ML20198E360
| ML20198E360 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 05/22/1986 |
| From: | Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel |
| To: | CAROLINA POWER & LIGHT CO., CONSERVATION COUNCIL OF NORTH CAROLINA, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| CON-#286-229 82-472-03-OL, 82-472-3-OL, NUDOCS 8605270356 | |
| Download: ML20198E360 (12) | |
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UNITED STATES OF AMERICA g
NUCLEAR REGULATORY COMMISSION jf
\\3 Before Administrative Judges:
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James L. Kelley, Chainnan d
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Dr. James H. Carpenter
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\\e Glenn 0. Bright N
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U AfAW g In the. Matter of Docket No. 50-400-0L CAROLINA POWER & LIGHT COMPANY
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(ASLBPNo. 82-472-03 OL) and
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NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY (ShearonHarrisNuclearPlant)
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MEMORANDUM AND ORDER (Concerning Alleged Patterns of Harassment)
In footnote 50 of our Final Decision of April 28, 1986, we described "one unresolved matter" relating to allegations of harassment at Shearon Harris. We have now received from the Office of Investigations (01) a Report of Investigation on "Possible Harassment and Intimidation" at Shearon Harris, 01 Case No. 2-85-011. The Report concerns allegations by two people, Frank Peguese of Teachey, N.C., and a person who presently chooses to maintain confidentiality except with respect to 01 personnel.
Westatedinfootnote50ourintentionto"circulatethe[01]
report for comment by the parties on whether a new harassment contention should be admitted, subject to the 'five factors'." Having now reviewed the 01 Report, at least as to Mr. Peguese there is no reason to consider comments from the parties before reaching the only possible conclusion 8605270356 860522 PDR ADOCK 05000400 0
,, -- that Mr. Peguese's concerns do not evidence harassment related to safety concerns. The portions of the OI report relating to Mr. Peguese are attached for the parties' information.
The situation with respect to the confidential alleger is not so straightforward.
In the Notice the Applicants posted at the site in early 1985'at the Board's direction, we made it clear that the identity of persons alleging harassment, while initially to be revealed only to the Board, would have to be disclosed to the other parties under protective orders if their concerns were to be litigated. The Notice stated in part that:
The Board will review any statements it receives and then decide, in consultation with counsel for the parties to the case, whether and how to conduct a closed hearing in which the identities of the witnesses would be kept confidential.
CP&L's attorneys and possibly other representatives of the company would attend the closed hearing, as well as Mr.
Eddleman and representatives of the NRC Staff and possibly the intervenor groups. However, they would be ordered not to disclose the identities of the witnesses.
Prospective witnesses should realize that, under this procedure, their identities would be substantially protected from any further disclosure, but complete protection from disclosure would not be guaranteed.
Thus, the quoted language constituted " ground rules" under which the Board would consider harassment allegations.
However, when 0! interviewed the alleger, with Mr. Robert Guild attending as Counsel, a much more restrictive agreement on confidentiality was entered into -- namely, that neither the alleger's identity nor the transcript reflecting the alleger's concerns could be disclosed to anyone outside of O! without the alleger's prior consent.
o 1 In the past six weeks, 0I has made repeated, but unsuccessful, efforts to obtain an unequivocal statement of position whether the alleger still wishes to retain confidentiality.
In a telegram to Region II dated April 23, 1986, the alleger indicated that a letter would be sent by early May stating the alleger's position on confidentiality. No such letter has been received.
In these circumstances, the Board has decided to take the following steps:
(1) Decline to consider the confidential alleger's concerns o'i procedural grounds. The Board made it clear from the outset that it would consider harassment claims in this case only with the knowledge and participation of the parties. The alleger's insistence on maintaining confidentiality from the parties does not meet that condition.
(2) Consider and reject the possibility of a sua sponte harassment contention under 10 C.F.R. Q 2.760a. Since we are respecting the present confidentiality agreement between 0! and the alleger, we will not describe the details of the 0! investigation because to do so could compromise confidentiality. We can say, however, that 01 determined that the alleger was not a victim of harassment and that the case has been closed. Our own review of the 01 report and supporting documents does not lead us to believe that a " serious safety question" or, indeed, any safety question exists at Shearon Harris in relation to the alleger's concerns. Because we are considering whether to act under 10
. C.F.R. 5 2.760a, we can make that determination entirely on our own motion, without any input from the parties.
Apart from our review of the OI report concerning unrelated incidents of alleged harassment, we find significant the tot 01 lack of evidence of a any pattern of harassment at Shearon Harris. By contrast, the drug contention (WB-2) was a " pattern" contention which began with multiple arrests for drug activity. At this late stage of this case, we would be reluctant to entertain a broad harassment contention --
necessarily involving patterns of conduct -- based only on isolated incidents of alleged harassment.
In that connection, it is also significant that of the approximately six thousand employees at the Harris site -- most of whom presumably saw the Board-ordered Notice --
not a single employee came forward.
(Mr. Peguese and the confidential alleger are former employees.)
While that does not, of course, prove a complete absence of harassment at Shearon Harris, it does suggest a lack of serious harassment problems.
(3) Provide a limited opportunity for any Interrenor supporting admission of a harassment contention, based on the 01 investigation of the alleger's concerns, to obtain the alleger's written consent that all parties may review that portion of the O! report and supporting documents, either under protective orders or without any restriction on further disclosure. This will give the Intervenors and other parties the opportunity to make an independent review of the Board's conclusion that the OI investigation of the alleger's concerns lends no support to a harassment contention.
To that end, any Intervenor who wishes to
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5-pursue this opportunity must promptly contact the alleger, through Mr.
Guild, obtain the required written consent, and get that consent in the Board's hands by c.o.b. Friday, June 6, 1986.
If such consent is not in our hands by that date, the matter will be finally disposed of by our actions described in paragraphs (1) and (2) above, without any further 1
- action by this Board.
If timely consent is forthcoming, our action under paragraph (1) will be vacated and we will allow parties a brief period to review the OI report and supporting documents, to be followed by a discussion of their significance in a telephone conference.
If l
such discussion does not affect our earlier conclusion about the significance of the O! investigation, that will be the end of this matter.
If the discussion leads us to a different conclusion, we will L
then discuss the "five factors" as applicable to a possible pattern of harassment contention.
THE ATOMIC SAFETY AND LICENSING BOARD 4
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@ dies L. Kelley, Chairgn KDMINISTRATIVE JUDGE Y
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Ev'. James H. Carpenter i
ADMINISTRATIVE JUDGE h -
f.b 6 H Glenn O. Brigif /
ADMINISTRATIVE JUDGE Bethesda, Maryland
Attachment:
Portions of O! Report re Mr. Peguese 4
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Title:
SHEAR 0N HARRIS NUCLEAR POWER PLANT POSSIBLE HARASSMENT AND INTIMIDATION i
Licenjee:
Case Number:
2-85-011 i
Carolina Power and Light Company Report Date:
Raleigh, North Carolina Control Office: 01:RII Docket No.: 50-400 Status: CLOSED l
Reported by:
Reviewed by:
1/di NdC L dytt4 m
Marry t/f Robinson,' Investigator
[OfficeMf InvestigationsmesY//VoYse, D Office of Investigations Field Office, Region II Field Office, Region II Appr by:
J B. Ha)4r, Diict f
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i WARNING i
The attached document / report has not been reviewed pursuant to 10 C.F.R.
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% 2.790(a) exemptions nor has any exempt material been deleted.
Do not disseminate or discuss its contents outside NRC.
Treat as "0FFICIAL USE ONLY."
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SYNOPSIS On April 1,1985, in response to a letter from the Atocic Safety and Licensing Board (ASLB) requesting assistane'. rom the Office of Investigations (01) regarding two letters received by.;he ASLB alleging harassment and intimidation at the Shearon Harris Nuclear Power Plant (SHNPP), O! initiated an investigation into the allegations.
The first alleger, a former lead man in the labor section of a contractor for Carolina Power and Light Company (CP&L) at SHNPP, had been terminated in July 1984 for making a false statement on his employment application. This alleger admitted in his interview with OI that he had indicated he had no criminal record on his application, when, in fact, he did have a prior conviction for a liquor violation (bootlegging).
The alleger stated he felt, but could provide no evidence to support, that the real reason the contractor terminated him was because he had forced this same contractor to reinstate him through an Equal Employment Opportunity Comission (EEOC) action, after he had been injured in an auto accident in June 1982, and had been unable to work for a short period.
This issue was not pursued since the alleger was terminated for a valid reason.
The first alleger's harassment complaint pertained to him being given a written reprimand by his supervisor for not doing a task that, according to ~
- the alleger, was impossible to do with the equipment which had been provided.
This task was to eliminate the standing water from, and subsequently dry, the 190 level in the Reactor Auxiliary Building in order that sealant could be applied to the concrete. The alleger's perceived safety concern, which was uncontrolled water seepage into elevations 190 North and 190 South of the reactor building, was inspected by NRC Region II inspectors and found to be in existence, but was not safety-related, and was currently being corrected.
Accordingly, since there were no safety implications, the alleged harassment did not warrant further investigative effort.
T..
C DETAILS OF INVESTIGATION Predication This investigation was predicated upon a memorandum of request dated March 13, 1985, from James L. KELLEY, Administrative Judge, Atomic Safety and Licensing Board (ASLB) to the Director, Office of Investigations (01), Nuclear Regulatory Comission (NRC) (Exhibit 1). This memorandum requests that OI investigate allegations of harassment that were contained in two letters, attached to the memorandum of request, that had been sent to the ASLB.
Purpose of the Investigation The purpose of this investigation was to determine if the licensee, namely Carolina Power and Light Company (CP&L) or any contractor of CP&L, had violated the provisions of Section 210(a) of the Energy Reorganization Act of 1974 and 10 CFR 50.7 entitled " Employee Protection" with respect to either or both of the two allegers, Frank PEGUESE and i REQUESTED).
Background
The ASLB posted a Notice at the site of the Shearon Harris Nuclear Power Plant
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J (SHNPP), New Hill, North Carolina, that the board would receive, in confidence, i
information from anyone with personal knowledge of any harassment at SHNPP.
The ASLB stated that it received two letters in response to this Notice.
One letter was from Frank PEGUESE (Exhibit 2).
In the Post Script to this letter, PEGUESE makes an unspecified allegation of " harassment, intimidation, l.
retaliation, etc." against Daniel Construction Company (DCC).
PEGUESE states in this letter that he had been denied relief regarding this allegation by the "U.S. District Court for failing to file a timely appeal."
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T.
Alleger No. 1 - Interview of Frank PEGUESE PEGUESE was interviewed on April 19, 1985, at Wilmington, NC (Exhibit 4).
PEGUESE stated that the official reason cited by DCC for his termination as a lead man in the labor section of DCC at SHNPP was that he had falsified his 1
employment application.
He admitted that he had, in fact, falsified his application by indicating on the applicaticn that he had no criminal record, when, in fact, he had actually been convicted of bootlegging.
PEGUESE stated that, in his opinion, the actual reason DCC fired him was because he, with the assistance of the Equal Employment Opportunity Commission (EEOC), had previously forced DCC to reinstate him to his former job after he had been injured in an auto accident and had missed enough work to have been laid off. He stated he thought DCC resented being forced to reinstate him.
PEGUESE cited his harassment concern at SHNPP as follcws: DCC had given him a written reprimand on March 1,1984, for poor work performance. He stated that he had been ordered to remove some standing water from, and to dry out the concrete of the 190 level of the Reactor Building at SHNPP, in order that a sealant could be applied to the concrete to prevent future water seepage into this area. He stated that earlier efforts to dry this area had been unsuccess-ful because the water was seeping in too quickly. He advised that he had been told that the reason for the seepage was " poor construction by Daniel Construc-tion Company." He stated that when he was unable to dry the area with the equipment provided, his supervisor gave him an unjustified written reprimand (Exhibit 5). He stated he felt that the real reasons he got the reprimand were: (1) DCC management above his supervisor were under pressure to get this water problem cleared up, and (2) DCC management could use this reprimand to justify eventually suspending, and then firing him, in retaliation for his earlier EEOC action against DCC.
INVESTIGATOR'S NOTE:
After the interview with PEGUESE, no additional NRC OI investigation of harassment, discrimination, intimidation, or retaliation was conducted for the following reasons: (1) The official reason for PEGUESE's termination by DCC was valid as confirmed through contact with the SHNPP Personnel Department.
(2) PEGUESE, himself, did not perceive his termination to be caused by his bringing nuclear safety concerns to his supervisor / manage-ment and consequently it does not fall within the purview of 210(a) or 50.7 but rather more in the nature of an EE0 ccmplaint which falls outside of NRC authority. However, his concern about an allegedly irreparable water seepage problem in the Reactor Building was referred to NRC Region II inspectors for evaluation.
Results of Inspection of Alleger's Technical Concern The alleger's water seepage concern was addressed IN NRC Rt.gion !! Inspection Report No. 50-400/85-34 (Exhibit 6, pgs. 4-6).
The inspection states that a
" water inflow" situation did exist, but that the situation is not a safety concern and that the licensee has installed purrps to handle the current inflow and has contracted for the pemanent drying and sealing of this area.-
Case No. 2-85-011 10
O T
Willfulness / Intent Alleger No. 1:
PEGUESE admitted during his interview (Exhibit 4) that he had submitted false information on his employment application. Therefore, DCC teminated him for a valid reason.
In this regard, the basis for PEGUESE's termination does not fall within the provisions of Section 210(a) or 10 CFR 50.7 and he acknowledged that he suspected it resulted from his previous EE0 action.
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non-safety function, and a safety concern had been properly dispositioned.
Investigator's Conclusion The preponderance of evidence shows that no discriminatory action was taken against either PEGUESE or as a result of their bringing actual or perceived safety concerns o or CP&L supervision or management.
Status of Investigation The status of this investigation is CLOSED.
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Case No. 2-85-011 14