ML20211P542
| ML20211P542 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 06/29/1999 |
| From: | Wetterhahn M NIAGARA MOHAWK POWER CORP., WINSTON & STRAWN |
| To: | |
| Shared Package | |
| ML20211P519 | List: |
| References | |
| 2.206, NUDOCS 9909140032 | |
| Download: ML20211P542 (13) | |
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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In the Matter of )
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Robert Norway ) {
10 C.F.R. @ 2.206 Petition - ) Docket Nos. 50-220 and 50-410 l
) 4 Nine Mile Point Nuclear Station )
Unit Nos. I and 2 )
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I Response of Niagara Mohawk Power Corporation to Nuclear Regulatory Commission's Request for Comments on the April 5,1999 Petition Filed by Robert Norway l Pursuant to 10 C.F.R. 6 2.206 Introduction and Summarv 4 k
This document coniititutes the response of Niagara Mohawk Power Corporation
("NMPC") to the allegations raised by Mr. Norway in his April 5,1999 filing entitled Petition Pursuant to 10 C.F.R. Q 2.206, Nine Mile Point Nuclear Unit 1 & 2, Docket No. 50-220, 50-410
(" Petition"). The Petition alleges "a deliberate violation of NRC Regulations and potential criminal violation of federal laws on the part of senior nuclear and corporate managers of the Niagari Mohawk ' Power Corporation and the deliberate violation of NRC Regulations and '
potential criminal violatirca of federal laws and/or extreme negligence on the part of the members of the Nuclear Regulatory Commission."3 The petition also asserts that the combined actions of NMPC and the Nuclear Regulatory Commission ("NRC") resulted in the placement of
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PDR ADOCK 05000220 Q PDR Petition at 1- 3 l
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I 2-certain confidential and fraudulent information into the public record.2 Petitioner also states that the actions of NMPC and NRC were taken to permanently destroy his credibility within the nuclear industry and constitutes an additional act of discrimination in violation of 10 C.F.R. Q 50.7.3 While lengthy and repetitive, the Petition can be broken down into simple l clements, each of which can be easily refuted. First, Petitioner does not believe that a visual aid presented by NMPC at the enforcement conference correctly characterized certain findings of the Department of Labor (" DOL") Administrative Law Judge's ("ALJ") Decision." As the NRC has already found, it was not misled and understood the visual aid in the context of the enforcement 1
conference.5 Second, Petitioner asserts that his Management Employee Assessment form was fraudulent. The form was not fraudulent. No finding that it was fraudulent was made by the i
DOL ALJ.' While the document was found to be inconsistent with other evidence as to what Mr. Norway may have been told about his assessment, it represents the basis upon which NMPC i
considered Mr. Norway in its "Rightsizing" process.7 The context of this document and the way ;
2 Ld. .
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4 M. at 2.
5 Sag letter from Roy P. Zimmerman, Acting Director, Office of Nuclear Reactor Regulation, NRC, to Robert Norway dated June 9,1999.
Sag Norway v. Nianara Mohawk Power Corporation, No. 95-ERA-21 (ALJ March 15, 1996), slip op. at 17-19.
7 Sgs Transcript of the NRC Enforcement Conference of May 10,1996, at 9-15. See also Norway v. Niagara Mohawk Power Corporation, slip op. at 19.
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it was'used by NMPC management was clearly set forth at th'e enforcement conference.8 The I
1 NRC was aware of the ALJ's findings at the time of the enforcement conference.' As a result, no !
l violation of any NRC requirement occurred. Third, Petitioner claims that the Employee i
Assessment fann was inappropriately placed in the NRC's Public Document Room. No member of the public was present at the enforcement conference. In any event, the focument was only released by the NRC in a redacted form with no reference to Mr. Nonvay's name.' Information requested by the NRC at the enforcement conference was subsequently submitted by NMPC i with a request to withhold it from public disclosure."
The relief requested by Petitioner is not warranted. With regard to the underlying technical issue relating to a safe shutdown pathway, that issue was resolved and Petitioner has raised no basis for reopening or related relief.12 The trustworthiness and character of NMPC I senior nuclear and corporate management, including the three named individuals, is above reproach and Mr. Norway presents nothing which would warrant any enforcement or corrective action or additional oversight. Mr. Norway has not demonstrated how his credibility was a
See generally Transcript at 4-15.
Id. at 44-4'I. F,e_e ghg NRC Notice of Enforcement Conference dated April 24,1995.
Sss Attachment B to NRC's July 16,1996 Notice of Violation and Combined Inspection Report Nos. 50-220/96-M and 50-410/96-06.
Sag Transcript at 46-47 and May 21,1999 letter from counsel, NMPC to Thomas Martin, Administrator, Region I, NRC.
12 Ssg Transcript at 21. !
'3 Petitioner provides no specificity as to the actions of the named individuals which warrant such actions. Given the high threshold necessary for the institution,of enforcement action against individuals, this request should be summarily denied. W' l WITHHOLD FROM PUBLIC DISCLOSURE PURSUANT TO 10 C.F.R. { 2.790 1
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destroyed based upon the facts presented._ Based upon the information presented in the Petition, o
the institution of a proceeding pursuant to 10 C.F.R. @ 2.206 is not required.
l- The response presented below addresses the major points raised in Mr. Norway's Petition dated April 5,1999.
l l Discussion l
l L Petition Allenstion 1 1 Placing documentation pertaining to confidential and unproven allegations of my prior (1993) work performance that is based upon ' secret' employee records (that I wasn't even allowed to see and that had no bearing on the-1994 termination) into federal custody and into public record.
Response
The documentation at issue related to Petitioner's evaluation associated with a "Rightsizing" process that occurred at the Nine Mile Point units in 1994. The document in l
question was originally prepared by Petitioner's supervisor and utilized by those implementing the Rightsizing program The document was used as a visual aid at the enforcement conference in describing the application of the myiew process to Mr. Norway and given to the NRC Staff
. which made the decision to release it.is The transcript of the conference clearly demonstrates the r
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1 Petition at 2.
'8' There were no members of the public present at the May 10,1996 enforcement conference.
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context in which the evaluation form was utilized by NMPC and discussed at the enforcement I
conference.'6 The NRC placed a redacted version of the document in qlestion in the Public !
Document Room by virtue ofits being an attachment to a July 16,1996 Notice of Violation and I II NRC Combined Insp'ection Report Nos. 50-220/96-06 and 50-410/96-06. It was careful to redact Petitioner's name from the Employee Assessment, as well as from the remainder of the handout package." Thus, there was no connection made between Mr. Norway and the Employee Assessment.is Because of the redactions and the fact 'here were no references to the DOL L docket number in the package released by the NRC, anyone viewing the document placed in the PDR would not' be able to- make. a connection with Mr. Norway. Even the Notice of Enfomement Conference lacks a direct reference to Mr. Norway The information in the visual aid.was integral to NMPC's presentation at the enforcement conference. - As detailed in the transcript of the enforcement conference, representatives of NMPC explained how the document >
in question was used in the Rightsizing process, which was a necessary part of the presentation.20 Su menerally Transcript at 9-15.
" The copy of the Employee Assessment attached to the Petition shows this redaction.
However, the remainder of the enforcement conference overheads were also redacted when released by the NRC as an attachment to its inspection report. It is not clear where Mr. Norway obtained his unredacted copy of the overbeads.
Mr. Nonvay's petition pmvided that connection.
" 'An individual would have to obtain a copy of the DOL Administrative Law Judge's decision,. itself already a' matter of public record,~ before being able to make the connection. ')~
20 Su menerally Tr. at 9-15.
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i The fact that Mr. Norway had not seen this document at the time it was prepared does not detract from its materiality. l In its April 24, 1996 letter to Mr. B. Ralph Sylvia, Executive Vice President, Generation Business Group, NMPC, from Richard W. Cooper, II, Director Division of Reactor Projects, Region I, NRC, the following was indicated as the subject matter for the enforcement conference: "The purposes of the conference are to discuss the apparent violation, its cause and safety significance, to provide an opportunity for you to present any corrective actions you may
. have taken or plan to take to implement the ALJ's decision and to assure that NMPC employees feel free to raise concerns, without fear of retaliation."2: The NRC specifically stated that its
" decision to hold an enforcement conference does not mean that the NRC has made a final determination that the violation occurred or that enforcement action will be taken."22 The i
information provided was in Petitioner's personnel file and NMPC's records. Importantly, the information provided to the NRC during the enforcement conference was already a matter extensively discussed in the DOL ALJ's Decision.23 Thus, this allegation is without merit.
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Cooper letter at 2.
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- 14. The NRC's Enforcement Policy states that the purpose of a predecisional enforcement policy is to obtain information that will assist the NRC.
23 The case was ettled subsequent to the enforcement conference. Evidence of the care taken by NMPC to protect Mr. Norway's privacy is a letter to Mr. Thomas Martin, l Administrator, Region I from coun.cel tn N'.[?C dated May 21, 1996. The letter forwarded a number of exhibits and transcripts associated with the case, including the document in question, to the NRC. That letter requested that the documents be withheld i from public disclosure pursuant to 10 C.F.R. { 2.790. l l
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I Alleention 2 Placing documentation into federal custody and into public record pertaining to confidential and false allegations of my 1994 work performance and- my.- 1994 termination, 'without accurately documenting the findings made by the Administrative Law Judge upon those allegations'.
Response
For the reasons discussed in response to' Allegation 1 and below, this Allegation has no merit. ' The assertion by Mr. Norway is that cenain documentation was placed "into l federal custody and into public record" without " accurately documenting the findings made by the Administrative Law Judge upon those allegations."25 Initially, the NRC was sent the Administrative Law Judge's decision by DOL and its representatives had reviewed it by the time of the enforcement conference.26 It was clear that the NRC understood the context in which the documents in question were developed and used.27 A review of the transcript of the enforcement conference indicates that the facts and exhibits were discussed in light of and considering the ALJ Decision.2: Sg, s, , Tr. at 4-15, 30-33. The transcript is available in the NRC's Public Document Room.29 4
l 24 l Petition at 2.
25 Id.
26 Sn Transcript at 31.
27 l NRC's letter ofJune 9,1999, at 1-2.
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Petition at 2.
29 PDR Accession No. 9608130008 960510.
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As the NRC indicated in its letter to Mr. Norway of June 9,1999, it understood l the context in which NMPC was addressing the issues at the enforcement conference:
Regarding the alleged false written record of an ALJ decision, Mr.
1 James Liebemian's correspondence to you dated May 3,1999, stated that the NRC staff had reviewed the transcript of the enforcement conference and detennined that the NRC staff understood that the document represented the position of NMPC manaFement and not that of the ALJ. Therefore, the submittal of such a document cannot be the basis for taking enforcement action against NMPC.
Thus, this allegation is without merit.
Alleestion 3 Placing fraudulent. statements pertaining to what the Administrative Law Judge had determined in Discrimination Case 95-ERA-005 (and what was affirmed by the Secretar/ of Labor) into public record. Specifically the contents of the Handout page
' entitled ' Findings of the Administrative Law Judge'.3 ResDOBSe As noted in the previous response, the handout page in question was accompanied by verbal discussion documented in the transcript of the enforcement conference. When the verbal discussion and the visual aid are considered in context, no " fraudulent statements" as alleged by Mr. Norway occurred. As noted in the response to Allegation 2, the NRC stated in its 3
Petition at 2.
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, -9' June 9,1999 letter to Mr. Norway that it recognized that the documents represented the position of NMPC management and not the ALJ and could not be the basis of enforcement action.38 Petitioner's allegation has no merit.
Alleention 4 Placing the confidential and fraudulent 1994 employee document l (my 1994 Rightsizing record) into federal custody and into public record as ifit was an authentic document. Especially since the Administrative Law Judge had found that this record was of no l value, conflicted with other evidence, and ' altered' without my l former supervisor's knowledge and this finding had never been appealed and it had been affirmed by the Secretary of Labor.
NMPC has no legal basis for placing this record into the PDR. In addition, this is especially significant since this employee evaluation is different from the co Administrative Law Judge in 1994.3py that was submitted to the
Response
v l For the reasons stated in response to previous allegations and below, the allegation has no merit. The document in question was not fraudulent. No such finding was made by the Administrative Law Judge.33 NMPC had the right to assert its view of the facts to !
the NRC which was making its own decision as to whether enforcement action was necessary pursuant to 10 C.F.R. Q 50.7. That was clearly the purpose of the enforcement conference. With regard to the allegation that the ALJ Decision was not appealed, as Mr. Norway is aware, the l 3'
The ability ofinformation to affect a reasonable agency expert in doing his job is clearly l l the test to be applied in these circumstances. Viramia Electric and Power Co. (North l
Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480, 491, pfA sh p_om q Vireinia Electric and Power Co. v. NRC,571 F.2d 1289 (4th Cir.1978). ;
32 Petition at 2.
33 Seg Norway v. Niagara Mohawk Power Corporation. No. 95-ERA-21 (ALJ March 15, 1996), slip op. at 17-19.
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case was settled. DOL's Administrative Review Board approved the settlement agreement and 3
disraissed the complaint with prejudice.3' With regard to placing the records in the Public .
1 Document Room ("PDR"), while that decision was made by the NRC, it was done only after redacting Mr. Norway's name from the documents in question. The information was integral to I NMPC's presentation at the enforcement conference and an appropriate part of the presentation.
NMPC is unable to explain the minor difference between the copy of the employee evaluation which was submitted to the Administrative Law Judge and the copy placed in the Public Document Room. The copy placed in the PDR had the space for Mr. Norway's supervisor blank. In any event, there is nothing nefarious about this difference. Otherwise, the documents are identical and the deletion of the supervisor's name does not change the meaning or context of the document. In fact, his supervisofs name was mentioned during the enforcement conference.35 Likewise, the DOL ALJ's decision also refers to the supervisor by name.36 The copy of the document submitted to the NRC by NMPC's counsel on May 21,1996 l
did contain the supervisofs name. Thus, whatever the reasons for the deletion, it.has no importance. The allegation has no merit.
IL Sienificance of the Issues In hdr. Norway's petition, he stated that the alleged violations were significant because they were deliberate violations performed by the combined efforts of senior 3'
l Final Order Approving Settlement and Dismissing Complaint, ARB Case No.97-018 L dated November 22,1996 at 3.
l 35 Transcript at 24.
36 Sgg Norway v. Niagara Mohawk Power Corporation, slip op, at 5.
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management with corporate oversight. Mr. Norway further states that senior and corporate managers of a licensed nuclear power plant lied to the public by placing confidential, false, and fraudulent documentation into public record.
As discussed above, NMPC disagrees that any senior and corporate management violated any NRC regulations or federal laws or lied to the public. As previously discussed, the
. infonnation represented NMPC's views as to how the Rightsizing process was implemented for Mr. Nonvay. Clearly, the NRC was already aware of the DOL ALJ's findings with regard to this matter, and the information presented was integral to NMPC's presentation at the enforcement conference.
Mr. Norway's Petition attempts to reargue the facts of the discrimination case. As noted previously, the case was resolved by a settlement agreement. The NRC has also taken enforcement-action as a result of its review of the matter. Nothing would be gained by attempting to relitigate these two proceedings." NMPC's position is that its presentation at the enforcement conference was factual and presented its views of the events at issue in a clear and cogent manner NMPC clearly stated its disagreement with certain findings of the DOL ALJ and presented the. basis for its position. The use of the assessment fonn at the enforcement conference was appropriate and placed in the peper context. NMPC does not believe that any part ofits presentation caused " fraudulent documents" to be placed in the PDR. There has been no demonstration that these facts constitute a new violation of 10 C.F.R. f 50.7.
Petition at 1.
" Niagara Mohawk continues to maintain that Petiticaer was ranked consistently with o_ther l-l members of his group and that the assessment form indicated he was ranked in the sf/th position out of eight m his gmup. Egg 3]m Transcript at 10.
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Inasmuch as Mr. Norway has failed to demonstrate wrongdoing on the part of NMPC or any individual, the ancillary relief requested, e.u.. independent review of files, establishment ofindependent oversight of certain programs, the holding of a public meeting, and public posting of certain documents, should be denied. Clearly, Petitioner has completely failed to demonstrate that a criminal referral to the Department of Justice is warranted.
Conclusion Petitioner has failed to demonstrate that he is entitled to any relief. Contrary to his allegations, NMPC's actions were appropriate under the circumstances:
- 1. It was appropriate to discuss Petitioner's employee assessment at the NRC Enforcement Conference. That document was at the heart of the subject matter of the enforcement conference and had a direct bearing on Petitioner's employment action. The NRC already had a copy of the DOL A1J Decision. NMPC explained the context of the document and the way it was used in the assessment process.
- 2. At the enforcement conference, NMPC clearly discussed its views as to the ALJ's findings and why it disagreed with those findings. The NRC has already stated that the visual aid regarding the ALJ's finding represented the view of NMPC and not that of the ALJ and could not be the basis for enforcement action.
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- 3. NMPC continues to maintain that the employee assessment was not a fraudulent document and the DOL ALJ never found that it was. The DOL case was settled I before appeal, and DOL has only affirmed the settlement, not the ALJ's Decision. )
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- 4. There is no meaningful difference between the document used during the l DOL proceeding and that used at the enforcement conference.
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l S. NMPC representatives acted properly in presenting material at the enforcement conference.
- 6. NMPC acted appropriately in the treatment of the raaterial utilized at the enforcement conference.
For the foregoing reasons, Petitioner's request for the institution of a proceeding pursuant to 10 C.F.R. { 2.206 and for other relief should be denied in its entirety.
F espectfully submitted, WINSTON & STRAWN e-l Mark J. Wetterh m
( Counsel for Niagara Mohawk Power Corporation June 29,1999 1 ~m i
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