in the Statement of Considerations accompanying the issuance of section 50.7 plainly states: *The NRC is amending its regulations in
~
regard to job protection for employees who provide information to the Commission.* 47 Fed. Reg. 30452. To the same effect, the Commission's description of its purpose in its notice of proposed rulemaking said that the intention was to amend the Commission's
. regulations 'in regard to protection for employees who provide the Commissi,on* and to "make employers aware that discrimination against employees who provide such information to the Commission is proh(bited . . . . 4 5 Fed. Reg. 15184. Thus, all of the remaining allegations raised in CAP's brief are not cogn13able under 10 C.F.R. 950.7.
IV. Conclusion for the foregoing reasons, Duke submits that the NRC should deny CAP's enforcement action request as unwarranted by the facts and improper as a matter of law. 9 e
.g a
DUKE Powen GOMPANY ctrvc c oaiminsa LEGAL D151*ANTMHNT EJ,"?' LO"f2"" "" 11 O.13ox 33100 0%"o'ai',"U."5 = GHAHLOTTE. N. G. uneau ... m 2570
;"W.Or"G#o"#".
OZ f"#"',~ Rtr^"fa' ggcag.,s= '," August 19, 1985 00%!%"^~~ '" FRE8DOW OF W#F09WAY40N ACT REQUEST
.J. M. Felton, Director F0.TA 52Y Division of Rules and Records Office of Administration gg h [ ,20 ~N ,
U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re: Freedom of Information Act Request j Regarding Enforcement Actfon EA 84-93
Dear Mr. Felton:
Pursuant to the Freedom of Information Act (5 USC 5552) and the NRC's implementing regulations thereunder (10 CFR $9.3 et seq.) I hereby request on behalf of Duke Power Company all documents related to and underlying Enforcement Action No. EA 84-93 being taken against Duke Power Company. This enforcement action is reflected in the Notice of Violation and Proposed Imposition of Civil Penalty issued August 13, 1985. This request extends not only to all relevant . documents at NRC Headquarters relating to the enforcement action and the events surrounding Mr. Gary E. " Beau" Ross, but also to all such documents within NRC Region II including any such documents reflecting any communications between Region II and NRC Headquarters. This request includes, but is not limited to, all documents reflecting, underlying, or otherwise relevant to:
- 1. Any communications between NRC employees and/or representatives and members and/or representatives of Palmetto Alliance, the Government Accountability Project and/or any other outside group or individual concerning possible enforcement action based on the events surrounding Mr.
Ross and/or the concerns expressed by the welding inspectors at Catawba Nuclear Station, and/or alleged harassment and/or intimidation of any quality control / quality assurance inspector at the Catawba Nuclear Station.
- 2. The June 4,1985 Director's Decision (DD-85-9), including alternative drafts or proposals, and including all documents reflecting any independent fact-finding investigation conducted by NRC in connection with the enforcement actior, or concerning Mr. Ross.
- 3. Any decision to engage or not to engage in any independent fact-finding in connection with the enforcement action and Mr. Ross.
- 4. Deliberations regarding whether the record developed before the Atomic Safety and Licensing Board was adequate to support a finding of discrimination within the meaning of 42 USC 55851 and/or 10 CFR S50.7. This request also extends to any documents reflecting deliberations whether the f - * . -m m 2. ., /
/
/)
2 TP-
m gn% J. M.'Felton, Director U. S. Nuclear Regulatory Commission August 19, 1985 Page two record developed before the Atomic Safety and Licensing Board was adequate to support the Board's finding of discrimination.
- 5. Deliberations regarding the appropriate severity level to be assigned the alleged violation.
- 6. Any communications between representatives of the NRC and representatives of the Department of Labor relating to this enforcement action or the events surrounding Mr. Ross.
- 7. The Commission's decision not to review 00-85-9, includin documents underlying and reflecting the majority votes of Chairman P.galladino and Commissioners Bernthal and Asselstine, and documents underlying and reflecting the dissenting views of Commissioners Roberts and Zech.
- 8. The August 13, 1985 Notice of Violation including alternative drafts or proposals.
- 9. The August 13, 1985 Proposed Imposition of Civil Penalty, including alternative drafts or proposals. ~
I would appreciate your prompt response to this request within the ten working day period provided in 10 CFR 59.9. Duke Power Company's deadline for responding to the Notice of Violation and Proposed Imposition of Civil Penalty .is September 12- 1985.
, The documents I am requesting could well prove to be significant to that response. Accordingly, I hope that this request will be met as expeditiously as possible. If you cannot meet this request within the period set out in the regulations, please noti fy me as soon as possible, and tell me when you will be able to respond.
Sincerely, M . Albert V arr, Jr. c: James N. Taylor Jane A. Axelrad
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