ML20236X742

Forwards Draft Director'S Decision Re Coalition for Responsible Energy 2.206 Petition Concerning Plant Submitted on 870716,for Comments & Concurrence

ML20236X742
Person / Time
Site:	Palo Verde
Issue date:	12/10/1987
From:	Lieberman J NRC OFFICE OF ENFORCEMENT (OE)
To:	Chandler L, Hayes B, Miraglia F NRC OFFICE OF INVESTIGATIONS (OI), Office of Nuclear Reactor Regulation, NRC OFFICE OF THE GENERAL COUNSEL (OGC)
Shared Package
ML20236X582	List: ML20236X580 ML20236X742
References
2.206, NUDOCS 8712100203
Download: ML20236X742 (14)

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• UNITED STATES c

ij,,c.c NUCLEAR REGULATORY COMMISSION s

n 3 wasmNG TON. D C 20%5

Nov o y. ,

MEMORANDUM FOR: Ben B. Hayes, Director Office of Investigations Lawrence Chandler, Assistant General Counsel for Enforcement Miraglia, Associate Director for Projects John B. Martin, Regional Administrator Region V FROM: James Lieberman, Director i Office of Enforcement

SUBJECT:

DRAFT DIRECTOR's DECISION REGARDING CREE 2.206 PETITION REGARDING PALO VERDE SUBMITTED ON JULY 16, 1986 The enclosed draft Director's Decision is forwarded to you for comments and concurrence. I understand that the Office of Investigations has looked into the natter regarding alleged discrimination against Blaine Thompson at Palo Verde. By copy of this memorandum, Ben Hayes is requested to edvise me if my issuing the enclosed Director's Decision will potentially interfere with any OI investigation or other OI matters. Your cements are requested by November 23, 1987.

Alr l G James Lieberman, Director

, Office of Enforcement cc w/ enc 1:

L. Dewey, OGC A. Johnson, R v E. Licitra, NRR E. Holler, OE R. Marsh, RV 8712100203 871130 PDR ADOCK 05000528 p PDR J

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DD i; l- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF ENFORCEMENT James Lieberman, Director In the Matter of ) ,

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ARIZONA PUBLIC SERVICE COMPANY, ET AL. ) Docket Nos. 50-528, 50-529,50-530 (Palo Verde Nuclear Generating Station, ) (10 CFR 2.206)

Units-1,'2, and 3) )  ;

DIRECTOR'S DECISION UNDER 10 CFR 2.206  !

INTRODUCTION By Petition dated July 16; 1986, Mr. Myron L. Scott, Ms. Lyn McKay, and Ms. Barbara S. Bush,'on behalf of*the Coalition for Responsible Energy Education (CREE or Petitioner), filed a request pursuant to 10 CFR 2.206 with the Director, fn1Al Office of Inspection and Enforcement. The Petition alleces that Arizona M ef ~ ~

Service 1. (Licensees) have knowingly violated the provisions of

'O CFR 50.7 by requiring certain employees to submit to polygraph testing as a means of discouraging employees from reporting unsafe conditions at the Palo Verde Nuclear Generating Station (Palo Verde).

M In support of tWclaim, the Fetitioner cites the experience of an individual (Mr. Blaine Thompson) who, it contends, was intimidated and harassed by the icenseesb{beingrequiredto undergo polygraph testing in retaliation for re rt n certain security problems A

to the NRC. As sanctions against Licensees for these alleged violations, CREE request that the Comission: (1) impose a stringent civil penalty; (2) require the posting of notices to employees advising them of protection afforded under 10 CFR 50.7 and the Energy Reorganization Act; (3) require the posting of notices of public apology by Licensees for the alleged violations of 10 CFR 50.7 and the Energy Reorganization Act; and (4) deny or revoke all Palo Verde licenses.

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By letter dated August 28, 1986, the Director, Office of Inspection and i k

Enforcement, advised CREE that the Petition was under. consideration. Notice of receipt of the Petition was published in the Federal Register on September 5, 1986 (51 Fed. Reg. 31857). The Director further advised CREE t .t re arding its request to require posting of notices to employees advising em of protection afforded under 10 CFR 50.7 and the Energy Reorganization Act, the Licensees are currently required under 10 CFR 50.7 to post such notice. By letter dated November 24, 1986, the Director, Office of Inspection and Enforcement advised CREE that a decision on its Petition would be delayed pending the outcome of the Department of Labor (DOL) proceeding regarding Mr. Blaine Thompson and the opportunity for the Director'to review the evidence, findings of fact and l conclusions of law presented in the DOL proceeding. 3/ nI an Order Approving Settlement dated September 17, 1987, the Secretary of Labor approved a settle-ment agreement entered into by Blaine Thompson, Licensees, and CREE regarding Mr. Thompson's discrimination complaint. The Petition was subsequently referred to the Office of Enforcement for response.

I have determined that Licensees are required by 10 CFR 50.7(e) to post Form NRC-3 that describes the projections afforded by 10 CFR 50.7 and Section 210 l' In a memorandum of understanding, the NRC and the Department of Labor have agreed to coordinate and cooperate concerning the employee protection provisions of &210 of the Energy Reorganization Act of 1974. Generally when a complaint has been filed with the Department of Labor alleging discrimination by an NRC licensee, the NRC defers its consideration of the matter until the Department of Labor has acted. This policy avoids duplication of effort and the needless expense of resources by deferring NRC actions until the Department of labor has fully considered the issues. General Electric Co. (Wilmington, North Carolina Facility), DD-86-ll, 24 NRC 325, 331-332 (1986).

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'of the Energy Reorganization Act. Thus, to the extent that CREE requests that Licensees.be made to post, pursuant to 10 CFR 50.7 ices to employees

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asserting the protectio fforded under 10 CFR 5 nd the Energy: Reorganization Act, its' request has been granted'. For the. reasons set fcrth below,-CREE's L

' requests for-imposition of a stringent civil penalty, posting of. a public apology by Licensees:and denial or revocation of all Palo Verde licenses"are; denied' .

DISCUSSION Cn the rsatte' r regarding the p'osting of notice to employees concerning the protectio fforded under 10 CFR 50.7 and the Energy Reorganization Act, the NRC staff agrees with Petitioners. 10 CFR 50.7(e) requires that each licensee, permittee and each applicant shall post Form NRC-3, " Notice to Employees," on its premises.. Posting must be at locations sufficient to cermit employees -

prctected by 10 CFR 50.7 to observe a copy on the way to.cr from their place c# work. Premises must be posted not later than 30 days after an application is docketed and remain posted while the application is pending before the Comission, during the term of the license, and for 30 days following license termination. To the extent that CREE requests that I require Licensees to comply with the posting requirements of 10 CFR 50.7(e), its request is granted.

Compliance with the requirement will continue to be examined, as it is for all applicaole licensees, during routine inspections.

7 To.the extent that CREE requests that I " reassert" the protection afforded by

'10 CFR 50.7 and the Energy Reorganization Act, its request is denied. Petitioner

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nas not presented facts that suggest Licensees were not in compliance with the postin_g requirements of 10 CFR 50.7(e).nor has Petitioner presented facts that ,

buggest that.NRC Form-3 is deficient in its intended purposes of advising employees.regarding protection from discrimination. [ Region fill in is the form posted at Palo Verde?] In addition to specifying the' action requested, a petitioner under 10 CFR 2.206 is required to set forth facts that constitute

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the basis for the request. 10 CFR 2.206(a); Duke Power Co. (Catawba Nuclear Station, Units l&2), DD-81-1, 13 NRC 45, 46 (1981).

Prior to discussing the other requests of the Petition, a brief discussion of.

of the factual setting which<1ed to the Petition is appropriate. On about February 11, 1986, the NRC comenced an unar.nounced inspection of the License security program at Palo Verde. On February 14, 1986, after completion of the inspection, the NRC conducted an Exit Meeting to discuss preliminary results cf the inspection. On February 19, 1966, supervisors in the Licensees' Security Department were debriefed by Licensees' management regarding the NRC February 14, 1986 Exit Meeting. Although what transpired next differs in detail according to the source of information, the following generally agrees with each party's account of the events. On February 25, 1986, Mr. John Staggs of the Arizona Republic telephoned Licensees and the NRC regarding the February 1986 NRC inspection at Palo Verde. Subsequent to Mr. Stagg's telephone call, Licensees telephoned the NRC regarding Mr. Staggs call. On February 26, 1986, an article reporting on the NRC assessment of security at Palo Verde appeared in the Arizona Republic. On February 27, 1986, Licensees began the polygraph examination of designated individuals for the announced purpose of investigating an alleged security leak and continued the examination through March 4, 1986. Of a total of

' thirty-one Licensees' employees scheduled for polygraph vamination, thirty completed the examination.-

o Petitioner asserts, es the basis' for its reques'ts, the al'iegation;that Licensees subjected selected Palo Verde workers to polygraph examinations expressly to

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identify the source of information leaked to the local media and in so doing,-

Licensees violated 10 CFR 50.7. In support of its assertion, Petitioner. offers facts which it maintains support the conclusion that 1) Licensees violated 10 CFR 50.7.by implementing polygraph. testing of plant. employees as a means of retaliation for non-prohibited disclosure of negative .information to'the news riedia, 2) Licensees also implene'nted the polygraph testir; as a means of intimidating potential whistleblowers, 3) Licensees used the polygraph testing as a means of retaliation against Blaine Thompson for.baving contacted the NRC in December 1985, and 4) Licensees by their actions against Mike Deblo, violated 10 CFR 50.7. Petitioner also contends that as a result of the conclusions it asserts, a chilling effect on worker disclosure has occurred at Palo Verde Nuclear Generating Station which only the strongest possible sanctions can remove.

A. -Polygraph Testing as a Policy Matter

-At the outset it should be clearly understood that the NRC staff has not taken a position regarding the appropriateness of polygraph testing in general.

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The issues raised by Petitioner in this request are' limited to whether the Licensees improperly used the polygraph testing conducted in February -

March 1986 asLa means to. retaliate against. Blaine Thompson, unnamedL 0 employees, and. Mike .Deblo and whether Licensees' use of the polygraph examinations.have had the effect of discouraging worker disclosure of safety problems such that.a substantial'public health and safety concern exists. In addressing those specific issues I do not'make a. determination ~

regarding the more general question of the appropriateness of using polygraphtestinginthisorothercases.SI E. .Violationof.10.CFR50.7Bylicensees 10 CFR 50.7 prohibits an employer subject to the regulation from discharging or taking other adverse employment actions against an employee in retaliation .for the employee having engaged in protected activities.

The protected activities include, but are not limited to, providing information to the NRC regarding violations, recuesting the NRC to l

institute action, or testifying in an NRC proceeding. See 10 CFR 50.7(a).

In addition both the NRC and DOL consider the making of internal reports of safety problems to one's employer as a protected activity. See 21 NRC E In the factual situation regarding this Petition, the Licensees, as explained later in this Decision, made limited use of polygraph

examinations as part of a specific investigation. See Licensee Notice to Employees dated March 24, 1986. Licensees announced their intention to use polygraph examinations again in the future in that Notice. However, I find that-general advisement too vague to cause me to reach the question of the propriety of polygraph examinations in this Decision.

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1766 and Sm,.'.h v. NORCO, 85-ERA-17, Final Decision and Order of .the. Secretary of Labor,l dated October 2, 1987, slip op..at 3. . The alleged discrimination I

against Blaine Thompson, unnamed employees who may have disclosed information to the news media, and Mike Deblo are' discussed separately.

Petitioner alleges that Licensees used the February - March 1986 polygraph examinations as a means of retaliation against Blaine Thompson for his December 1985 contact with the NRC. Blaine Thompson made the same allegation to the Department of Labor (DOL) in a complaint dated March 25, 1986. . 00L investigated the allegation and did not verify that discrimination was a facter in the actions comprising Thompson's cceplaint. That Blaine Thompson engaged in protected activity by contacting the NRC in early December 1985 is an undisputed fact acknowledged by all the parties.

The issue regarding Thompson is whether his designation as one of the individuals to take the polygraph examination in February - March 1986 was in retaliation for or at least motivated in part because of Thompson's having engaged in protected activity.

3/ Letter to Mr. Blaine Thompson from Edward D. Duncan, Director of l Enforcement, D0L Wage Hour Division, Phoenix, Arizona, dated April 24, i 1986. Mr. Thompson appealed this decision and subsequently settled his complaint in a settlement agreement approved by the Secretary of Labor on September 17, 1987. See Thompson v. Arizona Public Service Co., 86-ERA-27, Order Approving Settlement, dated September 17, 1987.

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[ -Licensees argue that the decision to. conduct polygraph examinations.was p made'on the evening of February 25,'1987 after having earlier received a.

phone call'from John Staggs'of the-Arizona Republic during which Mr. Staggs referred to security deficiencies at'Palo Verde which Licensees allege indicated an unauthorized disclosure of. security info' nation. O' Licensees' further argue that the polygraph examinations were part'of an'. investigation into the source of an unauthorized leak of security information, the disclosure of'which is prohibited by NRC. regulation, and that the polygraph.

examinations were limited to thirty-one Licensees employees, identified as having had access to the security information allegedly leaked.

Petitioners, on the other hand, argue that security information prohibited from disclosure by NRC regulations was never published in the February 76, 1986 Arizona Republic article and that the Licensees' stated rationale for the polygraph tests was a pretext in that the tests were motivated by a desire to harass Thompson and other Palo Verde employees.

Putting aside the issues regarding chilling effect and the appropriateness of using polygraph examinations in general, the available documentary record does not support the notion that the polygraph examinations were retaliatory toward Blaine Thompson. Although Petitioner makes much of the b See letter from William R. Hayden, counsel for Licensees, to Janes S. Greene, U. S. Department of Labor, Phcer.ix, Arizona dated April 17, 1986. The letter

~from Mr. Hayden is a " statement of position" submitted on behalf of Licensees in response to Blaine Thompson's Section 210 complaint to the Department of Labor.

fact that no allegation has made regarding the presence of safeguards A

information in the news article that appeared in the Arizona Republic, the Licensees make clear that their investigation, which included the polygraph examinations, was prompted by the information revealed by the newspaper rep.e!.nr, Mr. Staggs, in his telephore call to the Licensees on the evening of February 25, 1986. Further, Mr. Thompson was a member of one of the two main groups of employees targeted by Licensees as having had access to j i

the information which Licensees believed had beer: improperly to eye to l Mr. Staggs. The group which included Mr. Thompson was Licens e,ployees who had attended a briefing en February 19, 1987 regarding the ebruary 14, l

1987 NRC Exit Meeting. '

l Contrary to the suggesticn in Petitioners request, there is nothing in the documentary record to support the notion that it was probable that other individuals attending the February 19, 1987 briefing were excluded from the polygraph examinatiers unless they had also attended the actual Exit 1

Meeting. FourteenLicensee/. employees attended the February 14, 19P7 Exit Meeting and eleven License'e employees attended the February 19, 1987 briefing. The latter group included Thompson and, in aridition, three employees who had also attended the February 14, 1987 meeting. In total, Licensees scheduled polygraph examinations for 31 individuals, P2 from those that had attended the two meetings (25 less the three overlap

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employees) and 9 additional employees whom the Licensees determined had had access to the information in question.

The documentary record regarding this matter d.oes not suggest that Licensees manipulated the scope of their investigation ,so as to draw in Blaine Thompson in retaliation for his having contacted the NRC in December 1985.

Therefore,IhaveconcludedthatLicensees'/actionsinadministeringthe l

polygraph : examinations, while perhaps questionable for the situation, were not discriminating toward Blaine Thompson. l l

l Turning now to the issue of the unnamed individuals whom the Petitiener I alleges were discriminated against, a question quite different than that in the Blaine Thompson issue is presented. 'The Petitioner lays the_ l foundation for the proposition that communicating with the news media is a protected activity. Assuming for the moment that Petitioner's argument

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z is sound, the question of whether any of the unnenec individuals engageo .n (

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protected activities must be answered. L'nlike the Thompson issue, here the Petitioner never alleges that anyone actually engaged in the protected activity of communicating with the news media regarding unclassified /

non-safeguard information. In fact, Petitioner in its request strongly -

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( ' infers , at there were no communications by Licensee employees with the

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J news media. Also, a review of the documentation record associated with Petitioner's request fails to identify anyone who engaged in protected

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activity other than for Blaine Thompson who, all parties agree, contacted the NRC in December 1985. El As' stated before, 10 CFR 50.7 prohibits an employe'r subject to the regulation from discharging or taking other adverse employment action against'an employee in retaliation for the employee having engaged-in protected activities. By its terms, before a violation of 10 CFR 50.7 can occur, an employee must engage in a protected activity. An employer can not retaliate against an employee in violation of 10 CFR 50.7 unless the employee has engaged in protected activity. The Petitioner has not alleged and the documentary record does not suggest that any employee, other than Blaine Thompson engaged in protected activity. Therefore, the Petitioner's request that I find a violation of 10 CFR 50.7 for Licensees' alleged retaliation against worker contacts with the news media must be denied because the Petitioner has failed to identified any employees who engaged in the protected activity.

For the same reasoning the Petitioner's request that I find a violation of 10 CFR 50.7 for g cense etions regarding Mr. Mike Deblo must be denied.

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'(be)9ther or not revealed Blaine prohibited information Thompson fromcontacted disclosure the news media by regulation remainand whether o W

r thanswered questions. Of the 31 employees targeted by Licensees for polygraph examinations in their investigation, all but Mr. Thompson were examined. Of the 30 examined, only Mike Deblo tested " deceptive" to questions regarding his knowledge of who had released security information to unauthorized sources. See Hayden Letter, at 8-9. Mr. Deblo subsequently explained to the Licensees that he did not know why he couldn't " pass" except that he " suspected" that Mr. Thompson had been talking to the press. See .

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Although it is undisputed that Mr. Deblo, a member :# management, was discharged, tieither the petition nor the documentary record contain information that Mr. Deblo had engaged in protected activities. Whether Mr. Deblo was discharged for improper reasons is nc: a matter for me to decide as long as the reasons for his discharge were not a violation of 10 CFR 50.7 or present a substantial public health and safety concern, pk 'l f C. CHILLING EFFECT AT PALO VERDE

/ I Petitioners assert that Licensees implemented the plygraph examinations as a means of intimidating ' potential whistle blower: in the plant security area and elsewhere at Palo Verde. Petitioners aise gf_e/g that including Blaine Thompson in the polygraph examination and the discharge of flike Deblo added to chilling the likelihood of workers coming fo7 ward with safety concerns. In support of this assertion, Fetitiorer cites a number of 1 ,

incidents in which it claims that Licensees

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Petitioner and expressed apprehension regarding rak Hg allegations.

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While the staff has no reason to question that some Licensees

• employees may have approached Petitioner with concerns regarding retaliation, the staff does not have evidence that a chilling effect, if any, at Palo Verde is as extensive as that portrayed by Petitioner. The staff's assessment is Licensee employees have come ferward to the NRC at a rate that in fact exceeds that for the time prior i: the notoriety given the Blaine Thompson issue in the press.

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. Decision bas censiocred the Petitioner s contention that. Licensees. se ef polygraph' examinations at Palo Verde:in February - March 1986 violated 1

10'CFR 50.7 in that it was a means of discrimination against Blaine Thompson,.

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urnamed employees, and Mike Deblo for having engaged in protected activities andinthatitdiscouragedemployeesltPaloVerdefromreportingsafety.

concerns. u!'have relied on the'docurents issued by the' Department of Labor--

in deciding that Blaine Thompson was'not discriminated against. I.have relied-on the documents provided by the Licensees and. Petitioner in' deciding that neither Mike Deblo nor any of the unnamed employees who submitted to License polygraph examinations had engaged in protected activities.

Lastly, without' reaching the question of the appropriateness of polygraph examination in general;or of the particuler polygraph examinations given as

.part of the Licensees' 1986 investigation of.the alleged improper release of safeguards information, I have decided that the relief requested by Petitioner is not necessary to cure any chilling effect at Palo Verde. I have based this last decision on the staff's assessment of the information flow coming to it from workers at Palo Verde.

1 For the reasons stated in this Decision, Petitioner's requests, except for the reauest that Licensees post notices pursuant to 10 CFR 50.7 (e), are denied. ,

As provided in 10 CFR 2.206(c), a copy of this Decision will be filed with the L Secretary for the Commission's review. I i

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James Lieberman, Director Office of Enforcement

. Dated at Bethesda, fiaryland

.this day of- 1987.

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