ML20154K888
| ML20154K888 | |
| Person / Time | |
|---|---|
| Issue date: | 09/25/1998 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-98-223, SECY-98-223-01, SECY-98-223-1, SECY-98-223-R, NUDOCS 9810190059 | |
| Download: ML20154K888 (38) | |
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....................e ADJUDICATORY ISSUE (Information)
September 25, 1998 SECY-98-223 Egr:
The Commission From:
John F. Cordes, Jr.
Solicitor Sublect:
LITIGATION REPORT - 1998 - 4 American Public Power Ass'n v. NRC. No. 98-1219 (D.C. Cir., decided Aug. 31,1998)
In a one-page order, the court of appeals (Wald, Silberman & Henderson, JJ.) dismissed a petition for review filed by a trade association of municipal power companies and by other petitioners. Petitioners had challenged the lawfulness of a 1997 NRC policy statement on economic deregulation insofar as the policy statemerJ suggested that there may be circumstances in which the NRC would hold co-owners of nuclear power reactors jointly and severally liable for operating and decommissioning costs. We filed a motion to dismiss the lawsuit as unripe. We pointed out that the policy statement did not state a binding NRC legal interpretation and has never been applied to an actual case.
The court of appeals granted our motion and dismissed the case because the " agency action at issue is not ripe for judicial review at this time." The court stated that its dismissal was "without prejudice to any right petitioners may have to challenge the agency action at issue in an appropriate circumstance."
CONTACT: Peter G. Crane 415-1622-k (
Thermal Science. Inc. v. NRC. No. 98-3147 (8* Cir., stay denied Sept. 10,1998)
This is the continuation of an effort by Thermal Science to derail NRC consideration of a h
proposed $900,000 civil penalty for alleged false statements to the agency about the testing of Thermal Science's Thermo-Lag product. This summer, after a lengthy delay, the district court dismissed the suit outright as premature and also refused to stay administrative proceedings pending appeal. Thermal Science then appealed and sought a stay from the court of appeals.
We opposed the stay. In a one-sentence order the court of appeals denied the stay motion.
The court also set a briefing schedule on the merits of the appeal. Thermal Science continues to argue that NRC cor, sideration of a civil penalty violates the Constitution's Double Jeopardy L - k - } ff h b A 9810190059 900925 5
PDR SECY t
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.o w Clause and is beyond the agency's statutory authority. The court of appeals is likely to hear oral argument on the appeal early next year, j
i in the meantime, in the absence of a stay, NRC administrative proceedings can move forward.
i Thermal Science has filed a response to the notice of violation and proposed civil penalty. The l
NRC's Office of Enforcement currently is considering the response. If a civil penalty is i
assessed, Thermal Science may request a hearing before an NRC Licensing Board.
CONTACT: Charles E. Mullins 415-1618 Envirocare of Utah. Inc. v. NRC. No. 98-1426 (D.C. Cir., filed Sept. 15,1998)
This petition for review challenges a Commission adjudicatory decision, CLI-98-11, rejecting Envirocare's standing to pursue a Licensing Board hearing on the NRC's grant of a license to j
Quivira Mining Company, a competitor of Envirocare in the waste disposal business.
Envirocare claims that the NRC did not require Quivira to satisfy the same costly environmental 1
and safety standards applied to Envirocare. According to Envirocare, the NRC's lenient review of the Quivira application leaves unanswered significant safety and environmental questions and also gives Quivira an unfair competitive advantage in the marketplace.
Citing judicial concepts of standing that the Commission historically has followed, the Licensing Board dismissed the request for a hearing, smd the Commission affirmed, on the ground that only persons who themselves suffer health and safety or environmental harms have an l
" interest" sufficiant for intervention under section 189a. The Board and the Commission ruled j
that Envirocare, whose facility lies hundreds of miles from Quivira's, was claiming purely
- economic injury from increased competition and that such injury does not fall within the " zone of j
interests" protected by the AEA or NEPA.
l The case likely will not be briefed or argued until early next year, i
CONTACT: Grace H. Kim 415-3605 l
Fields v. NRC.1:98CV01714 (D.D.C., filed July 9,1998)
Plaintiffs in this lawsuit, filed under the Privacy Act, were licensed operators at the Crystal River l
Nuclear Plant in Florida, in 1994, after becoming frustrated by their management's inattention to an alleged safety problem at the plant, plaintiffs conducted their own " experiment" to substantiate their safety concerns. Plaintiffs' concerns turned out to be well-founded, and led to the NRC's imposition of a large civil penalty ($500,000) against Crystal River's operator, Florida Power Corporation. The NRC took no enforcement action against plaintiffs for their unilateral actions but in correspondence pointed out that their actions violated the law, and that the " ends do not justify the means." Plaintiffs lost their positions as licensed operators at Crystal River.
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- 1 Plaintiffs demanded correction of their records under the Privacy Act. The NRC refused to alter the records, and plaintiffs have now sought relief in federal district court. We are working with the United States Attorney's office in defending this lawsuit. In the meantime, plaintiffs are seeking relief as "whistleblowers" before the Department of Labor. Plaintiffs lost in their initial effort, but now are before the United States Court of Appeals for the Eleventh Circuit seeking reinstatement of their grievance.
l CONTACT: Catherine M. Holzie 415-1560 United International Investiaative Services. Inc. v. United States. No.98-729 C (U.S. Court of Federal Claims, filed Sept.18,1998)
This lawsuit challenges the NRC's termination of a contract for security guard services at the NRC's Rockville facilities. The lawsuit argues that the NRC terminated plaintiff's contract in
- July for failure to possess a Maryland license, but failed to provide plaintiff a ten-day period to
" cure" the default, as the contract allegedly required. The lawsuit also maintains that plaintiff l
was under no obligation to obtain or maintain a state license. Plaintiff has indicated that it will seek an injunction ordering the NRC to revoke the license terminatien.
i We are working with the Department of Justice in Washington in defending this suit.
Contact:
Grace H. Kim 415-3605 ohn F. Cordes Solicitor DISTRIBUTION:
-Commissioners OGC OCAA OIG OPA OCA' ACRS ACNW ASLBP CIO l.
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i American Public Power Ass'n v. NRC. No. 98-1219 (D.C. Cir., decided Aug. 31,1998) 1 l
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Knitch $tatea Gaurt of Appeala Fon THE Disinici or COLUMBIA CMCUIT No. 98-1219 September Term,1997 American Public Power Association, et al.,
F0 T
OF C I,i..lfCT Petitioners Fil.ED
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AUS 3 ii98 Nuclear Regulatory Commission and United States of America, Respondents -
Massachusetts Municipal Wholesale Electric Company, Intervenor for Petitioner BEFORE:
Wald, Sl!berman, and Henderson, Circuit Judges ORDER Upon consideration of the motion to dismiss and the answer thereto, it is ORDERED that the motion be granted. The agency action at issue is not ripe for judicial review at this time. See Ohio Forestrv Association v. Sierra Club,118 S. Ct.
1665 (1998). This dismissal is without prejudice to any right petitioners may have to challenge the agency action at issue in an appropriate circumstance.
The Clerk is directed'to withhold issuance of the mandate herein until seven l
days after disposition of any timely petition for rehearing. San D.C. Cir. Rule 41.
1 Ear Curiam
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Thermal Science. Inc. v. NRC. No. 98-3147 (8* Cir., stay denied Sept. 10,1998) l
4 United States Ccurt cf Appeals FOR THE EIGHTH CIRCUIT 98-3147EMSL Thermal Science,Inc.,
j Appeal from the United States l
Appellant,
- District Court for the v.
Eastern District ofMissouri U.S. Nuclear Regulatory Commission, Appellee.
'Ihe appellant's motion to stay administrative proceedings pending appeal is denied.
September 10,1998 Order Entered at the direction of the Court i
Clerk, U.S. Court of Appe3ft, Eighth Circuit
.s 20*d 00EESTPT0tB 01
'dd0 S.A3NB011e s n Wadd LE:ET B66T-TI-d35
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UNITED STATES COURT OF APPEALS FOR THE ElGHTH CIRCUlf I
APPEAL BRIEFING SCHEDULE Appeal No.
98-3147 Thermal science v. US Nuclear Rer. Comm Date:
September 10, 1998 This schedule has been established in conformity with the 8th Cir.R. 28A & 30A, which is a modification of the procedure suggested in PRAP. Because this court has directed that~the practice of routinely granting extensions of time be discontinued, counsel and court personnel must carefully note the dates indicated and arrange their schedules to insure compliance with this order.
APPEAL REGJIRIBENI5:
1.
Complete and file immediately:
a.
Appeal Information Form. 8th Cir. R. 38.
b.
Certificate of Interested Parties.
8th Cir.'R. 26.1A.
c.
The enclosed Entry of Appearance Form.
2.
Within 10 days of filing the notice of monesi. appellant must a.
order the necessary portions of the transcript or file a certificate of waiver.
FRAP 10 (b) b.
arrange for payment of transcript costs.
FRAP 10 ( b) c.
confer with opposing counsel regarding method of preparation of appendix.
FRAP 30, 8th Cir. R. 30A.
3.
Within 20 days of filing the notice of. appeal, appellee must a.
order additional portions of transcript, if necessary.
b.
arrange for payment of transcript costs.
COURT REPORTER REQUIREMDf!S:
1.
Upon receipt of the transcript order, the reporter shall a.
endorse it and forward a copy to this court. FRAP 11(b) b.
complete the transcript within 30 days. FRAP 11(b) 2.
Request an extension of time in writing with justification.
NOIE:
SANCTIONS HAY BE IMPOSED IF A TRANSCRIPT IS NOT ORDERED AND TRANSCRIBED IN ACCORDANCE WITH THE RULES. Counsel will not be permitted to " buy time" by delaying the transcript order.
FILI!G DA'IES:
Method of Appendix Preparation Notification............. 9/21/98 Designation of record & Statement of.................... 9/21/98 Issues-Appellant Designation of Record-Appellee.......................... 9/30/98 1
Transcript............................................... 10/20/98
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Joint Appendix ( 3 copies)................................ 10/30/98 Brief Appellant with addendum............................ 10/30/98 Brief-Appe11ee..........................................
11/30/98 Reply-Brici.............................................. 12/14/98 ALL BRIEFS A)G APPENDICES SM)ULD BE PILED WITH 'DE ST. LOUIS (FPICE i
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Pa*d 002ESTPTOE8 01
'ddO S.A3N83110 $ n WOdd 12:21 8561-TT-d35
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Envirocare of Utah. Inc. v. NRC. No. 98-1426 (D.C. Cir., filed Sept. 15,1998) l i
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No.
'E /b d ENVIROCARE OF UTAH,INC.,
Petitioner, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA Respondents.
PETITION FOR REVIEW Envirncare of Utah, Inc. ("Envirocare")', pursuant to 42 U.S.C. @ 2239(b),28 U.S.C.
@@ 2342 and 2344, and FRAP Rule 15(a), hereby petitions this Court for review of the Memorandum and Order (" Order") of the United States Nuclear Regulatory Commission, CLI-98-11, served July 17,1998, and captioned In re Quivira Mining Company, Docket No. 40-8905-MLA.2 Venue lies with this Court pursuant to 28 U.S.C.
2343.
Envirocare participated in the proceeding below, and its interests have been adversely affected by the Order. Consequently, Envirocare requests that the Court review the Order and 3 Because Envirocare is privately held, no Corperate Disclosure Statement is required pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure ("fRAP").
2 A copy of the Order is appended hereto as an Attachment.
PETITION FOR REVIEW-Page 1
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set it aside as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with i
I law.
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Respectfully submitted, i
l DAVIS WRIGHTTREMAINE LLP By:
' b) e Richard L. Cys d
1155 Connecticut Avenue, N.W.
Suite 700 Washington, D.C. 20036 l
(202) 508-6617 Lynda L. Brothers 2600 Century Square l
1501 Fourth Avenue Seattle, Washington 98101-1688 l
(206) 622-3150 l
l Attorneys for Envirocare of Utah, Inc.
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i September 15,1998 t
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1 petri 10N FOR REV1EW-Page 2
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i Fields v. NRC.1:98CV01714 (D.D.C., filed July 9,1998) f
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In the Matter of:
i DAVID A. FIELDS ROBERT P. WEISS
[I MdN JACK D. STEWART Case No. :
d'#
COMPLAINANTS, File No. :
V.
THE UNITED STATES NUCLEAR REGULATORY COMMISSION RESPONDENT i
/
t COMPLAINT Pursuant to Title 5 United States Code SSS2a, (g) (1) (D)
" Privacy Act", Fields,' Weiss, and Stewart
(" COMPLAINANTS")
file.this complaint against Respondent UNITES STATES NUCLEAR REGULATORY COMMISSION ("NRC") _ and state:
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- 1. COMPLAINANTS were licensed by the Nuclear Regulatory j
Commission to operate Florida Power Corporation's Crystal l
River Nuclear Plant located in Crystal River, Florida, t
FIELDS was the Nuclear Shift Supervisor, WEISS was the Assistant Nuclear Shift Supervisor, and STEWART was the 1
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Chief Nuclear Operator comprising the supervisory positions and one of four bargaining unit positjons of a shift of^
operators directly' responsible for the safe operation of the nuclear reactor.
This shift of operators was commonly known as "A" Shift.
- 2. On September 4 and September 5, 1994, the "A" Shift Operators conducted two evolutions to challenge the validity of an Operating Curve, Curve 8, which had been the-subject of controversy since January of 1993.
Curve 8 in
-effect in 1994 is enclosed as Exhibit 1.
- 3. COMPLAINANTS Weiss and Fields filed a Problem Report to FPC Management on September 7, 1994 stating that Curve 8 was incorrect.
4.
FPC Management and the NRC soon became concerned with
.the importance of Curve 8 and with the conduct of COMPLAINANTS.
As it soon became apparent, Curve 8 represented a ' design basis' curve and not an operating curve.
A ' design basis' defines whether a system or group
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of components in a nuclear power plant will function during 1
assumed accident conditions.
In the case of Curve 8, the
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curve defined the operability of one train of the High Pressure Injection (HPI) System.
This system is important for the safe shutdown of the nuclear reactor in case of an 2
-accident known as a' loss of coolant.
A ' design basis' is
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also an NRC requirement which cannot be violated.
5.~'Because "A" Shift operators plotted data not in the area of the Curve labeled ACCEPTABLE, it was assumed that the i
operators had violated a nuclear design basis.
The NRC Anitiated and conducted investigations into the conduct of the operators over the following months.
t 6.-FPC terminated FIELDS and WEISS on August 23, P
1995.
FPC ccncelled STEWART'S NRC License on that same date and
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demoted him to an entry level position in the Planning
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Department.
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- 7. On' July 10, 1996, COMPLAINANTS were issued final letters i
l from RESPONDENT.
These letters were the end result of over i
twenty-two months of' investigation.
These letters are attached as~ Exhibit 2.
Upon initial review of the letters, COMPLAINANTS' believed that they had been vindicated.
RESPONDENT, NRC, had concluded that " enforcement action i
against you is not warranted" and that "this decision is i
Lbased, _in:part, on FPC management's responsibility and culpability".
RESPONDENT'S letters also stated that COMPLAINANTS' " raised questions concerning the conservatism of' operating curve OP103B, Curve 8 to your management and to-an NRC Inspe' tor" and "your actions demonstrated the c
3 validity of your concerns".
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- 8. On July-10, 1994 the NRC fined Florida Power Corporation
$500,000'for their. culpability in the evolutions performed in September 1994 and subsequent violations in a formal Notice of. Violation.
This' Notice of Violation (NOV) is attached as-Exhibit 3. On page two of the NOV the NRC states: "In particular, licensee management failed to exercise effective oversight in several areas that are each of. vital importance in assuring the safe operation of a l
nuclear facility.
Operations management was unaware that i
essentially all control room shifts were routinely violating an~ operating curve, yet'these violations were i
being committed in attempts by operators to meet a chemistry goal set by senior management.
Furthermore, despite-the fact that the safety adequacy of the curve was formally questioned in a problem report by licensed' operators, not only did management not require that the safety concern be resolved promptly, but' management i
insisted thac the plant be maintained at a hydrogen concentration that resulted in operating on or near the maximum point of the questioned curve during the'several months the issue was being considered.
The operating environment maintained contributed to the perceived need to conduct the September 4-5, 1994 evolutions to resolve the matter".
Page.3 on the NOV continues: "The NRC is very 4
I concerned about the ineffective management oversight of the i
engineering, operations, and corrective action activities 1
demonstrated by these violations.
The NRC expects licensees to.promptly address safety concerns, especially those raised by licensed operators, and to resolve them l
with a high degree of rigor.
You did not meet these l
expectations in this case: Managers appeared insensitive to safety concerns and.did not aggressively pursue them, engineers overlooked basic scientific principles and produced inaccurate analyses, and-investigations failed to
[
identify important case facts and underlying root causes".
- 9. COMPLAINANTS were concerned with the tone and content of l
the letters sent to them on July 10, 1994.
The letters stated in part, "the operating crew that you supervised l
l failed to meet the standards for operators at a nuclear l
l power plant" and " performance of an unauthorized evolution is a significant' violation".
RESPONDENT also stated, "we j
would have expected you to have raised your concern higher j
i h
within FPC.
You could have raised the issue to either the
. Regional. Office or NRC Headquarters".
And finally RESPONDENT admonished COMPLAINANTS that "nevertheless, we i
emphasize.that the ends cannot justify the means".
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- 10. There is one significant difference between the Notice of Violation,-Exhibit 3, sent to Florida Power Corporation L
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COMPLAINANTS.
.The letters have no provisions-for appeal.
l Had RESPONDENT issued a formal NOV, then COMPLAINANTS would have been given the. opportunity to appeal the ruling in a j
hearing by rules pre-established in the Federal Register, i
Part.111, Nuclear Regulatory Commission (10 CFR 2).
-11. COMPLAINANTS Fields' and Weiss' attorney at the time, Mr. Richard Hendrix drafted a letter to RESPONDENT on July 19, 1996 requesting that the letters be rescinded or that they be granted an Administrative Appeal to deny the NRC I
findings.
This letter is attached as Exhibit 4.
The NRC findings'were refuted for the following two reasons:
1.
Fields and Weiss were denied due process of law.
2.
The NRC did take action against Fields and Weiss without a Notice of Violation.
- 12. RESPONDENT replied to Mr. Hendrix on August 23, 1996.
Mr. James Lieberman, Director of Enforcement, denied that the NRC had made any findings against Fields and Weiss, and states: "as a matter of due process, a hearing is not warranted for the issuance of letters to your clients because the letters do not impose any restrictions on your clients' ability to be involved in licensed activities".
Mr..Lieberman also states,
..the basis of your request for ll L
. hearing, apply to civil penalty actions.
No civil penalty 6
t l'
has been proposed against your clients".
This letter is attached as Exhibit 5.
- 13. COMPLAINANTS filed a Labor Department Complaint in-l February 1996 against Florida Power Corporation for the disciplinary actions taken against them. -This Complaint was filed pursuant to 42 USC 55851, " Whistle Blower Statute".
FIELDS =and WEISS sought redress from Florida l
i-Power Corporation for what they contended was discriminatory termination and STEWART sought redress for disciplinary action taken against him.
- 14. Florida Power' Corporation filed a Motion for Summary Decision and/or Dismissal pursuant to 42 USC 55851(g).
FPC argued that FIELDS, WEISS, t.1d STEWART deliber!.tely plotted i
data and executed two unauthorized tests on a nuclear power i
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plant and caused a violation of NRC requirements and
' therefore were barred from 55851(a) protection.
FPC cited that the NRC had issued " individual letters of reprimand" to FIELDS, WEISS, and STEWART and that the letters i
explicitly stated that the individuals violated NRC l
requirements.
FPC quoted the letters as'follows,:
" performance of an-unauthorized evolution affecting safety
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systems'is a significant violation" of NRC, requirements.
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- 15. DOL Administrative Law Judge David Di Nardi, issued his i
Recommended Decision & Order granting FPC's motion for J
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i-o Summary Dismissal in March, 1997.
The Recommended Decision I
is attached as Exhibit 6.
Pages 7,8,and 9 of the decision
. quotes'NRC Letters to FIELDS, WEISS, and' STEWART (Exhibit
- 2) extensively. Judge Di Nardi discusses thoroughly the l
legal precedents and interpretations of what constitutes i
deliberately and deliberately causes.
On page 16 of the i
l Decision the ALJ. concludes that FPC has established it's
- 55851 (g) affirmative defense for the following reasons:
- 1. The act was done without the direction from the employer.
- 2. FIELDS, WEISS, and STEWART deliberately did the i
act.
l 3.
The act caused a violation of AEA (Atomic Energy l
Act) requirements.
Judge Di Nardi only has to refer to the NRC Letters of Ouly j
10, 1996 to find NRC support for items 1. and 3. above. For t
l Support'of the ' deliberate' criteria (2. above), Judge
- Dinardi states on page 20: "In the case sub judice, I have l-arrived at the conclusion that the uncontroverted facts, as established by Complainant's own testimony and various documents, support the NRC's determination in regards to l
each Complainant.
Accordingly, I have considered the NRC letters and reports and am persuaded by the findings therein.
This-Judge applauds the Complainants for their 8
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keen analysis which led to the discovery of a serious safety issue.
I cannot, however, condone the method by-which they chose to accumulate supporting data for their concern (s).
As the NRC has stated, the ends simply do not justify the means.
Therefore, I somewhat regretfully find that the evidence in this case conclusively establishes those facts necessary to a 42 U.S.C. SS851(g) defense."
- 16. On March 13, 1998 the U. S. Department of Labor Administrative Review Board issued their Final Decision and Order concerning FPC's motion for Summary Dismissal of FIELDS, WEISS, and Stewart's DOL Whistleblower Complaint.
The Final Decision is included as Exhibit 7.
The Review Board supported the ALJ's conclusion that FIELDS, WEISS, and STEWART 1) acted without direction from FPC, and
The Review Board relied almost solely upon the NRC letters to COMPLAINANTS to support the finding (pages 8 and 10).
The Review Board concludes on page 10, "The record demonstrates unequivocally that Complainants could have brought their concerns about Curve 8 to higher managers within FPC and to the NRC's regional of fice and headquarters.
Given that other avenues were available to pursue Complainants acted without any implied authority and that they acted "without direction from" FPC when they caused a violation".
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- 17. The Review Board-did have a problem _with the ALJ's i
_ argument concerning the. phrase " deliberately causes a f
violation". On page 12 on the Final Decision'the Board l
' states:: "The ALJ's. interpretation of Section 211(g) to include any action that is not inadvertent would, however, l
greatly expand the breadth of this' affirmative defense.
1
'Such:an interpretation could lead to. unfortunate results in l
' situations in which-an employee acts. deliberately (that is, I
not inadvertently), but-innocently and without knowledge or L
reckless disregard that'his or:her: action will cause a violation of the ERA or the Atomic Energy Act."
The Review
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Board concluded on page 14 that FPC must show that~ FIELDS, WEISS, and STEWART acted "with' knowledge or with reckless disregard of whether his'or her act would cause a violation" for the necessary showing of " deliberately l-causes a violation".
The Review Board then. referred
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directly to the NRC letters (Exhibit 2) to make their case.
j On page:15 the Board states, " Complainants could have brought.their concerns to higher managers within FPC and to l
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other levels of the NRC, both in the regional office and at the headquarters.
An NRC resident inspector even invited I:
Complainants t-o submit a formal allegat4on to the NRC t
.concerning Curve 8".
And the Board further stated, "While 1-the NRC acknowledged that the Complainants' actions had the 10
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salutary effect of proving that Curve 8 was I
nonconservative, the agency also concluded that the f
salutary effect did not excuse the Complainants' risk I
taking" and ".. Nevertheless, we emphasize that the ends cannot-justify the means.
In this case, your actions demonstrated the validity of your concerns; in other 4
l instances.such might not be the case."
- 18. The Department of Labor in its final decision to-dismiss the Complaint filed by FIELDS, WEISS, and STENART had now relied-entirely on the letters issued on July 10, i
1996.
COMPLAINANTS had 1)-performed an ' unauthorized' 'act,
- 2) violated an AEA requirement, and 3). acted with ' reckless disregard' and therefore ' deliberately caused a violation' because they had not brought their concerns to higher managers within FPC'and the NRC.
And as the NRC stated, 1
'the' ends cannot justify the means'.
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- 19. Following issuance of the DOL Final Ruling, l
COMPLAINANTS' attorney, Mr. Stephen Kohn, sent a letter on
. March 25, 1998 to the NRC Freedom of Informati.on Branch requesting that the July 10, 1994 NRC letters be amended.
The-NRC responded on June 19, 1998 that the letters would
- not be amended.
These two letters are attached as Exhibit 8.-
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- 20. Although the NRC letters state that 'no action is warranted' and NRC Director of Enforcement James Lieberman
' states'that."no action has been taken'against your clients"
~(Fields and Weiss), clearly the result of these letters is very significant.-
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.21. The NRC letters issued to COMPLAINANTS on July 10, 1996 l
are the basis of-this action.before the Federal District t
' Court pursuant to Title 5"USC 5552a, (g) (1) (D).
The action
.taken'by1the NRC has'resulted in significant damage to COMPLAINANTS.
Without any appeal rights, the NRC has taken 3
unilateral action to destroy the careers and livelihood of j
l FIELDSEand WEISS.
STEWART has been damaged to a lesser extent.
All three have suffered significant and' irreparable damage to their reputations. Legal fees alone have. totaled-approximately 0135,000 to bring their Complaint before-the Department of Labor and prepare defense against NRC charges.
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THE CASE i
- 22. If nothing else, this battle with the NRC since 1994 and Complaint filed before the DOL in 1996 has resulted in extensive documentation.
Thousands of pages of documents I
and transcripts exist to support this case in Federal District Court.
The record already exists.
COMPLAINANTS believe the record is clear; the NRC acted with reckless disregard to destroy the careers of FIELDS, WEISS, and STEWART.
- 23. All the documents will not be produced here to support COMPLAINANTS case.
Only a braef synopsis will be provided, y
Central to the case is to refute the findings in the NRC letters written to the Complainants on July 10, 1996.
- 24. First, COMPLAINANTS did not cause a violation.
The plant was already outside of design basis parameters and had been, at FPC Manager's insistence, since January 1993.
When Curve 8, Exhibit 1, that existed in 1994 is plotted on the revised (because of COMPLAINANTS actions to raise and
- validate their safety concern) Curve 8, Exhibit:9 attached, it becomes' apparent that the plant was being operated l-l outside of its design basis.
As is clearly evident the old O
Curve 8 falls completely outside of the ' design basis' L
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curve defined by the revised Curve 8.
The NRC has i
steadfastly refused to acknowledge this fact and continues tofstate that COMPLAINANTS placed the reactor in jeopardy while the evolution was in progres's.
In truth, the Crystal River Nuclear Plant had been and would still be operating outside its design basis with one' half of it's High Pressure Injection System inoperable had it not been for i
~the actions of COMPLAINANTS.
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- 25. In July 1995 the NRC cited FIELDS, WEISS, and STEWART, and the other three licensed operators on "A" Shift for violating the HPI design basis when they performed their evolution to show that Curve 8 was non-conservative.
In August 1995 before the NRC Managers in Atlanta, Georgia,
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Fields' and Weiss' attorney, Mr. Richard Hendrix asked the Director of the NRC Office of Investigation why the
. violation was referred to as an ' evolution' and not a
' test'.
Mr. McNulty stated that ' test' was not clearly defined by the NRC.
This exchange is available within the meeting transcript.
L l-
- 26. The difference between a test and an evolution becomes
'important when Mr. Weiss, after being terminated, performs an analysis of FPC plant computer data and proves that for j.
the time period three months before September 7,
- 1994, e
14 j
L Curve 8 had been violated approximately 66 times.
Mr.
i Weiss submitted his results to the NRC as an Allegation.
l 27 In February 1996, the NRC issued Inspection Report 1
95/22. The NRC reduced the curve violations down to 9 which had exceeded Curve 8 by greater than.5 psig for longer than 5 minutes.
In fact some of che violations occurred l
j for longer than three hours.
The NRC concluded that L
' essentially' 100%.of the Licensed Operators had violated Curve 8.
i L
l.
- 28. It would appear that the NRC should change it's stance against COMPLAINANTS to take individual enforcement action or all-Crystal River licensed operators would now be involved.
Instead, the NRC decided to separate out COMPLAINANTS from the other operators and change their i
violation to performance of an unauthorized ' test'.
In fact they even provided a definition for a ' test' :
" conducting an evolution not required by plant conditions for the purpose of gathering data".
COMPLAINANTS were still being held up for NRC escalated enforcement.
This action proves bias against COMPLAINANTS.
All other operators had violated Curve 8 because they were l -.
inattentive,-while "A" Shift operators were pursuing a valid safety concern and.had an increased safety awareness and had stationed extra personnel for the evolutions.
4 15 l
n
(/
~ _
- _ _ _ _ _. _ _ ~.... _ _..
l
[-
t 29.-Inspection Report 95-22 also provided significant i
L insight'into the quality of training and procedures available to the Crystal River operators.
The NRC
-concluded that procedures were so vague that no one could determine when evolutions were tests or experiments and l
that FPC did not provide a definition of a Test or training on what constitutes a test.
FPC told the NRC that it l
relied upon the Nuclear Shift Supervisor to make that determination.
Fields, Weiss, and Stewart and the other "A" shift operators were being held to the non-existent, i.
and undefined standard.
The NRC proceeded with a vengeance anyway.
This argument is better articulated in a letter from~ Richard Hendrix to the NRC's Albert F. Gibson dated 1
l
-March 28, 1996.
This letter is attached as Exhibit 10.
- 30. The NRC' letters to COMPLAINANTS argue that the individuals should have, and were expected to, notify higher management personnel within FPC and the NRC.
In
- fact, "A" Shift had been in contact with FPC Managers and Engineers for months trying to get their safety concern resolved.
FPC management knew that that shift of operators i
had taken'the lead on the issue.
On September 2, 1994 i
Engineering wrote a letter to the plant manager stating Curve 8 was ' accurate and reasonably conservative' and that the concern raised by the "A" Shift operators was to be 16 i
l
~. -.
.~-- -...
_~...
l l
l L*
. closed out; the curve would not be changed.
COMPLAINANT I
Fields received a copy of the letter with a note from L'
Operations. Management to provide feedback.
Fields and the rest of his shift decided that the appropriate feedback
]
e would be to use existing, pre-approved procedures to lower
~
the water level in'a tank known as the Make-Up Tank and plot system response,against Curve 8.
There was no need to l
notify Operations Management.because it was a routine,
,proceduralized, and safe evolution.
COMPLAINANTS were 1
merely conducting themselves as they always had, j
L professionally and within established procedures and expectations.
j t
31.'As'far as notifying the NRC was concerned, "A" Shift i
had gone to the NRC Resident Inspector on four separate f
i occasions prior to September 4, 1994 with their concerns about the accuracy of Curve 8 and their concerns about operating near the maximum pressure allowed by the curve.
The NRC Resident Inspector is the eyes and ears of the NRC on sight.
He could have brought COMPLAINANTS' safety concern to his supervisor, the Senior Resident Inspector or
.he could have called the Region II headquarters in Atlanta to convey the concern.. He could have called the NRC i
Headquarters in Washington D.C.
Instead, the NRC Resident
)
0
/
r
' blew off' the operator's concern and told him Inspector l'7 I
1 i
that if he wanted to he could file an Allegation to NRC Senior Management.
After the fact, NRC managers wrongfully fault the operators for taking incorrect action to make
-appropriate NRC notification.
In fact, it was the
. responsibility and duty of the NRC Resident Inspector to
-raise the operator's concerns to higher levels within the NRC.
By.being contacted four times, an Allegation was Lbeing made by the operator on "A" Shift.
It was not the responsibility of plant operators to go outside their company chain of command to raise an issue with off site NRC managers which could have had adverse effects upon their careers.
The NRC failed to make appropriate notification, NOT the operators on "A" Shift, including COMPLAINANTS Fields, Weiss, and Stewart.
The NRC has never
.' accepted any responsibility for the mistakes that were made
- at Crystal River.
"A" Shift operators were singled out for individual sanctions and Florida Power Corporation was fined $500,000, but the NRC stands above any culpability or scrutiny.
COMPLAINANTS believe the NRC must accept their responsibility, not only to right the injustice in this case, but to prevent this regulatory abuse from affecting the safety of the entire nuclear industry.
18
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. -..... - -.. = ~ _ -. - _. - -
t L-i l*
l CONCLUSION l
- 31. Commercial Nuclear Power plants are complicated, l
potentially dangerous, and require rigid rules and procedures to be operated safely.
The Nuclear Regulatory Commission'is charged with the oversight responsibility for their safe operation.
But what happens when the NRC strays from it's responsibility and takes adverse action against individuals who were only concerned with resolving a safety l
concern?
The Department of Labor failed to provide
_ protection because they deferred to the ' expert' opinion of
.the NRC.
COMPLAINANTS have no recourse now but to seek justice in the Federal District Court.
Respectfully Submitted:
David A.
Fields 7347 Applewood Dr.
Inverness, Florida 34450 (352) 344-2626 2
19
~.
. ~. - - -.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of.the foregoing has been furnished to:
Karen Cyr General Counsel U S Nuclear Regulatory Commission 1 White Flint North 1
j Mail Stop 15B-~
Washington, D. C.
20555 By Federal Express, July 8, 1998 d A PJ.l David A.
Fields 1
l r
i 1
1 4
l I
l United International Investiaative Services. Inc. v. United States, No. 98 729 C (U.S. Court of i
. Federal Claims, filed Sept. 18,1998)-
1 i
-1 i
i L
l s
i j
l
m;--
r..a i
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
)
UNITED INTERNATIONAL
)
INVESTIGATIVE SERVICES,INC.
)
3 hb"729 0
Plaintiff,
)
No.
v.
)
SEP 181998 THE UNITED STATES,
)
Defendant.
)-
)
COMPLAINT
- 1. Plaintiff UnitedIntemationalInvestigative Services,Inc. ("UIIS"),by undersigned counsel, hereby appeals the default termination of a con performing for the U.S. Nuclear Regulatory Commission ("NRC").
JURISDICTION
- 2. The Tucker _ Act,28 U.S.C. f 1491(a), as amended by the Federa Administration of Act of 1992, Pub. L. No.102-572,106 Stat. 4506, Court to hear direct appeals of default terminations.
PARTIES
- 3. PlaintiffUIIS is a corporation organized under the laws ofCali place of business is 180 N. Riverview Drive, Suite 100, Anah owner and President is-William J. Guidice. UIIS provides securit United States and abroad under various government contracts.
1
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&w& ;.* ' 0 0 =.w
.w 6;
v.
w 4
- 4. Defendant is the United States of America.
l L
ALLEGATIONS OF FACT AND LAW
- 5. The NRC is an agency of the United States Govemment.
- 6. On January 30,1998, the NRC awarded UIIS Contract No. NRC-10 Contract"). The Contract took effect on February 1,1998. The Contrac i
security guard services at two NRC facilities in Rockville, Maryla competitive proposals and selected UIIS as the offeror whose propo UIIS was also the incumbent contractor, having advantageous to the Govemment.
performing the same requirement for more than five years under th
- 7. The Contract contained the standard default termination clause which provided in pertinent part:
1 (a)(1 ) The Govemment may... by written notice of default to the Con terminate this contract in whole or in part if the Contractor fails to--
(i) Deliver the supplies or to perform the services within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance ofthis contrac see subparagraph (a)(2)below); or (iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) below).
(a)(2) The Govemment's right to terminate this contract... may if the Contractor does not cure such failure within 10 days (or more authorized in writing by the Contracting Officer) after receipt of the noti from the Contracting Officer specifying the failure.
l
- 8. Prior to terminating UIIS's contract for default, the NRC never s L
i 2
l
-..--e=
a se emae
+.c4 m notice to cure a failure of performance.
- 9. _ On July 24,1998, the NRC's Director of Contracts and Property Man Timothy F. Hagan, faxed UIIS letter stating in part:
The subject contract is hereby terminated for default. This action is be taken based upon United InternationalInvestigative Services' (UllS) failur l
to satisfy the license requirements under Section C.1.9 " Licenses an of this contract. (See enclosed June 24,1998, notification from the Ma State Police to cease and desist business.) As a result of this action, U right to proceed further under this contract is terminated, effectiv immediately. You are further notified that NRC may acquire the term l
services from another source and that UIIS will be held liable for any excess incurred.
- 10. The " June 24,1998 notification from the Maryland State Po h
e the termination letter was actually written to, and received by, UIIS on Ju date as the termination letter-not June 24. UIIS had received no n 1998, that the Maryland State Police might consider UIIS notlicen firm in Maryland.
I1. Contrary to the assertion in the tennination letter, the Contra UIIS to obtain or maintain any licenses from the Maryland Sta i
well-established and binding law that failure to obtain a Maryland se not grounds for defaulting a contractor without providing an op t
& Gordon Security. Inc. v. United States,857 F.2d 1435 (Fed. Cir.1 l
notice would have been required before respondent could hav 7 Fed.Cl.310 to possess a license") ; see also Comoosite Laminates. Inc. v. U l
3 V
O *
~
['
i
(1992).
- 13. To the extent that the default was premised on the Maryland State "to cease and desist business," the default was also unfounded. The Appeals for the Fourth Circuit (which includes Maryland) earlier states have no authority to require Federal Govemment contracto guard licenses in order to perform contracts for federal agencies b
d authority to prevent a company from performing a contract for the Fede on the company's failure to be licensed by the state. United State V_ irainia,139 F.3d 984 (4* Cir.1998),following Leslie Miller v.
(1956).
- 14. UIIS has notified the NRC repeatedly that this termination is i Contract's default termination clause because no prior cure notice opportunity to cure was allowed. UIIS nevertheless has " cur obtaining a new license certificate from the State of Maryland. N no action to restore UIIS's contract.
PRAYER FOR RELIEE l
f For these reasons and other legally sufficient reasons, UIIS no Honorable Court:
- 1. Declare that the NRC's termination for default was unlawful; I
by revoking the
- 2. Order Defendant to modify Contract No. NRC-10-98-141 4
4 4
e
t N ;ta;FR 3 09:13 US DEPT. OF JUSTICE-CLB 202 514 8640 P.06/06 I
termination;
- 3. Order Defendant to pay UIIS its reasonable attorneys' fees and connection with this appeal; and
. 4. Award UIIS such other relief as the Court deems appropriate.
i Respectfully submitted, Dated: September 18,1998 O, b h h h / b N M M Alan M. Grayson, Esq.
Michael A. Lewis, Esq., of counsel Grayson & Associates, P.C.
1568 SpringHillRoad, Ste. 300 McLean, Virginia 22102 (703)442-0327 fax (703)442-8672 Counsel for Plaintiff 5
I TOTAL P.06
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