ML20245B182
| ML20245B182 | |
| Person / Time | |
|---|---|
| Site: | 07001113 |
| Issue date: | 04/06/1987 |
| From: | Roisman A RATNER, M.G. |
| To: | NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| Shared Package | |
| ML20237K674 | List: |
| References | |
| NUDOCS 8705270589 | |
| Download: ML20245B182 (13) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION t
Before the Director of Inspection and Enforcement 1
l i
1 In the Matter of
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VERA M.
ENGLIS!!
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Docket No. 70-1113 y
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GENERAL ELECTRIC COMPANY
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PETITION FOR ENFORCEMENT ACTION i
l I.
Introduct; ion The Introduction and Purpose of the General Statement of Policy and Procedure for NRC Enforcement Actions (10 CFR Part 2, Appendix C)
(" Enforcement Policy") provides, in part:
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The purpose of the NRC enforcement program is to promote and protect the-radiological health and safety of the public, including employees' health and safety,-the common defense and security, and the environment by:
Ensuring compliance with NRC regulations and license conditions; Obtaining prompt correction of violations and adverse quality conditions which may affect safety; Deterring future violations and occurrences of conditions adverse to quality; and Encouraging improvement of licensee and vendor performance, and by example, that of industry, including the prompt identification and reporting of potential safety problems.
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{ Footnotes omitted.)
This enforcement request is grounded in that clear policy mandate.
It seeks two separate and distinct NRC actions.
First',
1 in order to ensure " compliance with NRC regulations and license g#9l) e1
t conditions," and in order to deter " future violations and occur:ences l
of conditions adverse.to quality," it seeks imposition of a substantial penalty against General Electric Company (GE) for having " discriminated I
against (Mrs. English]" because of her " initiation of and participation
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in NRC proceedings."
In the Matter of Vera M.
English v. General Electric Company, DOL Case No. 85-ERA-0002 decided August 1, 1985, reversed on the basis of the statute of limitations on January l
13, 1987, appeal pending, United States Court of Appeals for the Fourth Circuit.
Second, in order to encourage the " prompt identification and reporting of potential safety problems" and in order to.obtain
" prompt correction of violations and adverse quality conditions which may affect safety" it seeks imposition.of a license condition f
l requiring GE to fully compe.; sate Mrs. English for all her losses incurred as a result of her illegal discharge.
The amount of this J
compensation, omitting attorneys' fees and expenses, is detailed in Attachment A to this petition.
II.
Imposition of a Fine The Enforcement Policy is grounded in the premise that voluntary q
compliance with NRC regulatcry and licensing requirements will be most likely to occur if the consequences of noncompliance are I
both prompt and vigorous.
Basic guidelines are established for dif ferent categories of misconduct which reflect a conscious effort to distinguish between violations based on conditions of~the actual, or potential for,' impact on the public.
These general guidelines are then modified based upon the extent to which the misconduct occurred as a result of careless disregard or willfulness.
In addition, such considerations as the position of those causing
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j the violation, the significance of the underlying violation, the intent of the violator and the economic advantage gained as a result of the violation all may increase the penalty imposed.
On virtually every factor which the NRC uses to judge the level of penalty to impose for violations, GE's conduct requires imposition of the highest penalty.
Its deliberate action in discharging l
hrs. English for pursuing safety concerns with the NRC and its refusal to take any corrective steps to remedy the situation even after its own internal report confirmed some of Mrs. English's l
most serious concerns and even after the Department of Labor Admini-strative Law Judge found for Mrs. English, are evidence ~of the j
1 most callous and dangerous conduct for which an imposition of
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1 a severe penalty is absolutely essential.
Although the Enforcement Policy "is intended to serve as Commission guidance, rather than as rigid requirements" (Statement of Consideration, 47'FR 9987 ( 3/9/8 2 )), it nonetheless is imposed "upon the Staff and presiding officers" and "(als a matter of fair notice to licensees, the Enforcement Policy must be applied" (In the Matter of Reich Geo-Physical, ALJ-85-1, 22 NRC 941, 958-9 (1985).
The discretion granted to the Director by the Commission in the Enforcement Policy is a discretion to act within the confines of the Policy, not a discretion to ignore or substantially deviate from the policy.
For instance, in establishing base penalties L
for violations, the Policy is quite explicit.
The discretion l
is applied in deciding how much to increase or decrease the penalty, similarly, the Poicy declares that "(w]ith very limited exceptions, i
l whenever a violati.on of NRC requirements is identified, enforcement
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action is taken," that "[g]enerally, civil penalties are imposed
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l for Severity Level 1 violations" and "are imposed absent mitigating I
circumstances (which are defined] for Ceverity Level II violations" l
and "will normally be assessed... for any willful violation of l
l any Commission requirement including those at any severity level."
10 CFR Part 2, Appendix C, Paragraphs V and V.B.
l The GE nisconduct of which Mrs. English is the victim is l
f l
a Severity Level I or II violation which has continued since her i
original transfer from the Chemet Lab and her subsequent firing
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l through today.
From the outset, the GE plant manager was fully aware of and participated in the discrimination against Mrs. English.
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At least after August 24, 1984, when Mrs. English filed her complaint with the Department of Labor, the highest levels of GE must be assumed to have been aware of what happened to her and of the 1
wrongs which had been committed against her.
"The Commission l
expects management to be closely invo.ved in the control of licensed activities (and 1]f management condones violations of regulatory requirements, sanctions will be appropriately escalated."
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i Statement of Consideration, 49 F.R.
8583, 8585 (3/8/84).
Thus from March 15 until August 24, 1984, GE was guilty of at least i
a severity II violation since "(a]ction by (its] plant management l
above first line supervision (was] in violation of Section 210 of the ERA" and from August 24, 1984, to today " senior corporate management (has been] in violation of Section 210 of the ERA."
10 CFR Part 2, Appendix C, Supplement VII A & B.
.The base civil penalty for those violations is $20,000 per violation from March 15 to August 24 and $25,000 per violation from August 24 to today.
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10 CFR Part 2, Appendix C, Table 1A and 1B.
Moreover, since GE "is aware of the existence of a condition which results in an ongoing violation and (has failed] to initiate corrective action, j
each day the condition existed may be considered as a separate l
violation and, as such, subject to a separate additional civil penalty."
10 CFR Part 2, Appendix C, Paragraph V.B.5.(1).
Thus i
GE's base penalty for its treatment of Mrs. English is S3,240,000 for the Severity Level II violations and $23,850,000 for the Severity Level I violations, making a total base penalty of $27,090,000.
Additional factors require that this amount be substantially l
l increased.
Initially it is important to realize why NRC has decided to classify Section 210 violations at the highest severity levels.
Any action taken by a licensee to deter reporting of safety concerns by discouraging employees from reporting to the NRC is, in effect, an attempt to falsify data since a material omission is as serious as a material misstatement.
10 CFR Part 2, Appendix C, Supplement VII, fn. 15.
When GE attempted to force Mrs. English to abandon her safety concerns and to not report to the NRC it was seeking to prevent material information relevant to the NRC's safety review function from reaching the NRC.
When she was subsequently transferred and later fired from her job in a highly public and demeaning manner for refusing to surrender to these pressures, every worker at the GE facility got a very clear message that reporting to the NRC would be met with severe consequences.
Without the steady flow of reliable and complete information, the NRC cannot carry out its safety review function.
n l In addition, the Enforcement Policy singles out ineffective identification of safety problems as particularly egregious and explicitly authorizes both administrative orders and civil penalties in such cases.
Statement of Consideration, 49 F.R.
8583, 8589 (col. 2) (3/8/84).
GE's actions in punishing Mrs. English for reporting safety concerns to the NRC not only sought to prevent I
her identification of problems but undermined any other employees' inclination to identify safety. problems.
Finally, it is the very nature of Section 210 violations, as opposed to other violations, that they warrant the most severe-classification for enforcement action.
Any Section 210 violation is inherently generic because the workforce learns from management's conduct what is acceptable and unacceptable behavior.- This generic i
t impact means that even if a specific Section'210 violation only l
involves suppressing relatively minor safety concerns, there is l
a substantial potential for suppressing significant safety concerns known to other workers who are intimidated by the consequences-suffered by their fellow worker.
Thus the test of the safety implications of the Section 210 violation involved-here is not merely the safety significance or even the validity of the underlying concerns raised by Mrs. English but rather the potential safety significance of the problems which other workers kill be reluctant to raise because of fear of reprisals.1 of course that implicates i
i the most serious safety concerns.
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There is no doubt here that Mrs. English's concern regarding l
the proper handling and cleanup of the special nuclear material which GE is' licensed to possess itself involves the gravest. matters of worker and public health"and safety.
The potential for mishandling, I
inadvertent exposure, and leakage of.this material is sufficiently l
serious that the Executive Director for Operations recently concluded
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l Against this regulatory predisposition to~ severely punish i
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Section 210 violations is superimposed the fact that GE's conduct her', far from justifying mitigation of any fine, actually requires e
j a substantial increase in the fine.
The factors identified in i
the enforcement policy as warranting an adjustment of the fine are:
prompt identification and reporting (GE has never. reported its Section 210' violation to the NRC or even acknowledged that such a violation exists); corrective action to prevent recurrence (not only has GE done nothing to correct the damage done to Mrs.
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English, even af ter its own investigator found substantial merit l
f in her quality concerns, (Wieczorek' Report (April 26, 1984)),
j but it has also done nothing to eliminate the consequences to
,'l other employees of its intimidation of Mrs. English or to prevent 1
<w recurrence of similar events in the future and, in.the cases of Ms.
Malpass and Mr. Lewis, applied similar pressure to prevent and punish their testimony on behalf of Mrs. English); past performance (Mrs. English had felt pressure to "go along to get along" for several years); prior notice of similar events (licensees have bee'n notified by the NRC of the importance of compliance with Section 210 and of encouraging workers to freely speak out about safety concerns to management and the NRC); and multiple occurrences 1 [ continued) not be released under the Freedom of4 Information Act (5 U.S.C.
5552) because it "would facilitate attempts at theft or diversion of such material and thus pose significant. health and safety problems."
Letter of Stello to Ratner, 3/25/87,.in response to FOIA-86-704.
Obviously since the diversion of this material is of-such grave L
concern, its careless handling, frequent spills, and inadequate cleanup with the. concomitant exposure of workers, plus the failure to properly control the material and follow safeguard procedures, is an extremely serious matter of which the NRC would have to i
be advised.
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(every day that passes without corrective action being taken to i
l undo the damage done to Mrs. English reinforces the adverse impact I
J on other workers who believe they should report safety concerns to:the NRC).
All these factors taken together warrant at least a 50% increase in the fine to be paid by GE.
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In sum, Mrs. English requests that GE be fined a total of
$40,635,000 plus $37,500 per day for every day after April 6, 1987, that GE does not take the corrective actions identified in the following paragraphs.
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III.
Modification of License The imposition of the fine proposed above should substantially deter GE and other licensees from violating Section 210 in the future, but that deterrence will never overcome the fear engendered among the workforce by the treatment which Mrs. English has been forced to endure.
To the workers at GE the only relevant fact i
l is that someone stood up to management and insisted on pursuing safety concerns with the NRC, many of which were confirmed by GE's own internal report and by NRC inspector reports, and that person is gone, with no career and no future.
For the men and l
women at GE with families and responsibilities,.for those who i
are alone and depend on their job to provide them the comforts of life, for all the employees, Mrs. English suffered the ultimate and most severe punishment for her conduct.
The impact of that on the remaining workforce cannot be overstated.
Each of those workers must now consider that resisting management and insisting on pursuing a safety concern may not only result in a lost job
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but there will not be any remedy to assure that worker that by i
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l obeying the law and reporting safety concerns the worker will l
not suffer economically -- their capacity to support themselves 4
and their family will be restored and they will be fully compensated I
i for the physical and emotional anguish caused by being escorted from the job site and barred from employment.
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Had GE operated its plant without properly functioning and required safety equipment, NRC could and should have fined them.
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Had GE still not corrected the problem, NRC would have to issue an order requiring that corrective steps be taken by'a time certain and, failing that, the license would have to be suspended.
The g]
safety problem created by GE's action against Mrs. English is 1
disabling a major safety system at the NMFC plant --
i.e.,
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system which assures that safety concerns are promptly reported to the NRC.
GE has refused to repair that system and thus the NRC must issue an order requiring that GE implement repairs at once or have its license suspended.
There is only one way to repair the damage done by GE's actions against Mrs. English.
GE must be required to fully compensate Mrs. English for her economic losses in the past and.for the future, for her medical expenses, for the expenses she incurred in fighting GE all these years, and must fully compensate her for the physical and mental pain she has endured as a result of their actions..
Without such compensation, she remains a symbol to the GE workforce of the severe consequences which they will suffer if they insist on reporting safety concerns to the NRC.
By requiring GE to provide such compensation, Mrs. English becomes a symbol to the GE workforce l
that if they report safety concerns to the NRC they will not I
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suffer.
In addition, GE will realize that-section 210 violations, even if it is economically possible to justify the fine, will not produce the desired result of inhibiting the workforce.from reporting to the NRC.
No amount of new programs to encourage workers to freely express their concerns to the NRC, no amount of management speeches, j
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slogans and posters, and no-amount of NRC assurances wi11' convince the worker that she or he should risk virtually certain loss ~of l
l livelihood to pursue safety concerns which GE does not want pursued.
The remedyproposed here, while admittedly unique, ir certainly 1
well within the power of the NRC.
The Enforcement Policy recognizes the need to assure that corrective actions are taken promptly.
The NRC has the authority to " establish by'...
order, such standards and instructions to govern the possession'and use of special nuclear i
material.... as the Commission may deem necessary (or] desirable to protect health or to minimize danger to life.or property."
42 U.S.C. 52201(b).
In 10 CFR 555.40(b), the'NRC specifically declares that it possesses the authority to modify any license for " failure to observe any of the terms and conditions of the l
Act,.or the license, or of any rule, regulation or order of the
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l Ccmmission.... "
In 10 CFR 550.7 the Commission specifically' forbids violations of Section 210 of the Energy Reorganization Act.
Thus the NRC has full authority to impose the relief requested j
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here.
l The existence of Section 210 does not bar the NRC from acting i
independently of the Department of Labor.
The NRC cannot be barred from pursuing its important health and safety functions by the Department of Labor actions as this case well illustrates.
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1 the Department of Labor found that Mrs. English had been discriminated against for engaging in protected activity but ruled that her claim was time-barred.
That technical impediment, even if valid, eannot and does not undermine the validity of the ALJ findings l
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and the implication of those' findings for the public health and l
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l safety.
Even if the Department of Labor had allowed the woefully I
l inadequate compensation which Mrs. English was awarded to stand, I
l it would still be incumbent on the NRC to. evaluate the remedy l
to assure itself that the compensation paid was safficient to l
fully correct the problem created by the illegal firing.
- Finally, Congress itself always intended that the NRC would retain its l
full authority to act in addition to the processing of Section l
210 violations by the Department of Labor.
In floor debate in i
the Senate, Senator Hart sponsored and spoke for an amendment i
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which was adopted to strengthen the employee protection provisions.
Senator Hart stated (124 Congressional Record 29771 (December j
18, 1978):
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(Section 210] is not intended to in any l
way abridge the Commission's current authority to investigate an alleged discrimination anu 1
take appropriate action against a licensee-
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employer, such as a civil penalty, license a
suspension or license revocation.
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Thus NRC has authority to act even before the Department
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of Labor provides some compensation.
In this case, the NRC clearly l
has a duty to act since the Department of Labor has acted and has not provided any remedy to Mrs. English.
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CONCLUSION The central and indisputable fact which underlies t?)is Petition--
I is that over't'hree years ago Mrs. English was discriminated against t
and eventually fired by GE for reporting safety concerns to the NRC and GE has never-been fined for its conduct and Mrs. English has.never-been compensated for-the injuries inflicted upon her" by GE.
The unavoidable consequence of this situation is.to leave the impression with GE and other licensees that such conduct is j
h tacitly acceptable and to leave the impression with the nuclear industry workforce that reporting safety concerns to the NRC will
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result in discrimination and retaliation which will never be redressed."
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It is unacceptable for these conditions to continue. -Prompt. action l
l is required in the form of adoption of the enforcement proposals' in this Petition.
.I Respectfully submitted, l
sx
/ L'
< Anthony Z./Ro'sm(n/
Suite 600f
(
1401 New Yo k Ave., NW Washington, D.C.
20005 (202) 628-3500 l' d f b'
Mozagt G.
Ratner 5225 Wisconsin Avenue, NW j
i Suite 600 j
l Washington, D.C.
20015 Counsel for Petitioner i
Dated:
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.t
< s..
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VERA M. ENGLISH Costs and Damages Incurred,
As a Result of Discriminatory Discharge' I
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'Past and future pay, including benefits S 328',645.00 j
Mrs. English's out of ' pocket i
costs and expenses 24,026.62 Psychological Service Fees (only through December 10, 1985, j
and not including additional
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amounts ~ incurred since then, to be supplemented later) 2,955.00
,$355,626.62 l
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l ATTACHMENT-A s
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