View source for TXX-4099, Forwards Response to 831222 Notice of Violation & Proposed Imposition of Civil Penalty.Requests Enforcement Action & Proposed Civil Penalty Be Withdrawn Since Legal Std NRC Applied Seems Unclear

{{Adams
| number = ML20079M436
| issue date = 01/23/1984
| title = Forwards Response to 831222 Notice of Violation & Proposed Imposition of Civil Penalty.Requests Enforcement Action & Proposed Civil Penalty Be Withdrawn Since Legal Std NRC Applied Seems Unclear
| author name = Gary R
| author affiliation = TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
| addressee name = Deyoung R
| addressee affiliation = NRC OFFICE OF INSPECTION &amp; ENFORCEMENT (IE)
| docket = 05000445, 05000446
| license number = 
| contact person = 
| document report number = EA-83-132, TXX-4099, NUDOCS 8401270316
| document type = CORRESPONDENCE-LETTERS, INCOMING CORRESPONDENCE, UTILITY TO NRC
| page count = 33
}}

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TEXAS UTILITIES GENERATING COMPANY MKYWAY TOWEN
* 400 NORTIl OLIVE MTHEFT. L.H. M1
* DALLAM, TEXAM 73201 R. J. GARY
  ..- . m . m ...."'                                                         January 23, 1984 TXX-4099 Mr. Richard C. DeYoung, Director Office of Inspection & Enforcement
            -U. S. Nuclear Regulatory Commission                             Docket Nos.:       50-445
            ' Washington, DC 20555                                                              50-446 RESPONSE TO NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY EA 83-132 FILE N0.:       10130 and 00897

==Dear Mr. DeYoung:==

On December 22, 1983, the NRC Staff (Region IV) issued a Notice of Violation and Proposed Imposition of Civil Penalty to Texas Utilities Generating Company, et al. (" Licensees") for an alleged violation of 10 C.F.R. Part 50, AppeiidiTB, Criterion I. Pursuant to 10 C.F.R.                           2.201 and 2.205, Licensees respond to the Notice of Violation and Proposed Imposition of Civil Penalty in the attachments hereto.
As set forth in the attached responses, Licensees deny the alleged violation and respectfully request that the Notice of Violation and Proposed Imposition of Civil Penalty be withdrawn. Alternatively, Licensees submit that the proposed civil penalty should be mitigated in its entirety.
Licensees regard this enforcement action as a matter of major concern, not just because of the seriousness of the allegations made by the NRC Staff but also because of the adverse and unfair impact the enforcement action has already had on the public perception of Licensees' commitment to quality. This is particularly troublesome because Licensees have always actively sought to ensure that all persons performing quality functions have sufficient organizational freedom to perform their jobs, as required by Appendix B, Criterion I.
Beyond this, Licensees have recently taken responsive actions within all levels cf their organizations and their contractors' organizations at Comanche Peak to reaffirm their commitment to a strong quality assurance program.       These actions included development of an audiovisual program to reemphasize the commitment to quality at Comanche Peak, which 8401270316 840123 PDR G
ADOCK 05000445 PDR ZE-ty I/
A DEVENION OF TEXAN t'TILITIEN ELECTRIC COMi%NY

TXX-4099                                                   Paga 2 individuals involved with quality related work (including QC inspectors and craft) are required to view; management meetings with selected personnel to emphasize its commitment to quality; the establishment of a telephone
     " hot-line" in which employees are able to voice anonymously their concerns with quality at Comanche Peak; written and posted reminders encouraging employees to bring to the attention of Licensees any concerns regarding quality; and the counseling of selected QA/QC personnel on employee relations and the need to accommodate considerations of both labor law and atomic energy law, recognizing that the overall objective is the construction and operation of a safe power reactor.
These and other actions were initiated before the Notice of Violation and Proposed Imposition of Civil Penalty was issued in this proceeding, and NRC was advised of them in Licensees' September 28, 1983, Response to Notice of Violation and Proposed Imposition of Civil Penalty in EA No. 83-64. Yet, the instant er.forcement action was apparently taken without any recognition of Licensees' earlier responsive actions.
Licensees also find the Notice of Violation and Proposed Imposition of Civil Penalty troublesome because it was not issued in a timely manner. As revealed in the Report of Investigation prepared by the Office of Investigations Field Office, Region IV, the NRC inquiry into the alleged violation of Appendix B, Criterion I began on January 7, 1983, and erded on August 3, 1983. No action was taken on the matter for over four months thereafter. In sum, it took NRC almost one whole year to investigate the alleged violation and to decide on the enforcement action it deemed to be appropriate. During the protracted investigation and lengthy deliberation within NRC, and prior to the Proposed Imposition of Civil Penalty, Licensees had already taken tIIe responsible actions described above.
According to a recent presentation by the Staff to the Conmission, it takes an average of about ten weeks from the date an alleged violation is discovered to process an enforcement action involving a civil penalty.
The underlying rationale for taking prompt enforcement action, as the Staff recognizes, is to assure that it will have the desired effects on both the licensee against which it is taken and on the industry as a whole. The NRC must question whether the instant enforcement action, based on allegations over one year old and for which responsive actions were taken months ago, will have any salutary effect.
Finally, Licensees are perplexed that the Notice of Violation and Proposed Imposition of Civil Penalty, as well as the supporting Report of Investigation, do not provide Licensees with the underlying factual bases for this enforcement action. Such information is particularly important because of the critical role human nature and individual perceptions play in evaluating the circumstances surrounding the alleged violation. Licensees have often discussed with the Staff the complex relationship between managers and employees and how there may be instances of disagreement between them. Part of the complexity of this relationship involves the need to strike a delicate balance between assuring that QC supervisors receive sufficient management backing to enable them to supervise their subordinates while simultaneously assuring that those supervisors do not adversely influence the organizational freedom required by QC inspectors to do their jobs.
1

TXX-4099                                                                        Page 3 The NRC Staff claims that Licensees improperly struck the balance in this case. For Licensees to respond to such claim, it is necessary for them to understand the~ underlying bases for it. This understanding is also essential if Licensees are to evaluate the effectiveness of the actions already taken to reemphasize that quality of const.ruction is of foremost importance at Comanche Peak. Knowledge of the bases for the Staff's proposed action is not a mere convenience which the Staff can elect to dispense. Rather, it is a legal obligation rooted in due process of the administrative system which the NRC must fulfill. The Staff has not fulfilled that obligation here.
In spite of the Licensees' disagreements with the Staff concerning the Notice of Violation and Proposed Imposition of Civil Penalty, Licer, sees remain firmly committed to reemphasizing that quality in construction remains of foremost importance at Comanche Peak. As discussed above, we believe that our past efforts in this area evidence our total commitment to an effective quality assurance program, and we intend to retain that total commitment throughout the construction and operation of Comanche Peak.
Sincerely, RJG:ln                                              -
cc: Mr. John T. Collins Regional Administrator, Region IV U. S. Nuclear Regulatory Commission Attachments:      (1)  Licensees' Response to Notice of Violation (2)  Licensees' Answer Protesting Civil Penalty I hereby swear that the above-stated information and the referenced attachrients are true and correct to the best of my knowledge and balief.
                                                                                  )
k2Nhm                R. 9. Gary
                                                                                        /
Subscribed and sworn before me this j.3        day of h & W f-                            ,
1984.
SAlmAL                          MtALLtG Notary Public

            ~                                                                        _
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the' Matter of                     )  Docket Nos. 50-445
                                                      )               50-446 TEXAS UTILITIES GENERATING            )
COMPANY, ~ ~ ~ ~et'al.             )  Permit Nos. CPPR-126
                                                      )              CPPR-127 (Comanche Peak Steam                  )
Electric Station)                   )  EA No. 83-132 LICENSEES' RESPONSE TO NOTICE OF VIOLATION I. Introduction Pursuant to 10 C.F.R. I 2.201, Texas Utilities Electric Company,1 et al.           (" Licensees") hereby respond to the Notice of Violation ("NOV") issued on December 22, 1983, in the captioned enforcement action.           Set forth below is a written statement providing (1) a denial of the alleged violation and (2) responsive steps which have been taken to reaffirm Licensees' commitment to an effective quality assurance program.
II.       Denial of Alleged Violation The NOV alleges that a quality control supervisor intimidated quality control personnel working for him as coatings inspectors.           It recites that the supervisor
                " threatened the QC personnel with withdrawal of OC certifications if they continued to write ' nitpicking' f               1  Please note that CPPR-126 and CPPR-127 were amended on December 30, 1983, to reflect the substitution of Texas Utilities Electric Company for Texas Utilities Generating Company as a licensee.

Nonconformance Reports which had been the subject of complaints from craft management personnel."2   According to the NOV,.this constituted a violation of 10 C.F.R. Part 50, Appendix B, Criterion I.
Licensees are at a distinct disadvantage in t-responding to the NOV because of the very limited facts set forth in the NOV. We have sought that information through a Freedom of Information Act request, but the NRC has not yet timely responded to that request fully. Based upon the facts we have before us, Licensees respectfully deny that a violation of NRC requirements' occurred as set' forth in the NOV and Proposed Imposition of Civil Penalty.
We maintain first that the NRC applied an incorrect legal standard when determining whether a violation of Appendix B,  Criterion I occurred and second that NRC failed to allege a sufficient factual basis to establish that a violation of such requirement occurred.
A. Legal Standard.
In assessing whether a violation of Appendix B,
          .       Criterion I occurred, the NRC inquired into whether a QC supervisor made the statements alleged and whether OC        q inspectors interpreted those statements to be intimidating. Thus, based on Licensees' review of the NOV 2   NOV at 1-2.

   ,   Li'
                                             .- '3 . -
and the Report of Investigation,3 it appears that the legal standard NRC applied to identify a violation of-Appendix B, Criterion I was whether the alleged statements were 'in fact made and adrether the QC . inspectors believed
               .the statements were intimidating.      This11atter test is improper because-it is purely subjective. Licensees submit that the correct legal, standard should be an objective test, viz., whether given the totality of the circumstances it was reasonable.for the OC inspectors to perceive the supervisor's remarks as intimidating.
As-discussed in greater detail below, because NRC applied a subjective standard when determining whether a violation of Appendix-B, Criterion I occurred, there were numerous matters which it should have considered but
               .which,-basedJon Licensees' review of the " record" in this proceeding, were apparently ignored. Perhaps the most important of these matters is whether the supervisor in question was trying to ensure that OC inspectors satisfied   i l
               -their responsibilities under the quality assurance program
             ~
l and whether the statements in question were simply an expression by the OC supervisor of the need for QC i
inspectors to apply the applicable standards correctly
!                during their inspections.
I' i
3  Report of Investigation, Comanche Peak Steam Electric
,-                  Station, Intimidation of Coatings CC Personnel, Case No. 4-83-001, August 24, 1983 (" Report of l
Investigation").
L

                                                                                  ~   -
  . 3 The failure of NRC to consider this and other matters in this enforcement action is difficult to understand in light of Appendix B itself.                 Criterion I of Appendix B                      i provides in pertinent part that "the persons and organizations performing quality assurance functions shall have sufficient authority and organizational freedom to identify quality problems; so initiate, recommend, or provide solutions; and to verify implementation of solutions."     Criterion II of Appendix B states that the quality assurance program "shall provide for indoctrination and training of personnel performing activities affecting quality as necessary to assure that suitable proficiency is achieved and maintained" and that
                   " applicant shall regularly review the status and adequacy of the quality assurance program."
Together, these provisions require that licensees ectablish a balanced quality assurance program both in which OC inspectors have sufficient organizational freedom to perform their jobs and in which licensee management exercises sufficient supervisory authority over those inspectors to assure that quality assurance functions are performed correctly. Thus, if OC inspectors are using incorrect criteria or are not properly applying pertinent criteria, the licensee under Appendix B has an affirmative
           . -_.       -  . _ . ._    .~     . _ _ _ . . _ .         _        _ .   ,   . _ - - - . _ _ . . _

    ,    ,a-5-
: obligation to assure that this situation is corrected and thatLthe quality assurance program is implemented 1 properly.
                          .The failure of NRC-to consider this and other. matters is also significant in view of the fundamental difference betweenLenforcement actions based on claims of harassment and other enforcement actions taken by NRC.                          Most enforcement actions involve technical issues such as whether a technical specification was violated or whether procedural requirements were satisfied fully.                          In con-trast, enforcement actions involving harassment raise
                     " people" issues, viz., the reactions of individuals to a particular statement or action. As a result, before NRC decides that an incident of harassment took place contrary to Appendix B, Criterion I, it should consider more than the alleged incident itself, the claims of the people in-volved, or the underlying cause of the alleged violation.
Accordingly, Licensees submit that the legal test used by NRC to identify a violation of Criterion I (whether a statement was made which OC inspectors believed was threatening) ignores two fundamental areas of inquiry.
The first is an inquiry into the totality of the circumstances surrounding the alleged harassment.                           The
!                   second is an examination of whether the QC inspectors reasonably perceived that the statements in question were i
i t

threatening. The specific facts-NRC should have considered when inquiring into these two areas are set forth below.
Totality of Circumstances. When considering the totality of the circumstances surrounding the alleged violation of Appendix B, Criterion I, NRC should have
             - considered whether there could have been underlying reasons for an inspector to allege that he was a victim of harassment which would indicate that no violation of Appendix B, Criterion I occurred. At a project the size and complexity of a nuclear power plant, hundreds of QC inspectors are employed performing a variety of tasks.
Most of those inspectors diligently perform their jobs.
Nevertheless, disputes involving such employees will arise for any number'of reasons, including efforts by the licensee to assure that QC inspectors perform their inspections in accordance with the correct criteria and that they properly apply the applicable critaria. As a result, a claim of harassment could in fact stem from actions by the licensee to exercise legitimate management T
control over its quality assurance program, as required by Criterion II of Appendix B. Similarly, a claim of harassment could be the result of labor disputes involving such matters as an inspector's work output, or other terms and conditions of employment.

For example, a QC supervisor is obliged to correct an inspector if the inspector fails to identify a rejectable condition. A QC supervisor-also must take corrective action if f.mproper inspection techniques are being used by QC inspectors. Similarly, if QC inspectors are not
           . performing adequate and timely inspections, it is perfectly appropriate for the supervisor to warn such inspectors that re :ertification will be required unless their. level of performance improves.
In each of these examples, an inspector could claim that he was being threatened and deprived of his organizational freedom. Yet in all of these examples, the the supervisor's action would be mandated by Appendix B, Criterion II.
These examples illustrate why.NRC must consider more i
than the subjective perceptions of the QC inspectors claiming they were threatened. The examples also illustrate why it is essential for NRC to consider in i
addition the intent of the supervisor when making his all'eged statement in question. If the statements were meant to achieve an entirely proper result,   i.e., to correct the improper inspection techniques of certain inspectors, then they cannot logically be deemed by NRC to violate Appendix B, Criterion I.

Numerous other matters should be considered by NRC when evaluating the. totality of the circumstances surrounding a claim of' intimidation, all of which are-
              -intended to assure that such claim does not disguise an ulterior motive or reflect a labor disagreement not relevant for purposes of Appendix B. These matters include, among others, whether quality assurance activities relating to-construction are nearing completion; the experience and performance level of the individual alleging harassment; possible motives the alleging individual might have; whether there were personality conflicts underlying the allegation; the level of responsibility, demeanor, and personality of the individual allegedly engaged in harassment; and what actions were initiated by the licensee as a result of this or similar allegations. In short, NRC should consider the totality of the circumstances surrounding an alleged claim
!             of harassment. Because the NRC failed to do so in this j             case, it should not find that a violation of Appendix B, l
l             Criterion I occurred.
l l                   Reasonable Man Standard. Licensees submit that NRC l
,             should also consider whether it was reasonable for a OC l
inspector to perceive that an alleged statement is threatening. NRC should not simply confirm that a statement was made and then accept the view of a OC i
l

inspector that he believed the statement was threatening.
                         ~
Were NRC to adopt this latter approach (and the Report of Investigation suggests that in this case it.did),
inspectors would be able to hold the quality assurance program virtually hostage whenever a dispute between labor and management arose. Moreover, any supervisory action, even if required under Criterion II of Appendix B, could provide inspectors with a basis to claim that they were
             " threatened,"' provided the inspectors were willing to state that they felt intimidated by the action. In short, it would place the management and control of the quality assurance program in the hands of the inspectors, given the_ leverage they would obtain over management through the threat of NRC enforcement actions. The end result would be a serious erosion of the ability of licensees to administer an effective OA/QC program.
The " reasonable man" approach which NRC should have used~in this case has been adopted by another federal agency which, much like NRC, must determine whether j            actions or statements unlawfully threaten individuals l
engaged in certain activities protected by federal law.
Section 7 of the Labor Management Relations Act ("LMRA")
provides emp'.oyees with the right to self-organization; to form, join or assist labor organizations; and to engage in 1
(            other concerted activities for the purpose of collective l
l l

      ~*
s
                                              -                  bargaining.4     Section 8(a)(1) of the LMRA prohibits employers from interfering with, restraining or coercing employees in the exercise of those rights.5      Section 8(b)(1) imposes a similar prohibition on labor organizations.6 As part of its duties under the LMRA, the National Labor Relations Board ("NLRB") is called upon regularly to decide whether employers or labor organizations were engaged in acts of coercion or intimidation or otherwise threatened those engaged in activities protected by Section 7, contrary to Sections 8(a)(1) or 8(b)(1) of that Act. When making its findings, the NLRB has long held that whether coercion or. harassment exists is not determined from the testimony of those allegedly harassed but rather from an examination of whether, based upon all of the objective circumstances, it reasonably appeared that there had been deprivation of the freedom of choice guaranteed by Section 7.7     Licensees submit that NRC 4   29 U.S.C. I 157.
5   29 U.S.C. 158(a)(1).
6   29 U.S.C.  $ 158(b)(1).
7   See, e.g., N.L.R.B. v. Berger Transfer & Storage Co.,
E76 F.2d 679, 689 (7th Cir. 1982); N.L.R.B. v. Service Employees International Union, Local 254, 535 F.2d 1335, 1337-38 (1st Cir. 1976). Cf. International Ladies' Garment Workers' Union and Georgetown Dress Corporation, 214 NLRB 706, 706 n.1 (1974); James Lees and Sons Co.,   130 NLRB 290, 291 n.1 (1961).

en          .-                         ..kZ                 h                       -+A                   m                 a
    .     ~t-t             .
                                                                                .                  should have adopted a similar " reasonable man" approach when evaluating claims of harassment within the context.of
: Appendix B.8 ;Its failure to do so invalidates the finding
                  'that Appendix B, Criterion I.was violated.
3 B.                Factual Allegations.                                                                                                                .
Licensees submit that the NOV and the Report of Investigation fail to allege facts which constitute a y
violation of Appendix B, Criterion I because no basis was provided upon which to conclude that, given the totality of the circumstances, it was reasonable for the OC inspectors to perceive that they were being threatened.
For example, neither document sets forth in full what the OC supervisor-said during the two meetings he
;                  scheduled; when and where these meetings took place; what t
l                 craft management complaints were received by the supervisor and whether those complaints were valid; whether there were instances of OC istspectors rejecting l
l
[                 8          Licensees recognize that the NLRB is concerned with assuring that rights statutorily granted ?.o employees are not infringed, whereas NRC is concerned with assuring the safe construction and operation of power
-                             reactors through its requirement that licensees
!                            guarantee those employed to perform quality assurance
[                             functions sufficient organizational freedom to do so.
I         /                  However, in both cases the obligation not to engage in I'                           acts of intimidation c_ harassment is statutorily premised.                      Moreover, the type of facts disputed in both cases is similar. Therefore, Licens3es submit that the type of inquiry undertaken by the NLRB, and sanctioned by the courts, regarding violations of Sections 8(a)(1) and 8(b)(1) of the LMRA is equally appropriate where the NRC must investigate claims of harassment.
         ---      . . . . - - - . - - - .    - .-.- ,--- .-               - - .   . . . ~ , . - , - - - - - - . , ,-- . - . -- . . - . . - . - . , - _ - . . . . - - . -

                                                    ~
acceptable- conditions; and whether_there were instances in-which inspectors ~ failed to identify rejectable conditions.
Nor do they indicate whether all inspectors attending the emeetings in question-believed.that they were being threatened or whether only sone _of them perceived the remarksfof the. supervisor in a threatening light, and, if so, why this disparity of opinion existed.9      Similarly, while the Report of Investigation states the conclusion that one '(Kr inspector did not report defects he identified for fear of reprisal, no information is provided as a i
9   Apparently to corroborate the claim of harassment, the Report of Investigation indicates'that the QC supervisor and his manager stated to NRC that the alleged. remarks of the inspector "could have" or "may
^
have had" an intimidating effect on the inspector. As set forth above,_the issue is whether the remarks reasonably lcould have been perceived to be threatening, not simply whether such "could have" been the case.      In addition, the Report of Investigation does not disclose the basis for-these conclusions, does not set forth the overall context in which they were made and does not account for the pressures the supervisor could have felt as a result of what was, no doubt, a searching interrogation by NRC investigators. Moreover, Counsel for Licensees has learned that the supervisor involved in'the' events alleged in the NOV had not even perceived                         .
that his statements could have been interpreted as intimidating until that notion was introduced by an NRC investigator. Counsel for Licensees has also learned that'the NRC investigator did not take a written statement from the supervisor's manager and that the statements attributed to that manager were based on an informal discussion with the investigator. See note 10, infra. At bottom, the statements by the supervisor and his manager do not provide any independent support to conclude that the alleged violation of Appendix B, Criterion I occurred.                                                            I
                                                                          --.,--.n ,
: n. - ----

basis for that conclusion.         Further, no information is provided as to whether in any event the QC inspector acted reasonably in view of the supervisor's statements.
Finally, there is no indication in either the NOV or the Report of Investigation that NRC considered in any way thb totality of the circumsta. aces surrounding the alleged incident, such as the fact that construction is nearing completion or that inspectors were failing to perform their duties properly.
The failure of NRC to provide this informdtion is significant.         Licensees investigated an incident which involved a QC supervisor reprimanding QC inspectors for
            " nitpicking."10        The results of that investigation showed that two QC inspectors had spent twelve manhours to inspect the floor of a ten foot by twelve foot room and rejected some conditions which were in fact acceptable.
t i           The QC supervisor used these as examples of " nitpicking" l
l f
f           10.Although Licensees investigated this incident, that l               inquiry was not focused on learning how NRC viewed the l
incident or uncovering any information within the possession of NRC.        Rather, it was intended to identify i               what actions Licensees should take, whether or not this incident constituted unlawful harassment, to assure that incidents of harassment did not occur. Moreover, as discussed in Section III of Licensees' Answer to Civil Penalty in EA No. 83-132, NRC did not disclose the underlying factual basis for the NOV.         As a result, it is impossible for Licensees to respond to the MOV with a factual analysis of the incidents in question.
If NRC releases such information to Licensees in response to our FOIA request, we will respond promptly, i               as appropriate, in view of that information.
4       .,

e f
by-the inspectors because it took the inspectors far too long to perform their job, and at that their performance was not satisfactory.      Further, that investigation showed that the' inspectors had overlooked some unacceptable con litions. It was in these contexts that the QC supervisor admonished the inspectors that if they continued to perform inadequately he would revoke their certifications. If in. fact this incident is the basis for the instant enforcement action, Licensees strongly deny the violation. Clearly what is alleged to be a threat is nothing more than a QC supervisor acting properly to assure that QC inspectors perform at an adequate level of 1
proficiency.
At bottom, NRC should have alleged and documented facts sufficient to establish that a statement was made which, given the totality cf the circumstances, inspectors
             -could reasonably have perceived as threatening.       Rather i
than making this showing, NRC claimed based primarily on the statement of those allegedly harassed that they were threatened and thus deprived of their organizational freedom. Because this showing falls short of that which should have been made to establish a violation of Criterion I of Appendix B, Licensees respectfully deny the charaes set forth in the Notice of Violation and Proposed Imposition of Civil Penalty.
                                                                             )

    . t III. Responsive Actions While Licensees deny that the NOV sets forth a violation of Appendix B, Criterion I, nevertheless, a number of responsive actions have been initiated since the alleged incident took place.        These actions were brought to the attention of NRC in Licensees' Response to Notice of Violation in EA No. 83-64.11           Licensees would not normally provide them in detail a second time here.
However, even though they were initiated before this enforcement action was taken, NRC apparently did not acknowlege and account for them in this action.              In addition, these responsive actions constitute a 1
significant reaffirmation of Licensee's total commitment to an effective, independent OA/QC program and should prevent incidents such as that alleged here.              Therefore, Licensees set forth below the responsive actions commenced four months ago to reassure the adequacy of the QA/OC
;               program at Comanche Peak:
o    First, Licensees have developed an audio visual program to reemphasize i                         the commitment to quality at Comanche Peak. The program stresses that quality is the business of everyone at Comanche Peak, that all QA/QC peraonnel are required to report non-conforming conditions, and that no interference (such as harassment) with proper performance of OA/QC functions
,               11 Texas Utilities Generating Company, et. al. (Comanche Peak Steam Electric Station), Docket Nos. 50-445 and 50-446, Licensees' Response to Notice of Violation, EA No. 83-64, September 28, 1983, at 15-18.
k

at Comanche Peak will be tolerated.
Over 6,000 individuals involved with quality-related work at Comanche Peak (including OC inspectors and craft) have been required to view this program. The program will continue throughout the duration of construction, and all future employees will be required to view the program.
This program has been underway since early November.
o   Second, Licensees' management has met and will continue to meet with selected personnel at Comanche Peak to emphasize its commitment to quality.
During the meetings management has stressed that it will continue to implement an effective OA/OC program at Comanche Peak. Management will further re-emphasize that the quality of plant construction has been and always will be of the highest priority.
o   Third, Licensees' management has and will continue to re-emphasize during these meetings, as well as through other means described below, its desire that all employees bring their concerns regarding quality matters to Liceneccc for recolution. Toward that
!                end, Licensees will reiterate for l                their employees and their contractors' employees the numerous official l
channels available to them for doing so. These channels include:
: 1. QA/OC inspectors:
l
: 2. OA/0C supervisors; l                      3. Construction management; and
: 4. Texas Utilities Generating l
Company management.
1 Licensees will continue to emphasize l
to employees and their contractors' l                employees tnat they are required to
               , bring quality assurance concerns to L

9 Licensees' attention and that no adverse consequences with respect to the terms.and conditions of their employment will be tolerated due to their identification of problems.
i               Finally, employees will be advised that they are free, as always, to contact NRC regarding quality assurance matters.
o Fourth, Licensees have initiated a
;               program to encourage the immediate i               reporting of quality concerns.
Employees are able to voice anonymously their concerns with 3
quality at Comanche Peak via a telephone contact. The telephone is answered 24-hours a day by designated individuals or by an automatic recorder. Licensees' personnel with sufficient authority and resources to assure resolution of any matters affecting quality review all concerns identified by this means. Appropriate records are maintained as to the
,               disposition of concerns identified, o Fifth, Licensees reminded employees in
,               writing of Licensees' commitment to quality at Comanche Peak and of managements' encouragement of prompt identification of concerns regarding
     ,          quality. This written reminder was given to Comanche Peak employees with their paycheck. Licensees are also considering other means of reemphasizing to employees Licensees' commitment to quality.
o Sixth, Licensees have posted new
.               notices throughout the plant
,               encouraging employees to bring to their attention any concerns regarding quality. These notices reiterate the available means for doing so, as described above.
o Seventh, Licensees have initiated a program to ensure that all QA/OC employees are given the opportunity to state concerns regarding quality prior

g        .
to disassociation with the QA/QC department. Stated concerns are evaluated and dispositioned by Licensees.
o     Eighth, Licensees have counseled selected QA/QC personnel on employee relations and the need to accommodate considerations of both labor law and atomic energy law, recognizing that the overall objective is construction and operation of a safe power reactor.
In addition to these actions, Licensees have retained an independent technical advisor with extensive management and technical experience in directing nuclear reactor power plant inspection programs.      His responsiblity is to provide outside expertise in Licensees' investigations of quality assurance related activities at Comanche Peak.
The independent advisor reports directly to the Supervisor, Construction Quality Assurance.      In addition, he has total access to any level of Licensees' management he deems neceasary to carry cut his assigned fur.ction.
The advisor will routinely conduct independent investigations to determine the adequacy of quality assurance related activities.      Such investigations may be requested by Licensees' management or by any individual employed at Comanche Peak.      Employees may contact the advisor directly. In addition, the advisor assists in the investigation of allegations received through Licensees'

.. 1 O
19 -         ..
              " hot line."  All QA/QC personnel on the job site were advised in writing of the availability of the advisor and how to contact him.
Licensees believe that these actions, taken prior to issuance of the NOV, are responsive and extensive and that they demonstrate convincingly Licensees' total commitment to quality.
Beyond these generic actions, Licensees took certain specific actions when they became aware of the allegations of harassment involving the QC supervisor. These actions included investigating internally the claims of harassment.12    Our investigation concluded that no intimidation -- either actual or intended -- had occurred.
Licensees also investigated the alleged incident involving harassment to assess the technical significance, if any, of the alleged violation. Based on the results of this investigation, Licensees concluded that the incident had no technical significance.
IX. Conclusion In light of the foregoing, Licensees deny in full the alleged violation set forth in the NOV and request that this enforcement action be withdrawn.
January 23, 1984 12   See note 10, supra.

     .f hY;,  -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of                       )   Docket Nos. 50-445
                                                    )               50-446 TEXAS _ UTILITIES GENERATING           )
COMPANY, et      al.
                                                    )   Permit Nos. CPPR-126
                                                    )               CPPR-127 (Comanche Peak Steam                   )
Electric Station)                    )   EA No. 83-132 LICENSEES' ANSWER PROTESTING CIVIL PENALTY On December 22, 1983, the NRC Staff (Region IV) proposed a $40,000 civil penalty in the captioned enforcement action against Texas Utilities Electric Company,1 et al. (" Licensees") for an alleged violation of 10 C.F.R. Part 50, Appendix B, Criterion I.          Pursuant to 10 C.F.R. I 2.205 Licensees hereby respond to that i            Proposed Imposition of Civil Penalty, i
I. Denial of Violation For the reasons set forth in Section II of
             " Licensees' Response to Notice of Violation" (incorporated herein by reference), Licensees deny the alleged violation and respectfully request that the proposed civil penalty be withdrawn in full.          Alternatively, Licensees request that for the reasons set forth in Section III of 1  Please note that CPPR-126 and CPPR-127 were amended on December 30, 1983, to reflect the substitution of Texas Utilities Electric Company for Texas Utilities Generating Company as a licensee.

                                                     " Licensees' Response to Notice of Violation" (also incorporated herein by reference), the proposed civil penalty be mitigated in full.
4 II. Extenuating Circumstances The extenuating circumstances which Licensees believe i
warrant the withdrawal or complete mitigation of the proposed civil penalty are set forth in Section IV, below.
III. Error in the NOV Licensees submit that the Notice of Violation and Proposed Imposition of Civil Penalty ("NOV") is incorrect.
First, contrary to the Atomic Energy Act and the NRC Rules of Practice, the NOV fails to identify with adequate i
specificity the date, facts and nature of each act with which Licensees are charged.              Second, the NOV fails to take into account responsive actions Licensees initiated prior t.o this enforcement action.             Because of these errors the proposed imposition of a civil penalty is inappropriate, i
Failure to Disclose the Basis for the NOV.                    Section 234(b) <  the Atomic Energy Act provides that when NRC has reason to believe that a person has become subject to the imposition of a civil penalty, NRC must notify such person l           in writing " setting forth the date, facts, and nature of l
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each.act or omission with Which the person is charged            . .
              . .2    This requirement is reflected in 10 C.F.R.     $
2.205(a).
                   . In Radiation Technology, Inc.3 the Atomic Safety and Licensing Appeal Board addressed the question of whether the Staff provided a licensee with adequate notice of an alleged violation as required by the Atomic Energy Act and NRC Rules of Practice When proposing a civil penalty.                The Staff in Radiation Technology, Inc. alleged in the Notice of Violation and Proposed Imposition of Civil Penalty instances of excessive radiation at two specified locations and at "several locations" not identified.4                The licensee requested'a hearing on the civil penalty, during which the Staff attempted to submit evidence relating to the areas of excessive radioactivity not specifically identified-earlier. The presiding officer declined to i
!            admit such evidence. The Appeal Board upheld his ruling on the grounds that a " licensee is entitled to notice of l
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2  42 U.S.C. I 2282(b).
I 3  ALAB-567, 10 NRC 533 (1979).
4  Radiation Technology, Inc. ALJ-78-4, 8 NRC 655, 658 (1978), aff'd in part and rev'd in part, Radiation Technology, Inc. ALAB-567, supra, 10 NRC 533.
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D specific violations before civil penalties may be imposed" and that a reference to excessive radiation at "several locations" did not provide such notice.5 Licensees submit that they have not received notice of the specific violations for Which the Staff proposes to issue a civil penalty as required by Section 2.205. Among other things, the NOV fails to identify the QC inspectors who were not provided sufficient organizational freedom, the identity of the QC supervisor allegedly intimidating personnel working for him, and When and under what specific circumstances the alleged intimidation took place.
The Report of Investigation 6 issued along with the NOV is equally uninformative. It refers to two meetings scheduled by the " supervisor in question" but does not state where and when the meetings took place. The Report also notes the existence of " additional craft management complaints," yet fails to identify the content of any craft management complaints. Lastly, the Report states that one QC inspector did not report defects for fear of 5  Radiation Technology, Inc., ALAB-567, supra, 10 NRC at 549 n. 51.
6  Report of Investigation, Comanche Peak Steam Electric Station, Intimidation of Coatings QC Personnel, Case No. 4-83-001, August 24, 1983 ("Peport of Investigation").

reprisals. However, the Report does not disclose either the identity of the inspector or of the so-called defect allegedly not reported.
At bottom, just as in Radiation Technology, Inc.,7 where the NRC Staff provided insufficient information, here the Staff has not satisfied the requirements of law because it has failed to provide Licensees with the factual basis for its claim that Appendix B, Criterion I was violated.8     For this reason, Licensees submit that the NOV is erroneous and that the civil penalty in this proceeding ahould be withdrawn.9 7   ALAB-567, supra, 10 NRC 533.
8   In Connecticut Light and Power Company v. NRC, 673 v.2d 525, 530, cert. denied, 51 U.S.L.W. 3254 (1982), the Court observed that "to allow an agency to play hunt the peanut with technical information, hiding or disguising the information that it employs, is to condone a practice in which the agency treats what should be a genuine interchange as mere bureaucratic i                  s po rt. " Although the observation was made in l                  connection with the duty of NRC to disclose the i                  technical basis for proposed rules, Licensees submit I                  that it is equally (if not more) applicable here, where Licensees must respond to claims made by NRC or face a substantial civil penalty.
!              9   While Licensees may have investigated the alleged incident of harassment, their inquiry did not focus on the question of how NRC perceived the incident or on uncovering any information in the possession of NRC.
Therefore, Licensees' investigation does not change the fact that it simply has no way of knowing the Staff's underlying factual bases for the instant enforcement action. Moreover, the fact that Licensees investigated i                  the incident does not absolve NRC from its legal duty i                  to disclose the underlying bases of this enforcement action.
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  .o One additional point should be noted regarding this deficiency in tha NOV. Two goals of the Enforcement Policy are to obtain prompt corrective actions and to deter future violations of NRC requirements.10    The NOV cannot serve these goals if the licensee is not informed with specificity of the facts on which an alleged violation is based. A licensee cannot formulate its responsive actions and evaluate the effectiveness of those actions unless the factual bases for the enforcement action are known. Similarly, future violations of NRC requirements cannot be deterred by enforcement actions unless the underlying bases of a violation are identified so that the licensee will know precisely how its conduct violated NRC requirements. Therefore, apart from the requirements of the Act and the Rules of Practice requiring NRC to disclose with specificity the facts surrounding an alleged violation, sound enforcement policy also dictates that NRC reveal the underlying factual bases for the alleged violations in this proceeding.
Mitigating Factors. The Enforcement Policy states that the promptness and extent to which a licensee takes corrective action, including actions to prevent recurrence, may be considered in modifying the civil 10  10 C.F.R. Part 2,   Appendix C $ I.

penalty to be assessed.ll   When applying this provision, the Staff has in the past considered mitigation prior to proposing civil penalties formally. There have been approximately thirty-two Notices of Violation issued for Severity. Level III violations where no civil penalties have been proposed.12- In at least some of them civil penalties were not proposed because of a licensee's prompt and extensive corrective action.13 Despite the provision in the Enforcement Policy allowing mitigation and the past practice of the Staff to consider mitigation prior to proposing a civil penalty, there is no indication that the Staff at any time even considered responsive actions taken by Licensees here before NRC issued the Proposed Imposition of Civil Penalty. On September 28, 1983, Licensees responded to the Notice of Violation and Proposed Imposition of Civil Penalty in EA.No. 83-64. In that response they set forth numerous responsive actions, all of which have been 11  10 C.F.R. Part 2, Appendix C,  I IV.B.2.
12  SECY-83-487, " Revised General Statement of Policy and Procedure for Enforcement Actions," November 29, 1983, (SECY-83-487) at 3.
13  See, e.g., {{letter dated|date=January 6, 1984|text=January 6, 1984, letter}} from Thomas E.
Murley, Regional Administrator, Region I, U. S.
Nuclear Regulatory Commission to Mr. J. J. Carey, Vice
;                    President, Nuclear Division, Duquesne Lighting Co.
regarding Enforcement Conference 50-334/83-27.
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implemented.14           Licensees committed to these actions well before the instant enforcement action was initiated by NRC. Indeed, because Licensees were aware in September, 1983, of the allegations involving harassment raised in this proceeding, they developed generic actions specifically designed to address such issues.
Our concerns in this regard represent far more than a disagreement with the Staff over the correct procedures to be followed when proposing a civil penalty.                                                    Instead, they raise fundamental questions as to the basic fairness of this enforcement action.                     As the Staff is aware, most licensees believe that they are "tried and convicted in i
the press" when NRC propose 9 a civil penalty, and that even if the penalty is subsequently mitigated or remitted, the damage to their reputation has already been
                  . in flicted .15   Moreover, the Staff has conceded that it takes escalated enforcement actions in part because of the bad publicity they generate.16 14     These and other responsive actions are set forth in Section II of Licensees' Response to Notice of Violation in EA No. 83-132, and are incorporated here by reference.
15    SECY-83-487 at 2.
16    During a January 4, 1984, briefing by the Staff on the Enforcement Policy, Commissioner Gilinsky asked the Director of Inspection and Enforcement whether the NRC was trying to deter future violations through the threat of bad publicity or through the actual imposition of civil penalties. The Director (footnote continued)

Accordingly, it is particularly unfortunate that the Staff did not consider mitigation prior to proposing the civil penalty in this proceeding. The mere proposal of the civil penalty has already done considerable damage to the Licensees' reputation, and subsequent mitigation (which we obviously seek as an alternative to total withdrawal of the enforcement action) will not repair the d amage . In short, it is difficult to understand what valid regulatory policies were served by proposing a civil penalty in this proceeding without first considering prior responsive actions initiated by Licensees.
Finally, Licensees again wish to emphasize that the responsive actions set forth in Section II of its Response to Notice of Violation are not designed merely to address specific alleged violations. Rather, they are programmatic in nature. Moreover, by any objective measure, these actions are comprehensive. Therefore, given Licensees' responsive actions, we submit that the f           civil penalty in this proceeding should be withdrawn or mitigated fully.
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l l           (footnote continued from previous page)
I responded, "I think a combination. I think it's more the publicity than the amount of money." Transcript of January 4, 1984, Commission Meeting, " Discussion of NRC Enforcement Policy" ("Jan. 4, 1984 Tr.") at 10.
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* s IV. Extenuating Circumstances Licensees believe that the instant enforcement action was not taken in a timely manner. Because of this and the extensive corrective actions to which Licensees have already committed, no valid regulatory policy will be furthered by imposing the proposed civil penalty.
Therefore, Licensees submit that it should be withdrawn.
During the January, 4 ., 1984, Commission meeting on the Enforcement Policy, the Staff represented that it takes about ten weeks from the time an alleged violation is identified until a resulting enforcement action is commenced. However, the Staff added that in certain cases, such as where an investigation is involved, the period could exceed ten weeks.17 When measured against these standards, the instant enforcement action is clearly not timely. The Report of Investigation indicates that the investigation into the matter took eight months. That inquiry was closed on August 3, 1983. The NOV was issued on December 22, 1983.
The Staff has recognized correctly that when enforcement actions are not taken on a timely basis, their effectiveness is limited. It has stated in this regard as follows:
17  Jan. 4, 1984, Tr. at 36.

    .-- g .o .
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In the past, civil penalties have frequently been proposed months after a violation was identified and corrective action taken. In these cases, issuance of a civil penalty probably had little remedial effect and may have had a negative ef fect on licensee morale.18 The instant case is a model to illustrate this point.
l                  Here the civil penalty was proposed nearly five months after a violation was finally identified and nearly four months after generic corrective actions were taken.
Additionally, many of the individuals apparently involved in the incident, including the Oc supervisor who allegedly intimidated OC personnel, are no longer employed at Comanche Peak.                    To impose a civil penalty under such
[                  conditions is inappropriate and unfair, could clearly undermine morale and has no valid policy justification.
Lastly, we note that on January 10, 1984, NRC Region II notified a licensee that the Commission decided not to 4
propose a civil penalty for an alleged violation involving a material false statement.                                The violation was categorized as Severity Level III.                    The Commission declined to propose a penalty because the violation was over one year old and substantiva improvement had been made to prevent 18       SECY-83-487 at 4. Commissioner Gilinsky stated recently that timely enforcement is needed because "as we know, with chi'dren and pets and other such instances, if a penalty comes late, it can be down-right harmful . " Jan. 4, 1984, Tr. at 34.
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                                               .2-1 recurrence of the problem.19   It is difficult for Licensees in' reviewing the results of that case to understand the reason-for such disparate treatment here.
Therefore, because the instant enforcement action is not timely and in view of responsive actions already implemented, Licensees submit that the proposed civil penalty should be withdrawn.
V. Conclusion i
For the reasons set forth above, Licensees request
!'                that the-proposed civil penalty be withdrawn or mitigated in full.
January 23, 1984 l
19  Janaury 10, 1984, letter from James P. O'Reilly, Regional Administrator, Region II, U. S. Nuclear Regulatory Commission to Mr. E. E. Utley, Executive i                     Vice President, Carolina Power and Light, regardino l                     Proposed Imposition of Civil Penalty in EA 83-88.}}