ML20246G339

Order Imposing Civil Monetary Penalty in Amount of $2,500, Based on 880726 & 0801 Malfunction of Gas Stack Monitor & 870603 Failure to Record Monitor Malfunction in Malfunction Log Book

ML20246G339
Person / Time
Site:	Armed Forces Radiobiology Research Institute
Issue date:	08/22/1989
From:	Thompson H NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	DEFENSE, DEPT. OF, DEFENSE NUCLEAR AGENCY
Shared Package
ML20246G331	List: ML20246G328 ML20246G339
References
EA-88-289, NUDOCS 8908310312
Download: ML20246G339 (10)

Text

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UNITED STATES

[ NUCLEAR REGULATORY COMMISSION

'I'n the Matter of' ) Docket No. .50-170 License No. R-84 Defense Nuclear Agency EA 88-289 Armed Forces Radiobiology ResearchInstitute(AFRRI)- )

Bethesda, . Maryland , 20814 - )

ORDER IMPOSING CIVIL MONETARY PENALTY I

D'efense' Nuclear Agency, AFRRI, (licensee) is the holder of License No. 50-170 (license) issued by the Nuclear Rc;ulatory Commission (Comission or NRC) which-

" authorizes the-licensee to possess and operate the reactor as a utilization

-facility at the designated location in Bethesda, Maryland. The' license was issued on June 26, 1962.

II An NRC safety inspection of-the licensee's activities under the license was conducted on October 26-28 and November 7,1988. During the inspection, the NRC staff determined that the licensee had not conducted its activities in full. compliance with NRC requirements. Further, based on NRC review of the findings of the Area Director of the United States Department of Labor's (DOL)

Wage & Hour Office in Baltimore, Maryland, the NRC also fou,d that one of a the licensee's former employees who raised certain safety concerns was discrimi-

.nated against, in violation of-another NRC requirement. A written Notice of Violation and Proposed Imposition of Civil Penalty was served upon the licensee by letter dated March 22, 1988. The Notice stated the nature of the viola-tions, the provisions of the Nuclear Regulatory Commission's requirements that 8908310312 890822 0 PDR ALOCK 0500 O

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Lthe' licensee.had violated,'and the amount of:the civil' penalty proposed for:the -

/violatiions.- Do responses, dated May 4',1989,_ to the Notice of Violation and .

,  : Proposed Imposition ^of Civil; Penalty, were received from the licensee' denying one violstion, dertying. portions of another violation, and requesting mitigation

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. of the civil-penalty.-

III Upon consideration of the 1.icensee's response and the statement of facts, explana--

1 tion,.and argument for mitigation contained therein, the Deputy Executive Director-for. Nuclear Materials Safety, Safeguards and Operations Support has determined that'the violations. occurred as stated and that the penalty proposed for the

. violations designated in the Notice of Violation and Proposed Imposition of

- Civil Penalty should be impused.

IV

~In_ view of the foregoing and pursuant to Section 234 of the Atomic Energy Act

'of 1954(as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY L ORDERED THAT:

~The licensee pay'a civil penalty in the amount of Two Thousand Five Hundred' Dollars ($2,500) within thirty days of the date of this Order, by check, draft, or money order, payable to the Treasurer of the United

States and Mailed ta the U.S. Nuclear Regulatory Comission,

ATTN

Document Cons 31 Desk, Washington, D.C. 20555.

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V The licensee may request a hearing within 30 days of the date of this Order.

A request for a hearing shall be clearly marked as a " Request for an Enforce-ment Hearing" and shall be addressed to the Director, Office of Enforcement, U.S. ?!uclear Regulatory Commission, Attention: Document Control Desk, Wash-

- ington, D.C., 20555 with a copy to the Regional Admir.istrator, Region I.

If a hearing is requested, the Comission will issue an Order designating 'the

- time and place of the hearing. If the licensee fails to request a hearing within 30 days of this Order, the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to tne Attorney General for collection.

In the event the licensee requests a hearing as provided above, the issue to be considered at such hearir:g shall be: (a)whetherthelicenseewasin

~ violation of the Comission's requirements as set forth in Violation B.I.a.

B.I.b, B.2, and D of the Notice of Violation and Proposed Imposition of Civil Penalty referenced in Section II above, and (b) whether, on the basis of the admitted and contested violations, this Order should be sustained.

FOR THE NUCLEAR REGULATORY COMMISSION tl /

Hug L. Thompson, r.

D.6p ty Executive ire t for N ear Materials Sa y, Safeguards and Operations Support Dated at Rockville, Maryland this cMWay of August 1989

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. j APPENDIX 9

EVALUATION AND CONCLUSIONS

, 'On March 22,:1989, a Notice of. Violation and Proposed Imposition of Civil.

Penalty. (Notice) was' issued for violations . identified during a routine NRC inspection and'as a. result of the NRC's review of the findings of the Area L JDirector of the United-States Department of Labor's (DOL) Wage & Hour Office in Baltimore, Maryland. . The licensee responded to the Notice in two letters,

' dated May 4 1988, and admits two of the violations in total (A and C); admits two of-the five examples of one violation (B.3. and B.4.); denies three examples-ofthatviolation(B.1.a.,B.1.b..and_B.2);anddeniesoneviolationintotal-(D). The licensee also requests that the civil penalty not be imposed. The NRC's

evaluation and conclusion regarding the licensee's response are as follows:

- 1. -Restatement of Contested Violations B.- Technical Specification 6.3, Procedures, requires written procedures for certain activities (including the conduct of experiments that could affect the operation and safety of the reactor; checkout startup, standard operations, and securing of the facility) to assure safe operation of the; reactor.

1. Reactor Operations Procedures III, Maintenance Procedures, written pursuant to Technical Specification 6.3.1, requires that malfunctions are annotated in the Malfunction Logbook by the operator who discovered the deficiency.

Contrary to the above,

a. on July 26, 1988 and August 1,1988, the Gas Stack Monitor (GSM) malfunctioned, but this malfunction was not recorded in the Malfunction Logbook; and

b. on June 3,1987, the GSM pump was turned off due to an apparent malfunction (smell of smoke), but this condition was not recorded in the Malfunction Logbook.

2. Reactor Operation Procedure I, Conduct of Experiments, written pursuant to Technical Specification 6.3, requires that a Reactor Use Request (RUR) be completed prior to conduct of an experiment prior to irradiation.

Contrary to the above, an experiment was conducted on October 8, 1985, and an RUR was not completed prior to irradiation.

D.- 10 CFR 50.7 prohibits discrimination by a Commission licensee, or a contractor or subcontractor of a licensee, against an employee for engaging in certain protected activities. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, and privileges of employment. The protected activities are established in Section 210 of the Energy Reorganization Act, and in general, are related to the administration or enforcement of a requirement imposed under the Atowie Energy Act or the Energy Reorganization Act.

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Appendix j Contrary to the above, in October 1988, Angela Munno, a reactor

. operator for the Defense Nuclear Agency, was discriminated against by the licensee in that she was reassigned to duties outside the reactor area for engaging in pratected activities. consisting of her raising allegations of safety violations. These allegations were raised to facility management and were related to possible technical specification violations.

II. Sunenary of Licensee Response and NRC Evaluation A. ~Concerning Licensee's Denial of Example B.1.a Sussnary of Licensee Response In its response, the licensee asserts that no violation occurred on July 26,1988 because the Reactor Logbook entries for that date contain no indication of a Gas Stack Monitor (GSM) malfunction and that normal GSM-operation for July. 26,1988 was confirmed by review of the Daily Operational Startup and Shutdown Checklists.. The licensee also contends that abnormal readings and a data dump caused by an electrical storm on the previous day (July 25,1988), and which was discovered during testing on July 26, 1988, did not constitute a malfunction of the GSM requiring a recording in the Malfunction Log.

The licensee also states that no violation occurred on August 1, 1988 because entries in the Reactor Operations Logbook for August 1, 1988 show no indication of a GSM malfunction .and that only the GSM Printer had malfunctioned on August 1, 1988 resulting in the inability of the operators to print the one hour historical report. The licensee contends that the notation on the relevant line of the Daily Operational Shutdown Checklist signifying "N/A" meant "not available" and that the unit otherwise properly performed on August 2,1988 and thus,-there was no malfunction on August 1, 1988 requiring a recording in the Malfunction Log.

NRC Evaluation The absence of documentation of a malfunction of the GSM in the Reactor Logbook for July 26, or August 1,1988 is insufficient to establish tS it the violation did not occur as stated. The NRC has concluded that a malfunction occurred based on abnormal readings in the GSM Historical Logbook which indicate an electrical upset and data dump on July 25, 1988 which was discovered on July 26, 1988.

Although the data dump may have occurred as a result of the outside effect caused by the power loss from a storm, Reactor Operations Procedure III, para. 3, does not distinguish between malfunctions caused by external and internal conditions. Thus, a malfunction within the meaning of the procedure occurred on July 26, 1988 which

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required recording in the Malfunction' Logbook.

With' respect to the August'1~, 1988' malfunction, the NRC considers the.

. GSM printer to be'an. integral _ part of the GSM system and a printer;

malfunction 1s-within.the meaning of Reactor Operations Procedure

i VIII. Furthermore, others of the licensee's' staff.apparently considered =

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the printer failure to be a malfunction within the meaning of,the referenced procedure in that another operator recorded the malfunction the following day on August 2, 1988.-

B.- Concerning Licensee's-Denial'of Example B.I.b.

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Summary of Licensee Response)

The licensee states that the GSM was not turned off on June 3, 1987-

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because of a malfunction (smell'of smoke) which would require a recording in the Malfunction Logbook. The licensee states that the

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GSM pump was turned off only because-the pump noise level interfered

- with the conduct of 'a 9:00 a.m. seeting on the reactor deck and was restarted after the meeting. During the time the pump was shut down, no' reactor runs were conducted.'

NRC Evaluation-On' June 3, 1987_AFRRI-Reactor Facilities Director told the two NRC inspectors that the. reason the GSM was' shut down earlier on that date was because of a concern over the smell of smoke. Therefore, the.

NRC has concluded that this' violation. occurred as stated in the Notice.

~ C. Concerning Licensee's Denial of Example B.2.

Summary of Licensee Response Thelicensee:assertsthatthereactorrun,performedonOctober8}.

1988 was not an " experiment" requiring a Reactor Use Request.(RUR The licensee states the reactor run was one of a series made that day to modify a radiation. environment that had been previously achieved but as to which precise core configurations were not known. Thus, 1

.the licensee maintains the reactor run constituted an example of a L' reactor test authorized by' Technical Specification 6.4.2c, " Reactor Parameters Authorization," rather than an " experiment" requiring an RUR.

NRC Evaluation Technical Specification 6.4.2c, " Reactor Parameters Authorization,"

authorizes routine measurement of reactor parameters, routine core measurements and other instrumentation and calibration checks to verify reactor outputs. In this instance, the reactor run involved the insertion of test cells into the reactor with no intention or purpose of obtaining routine reactor parameters. Instead, the reactor

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r Appendix run was conducted in an effort to identify specific core configurations through which a slow neutron flux to produce a radiation environment could be produced that would kill the test cells. The NRC concludes that this reactor run can only be interpreted as an experiment requiring an RUR and is not a reactor test authorized by Technical specification 6.4.2c.

D. Concerning Licer.see's Denial of Violation D Summary of Licensee Response

'The licensee denies that it discriminated against an employee for engaging in protected activities (raising safety concerns) by reassigning the employee to duties outside the reactor area. The licensee asserts that upon initial receipt of the employee's allegations, an aggressive investigation of the concerns, which included attempts to obtain more specific information from the employee, was initiated and these attempts to gain further information led the employee to believe that she was being discriminated against.

The licensee states that the basis of the violation (Department of '

Labor investigation findings) was narrowly focused on the month prior to reassignment of the employee (September-October 1988) and failed to properly account for the actual reasons in the larger context for the employee's temporary reassignment which included a sequence of events involving the employee beginning in April 1988. The licensee maintains the employee's transfer from her duties as a Reactor Operator was not a consequence of her engaging in protected activity. Rather, it was the result of the stressful  !

environment in the Operations Department created by deteriorating co-worker and supervisor-subordinate relationships between the employee and the remainder of the staff which had the potential to lead to unsafe reactor operations. ,

Furthermore, the licensee states that the employee's temporary removal was not proscribed within the definition of " discrimination" in the regulation since it had no effect on her " compensation, terms, conditions and privileges of employment." The licensee concludes that the reason for the reassignaient action (reactor operational safety) fits an example of a "nonprohibited consideration" permitted by 10 CFR 50.7(d).

NRC Evaluation Notwithstanding the departmental stress and deteriorated relationships that may have existed within the Operations Department as a result of personnel conflicts between licensee managecent, staff, and the employee in question, based on the record established by the Area Director of DOL, the NRC concludes that the employee would not have been reassigned on October 13, 1988 had she not raised safety concerns relative to violations of requirements within the Operations Department.

Further, the NRC agrees with the conclusions of the Department of

Appendix Labor investigation that if the employee had recanted the allegations made on her performance appraisal, she would not have been removed and the subsequent management actions taken to support her removal would not have taken place. The Department of Labor Area Director determined that while the alleged personnel problems with the employee were said to be the basis for her removal, it was significant that the problems existed since April 1988, yet there was no management effort to formally pursue or consider her removal until immediately after the employee declined to recant her concerns in October 1988.

He also found that the perceived detrimental impact on safe reactor operations as a result of the negative staff / employee relationship was only formally surfaced "after the fact" by management in an effort to support the removal.

In sum, the NRC does not dispute that there were tensions within the Operations Department between the employee and the remainder of the staff. However, the protracted period of time in which these personnel problems were said to exist during which time there was no formal management action against the employee, coupled with the employee's immediate transfer after the concerns were raised and management's "after the fact" attempt to justify the transfer, supports the conclusion that the employee was removed as a direct result of raising safety concerns. Such actions clearly carry a

" chilling effect" on other employees who in the future may wish to raise safety concerns.

With respect to the assertion that the temporary removal of the employee was not discriminatory because it had no adverse affect on the " compensation, terms, conditions and privileges of employment,"

the NRC notes that the employee was employed as a reactor operator and to be removed to duties outside of the reactor area is clearly adverse to the terms and conditions for which she was hired. The removal of an individual from a skilled position to general duties unrelated to the individual's expertise is detrimental to her poten-tial when compared to that of her peers. Further, because the NRC has concluded that the removal occurred because the employee was engaged in protected activities, rather than for reactor operational safety reasons, the removal action does not constitute a "nonpro-hibited consideration" within the meaning of 10 CFR 50.7(d).

E. Concerning Licensee's Position that the Civil Penalty Should Not De Imposed Summary of Licensee Response The licensee asserted in its May 4, 1989 response that a civil penalty should not be imposed since there are constitutional reasons which prohibit imposition of a civil penalty on AFRRI as another agency of the Federal Government. Further, the licensee states that the civil penalty may not be payable since there is a question under federal appropriations law as to whether an agency's appropriations are available to pay the penalty. The licensee implies that there has been some discrepancies in holdings by the Comptroller General in connection with this issue and therefore the disbursing or certifying l

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. Appendix official should obtain an advance decision from the Comptroller General under 31 U.S.C. $ 3529. The licensee states that action will be taken to obtain such a decision. Lastly, the licensee asserts that, even as to the violations admitted, the problems actually present were not of:

environmental or safety significance and do not warrant imposition of a fine.-

NRC Evaluation The licensee withdrew its argument regarding the constitutionality of the imposition of civil penaities by the HRC on another agency of the Federal Government in a letter dated June 29, 1989. Regarding the question raised by the licensee as to whether its appropriations are available to pay the civil penalty, this provides no basis for the NRC not to follow the process established by the Atomic Energy Act (Section 234) and the Commission's regulations to issue an Order Imposing a Civil Monetary Penalty for violations by any person, defined

' to include other federal agenchs, of applicable requirements. In addition, it should be noted that other agencies of the federal government licensed by the NRC have paid civil penalties for violations of NRC requirements. See, e. g., letter from Gary D. Vest, Deputy

.~Assistant OccupationalSecretary)of Health the Air Force (En.dronment, Safety andto Hu Director for Nuclear Materials Safety, Safeguards, and Operations b pport, NRC, dated June 30, 1989.

The NRC 6 s not accept the licensee's assertion that the violations are not of ewironmental or safety significance. The violations represent weakneses in the general conduct of facility operation.

Although each of these violations, when reviewed individually, may not be significant, when reviewed in total, they reflect a breakdown in the licensee's program to conuel the conduct of operations. The NRC relies on its licensees to self-identify and correct potential problems before they can become a serious proolcE The failure of the licensee to identify and correct the problems that icd to the violations, and to ensure that individuals who identify safety concers feel free to raise them to management without fear or reprisal, is a significant safety concern.

111. NRC Conclusion for the reasons set forth above, the NRC has concluded that the violations occurred as stated in the Notice and mitigation or remission of the civil penalty is not warranted. Therefore, a civil penalty in the amount of

$2,500 should be imposed.

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. Defense ~ Nuclear Agency j DISTRIBUTION:

Region I Docket Room'(with concurrences)-

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. Management Assistant, DRMA (w/o enc 1)

Robert J. Bores, DRSS lDRP'Section Chie#

LSECY' CA:

H. Thompson, DEDS~

'J. Taylor,-DEDR

-J. Lieberman, OE-W.1 Russell,'RI T. Murley., NRR -

J. Partlow,.NRR J. Goldberg, DGC' Enforcement Coordinators RI, RII, RIII. RIV, RV

F. Ingram, GPA/PA E. Jordan,'AEOD B. Hayes, 01 M. Malsch,'OIG Y. Miller, SPA /SP--

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Day File-DCS.

G.. Johnson,_ ARM OE M I S,1p' >

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