ML20148D095

Informs That Ltr & Declaration Has Been Filed in Support of Jr Bynum.Nrc Considering Enforcement Action Against Individual

ML20148D095
Person / Time
Site:	Browns Ferry
Issue date:	09/19/1996
From:	Vigluicci E TENNESSEE VALLEY AUTHORITY
To:	Ebneter S NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
References
NUDOCS 9705300065
Download: ML20148D095 (21)

Text

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Tennessee vansy Aumorny,400 west summit He ortw. Knouvse. Tence soc 2.uos September 19,1998 Mr. Stewart D. Ebneter (Federal Express)

Regional Administrator NRC Region 11 United States Nuclear Regulatory Commission 101 Marietta Street, NW, Suite 2900 Atlanta, Georgia 30323

Dear Mr. Ebneter:

This letter and the enclosed declaration are filed in support of Joseph R. Bynum insofar as the NRC is considering enforcement action against him in hiri individual capacity. As set forth in this document, and as will be discussed in more detail at the upccming enforcement conference, neither the facts nor the law r.upport NRC enforcement action against Mr. Bynum. First, as a matter of law, the only regulatory basis for taking enforcement action against a nonlicensed Individual such as Mr. Bynum is 10 CFR 5 50.5 (Section 50.5). Mr. Bynum did not violate Section 50.5 because he did not deliberately engage in any misconduct in deciding to take employment action against Mr. Jocher-he did not deliberately violate any NRC rule, regulation, er order. Second, there are a number of extenuating and mitigating circumstances which we urge the NRC to consider before it decides whether or not to take any enforcement action against Mr. Byn"m.

1.

Mr. Bynum did not violate 10 CFR 9 50.5.

A.

Section 60.6 requires that an individual deliberately violate an NRC regulation.

Section 50.5 gives the NRC authority to take enforcement action directly against unlicensed persons, such.as employees of licensees, when those Individuals

" engage in deliberate misconduct...," which is defined as "an intentional act or omission that the person knows... would cause a licensee to be in violation of j

any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission...."

g When the Commission' promulgated Section 50.5, it repeatedly made clear that the regulation reached deliberate misconduct, and only deliberate misconduct. 56 Fed.

Reg. 40,664, et seg. (Aug. 15,1991). The Commission emphasized that "the rule fg does not apply in cased of negligence, honest mistake, or ignorance." /d.

e at 40,675. Moreover, in no uncertain terms, the Commission described how I'

narrow the rule's application would be:

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Mr. Stewart D. Ebneter Page 2 September 19,1996 the range of actions that would subject an individual to action by the Commission does not differ significantly imm the range of actions that might subject the individual to criminalprosecution tid.;

emphasis added).

As the Commission further elaborated:

lt would be an erroneous raading of the final rule on deliberate misconduct to conclude that conscientious people may be subject to personal liability for mistakes. The Commission realizes that people may make mistakes while acting in good faith. Enforcement actions directly against individuals are not to be used for activities caused by merely negilgent conduct. These persons should have no fear of individual liability under this regulation, as the rule requires that there be deliberate misconduct before the rule's sanctions may be imposed

(/d. at 40,681).

Thus, in the present case, the NRC must first find that Mr. Bynum deliberately violated Section 50.7 before it can find that he violated Section 50.5.

B.

Mr. Bynum did not deliberately violate Section 50.7.

Enclosed with this letter is a personal declaration offered by Mr. Bynum which clearly and conclusively sets forth a full explanation and understanding of the events which led to employment action against Mr. Jocher. At bottom, while mistakes were made in the process which was followed in seeking Mr. Jocher's resignation, Mr. Bynum did not take employment action against Mr. Jocher for raising safety concems. We ask that the NRC carefully consider Mr. Bynum's declaration.

II.

Extenuating and mitigating circumstances make this the wrong. case for individual enforcement action.

Even in cases of deliberate misconduct, the Commission has recognized "that enforcement actions against individuals are significant actions that need to be closely controlled and judiciously appiled." 56 Fed. Reg. 40,676. To this end it has promised to temper its enforcement power with justice and to withhold enforcement action against an individual based upon various extenuating and mitigating circumstances. Mr. Bynum asks the NRC to consider the following extenuating and mitigating factors.

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Page 3 September 19,1996 A.

Mr. Bynum acted in complete good faith, for no personal benefit or Sain.

in deciding whether to take enforcement action against an individual, the NRC will

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consider "[tlhe benefit to the wrongdoer, e.g., personal or corporate gain."

Enforcement Policy at i Vill, paragraph 4. Mr. Bynum's actions were not taken for '

j any personal gain or benefit.

l As clearly set forth in the enclosed declaration, Mr. Bynum took the action he did i

because he believed it was the right thing to do for TVA. He was leaving the j

nuclear organization and felt that he could not leave what he clearly perceived as an obvious personnel problem behind in the end, however, taking action would not make Mr. Bynum's situation any easier or benefit him in any way whatsoever j

because he knew that he was leaving TVA's nuclear program.

i in short, this is not a case where someone has sought personal profit by cutting j

corners and avoiding regulatory requirements. If Mr. Bynum made mistakes in j

taking employment action involving Mr. Jocher, they were mistakes made in good j

faith, while he was acting in what he believed to be the best interest of the q

chemistry program and TVA.

B.

Mr. Bynum has fully cooperated with all Investigations and has made no effort to hide any of his actions which are the subject of this enforcement cenforence.

Mr. Bynum has fully cooperated with all investigations into the matters which are at issue here. He has answered all questions concerning each of these matters, including questions raised by TVA's Office of the inspector General, the NRC, and the Department of Labor. He will continue to cooperate fully; he intends to answer all questions that may be asked of him at the September 23,1990, enforcement conference. Mr. Bynum has made no effort to cover up any actions that are the l

subject of this enforcement action.

f C.

Mr. Bynum volunteered to take a polygraph examination to help convinne NRC that he did not deliberately violate NRC regulations.

Mr. Bynum volunteered to take a polygraph examination to help convince the NRC l

that he did not takr retallatory action against Mr. Jocher for raining safety concerns i

in violation of NRC regulations. The results of that examination did not turn out as he had expected. However, it is, and continues to be, Mr. Bynum's firm position that he did not purposely, consciously, or intentionally take any action against Mr. Jocher for releing safety concerns. As Mr. Bynum states'in his declaration and J

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-423 632 3195 PIW5 Mr. Stewart D. Ebneter Page 4 September 19,1998 will explain at bla enforcement conference, there was no intentional violation of NRC regulations on his behalf in the Jocher matter.

Mr. Bynum knew that submitting to a polygraph posed some element of risk, but was confident that in telling the truth all would come out for the best. Because he was telling the truth, he never seriously considered that the results would be anything but favorable. When he requested to take the test, Mr. Bynum was not aware that polygraph examination results are unreliable and biased in favor of showing guilt and against innocent persons. For instance, it is well established that "In situations where there is genuine concern about the outcome of a... polygraph examination, a substantial proportion of Innocent subjects may react more strongly to the relevant questions, producing deceptive test results."1 In one study only 56%,2 and in another only 53%3 of the subjects shown later to be innocent were correctly classified as truthful. Therefore, almost half of the innocent persons who undergo a polygraph examination willincorrectly be classified as being deceptive; the random toss of a coin will give similar results.4 This is certainly not sufficient evidence to show that Mr. Bynum dellberately violated NRC regulations.

1 William G. lacono and Christopher J. Patrick, Psychopathy, Threer, and Polygraph Test Accuracy, JOURNAL OF APPLIED PSYCHOLOGY, Vol. 79, No. 2, 347, 353-54 (1994). "This finding is consistent with preliminary results from a large-scale field study recently reported... In which the blind tiit rate for confession-verified innocent subjects tested by experienced police examiners was only 55%.

It is also consistent with the results of three other field studies... that collectively indicate about chance-level accuracy with Innocent subjects."

2

/d. at 353.

3 David T. Lykken, Polygraph Tests, Urine Tests: A Debate. The Valldity of Tests: Cavest Emptor, 27 JURIMETRICS J. 283,287 (1987). "(T]he (polygraph examination) is strongly biased against the innocent person...."

4 See also William G. lacono and Christopher J. Patrick, Va//dity of the Control Questitan Polygraph Test: The Problem of Sampling Blas, JOURNAL OF APPLIED PSYCHOLOGY, Vol. 76, No. 2, 229, 237 (1991). "IO]urs is not the first... study to report a substantial error rate for innocent subjects: Barland and Raskin (1976),

Horvath (1977), and Kleinmuntz and Szucko ('984) reported false-positive rates of 55%,49%, ar.d 37% respectively.... Our own findings indicate that when solid criterion evidence is acquired for all possible cases and classifications are based on

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O SEP-20-1996 10852 TUR OGC 10TH fic:r-423 632 3195 P.' 06 Mr. Stewart D. Ebneter Page 6 September 19,1996 D.

Mr. Bynum's conduct has been addressed by TVA's remedial program.

Mr. Bynum did not deliberately violate any NRC regulation. "In cases involving non-deliberato conduct, action against the individuel may be more appropriately handled within the licensee's remedial program." 56 Fed. Reg. 40,884. WA Itself has addressed Mr. Bynum's conduct in this matter by taking strong, individual correc'tive action. These actions will be fully addressed in his individual enforcement conference.

For the reasons set forth herein, and for such further reasons that may come before de NRC at the September 23,1996, enforcement conference, we urge the NRC not to take any individual enforcement action against Mr. Bynum.

This letter and its enclosure contain sensitive, personal information that is confi-dential and not part of any public record. It is also submitted for consideration as

'part of Mr. Bynum's enforcement conference which is closed to the public. For these reasons, I ask that you not place this document in NRC's Public Document Room or in any way release its contents to the public.

Sincerely, q,O Ed rd J. Vlgluicci Senior Attorney Enclosure 37479

[ continued..1 b!!nd numerical scoring of the polygraph charts, chance-level accuracy figures are observed for innocent subjects."

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DRE AR ATION OF JORRPM R. MYNTIM 1 Joseph R. Bymun, submit this sworn Declaration to the Nuclear 4

Regulatory C-iaaion ("NRC") for its consideration in connection with the t==mg 4

l September 23,1996, pr*kian=1 enforcement Mm.

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INTRODUCTION 1.

I am filing this Declaration to provide information for the NRC to consider in its datanninntion whether to take enferr -t action against me personally Wa= of my professional dealings with William Jocher. I look forward to elaborating on the matters discussed in this Declaration at the September 23,1996, predecisional enforcement conference, to answering all questions the NRC may have about my conduct, and to explaining further the devast**ing effect that this matter has had on my professional and personallife.

2.

At the beginning, I wam to emphasize two things of overriding importance. EiIs!, I did not deliberately take any action against Mr. Jocher became he raised safety concerns. Second. Mr. Jocher's allegations that I did take such action against him have been a catastrophe for me, both professionally and personally, a.

As set forth more fully below, and as I will explain in greater detail on September 23, I acted in what I thought was the best interest of TVA and its nuclear operations.

(1)

Mr. Jocher had significant management shoncomings that were reported to me by his supervisors, his peers, 'md others, and it was these sik.swdngs that led to his deparmre from TVA. No one ever suggested to me that Mr. Jocher was likely to improve his performwe or that TVA should contmue to keep him employed. Although my decisions were intMad to be made in the best 1

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increst of the company and its nuclear pivymu, in hindsight, it is clear to me that I i

made mistakes in how I handled Mr. Jocher and his de>=* from TVA. I readily admit these mistakes, and I cannot begin to tall you how inuch I wish that they had not occurred.

i (2)

Regardless of the mistakes I made, however, I did not deliberately take any action against Mr. Jocher because of any safety concems he may

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i have raised. Neither I nor any other person that I am aware of ever discussed taking any

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action against Mr. Jocher because he had raised safety concems. Indeed, I was largely unaware of any ira safety concems that Mr. Jocher raised; I never considered (much less deliberately took) any action against Mr. Jocher t*== he had raised safety concerns.

b.

This entire matter has been very dimcult for me. Prior to this instance, my record in the nuclear indusuy was spotless. I feel that my career has been irreparably harmed. My integrity has been questioned and found to be wanting by the admmistrative law judge (AIJ) that considered this matter; my actions have been questioned by the NRC, TVA's Office of Inspector General, and undoubtedly many of my friends and colleagues who have heard about the allegations against me and the findings of the ALJ: I will never be able to repair the damage that this matter has done to my reputation.

3.

Part I gives a brief summary of my background. Part Il describes my dealings with Mr. Jocher. I am prep. red to discuss anythmg related to my involvement with him in greater detail at the September 23 enforcement conference.

Part III sets forth some extenuating and mitigating facts that I request the NRC to consider before it decides whether to take any enforcement action against me. Again, I am prepared to discuss each of these matters in greater detail on September 23.

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DISCIlSSION L

Backpound 4.

From September 1972 undl April 1993 I worked in the nuclear power industry. I sper:'he first 10 years of my nuclear experience at TVA as a Startup hgie, Section Supervisor, and Assistant Plam Manager at the Sequoyah (SQN) and Browns Ferry (BFN) Nuclear Plants. I then spent-5 years at Arizona Public Service where I was Plant Manager at the Palo Verde Nuclear Gmdiug Station. After that, I remrned to TVA to assist with its nuclear program recovery.

5.

At the time of the events at issue here, in March and April 1993, I was TVA's Vice President of Nuclear Operations. I reported to Oliver D. Kingsley, Jr.,

who, in turn, reported to the TVA Board. Reporting to rue were the Site Vice Presidents of SQN and BFN and Dan Keuter, the Vice President of Operations Services, as well as some staff functions.

6.

For reasons entirely unrelated to the matter at issue here, I left TVA Nuclear in April 1993 when I moved to TVA's Fossil and Hydro Power organization. Since February 1994 I have been the Vice President of Fossil Operations for TVA. I report to Joseph W. Dickey, Chief Operating Officer, who reports to the TVA Board of Directors. TVA Nuclear has a separate ieWAq; chain to the TVA Board of Directors through Mr. Kingsley. While I am not in TVA Nuclear, my orgamzation does provide some suppon services to TVA Nuclear, such as turbine maimmrn, motor repairs, and instmment calibration.

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.i IL h nue tan bl. tine to Mr. Jacher's den.rture fram TVL 7.

In this section I would like to tell you what I knew and what I did l

not know in March-April 1993, when the decision was made to ask Mr. Jocher to i

resign.

A.

Mr. Jach.r's t nm e with TVA i

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8.

Mr. Jocher was first employed by TVA in November 1990 as the t

Manager of Chemistry and Environmental Programs in the corporate organization.

While he served in that position, he reported to Dr. Wilson McArthur, the Manager of Technical Programs, who reported to Mr. Keuter, who reponed to me. In February 1992 Mr. Jocher was temporarily assigned to serve as the SQN c'h.mintry Manager.

In that position he reported to the SQN Operations Manager, who ispeaxi to the SQN Plant Manager, who reported to the SQN Site Vice President, who in turn reported to rue. In March 1993 Mr. Jocher's temporary assignment at SQN ended, and he returned to his position in the corporate organization.

l B.

Mv knowledoe of Mr. Jacher's nerformance (1)

Mr. Jocher's performance while in corporate 9.

It was the function of the corporate organization to provide oversight and support and to ensure consistency between the sites. As Manager of Chemistry and Environmental Programs, it was essential that Mr. Jocher have a good relationship with the sites in order to be a consemus builder and achieve consistency at the sites.

10.

During Mr. Jocher's initial stint in the corporate organization (from November 1990 - February 1992), I received lufeimation about his technic *l 4-g;y

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ability and his management style from various persons. Dr. McArthur and Mr. Keuter informed me that there were problems with Mr. Jocher's management style. They i

advised me that he had difficulty getting along with others, at corporate and BFN. He was arrogant, ced=+ading, and combative. At one point, I approved Dr. McArthur's request to remove Mr. Jocher's responsibilities to manage the 4

corporate environmel program because of his lack of technical competence in that area as well as his inability to get along with his subordinates in that part of the l

organization. At a different point in time, Mr. Jocher's responsibilities to manage offsite dose calculations were removed because of his inability to get along with the responsible subordinate.

11.

I also received complaints from BFN about Mr. Jocher's lack of j

support on the hydrogen water chemistry issue. This was characterized to me as being more than a technical disagreement in that Mr. Jocher was being very stubborn and creating. personal animnsity with his counterparts at the site. These complaints came from the site chemistry manager all the way up to the site vice president.

12.

Dr. McArthur and Mr. Keuter proposed that Mr. Jocher be temporarily assigned to work at SQN as the Chemistry Manager. SQN was having problems in chemistry. The individual who was serving as the SQN Chemistry Manager was not viewed as a take-charge individual. Since Mr. Jocher had not worked out well in the corporate position, Dr. McArthur, Mr. Keuter, and I were hopeful that Mr. Jocher might be better suited as a site chemistry manager with line responsibility. Once M,r. Jocher was assigned to SQN, I specifically asked Mr. Keuter if Mr. Jocher knew that he had not been sent there as a reward but as an opportunity to show that he could perform. Mr. Keuter assured me that he had had such a discussion with Mr. Jocher. Everyone, including Mr. Jocher, understood that his assig'nment to W

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SQN was tg y and would last only one year unless SQN and Mr. Jocher wanted tomaets. mi mem 7 Q)

Mr. Jocher's performance wbBe at SQN 13.

While Mr. Jocher was at SQN, I spent a considerable amount of l

time at that plant and received feedback from a number of people about his manage-tnent style. I was informed by the plam manager, Rob Ba~ ten, that Mr. Jocher was 4

l having a hard time getting along with other SQN managers, particularly close to the end of his one-year assignment. At that time, Mr. backan made it clear that he was i

not interested in extending Mr. Jocher's assignment at SQN and asked for him to be returned to corporate.

j 14.

I was also informed by the SQN Human Resource Manager and another Human Resource Officer, both of whom I had worked with and whose opinions i

I respected, that Mr. Jocher had not treated the people in their organization with appropriate respect. I also learned that Mr. Jocher had treated the Human Resource l

Manager in a condescending and chauvinistic manner. At one point the SQN' Human Resource Manager informed me that Mr. Jocher was insistem that he be allowed to reorgamze without regard to established procedures, claiming that I had given him carte blanche to do so. I informed her that I had not given him carte blanche and that he would be required to follow established procedures. I also was informed of other personnel and union-rnanagement problems that Mr. Jocher had caused because of his failure to follow established personnel practices. For example, Mr. Jocher announced, on separate occasio'ns and without approval frem upper management.or Human Resources, that chemistry supervisors would be climinated, and that maintem"ce people would be transferred to his organization.

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The manager of'the maintamnca organization also complained to me about his frustration with Mr. Jocher's failure to understand that the==intemnm of chemistry instruments had to be prioritized with other plant maintmanm. He complained that Mr. Jocher made little or no attempt to understand the ocuition's need to addreas the overall mainte.nznce situation. I held the maim *=nce manager in high regard and gave credence to his criticism since it was unusual to hear him speak abo'ut anyone in a negative fashion.

16.

The corporate steam generator expert complained to me that Mr. Jocher did not appear to understand good steam generatot water chemistry and that j

Mr. Jocher was unwilling to work with him to get the correct steam generator water chemistry. This involved tnote than a tachnical disagreement; Mr. Jocher was unwilling to sit down, understand, and try to teach a workable solution.

17.

Even while Mr. Jocher was assigned to SQN, I continued to receive complaints from BFN about him. The BFN chemistry manager complained that Mr. Jocher was anempting to force an organization change (which I felt was unsound) on the BFN chemistry orgam7ation. Even the BFN Plant Manager complained that Mr. Jocher had tried to interfere after the fact in the selection of the BFN chemistry manager although Mr. Jocher had been invited to participate in the selection process but did not show up.

18.

When Mr. Jocher's one-year SQN assignment had come to a close, I was informed that Sam Harvey, a good employee and a senior chemistry program manager in the corporate orgamzation, did not want to work for Mr. Jocher.

19.

Since Mr. Jocher was several levels of management removed from me, most of the information I had about him was reported to me by others.

Neve:theless, my personal observations confirmed that there were problems with his management style, for example:

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Ipersonally attended an all-hands Mag of the SQN chemietry organization. During that wing Mr. Jocher's demeanor towards his subordinaten was condeseanding and inappropriate.

I b.

During a pr*==atation to TVA officials and NRC I

Commissioner Gail DePlanque, Mr. Jocher made self-serving comments that were embarrassing to me and other TVA officials.

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c.

Mr. Jocher had a personal conversation with me about the elimination of the chemistry supervisors. While I had no problem with him raising the subject, it was clear that he was not listening to any viewpoint other than his own.

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d.

At an SQN site meeting which I auended, Mr. Jocher l

proposed an expensive long-term program to correct procedural problems. However, evaluation of the problem, which was done at my request, showed that this matter a

i could be resolved quickly and with minimal expense.

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C.

My role in Mr. 3ncher's denarture from TVA l

20.

Someume in March 1993, while Mr. Jocher was still assigned to j

SQN, Dr. McArthur, Mr. Keuter, and I had a meeting during which one of the subjects discussed was Mr. Jocher's imnending return to corporate. During that meeting, we discussed the fact that Mr. Jocher had not been successful when he was first at corporate, and the fact that SQN did not want to retain him. During this meing, Dr. McArthur, Mr. Keuter, and I agreed that Mr. Jocher was not capable of performing as corporate chemmtry manager. Durmg that meeting, no one stated that there was a realistic possibility that Mr. Jocher's performance might improve. At that time, we did not agree on any #pecific course of action other than to bring him back into the corporate chemistry manager position for an unspecified period in order to give him time to find another job.

I have no recollection that anyone even suggested a six-month probationary period.

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During that ~'ing, there was no criticism of Mr. Jocher b== he had raised any safety issues and there was no expression of =*ntmant towards him for raising safety i

issues.

21.

At or around the time of this meeting, Dr. McArthur told me that Mr. Jocher had assured him that if management did not feel be fit in he would leave TVA. When I asked if Mr. Jocher knew that he naariari o be looking for a job, t

i Dr.1McArthur replied that Mr. Jocher knew that management did not have confidence in 1

his ability to perform as corporate chemisuy manager. Based onthese conversations, I believed that Mr. Jocher was looking for another job and would resign.

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22.

Late in March or in early Apn11993, Dr. McArthur, Mr. Kenter, i

and I were again having another m-+ing where Mr. Jocher's continued employment with l

j TVA was one of the matters that we dia==M. There were at least three related personnel issues involving chemistry that were on my mind in that thre%ne. First, by that time I knew that I would be leaving TVA Nuclear, although I was not free to share J

j that with them; Because of this I feh that I should not leave my successor with

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Mr. Jocher in the corporate chemistry manager job. Second, SQN did not want Mr. Jocher or the previous site chemistry manager to return to the plam. Third, i

Dr. McArthur and Mr. Keuter were recommending hiring a talemed outside candidate for a chemistry position. However, because of headcoum restrictions we could not hire that i

person as long as Mr. Jocher and another high level chemistry employee were in their

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l positions. During the meeting, I asked if either Dr. McArthur or Mr. Keuter realistically j

4 thought that Mr. Jocher would change and surrenfully perform as the corporate chemistry manager. Both of them iMWW that they did not think he would change. I asked them what they thought should be done in light of his inability to perform.

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Dr. McArthur again suggested that he thought that if Mr. Jocher was asked to do so, he l

would resign. I agreed with that course of action. However, I asked Dr. McArthur if he,,,

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Wy-was prepared to terminate Mr. Jocher if he did not agree to resign. Dr. McArthur told I

me that be was, and that he had counseled Mr. Jocher and had notes of those sessions.

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23.

No one disagreed with asking Mr. Jocher to resign; no one said that Mr. Jocher should be given another chance to improvet and no one said that 1

l Mr. Jocher should not be terminated if he refused to resign. There was absolutely no l

discussion during the second Mg of any safety concern Mr. Jocher had raised and no 4

i one suggested to me that he was being asked to resign or would be't-ni=+M f~ having i

raised any safety concern.

24.

t=h later, Dr. McArthur remrned to me with a resignation signed by Mt. Jocher that was effective six months in the future. I was aware that a

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previous employee at Mr. Jocher's grade, who had agreed to resign, was not allowed a i

i six-month notice period. Therefore, I suggested to Dr. McArthur that he attempt to get l

Mr. Jocher to agree to a three-month period, which he did. Importantly, I was never told that the resignation was anything other than voluntary. Indeed, I did not learn until the j

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i DOL pWing v, s under way that Dr. McArthur had informed Mr. Jocher that he j

i would be terminated if he did not resign and had showed hirn a notice of tenmnation.

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D.

Mv knnwlwloe of safety concerns entsed by Mr. Jocher 25.

At the time that it was decided to ask Mr. Jocher to resign, I was generally awsre that Mr. Jocher had raised issues with respect to the SQN chenustry j

program. That was part of his job, and I would have ewd anyone in that job to do that. However, I did not know the details of any particular issues he had raised.. At that time, I believed that he was only reiterating long-standing issues, such as insuumentation, training, and procedures. I was not aware that Mr. Jocher had initiated any conective accon dwr m such as a signi5 cant corrective action report (SCAR) since SCARS were not nnemally sent to me, nor did I recall ever ene one. I was not aware that.

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control. I was not cssissi and no one ever complained to me about Mr. Jocher using l

the cormctive action process to draw nuantion to the chamimy pigi m. I would not i

have held use of that process against anyone. To me, it is clearly appropriate to use the CorfectiVC action process to raiae issues.

E.

Related matters (1)

The ATl's rimelen 1

25.

On July 31,1996, the ALT issued a decision that ruled against TVA in this matter. I am painfully aware that some of the ALT's findings do not accept i

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the facts as I know them to be. I am prepared to discuss any and all aspects of the ALi's decision that the NRC wants to discuss on September 23; however, I specifically want to take issue with one of the ALT's critical findings in this Declaration.

26.

At several places during his decision, the ALI states that I uniinterally canceled a six-month improvement plan for Mr. Jocher when I learned that the NRC was interested in some safety concerns that he had raised. For example, the ALT found:

Bynum, Keuter and McArthur met two times concerning Jocher's status at TVA. Durms the first meeting, all three agreed that Jocher would be given six months to improve his performance. Bynum alone abandoned the six month plan in the second meing and ordered Jocher terminated. Kenter's and McArthur's ans'wers to the TVA 01G questions concerning the events surrounding Jocher's departure were consistent and credible. Bynum's abandoning of the improvement plsa (in early April of 1993) after being told by the NRC on March 22,1993 that they were going to investigate Jocher's on-line instrumentation SCAR is suspect as I Sud the timing too coincidental (AU Decision at 27. See also. ALT Decision at 30, 36, 38].

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28.

The AIJ's decision does not accurately reflect the events that cu.mmd in March and April 1993, nor does it m=tely reflect what facts I knew during that time period.

a.

I never knew that Mr. Jocher had been offered a six-mnnth improvement plan in March 1993. My unwcxiing was that Mr. Jocher would resign when he was advised that managemem did not y he was doing the job. I did not understand that Dr. McArthur was going to suggest'to Mr. Jocher that he be placed on a six-monthimprovemem plan in March 1993; nor did I understand during that time period that Dr. McArthur did, in fact, suggest such a plan to Mr. Jocher in March 1993.

Accordingly, I did not deliberately or even consciously " abandon" a six-momh improvement plan in April 1993 because I did not know at that time that Dr. McArthur intended to present or had presented such a plan to Mr. Jocher.

b.

Moreover, in this timeframe, I was not made aware that the NRC was taking action on a safety concern that Mr. Jocher had previously raised in an on-line instrumemation SCAR. I do not recall seeing the March 22,1993, NRC correspondence dunng that nmeframe; I certainly did not study it at that time such that it made an impression on me; and I did not know that Mr. Jocher had initiated one of the SCARS which are referred to in the NRC's March 22 correspondence. Indeed, I am confident that I never even saw the SCAR at issue undl long after Mr. Jocher resigned from TVA and filed his DOL complaint. The NRC correspondence is a lengthy, routine monthly report that mentions many different safety issues. It does not even mention Mr. Jocher's name and from its text there is no way to know of Mr. Jocher's 1

involvement in any of the many issues meminned in the correspondence.

Accordingly, I did not deliberately or even consciously do anything against Mr. Jocher because of the NRC's March 22 correspondence.

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In an effort to disprove the allegations against me, I volursced to take a lie detector test. To my shock and complete surprise, the results of that test indiciW that I was being deceptive when I stated that Mr. Jocher's safety concerns had no bearing on his departure from TVA.

30.

I have little experience with lie detectors. I do not know how they work. But I was so izsent on proving to the NRC that the allegatio6s against me wem wrong that I offered to take such a test. I did not know anything about the reliability of lie 688w5 at that time; I simply assumed that because I was telling the auth the lie detector results would support me. I cannot explain why the lie detector results are what they are. I know that this has been a very emotiont.1 and difficult experience for me. I know that I am feeling an incredible amount of stress over this entire matter. Perhaps these things had an effect on the lie detector results.

31.

While I do not know why the lie detector results are what they are, what I do know-and what I swear under oath is the truth-is the following:

a.

I was not a party to any discussions with anyone in which dissatisfaction was expressed with Mr. Jocher because he had raised safety concerns-either when we were considering his continued etuployment at TVA or at any other time.

b.

I never consciously had a critical thought about Mr. Jocher for raising any safety concerns-either when we were considering his continued employment at TVA or at any other time, c.

During my ennre career, I have been firmly commined to the pnnciple that a nuclear organization must develop an atmosphere where everyone is free to raise safety concerns without fear of reprisal. I am strongly committed to this principle and I have never deliberately taken any action that is not fWly in keeping with this principle ia"baing any involvement I have ever had with Mr. Jocher.

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32.

I realize that we are here today because of mistakes I made in the last momh of a 21-year career in the nuclear industry. These mistakes were not characteristic of my previous 21 years in the nucle' r industry; nor are they characteristic a

of my career at TVA since April 1993. I ask the NRC to keep my entire career and my entire record in mind as it considers whether to take enforcement action against me for my role in this maner.

33.

My mi"=hs were that I did not comimminste clearly with my subordims to ensure that we all had a common understumiina of the facts related to the decisinnmaidng and not utilizing all available resources to ensure that the basis for our action was fbily understood, communicated, and documented. IfI had done these things right, I would not be in these terrible circumstances.

34.

I fully accept that these nnstakes were made. I believe that several unusual personal circumstances contributed to these errors. I was leaving TVA Nuclear after 21 years in the industry. Frankly, this major career move was distracting during this time period. Additionally, the two other mangers involved in this matter had personal problems to deal with at the same time. Dr. McArthur had been diagnosed with cancer and knew that he would be having surgery and chemntharapy treatments immaAinaly after Mr. Jocher's resignation. Mr. Keuter was cormd about pending downsizing (he was losing 25 % of his workforce) and the focus being placed on the support organi"4ns. I do not offer these as excuses for mistakes; but they were undoubtedly factors that made us less carefbl than we should have been in mmtmig I..'. d M

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35.

While I admit that my h=Mikg 'of Mr. Jocher's deparmre ham

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TVA was not good, my interians and motives were sound. My concerns were that Mr. Jocher lacked the management sid11s necessary to improve TVA's ch=ievy I

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consensus building skills necessary for a corpora're'ehamletry manager. He simply was unable or unwilling to supervise in a way that would get the job done through his subordinates ard peers.

36.

Whatever mistakes I may have made, I did not deliberately take any' action against Mr. Jocher for raising safety concerns. My job for 21 years was to raise and resolve safety concerns and to make sure those working for and with me did likewise. Both now and in 1993, I was fully aware of the requir-of Section III of the Energy Reorganization Act and 10 C.F.R. 9 50.7. I understand and believe in these requiasdi. I have built my reputation on being open and approachable on any issue and encouraging my employees to bring safety concerns forward in any manner they see fit.

37.

I have paid a high personal and professional price for my mistakes.

I have suffered an enormous emotional toll. I have lost sleep, worried over my future, and been under terrible stress because of the countless investigations, hearings, and inquiries. This has been the most difBcult professional experience of my areer. My integrity has been called into question by the AIJ and the NRC. TVA has had to spend huge amounts of time and money because of the way I handled Mr. Jocher's departure Rom the company.

38.

I urge the NRC to let me put this whole matter behind me. I have learned ninch from the experience, and I do not need further piminhma* from the NRC-

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r7 d?G to teach me any more lessons about it. 'lla: events that are at issue here are an aberration. Nothing like them ever wM before or since. Nothing like them will ever occur again. I want to move on with my life and my career, and I hope that this will be over soon so that I can concentrate on using my abilities and experiences Omth good and bad) to help TVA in any area that I am needed.

L CONCLUSION 39.

I appreciate the ugimdty to file this statement with the NRC. I ask the agency to accept my assurances that I have not acted deliberately to retaliate against Mr. Jocher for nising any safety concerns with anyone. And I ask the agency to recognize the extenua.ing and mitigadng circumstances that I have identified and to let me begin rebuilding my career and persona 11ife. I look forward to discussing these maners l

at greater length at the September 23 conference.

I declare under penalty of perjury that the foregoing is true and correct.

September 19,1996 V

1. JOSEPH R. BM 31480 l

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TO: Bruno Urve. Jr.

Date: Saotember 20.1998 l

Company: NRC Reoion 11 Fax No: 404 331.4449 Number of pages including this page: 22

_ Phone: 404.331 5505

Subject:

Individual Enforcement Conference of Joe Bynum FROM:

Edward J. Vigluicci, Senior Attorney Office of the General Counsel 400 West Summit Hill Drive, ET 10A Knoxville, Tennessee 37902 j

Telephone Number: (423)632-7317 1

1 Fax Number: (423) 632-3195 Verification Number: (423)632-7317 l

l i

Comments:

We ask that the NRC consider the attached letter and declaration in connection with Mr. Evnum's uncomina individual enforcement mnference I nimmad i

six cocina of the attached in Fed-Er mail to Mr. Ebneter vesterdav evenina for l

distribution today to those who may be involved in the conferenee.

Pt. EASE NOTE: This communication may contain pnvileged information, proprietary information, or attomey I

work product. Any use, dissemination, distribution or copy of this communication other than by the intended l

receient is prohibited, if you feel that you may have recolved this document in error, please tdephone verWicetion nurnbor, coiled, to discuss arrangements for the retum of this infbrmation. It is not, the intention of i

the Tennessee Valley Authority to wolve the attomey cilent pnvilege, the ottomey work-product doctrine, or any

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gey/.i i rights in the information contained on the following pages.

f IF YOU DO NOT RECEIVE alt. PAGES, CALL US BACK IMMEDIATELY1 g0006 M

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