ML20236D646
| ML20236D646 | |
| Person / Time | |
|---|---|
| Site: | 07001113 |
| Issue date: | 03/13/1989 |
| From: | Thompson H NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML20236D632 | List: |
| References | |
| 2.206, DD-89-01, DD-89-1, NUDOCS 8903230204 | |
| Download: ML20236D646 (19) | |
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e DD-89-01 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Hugh L. Thompson, Jr., Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations Support In the Matter of
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GENERAL ELECTRIC COMPANY Dor.ket No. 70-1113 (Wilmington, North Carolina
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facility)
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DIRECTOR'S DECISION UNDER 10 C.F.R. $ 2.206 INTRODUCTION On April 6, 1987, Anthony Z. Roisman and Mozort G. Ratner, as counsel for Vera M. English (Petitioner), fileo a "Petittun for Enforcernent Action" pursuant to 10 C.F.R. 5 2.206. The Petitioner requests that the Nuclear Regulatory Counission (NRC) act to take appropriate action against the General Electric Company (GE or Licensee) for its cehbetate retaliatory discharge of Mrs. English. The Petition seeks two separate and distinct NRC actions:
(1) imposition of a civil penalty in the amount of
$40,635,000 upon GE, plus $37,500 per day for every oay af ter April 6, 1987, that GE does not take corrective action, ard (2) imposition of a license condition upon CE requiring the Licensee to fully compensate Mrs. English for her economic losses in the past and future resulting from GE's alleged discrimination, for medical expenses entailed as a result of the alleged discrimination, for expenses incurred in "flgnting GE,' ano for " physical and mental pain she has endured" as a result of GE's actions.
323[h P
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The Petitioner states that the April 6,1987, P'etition is neither a
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renewal of nor an attempt to reittigate a December 13, 1984, Petition filed by Petitioner. That Petition also sought the_ finding of violations and assessment of civil penalties against GE for having discriminated againstMrs.English.1/ In addition, that Petition raised certain other allegations of wrongdoing by.the Licensee.
Regarding the December 1984 Petition, the Director, Office of Inspection and Enforcement, issued a 1
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Partial Director's Decision pursuant-to 10 C.F.R. 5 2.206 which, an.cng j
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otnei things, sthted that action with -respect to the discrimination allegations reised by the Petitioner was being deferred pending further' j
l determination by the Department of Labor (DOL) pursuant to Section 210 of'
'the Energy _ Reorganization Act of 1974, as amenced, (ERA), 42 U.S.C. 5851, regaraing the allegations.
General Electric Co; (Wilmington, North h
i Carolina Facility), DD-86-11, 24 NRC 325, 331-32 (1986). 2,/ With regard l
l to the other issues of wrongduing, the Director noted that certain of these issues were being addressed within the Office of Investigations (01) ar.o that a supp'eu nt to the Decision would be issued when that effort and the DOL proceedings were complete. h.
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" Motion to Institute Proceeding Pursuant to 10 C.F.R. 9_2.202 for
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Imposition of Civil Penalties and to Vacate and Reverse Inspection Reports and to Schedule Hearings Thereon" filed on December 13, 1984, l
and supplemented by letters dated February 28 flarch 12, April 11, l
and June 20, 1985.
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On September 29,b 22 -1900, 1986, the Consission declined to review this Deci-sion. On Decemb Ittitiur.er filed a petition for review of the Director's Decision in the U.S. Court of Appeals for'the District of Colbable Cirt.uit.- This proceecing was dismissed on March 31, 1987.
English v. U.S. Nuclear Regulatory Consission, (FOOTNOTE CONTINUED ON NEXT PACE) l l
t The present Petition is a new request for action to be taken by the NRC on the previously raiseo discrimination issues now that, in the Petitioner's view, the~ reason given for deferring action on the discrimination issues no longer exists.
l On April 8,1987, Petitioner submitted a correction regarding Petitioner's i
assessment of the costs and damages incurred as a result of the discharge of Mrs. English. By letter dated May 13, 1987, I, as the Director, Office of Nuclear Materiti Surety ard Safeguards (NMSS), informed the Petitioner that her Petition had been referred to fiMSS for action. A-notice was published in the Federal Register indicating that the Petitioner's request i'
was under consideration.
52 Fed. Reg. 18764 (May 19, 1987). On June 10, 1987, the Licensee filed a response to the Petition entitled " Response of
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General Electric Company to Vera English's Section 2.206 Petition for Enforcement Action." On June 15, 1987, the Director, NMSS, met.with fir. Roisman, at the latter's request, to discuss the status of Peti-tiener's request. 3/ At that meeting and in a subsequent letter dated July 7,1987, Mr. Roisman noted his intention to file, on behalf of I
l (FOOTNOTE CONTINUED FROM PREVIOUS PAGE No.86-1714(D.C.Cir., March 31,1987).
Petitioner also fileo five other actions in the D.C. Circuit. All of these actions were dismissed on Mar'ch 31, 1987.
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The meeting is documented in a letter to Mr. Roisman erd an enclosed
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memorandum to file, both from the Director, hMSS, and dated July 23, 1987. The letter and nemotandum are available in the NRC Public Document Room.
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Petitioner, a reply to GE's Response.
In a letter dated October 5, 1987, the Director, NMSS, advised Mr. Roisman of the Director's intention to act on the. Petition and the need to submit any additional input within the week-if it were to be considered. On October 9,1987, Mr. Ratner submitted a document which he indicated was the first portion of Mrs. English's reply to GE's Response.
On' October 14, 1987, Mr. Ratner submitted a document entitled " Reply of Vera English to General Electric's l
Opposition to Petition for Enforcement Action'l advising that the October 9, 1987, partial reply could be disregarded. On March 21, 1988, GE filed its response to this document entitled " Response of General Electric Company to Vera English's Reply in Support of Section 2.206 Petition."
Because the Petition seeks both escalated enforcetuerit and license modification, it will be cecioed by me as the Deputy Executive Director responsible for those matters.
For Ilm reasons stated in this Decision, I J
have determined that, to the cuenc that the Fetitluner requests that the HRC take enforcement action against GL tu tisu isoinuting o irst Mrs. Ei.glish, the Petition is granted, liowever, to the extent that the Petitioner requests that the NRC inipose a civil penalty in the amount of
$40,635,000 plus $27,500 per day for each day after April 6,1987, the Petition is denied.
Furthermore,.to the extent that the Petitioner requests that the NRC,. impose a license condition upon GE requiring it to
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i fully ceropensate Mrs. English, the Petition is also cenied. Tnts Decisien constitutes a final Director's Decision with respect to both the April 6,
. 1987 Pet; tion anu the tutters rutsuo in the December 13, 1984 Petition on which a decision was deferred.
BACKGROUND 1
i By way cf Lackground, Petti,1oner was employed by GE as a laboratory technician in the Chemet Laboratory. For some time pt1or to and continuing into 1984, she reporteo safety concerris to GE management and the NRC. On March 15, 1984, she was removed from her job in the Chemet Lab, barred from further work it, contiulleo areas, ano placed on j
indefinite temporary assignment in a warehouse at the Wilmington facility.
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The ultimate reason given for her removal by GE management was her ceilttrate failure to clean up contamination.
Subsequently, she was advised that she woulo have to bid for an open position. A time limit was tet and, there apparently existing no such position, she was invoiurtarily placed on a " lack of suitable work" status arid subsequently terminated on July 30, 1984, i
Petitioner initially t ileo hei conplaint with 00L under Section 210 of the ERA on August 24, 1984.
On October 2,1984, following an investigation, l
the Administrator of tre Wage and flour Division, Employment Standards Administration, DOL, concluded that GE had discriminated against Petitioner. The Administrator's decision was appealed by Leth Petitioner and GE. A formal 00L hearing was held, and on August 1, 1985, a D0L l
Administrative Law Juoge (ALJ) inueo a F,ecormenoco Lectslun t.rt. Crder l
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finding that GE had discriminated against Petitioner, and ordering reinstatement and compensation of Petitioner.
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-l The case was remanded to the ALJ on May 9,1966, at the requesc of reti-tiener, to give her an opportunity to complete the presentation of her Ldse, because the ALJ had refused to perrit f.et to present the testimony -
of several witnesses. The ALJ returned the case to the Under Secretary of Labor without any additions to the record on the merits on July 13, 1986.AI On review, the Under Secretary of Labor issued a Final Decision and Order on January 13, 1987, which did not address the merits of a
Petitioner's complaint, but founc that Petitioner's complaint was untimely filed and dismissed the complaint. That dccisitn was appealeo to the j
United States Court of Appeals for the Fourth Circuit. 5,/
The two issues raisec by the Petitioner on appeal were:
(1) whether the Unoer Sect etary erred in finding Mrs. English's complaint for uiseriminctcry discharge barred as untimely, ano (2) whether I;r2. English i.uc estab i nhec c " continuing violation", in the form of retaliatory 4/
The ALJ had ordered the parties to put additional testimony in the
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record by way of deposition.
Petitioner's counsel objected to that procedure and to limitettons the ALJ placed on the scope of the witnesses' testimony. After failirg to obtain clarification of the Under Secretary's remand order, retitioner's counsel refused to participate in depositions.
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Petiuonor r1so filed an action in District Court for the Eastern District of North Carolina for wrongful termination. The Court dismissed this action on February 10, 1988.
English v.
General Electric Co., 683 F. Supp. 1006 (E.D.h.c. 1988). This action has been appealed.
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! harassment, thus allowing her to seek relief for a series of related acts of workplace harassment that might be time-barred if considered independently. This claim was based upon her assertion that she had been subjected to a continuing course of harassment while on temporary assignment in the warehouse. On' October 6, 1988, the Court issued a decision N in which it affirmed the dismissal by the Under Secretary of the Petitioner's claim for retaliatory discharge os untimely.
- However, the Court found that Petitioner's claim of workplace harassment relating l
to harassment suffered while on temporary assignment in the warehouse may constitute a continuing violation for statute of limitations purposes, and remanded that claim for first instance consideration by the Secretary.
As.
the court upheld the Under Secretary's decision that the complaint for retaliatory discharge was untimely, it did not address the merits of Petitioner's claim that this discharge was discriminatory. The Secretary.
l remanded, by order dated February 13, 1989, the harassment claim to an ALJ.
Petitioner first raised the issue of discriminatico before the NRC in her Petition of December 13, 1984, os supplemented by letters dated February 28, March 12, April 11, and June 20, 1985.
In his Decision regarding that Petition, 00-86-11, the Directer, Office of Inspection and Enforcement, noted that he did not reach the discrimination issues because the matter was still pending before DOL. The Director explained that generally, when a complaint has been filed with D0L alleging discri-6/
English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).
. mination by an NRC licensee, the NRC defers consideration of alleged discrimination until DOL has acted.
This policy avoids duplication of effort end needless expense of resources by deferring NRC actions until D0L has fully considered the issues.
Further, the Director rioted that deferral of NRC consideration of any potential discrimination issues at the GE Wilmington facility was appropriate in light of the extensive inspection activities which had been conducted at the facility with acceptable results. General Electric Co., supra, 24 NRC at 331-32.
DISCUSSION In her present Petition, Petitioner lists three bases for her request that the NRC act to in. pose the "neximun, tivil penuity upon GE allowed by law,"
and to impose as a license condition a requirement that GE con:pensate Mrs. English for allegtd discrimination.
Petitioner argues first that the reason given in 0D-66-11 for deterring uction pending the alleged discrimination, i.e., Ut.Lency uv che nocter before DOL, is no longer valid. Secona, Petitioner argues that a reconnended decision by a 00L ALJ finding that GE had discriminated against Mrs. English is dispositive of the matter, and GE has not paid any fine for its conduct, nor has Mrs. English been compensated.
Third, Petitioner argues that the effectiveness of the NRC's program to protect urid encourage workers to report safety violations wili be severely nompered by any further delay, in that there will be a " chilling effect" upon other workers who may wish to ruise sufety concerns, in this regard, Petitioner aroues that the consequence of fut trer delay on the part of the NRC will be to leave the
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impression not only on GE and its employees but on other licensees and all workers in the' nuclear industry that employees who suffer retaliation for reporting safety violations cannot rely on the NRC to redress this wrong, and, as a result, safety probleins will be less likely to be discovered and j
corrected.
i In reaching a decision regarding this matter, I realize that I must do so without benefit of a final decision on the merits of the case by the agency recognized as the expert in employee-employer relations.
I am aware of the hundreds of pages of dort.r ent.aiy ev to:nce and many hours ut testiinony that have taken place regarding this case. Making an independent NRC determination regarding the ilieged u1scriniination against Mrs. English would involve an enormous expenditure of NRC ogency resources. The obvious redundancy in having two government 69encies review the same set of facts to draw a conclusion regcraing the some issue isunacceptable.1/
Under the Administrative Procedure Act, the initial cecision of an Administrative Law Judge has no bindir.g ettect un either the agency or on the parties to the proceedir.g.
See 5 U.S.C. 557 (b).
However, as long as be does not abuse his discretion, a Director, in making a decision 7/
It was this very' avoidance of duplication of effort ana needless
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expense of resources which prompted the Directer, Cilice vi inspec-ticr a.u Entorsemen'., tu deier E cunaiuretion of any potential discriminatier 1ssued in his Decision regarding'Mrs. English's December 13, 1984, Petition. See General Electric Co., supra, 24 NRC i
at 332.
a 1 regarding a 10 CFR 2.206 petition, is free to rely on a variety of sour of information, including documents issued by other agencies. See
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l Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear l
1),CLI-78-7,7NRC429,432-33(1978).
In the present case, the staff I
has reviewed the DOL ALJ's Reconsnended Decision and Order. The decisio is well-reasoned and was based upon the ALJ's evaluation of the credibi l
tity of the witnesses who testified at the hearing, an analysis of the 1
entire record, arguments of the parties (both oral and written),
j applicable reguiutions, statutes, and case law precedent. E I thereft l
adopt the findings of the DOL ALJ that GE discriminated against Petitit j
by removing her from the Chemet Lab and 01scharging her from employmen-i with GE and that this discrimination was motivated by Petitioner's j
initiation of ano participation in the NRC proceedings investigating G facility, specifically, the Chemet Laboratory. U In light of this 8/
The ALJ's credibility deterrainativn in this case is especially
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significant because vi tne contradictory evidence in the transcri of the hearing.
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A pertinent issue which was raised before the ALJ and in subsequent filings by the Petitioner and the Licensee was whether Mrs. English lost her protection under Section 210(g) of the ERA because she deliberately caused a violation by willfully failing to clean up contamination. Mrs. English claimed that she lef t the contaminat '-
in order to bring it to the attention of the GE management.
In t regard, we emphasize that it is clearly unacceptable for an empit to cause a safety problem in order to raise an issue.
However,1 ALJ determined that Mrs. English did not deliberately cause a vit tion under the cirtumstantes of this case. ALJ Decision and Orde
- 11. We also note.'that the District Court for the Eastern Distric-North Carolina cbnstoered the issue of Section 210(g) in a diffei context (i.e.,regardingwhetherCongressintendedbysubsection to preempt state actions for wrongfu ischarge and other discrimination with respect to whistleblowers).
(FOOTNOTE CONTINUED ON NEXT PAGE)
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decision of the DOL ALJ, I have determined that a violation of 10 C.F.R.
I 70.7 has been established and that enforcement action shLuld be taken at this time, b I
Proposed Imposition of a Civil Penalty Petitioner states that "the maximum fine permitted by the statute" should be inpcsed upon GE for its discrimination against Mrs. English. The sum which Petitioner requests be imposed is $40,635,000, plus $37,500 for each day af ter April 6,1987, that GE does not take corrective action.
In deciding the appropriate enforcement sanction to propose in this case, the guidance in the Commission's General Statement of Policy and Procedure for Enforcement Actions which was applicable et the time' of the violation and which is set out in 10 C.F.R. Part 2, Appendix C, 49 Fed. Reg. 8583 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE English v. General Electric Co., supra, 683 F. Supp. at 1C13-14.
However, the court made no finding specifically with regdrd to whether Mrs. English had lost her protection.
For tN. t easuo stated above, the NRC declines to make an independent determination, on this issue.
10/ Petitioner alleges that Mrs. English was discharged because of her
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repeated reporting of GE's failures to comply with NRC safety requirements and that the validity of a number of complaints was confirmea by GE's internal inspection and the NRC's inspection.
The ALJ, in determin'ing that GE discriminated against Mrs. English, noted that it was irrelevant tvhether her complaints had merit, and did not make a conclusive finding on this issue.
ALJ Decision and Order at 8-9.
In adopting the ALJ's Decision, I acopt only his finding that GE discriminated against Mrs. English, and do not reach the issue of whether her complaints had merit.
, (March 8,1984) (hereinafter referred to as Enforcement Policy) has been considered by the staff.
In this case, the decisions impacting Mrs. English were made by persons above first line supervision, but the NRC has no information suggesting involventent by senior corporate management. Therefore, the statt has cetermined this viol 6 tion to be a Severity Level II. The base civil monetary penalty for a Severity Level II violation involving a facility such as the Licensee's, at the time the discrimination occuirco, is $20,000. Tne escalation and mitigation factors in the Enforcement Policy were considered. As part of this assessment process, the Petitioner's views on the amount of the pencity were considered.
Based on the staff's review, no aojustment has been decmed apprcpriatc.
l The Petitioner's logic at arriving at the sum which she requests be imposed, and the staff's assessment of the Petitioner's arguments, are set lurth beluw:
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Tre Petitioner claims that from March 15 until August E4, 1984, when Mrs. English filed her complaint with DOL, GE was guilty of 6t least a Severity Level Il violation, because its plant management above first line supervision was aware of tre discrimination. However, from August 24, 1984, GE's senior corporate manageratrit was aware of the violation, which constitutesaSeverittLevelIviolation.
The base civil penalty for these violations is $20,000 per violation from March 15 to August 24, and
$25,000 per violation from August 24 to the date of the Petition.
Moreover, since GE was aware of the existence of the violation and failed
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$3,240,000 for the Severity Level II violaticn and $23,850,000 for the Severity Level I 5loietion, neking a total base penalty of $27,090,000.
The Petitioner argues, futhermore, that Section 210 violations, as opposed to other violations, warrant the most severe classification for enforcement action.
Tha Enforcement Policy classifies different types of violations by their relative severity, ano oescribes the circumstances in which formal sanctions, incluoing orcers, civli penalties, and notices of violation, are appropriate. The Enforcement Policy also provides examples of types ut violations and the recommended severity levels for these examples.
Uncer one infcrcement Policy, Severity Level I and 11 violations are of very sagraficant regulatory concern. According to the [nior cel;.ews Polic) in ef f ect at the time of the violation, ar. li. it. L.,
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.t dbOVe Ilrbt-line 2 D-rTiSion iri violation of Section 210 agatrist un employee is classified at a Severity Level II.
In the present instance, the NRC has determined that the violation shoulo be classified at a Severity Level II violation because the discrimination involved action by managemtnt above first-line supervision.
The violation has not been categorized at Severity Level I because the action taken to remove Mrs.
English was apparently tuken without the knowledge of senior corporate 4
management.
Furthermore, da Q civli penalties have no'. brxn pn.pused.
Both the Under Secretary of Labor and Court of Appeals rejected the theory l
. that Mrs. English's termination represented a continuing violation.
Based upon this fect, the NRC has concluded that the violation was not a continuing violation. Accordingly, a daily civil penalty may not be assessed for a violation that is not considered to be a continuing
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i violation.
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The Petitioner claims that the factors identified in the Enforcement Policy to be considered in adjusting a civil penalty merit escalation of the civil penalty in this case. Specifically, the Petitioner alleges that GE never reported the Section 210 violation to the NRC, has taken no corrective action, has had prior poor performance in that Mrs. English felt pressure to "go along to get along" for several years, had prior notice of similar events in that licensees have been 1
i notifico by the NRC ut tne unportance cf compliance with Section 210, and l
had multiple occurrences of the violation in that each day that passes without corrective action reinforces the adverse impact on other workers.
These factors, according to Petitioner, warrant at least a 50-percent l
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increase in the civil penalty.
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The NRC finds these arguments to be witnout merit.
With regaro to the issue of GE's failure to report the violation, tbt t.Tx uues not require reports of discrimination.
Nevertheless, the NRC was aware of the potential violation 1,n this case from the time that Mrs. English fileo a l
l complaint with DOL on August 24, 1984. With regard to the Petitioner's l
argument that GE failed to take corrective action, the NRC's priraaty l
l concern in this area is ensuring that the allegec discrimination does not 3
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. have a chilling effect upon other employees, and that licensee actions do not thwart employees' reporting of safety concerns. As will be discussed below, an inspection was conducted March 28 through 30, 1988, by NRC Regional and Headquarters personnel (Inspection Report No. 70-1113/88-05).
i It is the staff's view, based on this inspection, that the Licensee's program for receiving, evaluating and processing employee concerns is multi-tiered and provides various avenues to employees for raising concerns, and that there has been no chilling effect. Therefore, it dppudrs that thi licensee has taken adequdte Corrective action.
- Finally, Petitioner's arguments that the penalty be escalated due to GE's prior poor performance, prior notice of sim116r events, and multiple occurrences-ut the violation misconstrue these factors under the Enforcement Poliqy.
The section in the Enforcement Policy that provides for escalation f or pr or pour performance refers to the Licensee's enforcement history in the area of concern. The evidence docuriented in in:,pection reports ano the recoro coinpiled by DOL oc not support the contention that the L d ttuseu hu.
6 bistory of prior discrimination violations.
" Prior notice" under the Enforcement Policy refers to specitit. notice of particular types of events or potentiel concittons attecting licenseo operations.
The mere notice that the hRC considers Section 210 to be important ooes not constitute such direct and specific notice to GE that such a violation hao occurred or might occ.t at its facility.
" Multiple occurrences" refers to multiple examples of a particu,lar violation.
The Petitioner's argument that each day constitutes a multiple occurrence is simply another request that the e
. NRC impose a separate civil penalty for each day which the violation continued, which for the reasons explained above, the NRC h45 declined to do.
In sum, a civil penalty in the amount proposed by Petitioner is vastly in excess of any amount contuplated by the Enforcement Policy for such a violation. Rather, I have determined that a Notice of V1olation and Proposed Imposition of Civil Penalty (N0Y) in the amount of $20,000 for a Severity Level II violation should be issued to GE for its discrimination against Mrs. English. An NOV is being issued today concurrently with this Decision.
In taking this enforcement action, however, I note that the U.S. Court of Appeals for the Fourth Circuit has remanded to the Secretarp-of Labor the Petitioner's claim that she had suffered a contiruing course f
i of harassment while she was cri temporary assignment" status following her i
removal from the Chemet Lab.
Following completion of the DOL proceedings, the Nkt stuff will determine whether further enforcemetit action is dpprUpriate with regard to this matter.
In this connection, I note that Petitioner argues that tailure to impose a substantial penalty will have a chilling effect on the reporting of safety concerns by workers at the GE Wilmington f acility.
I find that such is not the case.
hRC inspection activines ut the CE Ulmington facility continue to be nr.cugteo wita acceptelle results regaroing discrimination issues.
The Regional Administrator, Region II, has reviewed and found dCCeptable the actions taken by GE to miniraize any potent'ial chilling s
i effects on current employees. N/ Employees at GE Wilmington continue to come forward to the NRC with perceived safety concerns. S / In addition, anNRCinspection(ReportNo. 70-1113/88-05) was conducted March 28-30, 1988 and did not find evidence of a chilling effect and found that employees feel comfortable reporting safety concerns through the variety of methods availeble at the GE-Wilmington facility.
Imposition of a License Condition The second type of enforcement action that Petitioner requests is that the NRC impose a license condition upon GE requiring the Licensee to fully compensate Mrs. English for her losses. The Petitioner argues that the NRC has a " duty to act" since the Department of Labor has acted and has failed to provide any remedy to Mrs. English.
In Section 210 of the Energy Reorganization Act, Congress has explicitly given to DOL the outhority and responsibility to provide the traditional, M/ GE has implemented a broaa-based program geared to give employees free access for airing all concerns.
12/ Two other individuals' employed at the GE-Wiinington facility, John C.
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Lewis and Joy Malpass, filto complaints witn DOL that they had been subjected to discrimination by GE.
In a letter dated August 30, 1985 to Mozart G. Rather, the DOL Area Directot in Raleigh, North Carolina stated that an investigation tound that GE hac not discriminated l
against Mr. Lewis or Ms. Malpass. The Area Director's oecision was appealed to an ALJ, who issued a decision on January 14, 1966, 85-ERA-38 and 39, recommending dismissal with prejudice. The ALJ's decision is currently pending before the Secretary of Labor.
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1 i labor-related remedies such as compensation for incivioual losses as requested by Mrs. English, while reserving to the NRC its authority unour the Atomic Energy Act to take enforcement action against its licensees for violations of NRC requirements. This statutory system has been implemented through a Memorandum of Understanding between the two agencies. See 47 Fed._ R n 54585 (December 3, 1982). Thus, the NRC does not have the authority to order individual compensation as requested by Mrs. English, N/ and consequently, this request by the Petitioner is denied.
Additional Issues of Wrongdoing by GE Alleged by Petitioner in her December 13, 1984, Petition
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I As indicated above, the Director of the Office of Inspection and Enforce-ment deferred consideration of certain other issues of alleged wrongdoing by the Licensee pending completion of review of these matters by 01.
General Electric, supra, 24 NRC at 332. 01 has now completed its review j
of these allegations.
NRC did not substantiate any willful, celiberate l
violations as alleged.
Consequently, the Petitioner's request for action l
1 based on these allegations is hereby denied.
13/ Even if the NRC id have such authority, the employee's failure to file a timely complaint with DOL is no reason to depart f rom the statutory system.
Indeed, for the NRC to provide an individual with a 16bor-related remedy, such as compensation when the employee tails i
to file a timely DOL complaint, would largely rencer meaningless the statutory time period for filing such complaints with 00L.
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e.
CONCLUSION For the reasons given above, the Petitioner's request that enforcement action be taken egainst GE is hereby granted. However, Petitioner's requests that the NRC impose a civil penalty in the amount of $40,635,000 plus $37,500 per day for each day after April 6,1987 and that the NRC impose a license condition upon GE requiring the Licensee to compensete Mrs. Erigilsh for her expenses asia losses are denied.
Furthermore, Petitioner's request as set forth in her December 13, 1984 Petition that cne kRC take. enforcement action against GE based upon certain other dlie$td instances of wrongdoing is also.denieo. As provideo in 10 C.F.R. 4.
s 2.206 (c), o copy of this Decision will be filed with the Secretary tcr p the Consission's review.
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H 9t L. Thomps
,J.
Et ty Executive D1 ett for Nuclear Materials afety,
'atc9t<:it, onc Operaticr.s Support J
Dateo at Rockville, f;arylono this <>/4 day of 4?+r#4 1989
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