ML20206C321

Forwards Little Harbor Consultants,Inc Rept for First Quarter 1999 Re Oversight of Nu Development of Safety Conscious Work Environment at Mnps

ML20206C321
Person / Time
Site:	Millstone
Issue date:	04/14/1999
From:	Beck J AFFILIATION NOT ASSIGNED
To:	NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
References
ITPOP-99-0001, ITPOP-99-1, NUDOCS 9904300212
Download: ML20206C321 (120)

Text

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o Little liarbor Consultants, Inc.

44 Nichols Road Cohasset, Massachusetts 02025-1166 Phone 781-383-9536 April 14,1999 Docket Nos. 50-245 50-336 50-423 ITPOP 99-0001 U.S. Nuclear Regulatory Commission Attn: Document Control Desk

- Washington, DC 20555-0001 1 Millstone Nuclear Power Station, Unit Nos.1,2, and 3

Dear Sir:

Attached hereto is the Little Harbor Consultants, Inc. report for the first quarter of 1999 concerning the oversight ofNortheast Utilities development of a safety conscious work environment at the Millstone Point Nuclear Station. The report covers the period from January 1,1999 through the cessation of full time oversight activities on March 10,1999. '

Sincerely,

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Mk (John W. Beck l

Team Leader,ITPOP pf)/

President, LHC i Attachment cc: Distribution j ymo2 9904300212 PDR 990414 P

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U.S. Nuclear Regulatory Commission Page 2, ITPOP 99-0001 Distribution:

Ray Necci, NNECo Charles Brinkman, Manager Washington Nuclear Operations Ilarry L. Miller, NNECo ABB Combustion Engineering 12300 Twinbrook Pkwy, Suite 330 William J. Temple, NNEC Rockville, MD 20852 Judy Gorski, NNEC Mr. John Buckingham Cheryl Grise, NNECo Department of Public Utility Control Electric Unit Michael Quinn, ECOP 10 Liberty Square New Britain, CT 06051 U.S. Nuclear Regulatory Commission Attn: W.D. Travers Citizens Regulatory Commission Mail Stop: 014D4 ATFN: Ms. Susan Perry Luxton Washington, DC 20555-0001 180 Great Neck Road Waterford, CT 06385 U.S. Nuclear Regulatory Commission Attn: W.M. Dean Citizens Awareness Network Mail Stop: 014D4 54 Old Turnpike Road Washington, DC 20555-0001 IIaddam, CT 06438 U.S. Nuclear Regulatory Commission The lionorable Terry Concannon Attn: II.N. Pastis Nuclear Energy Advisory Council Mail Stop: 014D4 Legislative Office Building j Washington, DC 20555-0001 liartford. CT 06106 '

Mr. Wayne D. Lanning Mr. Evan W. Woollacott US NRC Region I Co-Chair 475 Allendale Road Nuclear Energy Advisory Council King of Prussia, PA 19406-1415 128 Terry's Plain Road Simsbury, CT 06070 1

Kevin T. A. McCarthy, Director Monitoring and Radiation Division Ernest C. Iladley, Esquire Department of Environmental Protection 1040 B Main Street 79 Elm Street P.O. Box 549 l Ilartford, CT 06106-5127 West Wareham, MA 02576 Allan Johanson, Assistant Director Mr. Paul Choiniere Office of Policy and Management "The Day" Policy Development and Planning Division 47 Eugene O'Neill Drive 450 Capitol Avenue - MS 52ERN New London, CT 06320 P.O. Box 341441 Ilartford, CT 06134-1441 Bob DeFayette 100 King Street l First Selectmen Gettysburg, PA 17325 l Town of Waterford l

Itall of Records Don Beckman 200 Boston Post Road 1071 State, . Route 136 Waterford, CT 06385 Belle Vernon, PA 15012 i

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l Little Harbor Consultants, Inc.

44 Nichols Road Cohasset, Massachusetts 02025-1166 Phone 781-383-9536 April 14,1999 Docket Nos. 50-245 50-336 50-423 ITPOP 99-0001 U.S. Nuclear Regulatory Conunission Attn: Document Control Desk Washington, DC 20555-0001 Millstone Nuclear Power Station, Unit Nos.1,2, and 3

Dear Sir:

Attached hereto is the Little Harbor Consultants, Inc. report for the first quarter of 1999 concerning the oversight ofNonheast Utilities development of a safety conscious work environment at the Millstone Point Nuclear Station. The report covers the period from January 1,1999 through j the cessation of full time oversight activities on March 10,1999. I Sincerely, i

l (4ohn W. Beck Team Leader,ITPOP ,

President, LHC Attaclunent cc: Distribution i

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r U.S. Nuclear Regulatory Commission l Page 2, ITPOP 99-0001 Distribution:

Ray Necci, NNECo Charles Brinkman, Manager Washington Nuclear Operations liarry L. Miller, NNECo ABB Combustion Engineering William J. Temple, NNEC 12300 Twinbrook Pkwy, Suite 330 Rockville, MD 20852 "Y "*

Mr. John Buckingham l

Cheryl Grise, NNECo Department of Public Utility Control Electric Unit l Michael Quinn, ECOP 10 Liberty Square New Britain, CT 06051 U.S. Nuclear Regulatory Commission Attn: W.D. Travers Citizens Regulatory Commission Mail Stop: 014D4 ATTN: Ms. Susan Perry Luxton Washington, DC 20555-0001 180 Great Neck Road Waterford, CT 06385 U.S. Nuclear Regulatory Commission Attn: W.M. Dean Citizens Awareness Network Mail Stop: 014D4 54 Old Turnpike Road Washington, DC 20555 0001 Iladdam, CT 06438 U.S. Nuclear Regulatory Commission nelionorable Terry Concannon Attn: li.N. Pastis Nuclear Energy Advisory Council Mail Stop: 014D4 Legislative Office Building Washington, DC 20555-0001 11artford, CT 06106 Mr. Wayne D. Lanning Mr. Evan W. Woollacott US NRC Region I Co-Chair 475 Allendale Road Nuclear Energy Advisory Council King of Prussia, PA 19406-1415 128 Terry's Plain Road Simsbury, CT 06070 Kevin T. A. McCarthy, Director Monitoring and Radiation Division Ernest C. liadley, Esquire Department of Environmental Protection 1040 B Main Street 79 Elm Street P.O. Box 549 liartford, CT 06106-5127 West Wareham, MA 02576 Allan Johanson, Assistant Director Mr. Paul Choiniere Office of Policy and Management "The Day" Policy Development and Planning Division 47 Eugene O'Neill Drive 450 Capitol Avenue- MS 52ERN New London, CT 06320 P.O. Box 341441 liartford, CT 06134-148 i Bob DeFayette 100 King Street First Selectmen Gettysburg, PA 17325 Town of Waterford liall of Records Don Beckman

, 200 Boston Post Road 1071 State, Route 136 3

i Waterford, CT 06385 Belle Vernon, PA 15012 l 1

Little liarbor Consultr.nts, Inc.

44 Nichols Road Cohasset, Massachusetts 02025-1166 Phone 781-383-9536 April 14,1999 l

Docket Nos. 50-245 l 50-336 1 50-42)

ITPOP 99-0001 U.S. Nuclear Regulatory Commission Attn: Document Control Desk Washington, DC 20555-0001 l Millstone Nuclear Power Station, Unit Nos.1,2, and 3 j 1

Dear Sir:

l l

Attached hereto is the Little Harbor Consultacts, Ir.c. report for the first quaner of 1999 l

concerning the oversight ofNortheast Utilities development of a safety conscious work environment  !

at the Millstone Point Nuclear Station. The report covers the period from January 1,1999 through the cessation of full time oversight activities on March 10,1999.

1 1

Sincerely, (4ohn W. Beck Team Leader,ITPOP President, LHC A:'achment cc: Distribution l l

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U.S. Nuclear Regulatory Commission Page 2, ITPOP 99-0001

• Distribution:

Ray Necci, NNECo Charles Brinkman, Manager Washington Nuclear Operations liarry L. Miller, NNECo ABB Combustion Engineering 12300 Twinbrook Pkwy, Suite 330 William J. Temple, NNECo Rockville, MD 20852 Judy Gorski, NNEC Mr. John Buckingham Cheryl Grise, NNECo Department of Public Utility Control Electric Unit Michael Quinn, ECOP 10 Liberty Square New Britain, Cr 06051 U.S. Nuclear Regulatory Commission Attn: W.D. Travers Citizens Regulatory Commission Mail Stop: 014D4 ATTN: Ms. Susan Perry Luxton Washington, DC 20555-0001 180 Great Neck Road Waterford, CT 06385 U.S. Nuclear Regulatory Commission Attn: W.M. Dean Citizens Awareness Network Mail Stop: 014D4 54 Old Turnpike Road Washington, DC 20555-0001 Haddam, CT 06438 U.S. Nuclear Regulatory Commission The lionorable Terry Concannon Atm: li.N. Pastis Nuclear Energy Advisory Council Mail Stop: 014D4 Legislative Office Building Washington, DC 20555-0001 liartford, CT 06106 Mr. Wayne D. Lanning Mr. Evan W. Woollacott US NRC Region I Co-Chair 475 Allendale Road Nuclear Energy Advisory Council King of Prussia, PA 19406-1415 128 Terry's Plain Road Simsbury, CT 06070 Kevin T. A. McCarthy, Director Monitoring and Radiation Division Ernest C. Iladley, Esquire Department of Environmental Protection 1040 B Main Street 79 Elm Street P.O. Box 549 Ilartford, CT 06106 5127 West Wareham, MA C2576 Allan Johanson, Assistant Director Mr.' Paul Choiniere Office of Policy and Management "The Day" Policy Development and Planning Division 47 Eugene O'Neill Drive 450 Capitol Avenue-MS 52ERN New London, CT 06320 P.O. Box 341441 liartford, CT 06134-1441 Bob DeFayette 100 King Street First Selectmen Gettysburg, PA 17325 Town of Waterford ~

Hall of Records Don Beckman 200 Boston Post Road 1071 State, Route 136 Waterford, CT 06385 Belle Vernon, PA 15012

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o ia QUARTERLY REPORT OF LITTLE HARBOR CONSULTANTS -

TO THE NUCLEAR' REGULATORY COMMISSION Concerning Oversight of Northeast Utilities' Development of a Safety Conscious Work Environment At Millstone Point Nuclear Station For the Period November 1.1998-March 11.1999 j

J Pursuant to an order issued by ?he Nuclear Regulatory Commission (NRC) on October 24,1996 (the " Order") and its Oversight Plan approved by the NRC on July 14, J 1997, Little Harbor Consultants (LHC) oversaw the efforts of Northeast Utilities (NU) l and its subsidiary Northeast Nuclear Energy Company (NNECo) to develop a Safety I Conscious Work Environment (SCWE) at its Millstone Point Nuclear Station (Millstone).

Under this program, LHC has submitted quarterly reports to the NRC on the status and

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progress of this process. Today, the NRC issued a letter (Attachment 1) lifting the Order. Millstone Point now resumes normal licensed operation with respect to Employee Concerns and Safety Conscious Work Environment issues. This report covers the period from November 1998 through issuance of the NRC's letter today. f l

1. Backcround: Summarv Of Activities And Lvents The period covered by this report marks further substantial progress in Millstone Point's transition back to normal licensed activity. Unit 3 remained in normal ful!-power i operation; a specific schedule for Unit 2 restart for the first quarter of 1999 was published l on November 17. Numerous high-level personnel shifts took place station-wide during the quarter, beginning with Lee Olivier's succeeding Bruce Kenyon as Millstone's Chief Nuclear Officer; Mr. Kenyon was placed in charge of NU's entire generation group. Ed Morgan, who had been responsible for the Employee Concerns Program at Millstone for over two years during the recovery period, accepted another position as of December 30, and other high-level shifts were announced. In addition, the management downsizing and restructuring at Millstone continued, with a solicitation of applications for Managers' jobs announced on November 13.

l Explicit public attention was focused for the first time on lifting the Order. As is outlined more fully below, the NRC Staff, NNECo management, and LHC all endorsed rescission of the order in a series of meetings, presentations and papers culminating in a public meetirig with the NRC Commissioners on January 19,1999. Both NNECo and the -

NRC Staff recommended that in the event the Order were rescinded, LHC remain available for some period thereafter to continue to provide guidance and oversight. No

LHC Quarterly Report November 1,1998-March 11,1999 e

b serious public opposition was expressed to the rescission propesal, though release of a report by the NRC's Office ofInspector-General (OlG) in early January reapened.some old issues about NU and NRC Staff process. On March 11 the NRC lirted the Order, finding that NNECo's sustained performance with respect to Employee Concerns Program and SCWE issues "that the conditions that led to the requirement of third party oversight had been adequately corrected."

The NRC proposed on March 9 to fine NU for violations involving the apparently discriminatory termination of two contractor employees who had raised safety concerns; an earlier investigation by LHC, noted in the NRC's report, had also concluded that the terminations were retaliatory.

. 1 During this period, LHC's level of activity at Millstorr has continued to diminish, to less than one-fifth that of a year ago, and is now approaching the level it would remain at after lifting of the NRC's Order.

2. LHC Activities Durine The Period Covered By This Report LHC's activities consisted of a final review of the " State of SCWE" at Millstone Point and presentetions to the NRC Staff and Commission of that review; continued monitoring of NU's closure of LHC recommendations; and winding down of the operation of LHC's on-site presence in anticipation of the lifting of the NRC's Order. No new initiatives were undertaken during the period.

a. LHC Presentations:

. NNEco-LHC-NRC Staff Meetinc. November 24. 1998: At this meeting, held at Millstone Point, NNECo representatives presented their view that a Safety Conscious Work Environment had taken root at Millstone Point and that the plant was ready for the NRC to rescind the Order. LHC representatives presented a current " Windows" review of the " State of SCWE,"(Attachment 2). LHC representatives stated that there had been no signs of backsliding on SCWE issues since plant restart authorization in May, and that Millstone HIRD files are now, probably the best in the country (though LHC offered several recommendations for further improvement). LHC noted that 99 of 110 recommendations on ECP l

issues, made by LHC to NNECo, have been successfully resolved by I

NNECo. LHC supported rescission of the NRC's order.

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b2iECo-LHC-NRC Staff Public Meetine. December 14. 1998: At this meeting, held in Waterford, LHC, NNECo and the NRC Staff summarized the material which had been presente'd at the November 24 meeting for the benefit of the general public. There was no significant opposition expressed to the lifting of the Order, but several speakers suggested that Little Harbor Consultants, Inc. Page 2 of 7

S LHC Quanerly Report November 1,1998-March 11,1999 I

LHC should be asked to remain at the site for some period thereafter, in order to help ensure continuity of good SCWE practices as the plant shifts to a truly normal operating and regulatory environment.

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. Meetine with NRC Commissioners. January 19. 1999: LHC participated with the NRC Staff and NNECo in presentations to the NRC -

Commissioners, which ratified the recommendations made at the December 14, 1998 meeting. The NRC Staff had recently issued, on j

January 12, its letter officially supponing rescission of the Order, giving l its opinion that it was no longer necessary for the NRC to insist on the 1

presence of LHC at the Millstone site (Attachment 3). The Commissioners seemed to feel that the purposes of the Order had been met and that the time had come to rescind it, though they evinced interest in LHC's being asked to remain at the site for some period following termination. However, their interest was diverted to some degree by the recent release of a second document - a report from the NRC's Office of Inspector General - finding serious flaws in the NRC's review and handling of a set of allegedly discriminatory terminations by NNECo in j connection with a 102-person reduction in force at Millstone in January '

1996. This matter is discussed further below.

b. Close-out Of LHC Recommendations: As of the November meeting, LHC had

' noted that 99 of its original 110 recommendations had been satisfactoril; closed out by NNECo, and that the others had been provisionally closed out subject to monitoring. On December 29,1998, NNECo sent LHC a letter (Attachment 4) responding to five additional recommendations made by Little Harbor at the November 24 meeting.

c. Time And Allocation: LHC personnel recorded 895 hours0.0104 days <br />0.249 hours <br />0.00148 weeks <br />3.405475e-4 months <br /> of work during the current four-month period. As the comparison immediately below shows, this is less than one-fifth the level of activity in the first quarter of 1998:

19981st ciaarter: 4875 hours0.0564 days <br />1.354 hours <br />0.00806 weeks <br />0.00185 months <br /> 1998 2nd quarter: 2312 hours0.0268 days <br />0.642 hours <br />0.00382 weeks <br />8.79716e-4 months <br /> 1998 3rd quaner: 1983 hours0.023 days <br />0.551 hours <br />0.00328 weeks <br />7.545315e-4 months <br /> Current quarter: 895 hours0.0104 days <br />0.249 hours <br />0.00148 weeks <br />3.405475e-4 months <br /> Linle Harbor Consuliants,Inc. Page 3 of 7 .

LHC Quan:rly Repon November 1,1998-March 11,1999 it i' LHC activity at Millstone is at the lowest level since the beginning of LHC's l work, and reflects a transition toward the type of periodic observation, which l will occur in the immediate post-Order period. The actual allocation of time during the current period was as follows:

Time Code Hours  % of Total Investigations 0 0%

Document Review 65 7%

ECP Reviews 14 2%

Administration 432 ,

48 %

Public/NRC Meetings 87 10 %

Technical Reviews 7 1%

Interviews /Mtgs/Obsv. 163 18 %

Management 127 14 % l l

Total 895 100 %

d. Prospective LHC Activities Followinc Rescission Of The Order: LHC l

i representatives indicated at the January 19 Conunission meeting that they believed there was no longer any reason for a continuous LHC presence at Millstone, but that they would be willing to provide continuity and l observation for a limited period cf transition. Subsequently, NNECo confirmed in a letter of March 2 to the NRC (Attachment 5) that LHC would i continue, for one year following the lifting of the Order, to perform independent quarterly assessments of the " State of SCWE"; would be available to perform intervention and investigative services as requested; and would be available to provide guidance and assistance to employees and managers on request, by a " hotline" to Millstone. During this period LHC would continue to make regular, approximately quarterly reports to NNECo ,

management, which would also be available to the NRC and the public; and LHC would also be available for meetings with NNECo, the NRC and the public as requested by NNECo management. The NRC noted this i

commitment by NNECo in its March 11 letter lifting the Order.

e. Closine Out Of OlG Investication: Iri 1998, the NRC's Office of Inspector-General (OIG) had received from various current and former NRC employees a series of complaints to the effect that members of the LHC team had become l improperly involved in the resolution of disputes between various NNECo l l ' employees and Millstone management, thus allegedly compromising LHC's independence and potentially distoning the outcome of these disputes. These workers also complained that the NRC Staff had failed to exercise proper supervisory oversight over LHC activities, thus permitting these alleged improprieties to occur. OIG investigated each specific case in detail, and concluded that while LHC personnel had become substantively involved from time to time in the resolution of disputes between NNECo employees and Linie Harbor Consultants, Inc. Page 4 of 7 I

f: ,

e LHC Quanerly Report November 1,1998-March 11,1999 l

management, the nature of the activities engaged in and the services performed were within the scope of the Order and of LHC's third party oversight plan, which had been approved by the NRC. OlG also concluded that LHC had kept the NRC Staff adequately informed at all times. OIG thus found no impropriety on the part of either LHC or the Staffin this situation.

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i l 3. Remainine Onen Items l

Passing note is made of two pending issues, merely to indicate that they do not affect the conclusions LHC has provided to the Commission. I

a. OlG Investication Of 1996 Tenninations:

In 1996, NNECo terminated 102 Millstone employees in a plant-wide reduction in force. Subsequently, allegations were made that the terminations l

included persons who had raised safety issues and were motivated by a desire on the part of management to retaliate against them. The NRC Staff and Office of Enforcement had subsequently announced their conclusion that NNECo management, in ordering the terminations, had not been motivated by retaliatory or other discriminatory intent. However, the Staff had sent to each terminated individual a letter stating that the NRC had concluded that his or her case was not motivated by improper discriminatory intent, when in fact i this was not accurate. The Staff had not evaluated each case on the merits; I rather, it evaluated those that seemed strongest to it, and concluded that there l was no improper motive overall on NNECo's part as to them. The Staffs

) letter to individuals, in suggesting that individualized evaluations had been conducted of specific claims, was misleading. In addition, the Staffs  ;

deliberative process had been conducted over several months and had

! involved several different organizations within the Commission, without i either continuity of personnel or consistent written documentation. As a result, the OlG report (OIG Report 99-01S - Attachment 6), made public at the turn of the year only as the result of Congressional inquiry, ended up being

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both critical of the Staffs decision-making and seemingly skeptical of the  ;

! Staffs substantive conclusion that NNECo had not engaged in discriminatory l tehainations in 1996. The NRC is conducting an internal investigation of this

) matter now under the direction of an NRC Administrative Law Judge; and the 1 l Staffs first response to the OIG Report, issued by the EDO on January 27, 1999 (Attachment 7) at the direction of the NRC Chairman, contains a detailed defense of the Staffs decision but makes considerable concessions as to criticism of the Staffs process.

LHC is generally knowledgeable about these ~ terminations and the events associated with them, and does not believe that they affect the validity ofits r

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LHC Quanerly Report November 1,1998-March 11,1999 conclusion, as of early 1999. *. hat a safety-conscious work environment presently exists at Millstone Pcint.

. b. Proposed Fine Of NU For 1997 Retaliatorv Firines:

In 1997 two contractor employees at Millstone were terminated for allegedly raising safety issues. LHC had investigated this issue itself, shortly after the terminations, when the employees had come to it and asked for help.

LHC had concluded that the employees had been fired out of an improper retaliatory motive for having raised safety issues. NNECo, upon learning of the events and conducting its own investigation, had also concluded that the terminations were improper and had offered the employees reinstatement and taken other corrective actions. More recently, the NRC Staffinvestigated the issue and reached a conclusion similar to that of LHC. The Staff has issued a notice of violation and proposed an $88,000 civil penalty against NNECo because of the high level of the persons responsible for the terminations and the plant's history of recrimination, despite acknowledging that NNECo management's response to the events, upon learning of them, had been proper (Attachment 8).

LHC had factored these events into its conclusion that as of and since mid-1998, an adequate Safety Conscious Work Environment has existed at Millstone Point. That conclusion remains unaffected.

4. Conclusions LHC has completed its work under its Oversight Plan, and believes that a Safety Conscious Work Environment has become established at Millstone Point and that LHC's continuous presence at the plant is no longer of demonstrable effect. LHC supports the NRC's rescission today of the October 24,1996 Order. LHC is prepared to provide periodic assessments, other forms of guidance and advice, and periodic reporting at Millstone during the coming year upon request by Northeast Util'ities.

I Linle Harbor Consultants,Inc. Page 6 of 7

V.

4 LHC Quanerly Repon November 1,1998-March 11,1999 Attachments: ,

1. Letter, NRC (Collins) to NNECo (Kenyon). " Order Requiring Independent Third-Party Oversight of NNECo's Implementation of Resolution of the Millstone Station -

Employees' Safety Concerns," March 11,1999.

2. " Status of a Safety Conscious Work Environment at Millstone: LHC Update," Little l Harbor Consultants Presentation to NRC and NNECo, November 24,1998.

l 3. SECY-99-010, EDO to Commissioners, " Closure of Order Requiring Independent, Third-Party Oversight of Northeast Nuclear Energy Company's Implementation of  ;

Resolution of the Millstone Station Employees' Safety Concerns," January 12,1999.

4. Letter, J. T. Carlin to J. W. Beck, JTC-98-128, " Response to Little Harbor Consultants Recommendations," December 29,1998.

5. NNECo to NRC, Docket No. 50-245 stal., " Millstone Nue? ear Power Station, Unit Numbers 1,2 and 3: Scope of Services of Little Harbor Conciltants Inc. Following Closure of the October 24,1996 NRC Order," March 2,1999. 1 1

6. 01G Report 99-01S, NRC Staff's Handling of Harassment and lntimidatien (H&l)

Complaints at Millstone (undated), covered by memorandum, Hubert T. Bell to Chairman Jackson, December 31; 1998, i

l 7. Memorandum, William D. Travers (EDO), to Chairman Jackson, re "Your l Memorandum of January 7,1999, Regarding OlG Inquiry, Case No.99-01S,"

January 27,1999.

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8. NRC Letter EA-97-461 Huben J. Miller (NRC) to R. P. Necci (NNECo), " Notice of l Violation and Proposed Imposition of Civil Penalties-$88,000 (Office ofInvestigation i Report 1-97-039)," March 9,1999.

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l ljnle Harbor Consultants,Inc. Page 7 of 7

m ATTACllMENT I TO I,IIC FOURTil OUARTER 1998

• REPORT TO NRC me p UNITED STATEG g ) NUCLEAR REGULATORY COMMISSION orasmeceu,e.e.asuwen

• • 1. hrch 11,1999 Mr. Bruce D. Kenyon President and CNef Eisecutive Ofuner Northeast Nocteer EnergyCompany P.0, Box 128 Waterford, CT 06385 0128 SV8 JECT: ORDER REQUtRING INDEPENDENT,THIRDPARTY OVERSIGHT OF NORTHEAST NUCLEAR ENERGY COMPANf8 IMPLEMENTATION OF '

RESOLUTION OF THE MLLSTONE STATION EMFLOYEES' SAFETY CONCERNS

Dear Mr. Kenyon:

On October $4,1996, the Nuclear Regufstory Commission (NRC) issued an Order requiring on independent, thirdSerty, oversi0ht of Northeast Nuclear Energy comparv/s (licenses) efforts to conect and prevent repo@n of ns failures regarding its tresteerd of employee conoems and of the employees who raised ocnoems. These tailures were documemed in the NRC's Order.

The Order speerfied that third par'ty oversight wit be implemented une lhe licensee demonstrates by its performance 1hatthe condmonswhittiled to the requirements of the oversig!11 have been corrected to the satisfaction of the NRC. The NRC is now satisfed that the licensee hoe demonstrated by its sustained performance in executing As Employee Coricems Program (ECP) sad in estabbshing a safety conscious work environmem (SCWE) that the condtlions that led to the requirement of third party oversight have been adequately corrected. Therefere. no further actions need to be eene ydth respect to lho Order, Tne NRC este6 that you have recon 0rmed your intent, as documented in a letter from Mr. Ra,t' Necci, dated March 2,1990. to utirate Little Hettpor Consultants to conduct quarterfy, independerst tNrd party, assessments of the SCWE at MNstone Station to ensure that progress contirrues in addressing SCWE issues as the Maisione organes'J on transtons from the Order.

E!ncerely,

.n ud i J. ins. Director s se of Nuclear Reactor Regulation I

Docket Nos: 50 245,50-336,$N23 1 oc- See next page i

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[*

I ATTACIIMENT 3 TO LilC FOURTil OUARTER 1998

., REI ORT TO NRC t

January 12.1999 SECY-99-010  !

FOR: The Commissioners FROM: William D. Travers /s/

Executive Director for Operations

SUBJECT:

CLOSURE OF ORDER REQUIRING INDEPENDENT, THIRD-PARTY OVERSIGHT OF NORTHEAST NUCLEAR ENERGY COMPANY'S IMPLEMENTATION OF RESOLUTION OF THE MILLSTONE STATION EMPLOYEES' SAFETY CONCERNS PURPOSE:

To provide the Commission with (1) the staff's assessment of Northeast Nuclear Energy Company's (NNECO's) activities related to its Employee Concerns Program (ECP) and safety conscious work environment (SCWE) since it issued SECY-98-090, " Selected issues Related to Recovery of Millstone Nuclear Power Station Unit 3," dated April 24,1998, and (2) the staff's 1 recommendation regarding closure of the October 24,1996, Order (Order) which required that l NNECO engage an independent, third-party organization to oversee its implementation of plans i to improve the ECP and SCWE. This information is being provided to the Commission in advance of the meeting on this topic currently scheduled for January 19,1999. A summary discussion of these issues is presented in this paper and, where appropriate, a more detailed discussion is attached.

BACKGROUND:

SECY-98-090 provided the appropriate background on the issues surrounding the extended shutdown of the three Millstone Nuclear Station units, including major NRC and licensee activities. SECY 98-090 also provided the staff's assessmen' of the improvements made by NNECO in its ECP and SCWE and its recommendation that in this area, the licensee had made sufficient progress to warrant restart authorization. The staff also noted that it anticipated third-party oversight would be required at least six months beyond plant restart to evaluate the licensee's continuing performance in the ECP and SCWE areas.

Contact:

William M. Dean, MSPD/NRR '

! 301-415-2240 l

b b

l J

l l

4 t The staff has frequently communicated with the Commission on this issue through various Commission papers and status reports over the past two and a half years since Millstone Station was designated as a watch list Category 3 facility in June 1996. Between January 1997 and June 1998, the Commission has also received briefings on about a quarterly basis from the staff, the licensee, and pertinent contract organizations involved in oversight activities. During ,

the May 1 and June 2,1998 meetings, the Commission also heard from members of the public and state and local officials.

DISCUSSION:

In its staff requirements memorandum (SRM) of March 18,1998, the Commission gave I guidance to the staff on the information it needed to make a restart decision on Millstone Unit 3.

In the SRM, the Commission directed the staff to provide crisp, clear analyses of the restart-related issues with recommenti,% (..t.c-a appropriate) and a summary of independent NRC actions suppo+.;, start decision making on Millsce's restart. In developing this Commission Pa,%, ine staff has followed this guidance. An executive summary describing the basis for the staff's conclusions related to closure of the Order follows. In addition, a more detailed discussion of the licensee's and NRC's activities over the past seven months is contained in Attachment 1.

Following its review of SECY-98-090 and the first Commission meeting on the restart readiness of Millstone Unit 3 on May 1,1998, (there was a second meeting conducted June 2,1998, to address restart issues that remained after the May 1 briefing) the Commission issued an SRM dated May 19,1998. In this SRM, the Commission agreed with the staff's conclusion that the licensee had made appropriate improvements related to the ECP and SCWE that supported restart of Millstone Unit 3. One of the conditions noted in the SRM was that Little Harbor Consultants (LHC) would continue its third-party oversight of the ECP and SCWE until the Commission decided third-party oversight was no longer necessary. The Commission also noted that future briefings should include recommendations regarding continuation of the third-party oversight. In its SRM of June 15,1998, in which it provided its restart authorization for Unit 3, the Commission noted that the third party oversight of ECP/SCWE should be eliminated as soon as feasible.

On November 24,1998, the staff conducted a public meeting with NNECO and LHC to discuss the results of the NRC's most recent evaluation (see Attachment 1) and the current status of ECP- and SCWE-related activities. In advance of this meeting, LHC issued its third quarter report (Attachment 2) documenting its observations of NNECO's performance. LHC discussed this report during the meeting and stated that it would support the NRC if it determined that LHC's independent third party oversight role was no longer required. During this meeting, I

NNECO discussed its ongoing performance in the ECP and SCWE areas, including results of

~

its seif-astessment activities and the continued positive trends reflected in its performance measures. NNECO noted that their current level of performance supports closure of the Order.

The licensee provided this same conclusion in a letter (Attachment 3) dated December 9, .

1998, which includes the bases for their conclusion.

This letter also notes that if the Order is closed, NNECO intends to continue to utilize LHC to perform periodic independent assessments of its ECP and SCWE. This requires that NNECO alter its contract with LHC, which currently prohibits LHC from performing any future work at 4

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. 3-any Northeast Utility facility for 12 months after closure of the Order. The purpose of this contractual stipulation is to provide added assurance that LHC would maintain its independence ar,d not provide NNECO with overly positive reports in the hopes of obtaining future work. The staff affirms that over the past 20 months, LHC's performance has been appropriately independent and critical of NNECO's activities, highly professional, and of excellent quality.

The staff also believes that LHC has established credibility among the local stakeholders, a number of whom have expressed the opinion in recent meetings that LHC should be retained in some capacity if the Order were to be closed. Therefore, the staff has no reservations about the continued use of LHC by NNECO and has no objections to NNECO changing its commitment regarding its contractual relationship with LHC.

(1) Employee Concerns Program in SECY-98-090, the staff noted that it had reviewed the licensee's comprehensive plan for reviewing and dispositioning safety issues raised by employees without fear of retaliation, reviewed and approved LHC as the third-party oversight organization, and reviewed and approved LHC's oversight plan. In SECY-98-090, the staff described its activities and provided its assessment that led to the conclusion that NNECO had made substantial improvements to its ECP and that it was functioning effectively at Millstone. It noted that employee concerns are prioritized based on safety significance, identities of individuals are protected, case resolution is timely, and there is appropriate follow up on corrective actions.

Since it issued SECY-98-090, the staff's observations regarding the ECP are unchanged. As described in more detailin Attachment 1, the licensee has continued to sustain an effective and well-functioning ECP. This assessment is supported by the staff's review of appropriate documentation, conduct of NRC team evaluations, and observation of LHC activities. There have been even further enhancements in some aspects of the ECP, such as improved communications with ind;viduals raising concerns, better quality case files, and improved timeliness in closing outstanding cases.

(2) Safety Conscious Work Environment in SECY-98-090 the staff described its activities and provided an assessment that supported the conclusion that NNECO had made substantialimprovements in establishing an SCWE and that the programs that were in place to foster an SCWE were functioning effectively at Millstone. Some of the programs that were established included the Executive Review Board, employee and manager training, leadership surveys, and Focus Area Plans. It was also noted that NNECO has devoted appropriate resources and management support to ensure that an SCWE was maintained and had developed adequate plans for monitoring the site's safety environment following restart of Unit 3. The staff also observed NNECO's response to several high visibility incidents involving the SCWE and ECP, including potential harassment, intimidation, retaliation, and discrimination (HIRD) issues. The staff determined that the licensee's' response to these issues was prompt and thorough, and where appropriate, evinced management's willingness to admit problems with its processes and take effective corrective actions. This includes an issue that emerged during the summer of 1997 involving potential retaliation against employees engaged in protected activities (10 CFR 50.7) associated with the motor operated valve program. This issue, which was thoroughly reviewed by both the licensee and LHC, and for which effective remedial actions have been taken, is currently the subject of I

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f pending enforcement activities. The enforcement activity associated with this issue is expected to come to closure in the near future. However, it is not expected to be issued until after the Commission addresses the recommendations in this paper.

Since it issued SECY-98-090, the staff's observations regarding the SCWE are unchanged. As described in more detailin Attachment 1, the licensee has continued to sustain an SCWE.

Although the ongoing management reorganization has the potential to add stress to the current work environment, the staff notes that the licensee has entered into this action with forethought and has proceeded in a well-organized manner through the first phases of the process. While the continued implementation of the process bears monitoring, the use of an outside organization in the planning and execution of the reorganization, as well as the licensee's response to the bottoms-up review of the proposed reorganization by its staff, has provided appropriate neutrality and organization buy-in to the process. Evidence that supports the staff's assessment that an SCWE has continued to be sustained includes a substantial decrease in the NRC's allegation rate over the past 4-5 months, the continued effectiveness of the SCWE staff, proactive efforts to resolve emerging issues in a timely manner, and sustained positive results out of the employee and leadership surveys.

CONCLUSION The licensee has sustained the level of performance in its ECP and SCWE noted in SECY 090, and in some areas, made further improvements while transitioning to a less-resource intensive organization. The only issue described in the Order that remains to be satisfied before the Order can be closed is the demonrtration by NNECO that the conditions which led to the requirement of the independent, third-party oversight have been corrected to the satisfaction of the NRC. The staff's conclusion is that the sustained performance by NNECO in implementing its ECP and in maintaining a SCWE with minimalinvolvement by LHC over the past 7 months indicates that the third-party oversight is no longer required and the Order can be closed.

RECOMMENDATION That the Commission agree with the etaff's conclusion that the licensee has demonstrated by its sustained performance in executing its ECP and in establishing an SCWE that the conditions that led to the requirement of Mving a third-party oversight organization have been corrected to j the satisfaction of the NRC. Therefore LHC's presence is no longer required and the Order can be closed. A proposed letter to the licensee closing the order is provided in Attachment 4 for the Commission's consideration if it concurs with the staff's recommendation.

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5-The staff conducted a public meeting on December 14,1998, in Waterford, Connecticut, to solicit comments from the local stakeholders regarding the status of the ECP and SCWE at Millstone and whether the Order should be closed and the independent third-party oversight discontinued. By January 14,1999, the staff will provide the Commission with a memorandum which will summarize the substantive comments and recommendations obtained from local stakeholders during this meeting.

Winiam D. Travers Executive Director for Operations Attachments:

1. Evaluation of ECP/SCWE

2. LHC's Third Quarter Report

3. NNECO's December 9,1998, Letter Recommending Closure of Order '

4. Draft Letter Closing Order

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.' The staff conducted a public meeting on December 14,1998, in Waterford, Connecticut, to solicit comments from the local stakeholders regarding the status of the ECP and SCWE at Millstone and whether the Crder should be closed and the independent third-party oversight discontinued. By January 14,1999, the staff will provide the Commission with a memorandum which will summarize the substantive comments and recommendations obtained from local stakeholders during this meeting.

William D. Travers Executive Director .

for Operations I

Attachments: i

1. Evaluation of ECP/SCWE. .

2. LHC's Third Quarter Report

3. NNECO's December 9,1998, Letter Recommending Closure of Order

4. Draft Letter Closing Order NOTE: This paper was reviewed by the Technical Editor on 12/ /98 DOCUMENT NAME: G:/ DEAN /ecpscwe.wpd

• See previous concurrence OFFICE MSPD:PM l MSPD:PD l DRPE:D l ADP:AD l NRR:D j DEDR l OGC l NAME HPastis* WDean* JZwolinski* BBoger* SCollins* FMiraglia DATE 12/11/98 12/11/98 12/14/98 12/31/98 01/06/98 12/ /98 12/ /98 OFFICE EDO l l l l NAME WTravers DATE 03/ /99 03/ /99 03/ /99 03/ /99 03/ /99 OFFICIAL RECORD COPY e

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EVALUATION OF l NORTHEAST NUCLEAR ENERGY COMPANY'S SAFETY-CONSClOUS WORK ENVIRONMENT AND EMPLOYEE CONCERNS PROGRAM SINCE THE RESTART OF MILLSTONE UNIT 3

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i 2-TABLE OF CONTENTS

1. I NT R O D U C TI O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11. DISCUSSION..............................................................................................................2 A. Background........................................................................................................................................2 B . N R C A s s e s s ment A ct ivitie s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .

111. ASSESSMENT OF MILLSTONE'S ECP AND ITS SCWE PROGRAM................................................. 4 A. Em ployee Conce m s Prog ra m . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . .. .. . . . . . . . . . . . . . . . . . . . . .. . .....4 B. Employee Concerns Oversight Panel . . .. ...... ... .. .... .... . . . . . . . . . . . . . . . . . . . . . . . . ........ ..... . . 5 C. Safety-Conscious Work Environment .. .. ..... .............. ............. ....... ..... . . ....... . ..... .... .. ..........................7 IV. CLOSING OF THE ORDER REQUIRING THIRD-PARTY OVERSIGHT............... .. ........ 9 l-b

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1. INTRODUCTION in SECY 98-090,

• Selected issues Related to Recovery of Millstone Nuclear Power Station, Unit 3," dated April 24, 1998, and in a Commission meeting on May 1,1998, the staff concluded that Northeast Nuclear Energy Company (NNECO), the licensee for Millstone, had improved its Employee Concerns Program (ECP) and had established a safety-conscious work environment (SCWE) that would support restart of Unit 3. However, the staff also anticipated  ;

that the third-party oversight by Little Harbor Consultants (LHC) must be continued for 6 months beyond restart to allow for evaluation of the licensee's performance in the ECP and SCWE areas. This report covers the period from L tha staff's recommendation to the Commission in SECY 98-090 through November 1998. It also documents the j stItus and the results of NRC's assessment of NNECO's efforts to sustain the improvements it made to its l programs and processes for handling safety issues raised by employees and for ensuring that there is no .

i discrimination against employees who raise safety concems. It also contains the staff's recommendations to i discontinue LHC's independent third-party oversight and to terminate the Order dated October 24,1998.

II. DISCUSSION l

A. Backaround I

On October 24,1996, the Director of NRR issued an Order to NNECO, requiring (1) the development of a comprehensive plan for handling the Millstone Station employees' safety concerns, (2) independent tni.-d-party ovsrsight, and (3) development of a plan by the independent third-party organization for overseeing NNECO's implementation of the comprehensive plan.

Before restart of Unit 3, the NRC staff performed the following activities to ensure effective implementation of j NNECO's programs for handling safety concerns and the independent third-party oversight program (ITPOP): ,

o Reviewed the comprehensive plan for reviewing and dispositioning safety ist,ues raised by employees of NNECO.

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1 o Approved the selection of the independent third-party oversight organization to ensure that it was composed of qualified individuals whc would conduct the review adequately and independently of NNECO.

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1 o Approved the ITPOP plan, which was used to audit the implementation of the Millstone ECP. l In SECY 98-090, the staff concluded that NNECO had sufficiently improved its ECP and established an SCWE to 2

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support restart of Unit 3. This recommendation was based on an evaluation conducted by the NRC during.

December 1997 and January 1998, and the observations of LHC as well as the staff's assessment of subsequent improvements made by NNECO. The Commission authorized restart on June 15,1998, and Unit 3 was restarted in July 1998.

B. NRC Assessment Activities-Since May 1,1998, the NRC staff has continued to monitor NNECO's programs and has visited the Millstone site cbout every 3 weeks to conduct onsite reviews of ongoing activities. In addition, the NRC staff has conducted two,

' wrek-long evaluations. The staff has continued its participation in periodic meetings involving NNECO, NRC, and LHC that are open to the public and during which the results of LHC's ongoing assessment and the status of the Millstone SCWE program and the ECP have been covered. The staff has also continued to periodically review NNECO's programs, procedures, and performance data and to evaluate the program success criteria, performance measures, and quantitative performance metrics established by NNECO.

On August 24 28,1998, the NRC staff evaluated the Millstone ECP and the SCWE program to ascertain if the -

improvements that had been made in support of restart of Unit 3 had been sustained. The team found the ECP and ths SCWE program had maintained the improved level of performance; however, it concluded that it needed to conduct another evaluation to monitor the following eight issues:

1. - An emerging personnelissue that developed within the ECP organizatiori during the week of its evaluation

2. Implementation of plans for, as well as the ability of Human Resources (HR) to assume some of the ECP workload, as outlined in NNECO's Transition Plan

3. The Employes Concems Oversight Panel's (ECOP's) new role to assess ECP's effectiveness and how some of th2 other ECOP functions will be incorporated within the SCWE and HR function - -

4. The effect on the SCWE of the transition of the site from a recovery organization to an operating organization l'

l 5 The effect on the organization's effectiveness of the recent transition to a new Vice-President of Human Services

, 6. The pending Millstone site-wide management reorganization p

'7 Plans for oversight of the SCWE to replace the role of the third-party oversight organization

- 8. Long-term plans for the SCWE training program that had not yet been finalized 3-i Y'

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l On October 26-30,1998, the NRC conducted another evaluation to assess NNECO's progress in these eight areas.

Th3 team determined that overall, adequate progress had been made in each of these areas. The results of the stiff's last two evaluations are incorporated into the more detailed discussions of key areas that follow. In addition to a description of the staff's assessment of each of the above-mentioned eight areas, the following assessments also briefly summarize the NRC's previnus assessment of the licensee's performance in these areas, which are d: scribed in more detail in SECY 98 090.

Ill. ASSESSMENT OF MILLSTONE'S ECP AND ITS SCWE PROGRAM in response to the Order, NNECO initiated several programs and actions to correct the problems identified by both th3 NRC and its own staff. Some of the more significant actions and the staff's assessment of recent activities in th:se areas follow.

A. Emolovee Concerns Prooram As noted in SECY 98-090, NNECO restructured the ECP to resolve any concern raised by an employee or by a contractor. This restructuring included three fundamental steps: intake, triage, and investigation. NNECO increased the r. umber of people assigned to the ECP to more effectively address emerging issues and the backlog of cases that existed, in May 1998, the staff concluded that the ECP was established and functioning effectively at Millstone.

Since May 1998, the staff's observations of the ECP indicate that it has continued to improve, and the quality and thoroughness of its investigations are a particular strength. The ECP organization continues to possess the ind;pendence, resources, and management support necessary to perform thorough, unbiased investigations. The conclusions of the ECP cases were properly supported by the licensee's investigations, corrective actions were appropriate to resolve the issues, and communications with the concerned individuals were adequate. The ECP was adequately defining the issues of the concemed individuals and was protecting the identities of those individuals bringing concems to the ECP. NNECO's program for training Millstone staff for the ECP continues to be informative and effective.

Asida from the NRC's and LHC's observations, there are other independent assessments that support the staff's conclusions. An external assessment of the ECP organization conducted by GPU Nuclear personnel was very

_ positive. Also, the employee survey results continue to rate the ECP highly and affirm that the ECP continues to function well.

Two of the eight followup areas were associated with the ECP.

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Issue No.1: Personnelissues that developed within the ECP orcanization in the August 1998 evaluation, the team noted that it was going to continue to monitor personnelissues that i d;veloped in the ECP organization during the week of its evaluation and any cthor i::ves that may emerge in the ]

near term. During the October 1998 evaluation, the team noted that the ECP handled these issues well, including j not only the issues that emerged within the ECP organization itself but also another site-wide issue involving i NNECO management.

Issue No. 2: Human Resources to assume some of the ECP workload  ;

In August 1998, the NRC staff noted that the interface between the ECP and the HR organizations continued to be cff;ctive. The two organizations worked together closely and shared information to the benefit of both. The team st:ted that it will continue to monitor the plans for, and the ability of, HR to assume some of the ECP workload.

In October 1998, the NRC team found the plan to have HR assume responsibility for investigating all HR related l concerns stillin the early stages of development. A draft plan was developed and has received some review by management, but the transfer of most of the pertinent responsibilities is not planned to take place until after the r: start of Millstone Unit 2. Because the licensee has not significantly progressed in this area since the last 1 cvaluation, the team was unable to conclusively assess this area.  !

Th3 team found some inconsistency in the level of cooperation between the HR and ECP staffs relating to the sh ring of information since the previous evaluation. The ECP and the HR directors stated that they would meet to discuss the issue and to work on a long-term solution that would include developing written guidance on the type of information to be shared between the staffs. Because the transfer of responsibilities is not imminent and the ECP cnd the HR directors are working together to address the issues, the team believed that the licensee's actions were appropriate.

B. Emolovee Concerns Oversicht Pane; The ECOP, which reports to NNECO's President /CEO-Nuclear, is composed of Millstone employees whose function I is to monitor the employee workplace environment and to provide independent assessment of the ECP. The j Administrator is assigned to the ECOP full-time, in SECY 98-090, the ECOP was noted to have provided some valuable insights. However, it was also noted that the ECOP had some difficulty in carving out an appropriate role.

Since May 1998, the staff's observations of the ECOP indicate that it was necessary to better define ECOP's roles and responsibilities. During the August 1998 evaluation, the ECOP was determined to be functioning effectively but cppeared overtaxed in its ability to perform all of its activities. Also, some documentation weaknesses were noted.

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Since that evaluation, NNECO determined that the ECOP would be restructured to better serve the needs of the future Millstone organization.

Tha ECOP is in a state of flux and will be reorganized soon. The President /CEO-Nuclear believes that, in the future, tha ECOP should focus on assessing the climate of the site organization. It appears that the initial role of the ECOP was too broadly based to serve the site effectively. Although not yet finalized, one of the more valuable aspects of the ECOP (the employee surveys) will be moved to the SCWE organization and other appropriate functions will rsmiin with the new ECOP (e.g., SCWE/ECP oversight, review of harassment cases, and focus group reports).

Tha ECOP focus group reports and the quarterly reports are useful products which provide management valuable insights on the work environment. The focus group reports are real-time summaries of specific, work-environment

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units within the organization, which allow management to be aware of and to handle problems before they escalate furthtr, thus promoting an SCWE. Also, by virtue of providing site employees with an alternate method of resolving i th2ir concerns, the ECOP promotes an SCWE.

Issue No.3: ECOP's new role As of August 1998, specific duties for the new ECOP were not yet formalized, but NNECO intended the new ECOP to b3 operational by November 1,1998. This was one of the followup issues from the August evaluation. However, NNECO was slow to develop the new ECOP charter. It was not until November 17,1998, that the new ECOP ch rter was signed. Those aspects of the ECOP which promote an SCWE are being maintained in the new charter.

Also, the selection of the new ECOP chairman was recently announced.'

Th3 new ECOP Panel may not be fully in place until the end of the year. if this Panel receives full support from upper management, the new ECOP shall continue to provide site employees with an alternate method to resolve th;ir concerns and contribute to an SCWE. The staff's observations are that NNECO has made measured progress cddr:ssing this issue and has the components in place to ensure an effective advisory panel is formed.

C. Safetv-Conscious Work Environment l

An SCWE is an environment in which employees feel comfortable raising any issues important to them without fear of r:taliation or discrimination. NNECO formed an official SCWE organization with a full-time staff. The group was responsible for coordinating SCWE activities for NNECO. The group consisted of about 15 people, including an SCWE issue Manager, a Director of the ECP, and a Director of Nuclear Human Resources, all reporting to the Vice l Pr:sident of Human Services. With the pending reorganization, many of the SCWE functions will be retained,

' although they may be located elsewhere within the new organization. The various activities NNECO has performed i

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to foster an SCWE include the following:

1. SCWE staffing and organizational support

2. Management surveys

3. Identification and resolution of focus (problem) areas

4. Lessons learned reviews

5. Self-assessment

6. Executive review board

7. Site response to LHC recommendations

8. SCWE training Since May 1998, the staff's observations of the SCWE indicate that it has continued to improve. Management has shown it is willing and capable of immediately becoming involved to resolve problems and concerns as they arise (

indicating that the programs in place are working. Management has handled SCWE-related perturbations, promptly 1 cnd decisively at alllevels of the organization. Although SCWE-related programs and the management itself l continue to evolve and mature, an SCWE has made substantial progress in becoming firmly established into the Millstone consciousness.

1 Th3 remaining five followup issues are associated with SCWE-related activities.

Issue fjo. 4: SCWE Lono-Ranoe Plan Since May 1,1998, NNECO has been implementing its SCWE long-range plan; however, it has been slow in its transition from a recovery organization to an operating organization. The licensee's long-term vision of the work snvironment emphasizes, among other things, the following:

o Lcadership that is strong and continually improving o Establishment of clear standards for performance and accountability o A healthy SCWE in which all employees feel comfortable that any issues they raise will be addressed with commitment, respect, and timeliness o An ECP that is effective, continually improving, and held in high regard by employees *

o. A work force that is motivated, respectful, and takes pride in personal, team, and organizational accomplishments l-

The long-range plan states that the licensee will maintain the current structure of the SCWE organization through restart of the Millstone units. NNECO had previously committed in the March 31 submittal that "[t]he Human Services organization will be maintained as currently structured until Unit 2 is restarted. Any change to the SCWE area will be based on performance." Based on progress to date, and the upcoming site restructuring, Human Services will be restructured based on performance and assessment as part of the strategic organizational realignment at Millstone. Self-assessment will be used to verify that performance expectations are being met. The objsetives, measures, and targets to assess performance are stated in the SCWE segment of the plan, along with spscific action Fems to support each objective. These action plans are assigned to specific individuals and are given specific target dates for completion. Each action item is also tracked in the Action item Tracking and Trending System (AITTS).

Issue No. 5: The New Vice-President of Human Services Since May 1998, the individual assigned to the position of the Vice-President of Human Services has changed. In August 1998, the Vice-President of Human Services was reassigned to the position of Vice President of Engineering Services, the position he was originally hired for in 1997.

The team believes that he had been effective and instrumentalin ensuring that the SCWE staff remained focused on improving the safety culture at Millstone. In August 1998, the NRC noted that it was going to continue to monitor the SCWE program for any signs of degradation as a result of this management change. In October 1998, the staff noted little, if any, change. The team interviewed the new Vice-President of Human Services in both August and October 1998 and found that he has extensive experience in the nuclear industry and has an excellent attitude regarding maintaining an SCWE. He indicated that he intends to devote much time to meeting the staff and learning their concerns firsthand. He believes that one of his highest priorities is to unify the site in those areas than can be unified and to minimize the " silo" effect resulting from each of the three units operating as independent entities rather than as a unified site. He believes that these goals willimprove the SCWE.

He also indicated that the site must strive for organizational stability as soon as possible because the current instability and uncertainties are not healthy or conducive to good employee morale and raise the potential for SCWE problems. On the basis of LHC's and the NRC's observations, the new Vice-President has made a good effort to pursue his vision of an SCWE and is a positive addition to the SCWE organization at Millstone.

Issue No. 6: The Pe'ndina Millstone Site-Wide Manaoement Reoroanization in August 1998, the team became aware of the pending management reorganization. The team noted that a lot of i

k thought has been given to the pending reorganization and that NNECO had acquired professional assistance in formulating its reorganization plan. The staff indicated that the potential for substantial organizational stress existed cnd that it would continue to monitor the reorganization activities. Since August, NNECO solicited comments from its cmployees on the proposed reorganization and made some substantive changes in response to the concerns that were raised. NNECO has devoted much effort to this reorganization to minimize potential problems and to cpply lessons learned from previous reorganization efforts to improve the proposed reorganization process.

Currently, the reorganization has taken place only at the Director's level. Efforts to staff the Manager level positions cre ongoing.

In August, the team commented that no communication concerning the reorganization occurred between management and the employees. Subsecuently, the team has observed that NNECO has effectively communicated the status of the reorganization to its employees through various means, including a web page.

Issue No. 7: Plans for Oversicht of the SCWE to Reolace the Role of the Third-Party Oversicht Oroanization On] long-term issue directly related to the SCWE that had not yet been resolved during the staff's August cv;luation was oversight of the SCWE organization after LHC departs. During the team's August and October cycluations, NNECO had not finalized its plans on how this oversight would be accomplished. The Recovery Officer for Nuclear Oversight told the team that this issue had priority and that he intended to resolve it as soon as possible. -

Following its October site visit, NNECO provided the team its SCWE assessment plan which describes the cctivities that will be executed by organizations both internal and external to NNECO. In addition to a number of int rnal oversight and assessment activities, NNECO also plans periodic third-party assessments. The team r;vi;wed this Plan and found it adequate. The Plan is comprehensive and broad in scope. However, the Plan could be improved in describing areas of responsibility and methods of assessment.

Issue No. 8: Lono-Term Plans for the SCWE Trainino Procram The t:am found that during the August evaluation, NNECO had plans for revising its long-term SCWE training progr m based on lessons-learned reviews. This included programs such as the SCWE refresher training for supervisors and managers and SCWE continuing training. Since that evaluation, the licensee introduced a ' quick '

st;rt" process, which ensures that new supervisors and new managers receive initial SCWE training within a short tim] of being selected for a supervisory position. In October 1998, the staff found that long-term plans for the SCWE training program had been developed. An SCWE refresher training class was scheduled to begin at the end of the first quarter in 1999. NNECO was already tracking recommendations to improve current training and to develop continuing training. The SCWE training program continues to be a key element in fostering a SCWE.

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1 IV. CLOSING OF THE ORDER REQUIRING THIRD-PARTY OVERSIGHT The actions required by the Order of October 24,1996, which were to be accomplished before the restart of any )

Millstone units, have been completed. NNECO developed, submitted for NRC review, and implemented a comprehensive plan for reviewing and dispositioning safety issues raised by its employees and ensuring that cmployees who raise safety concerns are not subject to dist,rimination. NNECO proposed for NRC's approval an independent third-party organization LHC, to oversee implementation of NNECO's comprehensive plan. LHC submitted for NRC's approvalits plan to overses NNECO's implementation of its comprehensive plan. As specified j in the Order, third-party oversight will continue until NNECO demonstrates by its performance that the conditions l that led to the requirement for that oversight have been corrected to the satisfaction of the NRC.

On the basis of the review of documentation, NRC team evaluations, and, in some instances, monitoring of LHC l cctivities, the NRC staff concludes that NNECO improved the ECP and the SCWE at Millstone. Employee surveys and interviews indicate that the overwhelming majority of employees are willing to raise concerns, and of those who h:ve used the ECP, a strong majority stated that they would use the program again. These attitudes were verified not only by the licensee through various surveys and questionnaires at its disposal, but by LHC as vyell.

On the basis of the review of documentation, monitoring of NNECO activities, NRC team evaluations, and LHC l findings, the NRC staff concludes that NNECO's ECP and SCWE are established and functioning effectively at Millstone. Employee concerns are prioritized on the basis of safety significance, identities are protected, case j l

r2 solution is timely, and there is appropriate followup on the adequacy of corrective actions. Further, significant 4 improvements have been made in the training provided to employees and contractors regarding the SCWE and the ECP. In addition, NNECO has established effective supplemental measures (e.g., the Executive Review Board, focus area plans, and leadership surveys) that support the maintenance of an SCWE. The staff also concludes that NNECO has developed adequate plans for monitoring the site's safety environment, addressing problems.as t' hey arise, and applying necessary resources to support the ECP and the SCWE program.

Additionally, the key performance indicators used by NNECO to track its performance have shown no evidence of b:cksliding. Some of the key performance indicators include the ECP backlog, the number of harassment, )

intimidation, retaliation, and discrimination (HIRD) cases, the number of allegations received by the NRC, and the j tim:liness of ECP investigations. I 1

Management has shown it is willing and capable of immediately becoming involved to resolve problems and concerns as they arise. There continues to be issues raised through the ECP, but relatively few allegations to the i NRC. Those issues that do arise are typically lacking in safety signiftance and support the observation that the programs in place are working. Further evidence of this progress is the fact that LHC has stated that although it is still involved in assisting the licensee in responding to and resolving concems, it functions only in an advisory capacity. LHC has already substantially reduced its involvement in site issues.

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l Nevertheless, there is still some fragility in the various programs that make up an SCWE. Given the potential problems that could arise from any number of areas, such as the impending reorganization and recent manageriai changes the staff believes that future inspections or evaluations of the Millstone SCWE would be beneficial, as well as the independent, third-party audits contained in NNECO's long-range oversight plans.

The staff concludes that NNECO's programs for handling safety issues raised by employees and in ensuring that the employees who raise safety concerns are not discriminated against have significantly improved. The staff finds that as required by the NRC's Order of October 24,1996, NNECO has demonstrated by its performance that the conditions that led to the requirement for oversight have been corrected to the satisfaction of the NRC. Therefore, 4 the staff believes that independent, third-party oversight is no longer needed and recommends that the Order be closed. J i

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TO LHC FOt?RTII OttARTER 1996 g, REPORT TO NRC i $ Utilities System k

Memo JTC-98-128 Date: December 29,1998 To: J. W. Beck Little Harbor Co 21 tsc Inc.

From: J. T. Car #'

Vice Preside uman Services

Subject:

Response to Little Harbor Consultants Recommendations The attachment to this memo provides the Nonheast Nuclear Energy Company's (NNECO) response to the recommendations made by Little Harbor Consultants, Inc. (LHC) in their Third Quartet 1998 repon.

Please contact Mr. W. J. Temple at (860) 437 5904 should you have any questions regarding this matter.

cc: T. F. Burns L. M. Cuoco D. Fredericks .

W. J. Temple C. C.Thebaud Attachment O

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J Attachment Northeast Nuclear Energy Company's (NNECO)

Response to Recommendations made by Little Harbor Consultants, Inc. (LIIC) in their Third Quarter 1998 Report i

l December 1998 I

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RESPONSE TO LHC 3an QUARTER RECOMMEND TIONS LHC Recommendation No.1 improve the quality of ECP HIRD investigation reports, eliminating extraneous personal commentary and opinions of the investigators, and clarifying the basis for the ECP conclusions.

Resnonse The ECP Manual will be revised to state: 1) the investigation report must not include extraneous personal commentary; and 2) a clear basis must be provided for ECP conclusions. ECP management will ensure that extraneous commentary is eliminated and that a clear basis is consistently provided during their review prior to approving the investigation report.

As noted by our most recent external 50.7 self-assessment, the quality of our HIRD investigation reports has improved. Notwithstanding the noted improvement, ECP continues to strive for improved quality through case file reviews and case file presentations at the weekly ECP staff meetings. Also, to further improve the quality of HIRD investigation reports, additional training for the ECP staff was conducted on December 10,1998. This training included the lessons learned from the previous extemal 50.7 self assessments.

LIIC Recommendation No. 2 Improve quality ofinternal self-assessment file reviews to provide greater depth in evaluating investigations of 50.7 HIRD issues.

NNECO Resnonse u

- Earlier in 1998, ECP committed to have < :f assessments conducted specifically on 50.7 HIRD case files. Due to the complex and legal nature of the 50.7 cases, it was determined that the assessments should be conducted by an extema! party with expertise in this area. As a result, these external assessments are doing what was intended; they are objectively identifying weaknesses in the case files which ECP can correct and more importantly extract lessons leamed.

NNECO does not believe that any additional value would be gained conducting an internal self assessment.

The original commitment to LHC to have the extemal self assessments conducted on the 50.7 case files was through the end of 1998. However, due to the benefits gained by these assessments, ECP will continue them on a quarterly basis throughout 1999.

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LHC Recommendation No. 3 Implement the new investigative guidelines in conducting interviews with employees accused of wrongdoing and witnesses, including measuring performance ofinvestigators in conducting investigation interviews through use of customer feedback forms.

NNECO Resnonse i

As noted above, ECP began implementation of the new customer feedback forms and investigative guidelines in late August with Revision 4 of the ECP Manual. To date, approximately 36 feedback forms have been received by ECP. Overall, the feedback provided by the interviewees has been positive, i.e., satisfied with the manner in which they were treated by ECP.

We believe this continuous feedback will help us interact with employees when conducting investigations / interviews.

L}iC Recommendation No. 4 Continue to provide training to ECP investigators on understanding the elements of a 50.7 HIRD concern, in order to properly investigate HIRD complaints, analyze the evidence collected, and provide logical conclusions in the basis for ECP findings.

l NNECO Response l Additional training in the area of HIRD was conducted on December 10,1998. Similar training will continue throughout 1999 based on the conclusions of the quarterly 50.7 self assessments.

1 LHC Recommendation No. 5 1 Develop a consistent definition and understanding among all ECP investigators and staff, as well as other Millstone entities involved in ECP activities, of relevant terms and concepts, such as

" chilling effect,"" adverse actions," and " blacklisting.'

i NNECO ResnonE Definitions for " adverse action" and " chilling effect" currently exist in ECP Administrative Control #12," Evaluation and Investigation of Alleged 10CFR50.7 HIRD Concerns." A definition for " blacklisting" does not currently exist. ECP will revise Administrative Control

1. 12 to include a " blacklisting" definition by January 30,1999.

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Additionally, training will be provided to the ECP staff to help them better understand these definitions. This training will be conducted by January 30.1999 Lastly, to ensure that there is a consistent understanding among other groups. training will be conducted for Human Resource management personnel by January 30,1999.

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ATTACHMENT f

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TO LHC FOURTH OUARTER 1996 y

REPORT TO Sf

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Northeast - ' Enclosure B W ar d.(s a iu),w. # 4.ere63,5 t

Nuclear Energy u,

mah- meienc syc por r.o.s in w.wf re.crouss-ota (A60) 4471791 Fax (s6o) 444 4277 The Nerikenne Udbo . sysi e.

MAR - 2 1999 Docket Nos 50-245 50-336 50423 U.S. Nuclear Regulatory Commission

• B17679 Attention. Document Control Desk Washington, DC 20555 Mllistone Nuclear Power Station, Unit Nos.1,2, and 3 '

- Scope of Services of Little Harbor Consultants Inc. Following Closure of the October 24.1996 NRC Orde_ r The purpose of this letter is to inform the NRC regarding the proposed scope of services that Little Hert>or Consultants (LHC) inc. will be performing at Millstone Station following' closure of the October 24,1996, NRC Order.' The proposed scope will be in accordance ,

with the Millstone Safety Conscious Work Environment (SCWE) Assessment Plan, which ,

was discussed in Northeast Nuclear Energy. Company (NNECO) letter B17501, dated December 9,1998.8

' The SCWE Assessment Plan integrates contributions from various internal and extemal assessment activities. Currently planned intema) (NNECO) activities include use of ser assessments, appropriate Nuclear Oversight surveillances, and periodic feedback from the Nuclear Safety Assessment Board (NSAB) and the Employee Concerns Oversight Panel (ECOP). Currently planned external assessments include continued contributions from the Nuclear Committee Advisory Team to the NU Board of Trustees and third-party assessments.

As discussed in NNECO fetter B17501, NNECO is convinced that on. going third-party assessments will be substantially more effective if LHC could conduct several assessments during the one year period following closure of the Order in addition. LHC would provide intervention and investigation services as requested by NNECO, and also be available to Millstone management and employees through an independent ' hotline

• to the LHC offsite office. The basis for NNECO's desire to retain LHC is that they are highly qualified to provide an independent assessment of the Millstone SCWE and have a full understanding and apptwciation o' the Millstone work environment and how it has evolved 1

NRC Ortier dattic! October 24,1996 Retto'r ng Inctepciufen:. Tnird r Asty OversiQht of NNCCO%

trnplemnntation of Resolution of the Millstone Station Employer s cafety concerns hasues P NNf:

CO t.r'tter t91801 *%lfslont? Nv.is Power Station, Uthf Nos.1. 2. Nut 3 Rpquest for Ctosse of NRC Order rt*cd Octobur 24. IMS. Recumng intsepow.fent. Tni d %:ty Ovmsight of NNECO'!t impl(smenlahon of Ret.o ution of en:riloyee Cont:eror

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U. S. Nuclear Regulatory Commission B17679\Page 2 over the last several years.

NNECO intends that the existing LHC contract would be terminated when the Order is s rescinded. NNECO would then put in place a new contract

• between NNECO and LHC whie includes provisions to adequately maintain LHC's independence. In addition, a provision would be included whidi would pennit the results of the LHC assessments to be made available to the NRC and members of the public.

The proposed activities and protocol for the post-Order LHC services are outlined below:

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Proposed Scope of Post Order LHC Services Little Harbor Consultants, Inc. (LHC) will provide independent assessments of the status of the safety conscious work environment (SCWE) at the Millstone Point Nuclear Station, Intervention and investigation services as requested, and be avai!able to Millstone managers and employees through an independent " hotline" to the LHC offsite office.

These services will be provided to assist in the transition of Millstone from the Oversight Order, to ensure that Millstone continues to progress, and to be available to employees and managers in addressing SCWE issues as they arise and as desired by management.

Indonendent Assessments The independent assessments will be performed quarterly in accordance with the attributes contained in the Oversight Plan used for the Independent Third Party Oversight Program (ITPOP) at Millstone.

intervention and investicative Services From time to time LHC may be called upon to provide intervention or investigative services in connection with events that have the potential of impacting the SCWE. These services will be provided, as requested and agreed upon by manage, ment, at the time and in the manner appropriate.

before any such services are provided.Speelfic individuals and scope of work will be agreed upo Guidance and Assistang in order to provide assistance, guidance and advice to employees and managers in developing and maintaining a SCWE. LHC will establish a

• hotline" at the LHC offsite office. The toll-free, LHC line will be linked to a voice recorder for use by anyone desiring to contact LHC or any of its team members. The recorder will be monitored frequently and every effort will be mado to respond within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to incoming calls.

3.

' rtur usung caatrW tctwuen NNECO ants I.HC contains a restrictimi whitti prtictoder. t.HC from seeking riow wM at any rilU facility for a period of time fotlowmr; clowre of tem order. Upon vocens.o . of ttm Ontta, Nr4CCO imentis to revise trl0 Cxisting contw.! waln LHr 10 resmove tin (CretOCtlOf1 bHCh thilt lIles post Ortser cositrar: can t>e executet1 I su - - - - -

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.e U. 8. Nuclear Regulatory Commission B17679\Page 3 Reportbo LHC will provide NNECO management with a verbal exit and a timely, written report following each quarterly assessment. The report will consist of a description of the specific activities undertaken ounng the assessment and an evaluation of the status of the Millstone site in accordance with the

• Windows" used during the ITPOP. The results wd!

also be rolled into the four success criteria used by NNECO to evaluate the status of the SCWE at the Millstone site.

The assessments will be lead by a principal of the LHC ITPOP team. The team leaders will avall themselves for meetings with company management, the NRC and the public as NNECO may direct Manaoement Contacts and Administrative Matters For purposes of these services, it is proposed that LHC be administratively responsible to Mike Gentry, Director - Human Performance and Development, and report directly to Mr.

John Carlin, Vice President - Human Services. John Beck, President of LHC, will be the LHC contract manager.

There are no regulatory commitments contained within this letter.

If there are any questions on the information provided in this letter, please contact Mr. John T. Carlin at (860) 437-5938.

Very truly yours, NORTHEAST NUCLEAR ENERGY COMPANY

_ 4Aa R. P. Necci "'

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Vice President - Nuclear Oversight and Regulatory Affairs cc: H. J. Miller, Region i Administrator i

L L. Wheeler, NRC Project Manager, Millstone Unit No.1 l W. M. Dean. Director, Millstone Project Directorate j W. D. Lanning, Director, Millstone inspections S. Dombek, NRC Project Manager, Millstone Unit No. 2 l D. P. BeauHeu, Senior Resident inspector, Millstone Uns No. 2 J. W. Andersen, NRC Project Manager, Millstone Unit No. 3 '

A C. Cerne. Senior Resident inspector. Millstone Unit No. 3 i E. v. Imbro. Director, Mil l stone ICAVP Inspections

• H N. Pastis. ECP and SCW: Oversight. Senior Project Manacer i

ATTACHMENT 6 OlG Report 99-01s TO 1 HC FOURTH OUARTER 1998 9, REPORT TO NRC

• t OIG Report 99-01s

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Renorts Pace i Kess~a~n'd informa'tionINRC }fome Pace l E mail December 31.1998 MEMORANDUM TO: Chairman Jackson FROM:liubert T. Bell Inspector General

SUBJECT:

NRC STAFFS liANDLING OF liARASSMENT AND INTIMIDATION (H&l)

COMPLAINTS AT MILLSTONE (CASE NO.99-01S)

Attached is the Office of the Inspector General. U.S. Nuclear Regulatory Commission (NRC) Event inquiry regarding the NRC staffs handling of certain H&l complaints at the Millstone Nuclear Power Plants. This inquiry was based on a request from members of the Connecticut congressional delegation dated September 1,1998.

Please call me if you have any questions regarding this Event Inquiry. This report is furnished for i

whatever action you deem appropriate. Please notify this office within 90 days of what action, if any, you take based upon the results of this Event Inquiry.

Attachment:

As stated cc w/ attachment:

Commissioner Dieus Commissioner Diaz Commissioner McGafTigan Commissioner Merrifield W. Travers. EDO -

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1/22/99 1:11:29 PM

OlG Report 99-01s Page 2 of 20 OFFICE OF THE INSPECTOR GENERAL EVENT INQUIRY NRC STAFF'S HANDLING OF HARASSMENT AND INTIMIDATION (H&I) COMPLAINTS AT MILLSTONE CASE NO. 99-01 S Hector Santana William J. Stryker James E. Childs, Assistant Inspector General for Investigations TABLE OF CONTENTS HASIS AND SCOPE 1/22/99 1:11:29 PM

r g OIG Repon 99-01s Page 3 of 20 HACKGROUND b CONCI.USIONS CHRONOI.OGY l

BASIS AND SCOPE On September 1,1998, three members of the Connecticut Congressional delegation sent a letter to the inspector General at the U.S. Nuclear Regulatory Commission (NRC) requesting. among other things, a review of the process and specific conclusions' contained in several investigations conducted by the NRC Office ofInvestigations (OI). The investigations dealt with complaints of harassment and intimidation (H&l) by former employees at the Millstone Nuclear Power Plants resulting from a January 11,1996. layofr. The members of Congress sent a letter containing similar concerns to the Chairman of the NRC. The Chairman. in tum, forwarded that letter to the attention of 1 the Office of the Inspector General (OlG).

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This 01G Event Inquiry repon addresses the two concerns contained in the Congressional correspondence questioning the NRC staffs investigation and subsequent enforcement action stemming from allegations of H&! in connection with the January 1996 lay off at the Millstone plants. OlG responded to the other issues set forth in the September 1,1998, letter from Congress in i separate correspondence to the members of Congress.

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BACKGROUND On January 11,1996. Northeast Utilities (NU) terminated approximately 102 employees reponedly as pan of a cost-cutting program. Shonly following the Reduction in Force (RIF), the NRC received allegations that some of the terminated employees were targeted based on past involvement in  :

protected activities. On February 8,1996. the NRC requested information from NU on the process used to identify the employees to be terminated as well as specific information on 23 of the employees who were terminated. The list of 23 employees included the names ofsome individuals known by Region I, NRC. to have been involved in protected activities in the past as well as other names chosen at random from the list of terminated employees. NU responded to the NRC request for information on February 15.1996.

NRC Creates Task Force to Review NU Workfe ce Reduction Process l

l l Based on the NU response to the Region I request for information, the NRC created a task force in early March 1996 for the purpose of conducting an independent review of the NU workforce 1/22/99 1:11:29 PM

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p O!G Report 99-Ols Page 4 of 20 reduction process and how the process was applied to Millstone employ ees. The task force was to determine if there was information that the RIF process was used as a mechanism by NU to L terminate employees who had previously engaged in protected acti ities. The NRC task force did not investigate individual cases of employee termination:it examined the process used by NU to identify l the employees selected for temiination. The NRC task force was made up of a senior attorney from l

' the OfDce of the General Counsel (OGC), a representative from the Of6ce ofInvestiga:!ons (01), a member of the NRC technical staff, and an investigator from the U.S. Department of Labor (DOL).

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The task force learned that NU used a " matrix process" which numerically rated employees from 1 to l 10 in ten separate areas ofjob requirements / competencies. The 10 competency areas were:

l Education. Related Experience, Job Knowledge. Job Performance Commitment to Change.

Leadership. Teamwork. Communication. Planning /OrganizatiorvDecision Making, and Effectiveness. Each of thejob requirements / competencies areas were, in turn, weighted from 1 to 10 based on comparison groups identined by a NU task force overseeing the process. The groups were:

managers, supenisors, exempt (non-supenisory). technicians. clerical, and physical (non-union).

Union employees were handled separately in accordance with the collective bargaining agreements.

Following completion of the matrices by NU managers and identi6 cation of those employees to be terminated, the licensee conducted a series of separate reviews by I) Human Resources,2) an Executive Review Committee. 3) an Equal Employment / Diversity group, and 4) an "Added Assurance" Review by legal personnel.

In connection with the "Added Assurance" review, knowledgeable managers at N U were asked to

' identify those employees slated for termination who had previously raised " concents". For purpose of the review, a "concem" was defined broadly by NU to include: "any nuclear or industrial safety l

concem. grievance, differing professional opinion or any issue raised by an employee that remotely could be characterized as a safety concern or any employee who testified previously before the NRC, including the OfSce ofInvestigations. as well as anyone who had been inteniewed in connection with or appeared as a witness at a Department of Labor hearing."

Task Force Conducts Interviews and Briefs NRC Senior Management The NRC task force conducted transcribed inteniews of present and former NU employees, l

supenisors and managers during March-April 1996. On April 19,1996, the task force briefed senior NRC management officials at NRC Headquarters including the Executive Director for Operations (EDO) and the 01 Director. At that briefing, the task force provided information which suggested that the matrix process may have been misused by an NU manager to target whistleblowers in at least two instances. At the April 19 briefing, the task force was directed to discontinue their inquiry and tum the instances of suspected discrimination over to 01 for funher investigation.

OlG leamed that at the April 1996 briefing, the task force was told not to prepare a written report of their activities. Subsequently, on September 11,1996, the task force was instructed by senior agency management to prepare a written report. The task force report contained information that in at least two instances the matrix process may have been misused by a NU Senior Vice President to target "whistleblowers" for termination. That report was provided to a limited group of senior agency 1/22/99 1:11:29 PM

OIO Report 99-01s Page 5 of 20 3'.

officials on October 3.1996. While the precise reason for the initial direction to the task force not to prepare a wTitten report on the results ofits review could not be determined the Director of 01 a believed that it was to preserve the integrity of the ongoing 01 investigative process. In light of the fact that the 01 investigations were still ongoing in September 1996, the 01 Director was not certain what led to the subsequent decision to have the task force prepare a report. The EDO was contacted by OlG and he could not specifically recall the reason for the initial decision not to prepare . .ask force report, although he believed the fact that the matter was being referred to 01 for additional im estigation may have inDuenced that decision. The EDO could not recall the reason for the later direction for the task force to prepare a written report.

Region i Receives Allegations from Terminated NU Employees O!G review of allegation files at Region I reDected a total of 22 individuals who expressed concerns with the manner in which the January RIF was conducted by NU. The allegations came to the attention of Region 1 through several means including interviews conducted by the task force, letters to the NRC. and personal contact by the alleger. All of the allegations but one were received between January 12,1996, and June 25,1997. The final allegation was not received until June 1998.

The allegations of11&l in connection with the January 1996 RIF were discussed at Allegation Review Boards ( ARB) held on various dates at Region 1. Several were discussed at more than one ARB. Of the 22 allegers, Region I records reDect that 17 were interviewed by either the NRC task force or 01. Of the five allegers who were not interviewed. two declined to be interviewed. two allegers failed to provide suf6cient primafacie evidence of a violation in their initial allegation, and the remaining alleger's claim was being actively investigated by DOL. NRC Management Directive 8.8 (Management of Allegations) allows the agency the option of not conducting an investigation in cases being actively pursued by DOL The ARB decided to have 01 conduct investigations on the allegations which presented the strongest evidence of discrimination. OlG was told by NRC management officials that the decision not to have 01 imestigate each allegation was based. in part, on 01 resoure.: considerations. Another factor contributing to the decision was the fact that the NRC did not need to prove multiple cases of discrimination by a licensee in order for the agency to take enforcement action. As a result, the agency decided to concentrate on the cases with the most potential for substantiating H&l.

The remaining allegations which were not investigated by O! were maintained in an open status pending completion of the 01 investigations. Region 1 intended to use the 01 cases as the basis for an overall assessment of the RIF process. A total of four cases involving eleven allegers were ultimately opened by 01. Two of the eleven allegers declined to be interviewed by 01.

The NRC Agency Allegations Advisor (AAA) told OlG that NRC Management Directive 8.8 (Management of Allegations) set forth the agency procedures regarding the handling of H&I l allegations. According to the Management Directive, there was no agency requirement for 01 to investigate each allegation of H&l. The AAA explained that the purpose of the NRC's investigation into allegations of H&l was not to make the individual whole (i.e.. back pay, reinstatement); DOL has that responsibility. Rather, the NRC investigation was designed to determine if the actions of the 1/22/99 1:11:29 PM l

+-were 010 Report 99-01s Page 6 of 20 licensee resulted in a violation of 10 CFR 50.7 (Employee Protection) and created an environment at work where employees were reluctant, or " chilled", from bringing health and safety concerns to the

> attention oflicensee management or NRC. In order to make a finding of a " chilled" environment. the NRC did not need to investigate each complaint. The AAA advised that a decision was made to investigate the cases which provided the strongest evidence ofli&l. He was unaware of any upper limit placed on the number ofinvestigations that Of would open regarding the January 1996 layoffs.

He said that each allegation was individually assessed for possible 01 investigation at an ARB.

OI Conducts Investigations into Certain Discrimination Complaints The four 01 investigations of alleged 11&l with respect to the January 1996 RIF layoffs were completed on the following dates:1-96-007- November 21,1996;1-96 014 - April 23,1997:

1 96-034. June 27,1997: andI-96-048 - August 5,1997. The cases were referred to the U.S.

Attorney's Office in New Hasen, Connecticut for prosecutive consideration. I l

Of Reports on Millstone Do Not Contain Conclusions at Request of DOJ ,

l OlG found that the 01 reports ofinvestigation relating to the January 1996 RIF at NU did not contain l

' synopses. conclusions or agents' analyses of the evidence. This was a departure from the normal 01 report process. According to the O! Region i Field Office Director (FOD),in about October 1996, the U.S. Attorney's Office in New Haven. Connecticut, verbally requested that 01 repons pertaining to Millstone not include the previously mentioned sections. It was the 01 FOD's understar. ding that l the U.S. Attorney's request was based on the fact that the results of two recently completed Of investigations had been prematurely leaked to unauthorized parties.

1 The Director of 01 told OlG that he was aware of the agreement between 01 Region I and the U.S.

Attorney's Office, and he did not object to it. While there was no specific written record of the

' agreement with the U.S. Attomey's of0ce not to include synopses, conclusions or agents' analyses in the reports, OlG found a reference to it in a January 13.1997. letter from the Region 101 FOD to an Assistant U.S. Attorney in Connecticut. That letter, which sought permission to disseminate certain 01 reports regarding Millstone to senior NRC officials. requested, in part:

"The ability of 01 to provide copies of the Reports ofInvestigation, without agent's analyses or l conclusions (per your office's request), but signed and closed by 01, to the five Commissioners, the EDO's office and Dr. Travers.. .."

l During a Januarv 7,1997, closed briefing of the Commission regarding the status of 01 investigations, tne Director of 01 was asked by a Deputy EDO about the agreement with DOJ concerning the omitting of written conclusions and agents' analyses from 01 reports ofinvestigation related to Millstone. The Deputy EDO commented. "(I)t seems that you have to get to the bottom 1/22/99 1:11:29 PM l

010 Report 99-01s Page 7 of 20 line for those cases even though you may not convey it to Justice".

The 01 Director responded in the following manner:

The way we've worked this out with DOJ is once they make a determination that they are not going to take the case, we will ther put in our agent's analysis and conclusions so the staff could have what is normally their package te deal with on our investigation.

When inteniewed by 010, however, the Director of 01 advised that his comments during the Commission briefing were not intended to mean that written conclusions and agents' analyses would be added to the 01 reports ofinvestigation following a prosecutive decision from DOJ. The Director of 01 told OlG that he intended to convey the message that the 01 conclusions and analysis would be j articulated by 01 representatives during enforcement panels and similar meetings with the NRC staff. He was not aware of any consideration being given to the addition of written conclusions to the reports ofinvestigation at any point in the process. Both the 01 Director and the Region I FOD felt that the 01 positions on the cases could be expressed verbally during meetings with the NRC staff.

During the ti.me that the U.S. Attorney's office was reviewing the O! reports for prosecutive interest.

the NRC was requested by that office to hold decisions regarding possible civil enforcement action in abeyance. OlG found that there was limited dissemination of the Millstone O! repons (without exhibits) to certain senior NRC managers while the cases were pending a decision from the U.S. Attomey. That dissemination was for the limited purpose of i ensuring that there were no immediate health and safety issues uncovered in the reports.

In the fall of 1997. at the request of the Region i 01 FOD, the U.S. Attomey's office provided "no objection" to the NRC proceeding with decisions on possible civil enforcement action on the four 01 cases associated with the January 1996 RIF at NU (01 Case Nos.1-96-007.1-96-014.1-96-034 and 1-96-048). 01 made copies of the Reports ofinvestigation and exhibits available to the appropriate offices within NRC including Office of Enforcement (OE). Office of the General Counsel (OGC) and the Special Projects Office (SPO) for review in determining potential enforcement action. The 01 reports made available to the NRC offices still did not include synopses, conclusions or agent's analyses.

An 01G review of the discrimination investigations conducted by 01 in connection with the January 1996 RIF disclosed that the pertinent investigative issues were identified and appropriate witnesses inteniewed. The inteniews were generally thorough and probative in nature. The lack of written conclusions in the 01 reports was viewed as a deficiency from the standpoint of assisting agency officials on potential enforcement action decisions. -

NRC Conducts Initial Enforcement Panel 1/22!99 1:11:29 PM

E OlG Report 99 01s Page 8 of 20 On December 2.1997. an enforcement panel attended by representatives from OE 01. OGC, SPO.

• and Region I was held at NRC Headquaners. The Office Directors from OE. OI. and SPO were in attendance at the panel. The four 01 investigations associated with the 1996 RIF at Millstone were discussed during the panel. With regard to 01 cases 1-96-014.1-96-034 and I-96-048, the panel decided that there was insufficient evidence to substantiate the allegations of H&l. The three cases were closed out from an enforcement standpoint by memoranda dated December 3.1997. One of the cases closed during the enforcement panel (01 case 1-96-014) was one of two instances which the NRC task force leader reported had merit during the April'1996 briefing of senior NRC management. During an OlG inteniew in connection with this inquiry, the NRC task force leader stated that he did not feel that this case was as strong as the second case 1-96-007 discussed below.  !

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Regarding 01 case 1-96-007. OlG learned that a decision was made at the December 2.1997, enforcement panel to proceed with escalated enforcement action against NU for violation of 10 CFR 50.7 ("Lmployee Protection") involving discrimination against two. possibly three, employees for ,

engaging in certain protected activities. This conference included a video hook up with Regions 1 I and IV. While virtually all of the attendees pointed out during 01G interviews that at the outset of the conference there was some disagreement as to whether a case ofdiscrimination had been sufficiently substantiated, by the completion of the discussion there was general agreement to proceed with enforcement action against the licensee. At this meeting, the senior OGC attorney who had headed up the initial NRC task force looking at the RIF process and the Region IV 01 investigator who was the principal investigator for 01 case 1-96-007 were the strongest proponents 1 for proceeding with an enforcement action (EA). The plan of action developed at the December 1997 I enforcement panel called for Region I to prepare a Conference Choice letter to be sent to NU while l

! OE and OGC were to prepare a Commission paper. A Conference Choice letter is a document prepared by the NRC staff and sent to the licensee in situations where the staff believes they have suflicient information to make an informed enforcement decision. The Conference Choice letter affords the licensee the opportunity to respond to the apparent violation in writing or request a predecisional enforcement conference.

The only record uncovered by OlG of the decision reached at the December 2 enforcement panel regarding 01 case 1-96-007 is an EA Request and Enforcement Strategy Form which stated the following in the Details section:

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l Staff concluded that two possibly three, allegers substantiated allegations of discrimination as l rellected in 01 Report 1-96-007 and staff analysis of evidence. Region I to draft and issue l

Conference Choice letter to licensee during week of December 8th. OE & OGC to begin drafting Commission paper & Enforcement Actions - NOV (Notice of Violation) and SL1 (Severity Level 1).

Proposed CP (Civil penalty) for 50.7 violations.  !

The above EA Request and Enforcement Strategy Form prepared by a Senior Enforcement Specialist who attended the meeting also bore the initials of the Director of OE as approving it on December 2 1997. {

1 OlG learned that in a December 5,1997. letter to the Assistant U.S. Attorney in New Haven. the Region 1 FOD wrote the following:

1/22/99 1:11:29 PM

OIG Repon 99-01s Page 9 of 20 "On Tuesday of this week 01 personnel met with representatives of the Office of Enforcement.

Of6ce of General Counsel. The Millstone Special Projects Of6ce, and Regional staff to discuss the s evidence developed during the 01 ins estigations into charges that the January 1996 lay offs at NU  ;

constituted discrimination against certain individuals (Case Nos. 1-96-007.1-96-014.1-96-034. and  !

l-96-048) and an unrelated investigation. involving alleged discrimination of a security guard at lladdam Neck (Case No. 1-96-045). The consensus opinion (preliminary) was that (name) and I

(name)( both Case 1 96-007) were discriminated against by the actions of NU's VP of Engineering (name). The staff discussed citing NU with violations of 10 CFR 50.7 and issuing a $100.000 Civil penalty for each violation. In addition, they are considering an Order against (name of NU VP). l which *ccould prohibit him from licensed activities: however that action would likely be put on hold '

pending completion of a current 01 investigation (Case No. 1 97-007). in w hich (name of NU VP) will be interview ed by 01 during the week of December 8th, and their review of another case pending before you (Case No. 1 96-002/ name and name)." ]

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010 found that a Conference Choice letter was subsequently drafted by Region i SPO on December 23.1997, and e-mailed to OU and SPO at NRC Headquarters for concurrence. The " draft" letter stated. in part:

Based on the staffs review of t).e NRC's Of6ce ofInvestigations report number 1 96-007. the NRC has concluded that engaging in patected activities was a factor in NNECO [ Northeast Nuclear Energy Company] management's ded: ion to terminate a former senior engineer in Electrical l

Engineering Suppon and a former engineer in Fiobab2istic Risk Assessment. This is an apparent siolation of 10 C.F.R. 50.7. In making this determination the NRC considered that for both of these individuals. neither had been recommended for terminatien ao result of ratings they received using criteria in a matrix created by NNECO as part of a downsizing effort. In both of these cases, the NRC has concluded that the individuals were terminated. in pan, t'ecause of their association with a fomier employee who was discriminated against by NNECO... .

Based on the extensiveness of the investigations the NRC does not consider that funher information is necessary to make an informed enforcement decision. However, enforcer. nt action will not be taken for the apparent violations unti: ,, ou have been provided an opportunity to either (1) respond to the apparent violation described in this letter within thirty days of the date of this letter or (2) request a predecisional enforcement (conference). A Notice of Violation is not presently being issued for these findings.

01G determined that a Commission paper was never prepared by OE or OGC, nor was N above Conference Choice letter ever sent to NU. The only record of the draft Conference Choice letter which could be located by OlO was a copy maintained by the Region 1 SPO official who drafted the document. OlG found no other action taken by the NRC staff to funher the enforcement decision made during the December 2,1997, enforcement panel.

Initial Enforcement Position Reversed .

The Director of OE acknowledged to OlG that the December 2 panel was signi6 cant from an enforcement perspective. He cited the significance of the meeting as the attendance by a wide variety 1/22/99 1:11:29 PM

OlG Report 99-01s

,, Page 10 of 20

~ of people as well as the high profile Millstone H&l cases which were discussed. The Director of OE

" acknowledged that his initials on the OE strategy form signified his approval of the decision to proceed with the planned enforcement action. The Director of OE said that the OGC attorney w ho headed the NRC task force and the 01 investigator made forceful arguments for proceeding with

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enforcement action during the initial panel meeting: however the Director of OE indicated to OlG '

that he still had some legal questions about the strength of the case. The Director of OE could not recall seeing the draft Conference choice letter prepared by Region 1 SPO. He added that OE processes several hundred potential enforcement actions each y ear. and it was difficult to know the details on all of the cases.

While he could not recall specific details of any meetings or conversations to discuss his second l

thoughts over proceeding with enforcement action on 01 case 1-96-007. the Director of OE stated to 010 that they did occur. He acknowledged that a Severity Level I violation against Millstone for a violation of 10 CFR 50.7 by a Senior Vice President would be a significant action from an enforcement perspective. Additionally. as part of his reason for reconsidering the approach to the case the Director of OE cited the fact that 01 had another ongoing investigation of alleged discrimination involving the same NU vice president. The OE Director acknowledged to OlG that 4 there were several closed Commission briefings to discuss the status of 01 investigations related to Millstone. He said that the matter may have been discussed at one of those meetings; however, he had no specific recollection ofit being discussed.

1 I

OlG learned that although no additional work was conducted on 01 Case 1-96-007 at some undetermined point between December 1997 and June 1998, the decision to proceed with enforcement action was reversed. Two OE enforcement specialists indicated to OlG that they voiced their reservations about the case to the Director of OE both prior to and shonly folbwing th+

December 2 meeting. Both enforcement specialists attended the initial enforcement panel. While not in full agreement with the decision of the panel, both individuals acknowledged to OIG that the panel's decision was to proceed with an enforcement action. However. none of the individuals interviewed by OlG could provide a written record explaining how and why the decision of the December panel was reversed.

I 010 determined that on June 9.1998, another enforcement panel was convened, and as a result of this meeting an ollicial decision was made to not go forward with enforcement action on any of the-01 investigations associated with the January 1996 RlF. That panel rever.,ed the decision made during the December 2,1997, with regard to Of case 1-96-007. The only written record uncovered by OlG of the reversal in position on enforcement action associated with 01 case 1-96-007 was a June 9.1998, enforcement strategy fomi whien indicated that the matter would be closed with no formal action. Most of the attendees at the Jule 9 panel indicated to OlG that there was very little i

discussion of the case during the meeting, and they were of the opinion that the panel was merely l ratifying a decision which had been made at some other point in time. The Director of 01 and SPO were in attendance at the June meeting and did not object to the revised decision. The Director of 0E was not at the meeting due to temporary duty away from NRC Headquarters. The Deputy Director of OE was the senior OE person at the panel The two strongest proponents for proceeding with enforcement action who had been at the ;nitial panel in December 1997 were not present at the June 1998 meeting. The 01 investigator had retired in May 1998. The OGC attorney who had been the task force leader was not informed of the panel meeting nor was he subsequently told of the reversal in decision to proceed with enforcement action. OE representatives advised that they informed OGC of the June 1998 panel and felt it was up to OGC to invite the appropriate people. Of all the participants at the June 9 meeting interviewed by OlG. only one (the senior SPO representative from Region 1) acknowledged still voicing an opinion that the case for discrimination had been 1/22/99 1:11:29 PM

., OlG Report 99-01s Page 11 of 20 substantiated in 01 case 196-007.

l.

The EA Request and Enforcement Strategy Form for the June 9.1998 meeting states the following:

l 1

1

" Letters that we couldn't substantiate cases for all allegers sent from Region 1. Consensus that we did not substantiate discrimination in all the January 1996 RIF layoffs. OE will close out 01 1 96 007 with a three week memo. No action memo to parties. EA 97 564 is to be closed with no action to be taken. Prepare a letter on 1996 RlF case by week of June 15.1998."

The senior OE representatis e at the June 9, panel was the Deputy Director 'for the office. His initials appear on the strategy form as the approving official. The Deputy Director advised 01G that he was not present at the December 1997 panel during which the case was initially discussed. The Deputy Director told 01G that prior to the June 1998 panel, the two enforcement specialists from OE who, had been at the initial panel told him that, in their opinion. H&l was not substantiated in the case.

The Deputy Director advised OlG that there was not a great deal of discussion of O! case 1-96-007 during the June 1998 panel. The panel was more focused on another 01 investigation. The OE Deputy Director was unable to explain when the NRC staffdecided to change the course of action recommended during the December 1997 panel. While stating that OE was not required to adhere to its initial strategy, the Deputy Director acknowledged that the basis for the change in position should have been documented. l The Director of 01 confirmed to OIG that he was present at both the December 2,1997. and June 9, 1998, enforcement meetings. He told O!G that he did not have a firm opinion as to whether 01 l

l investigation 1-96-007 had substantiated H&l on the part of NU with respect to the termination of two employees. He said that he did not feel strongly enough to object to the December 2.1997, staff l decision to proceed with the enforcement action. However, he was more comfortable with the June 1998 decision not to proceed with enforcement action. The Director of 01 was aware that the Region 1 FOD did not feel that an 11&l case had been substantiated on 01 case 1-96-007.

The Region 1 FOD advised O!G that he participated in both enforcement panels. He told 010 that from the time 01 case 1-96-007 was completed, he did not feel that it had substantiated the claim of H&l. He was aware that the Region IV 01 investigator strongly believed that the case had been substantiated. The FOD noted to OlG that while the 01 manual outlines a process for resolving disputes between a FOD and an investigator regarding investigative conclusions, that process was not followed in this case since the 01 report did not contain a written conclusion. The FOD advised that there was no additional investigation into Of case 1-96-007 conducted between the December 1997 and June 1998 cnforcement panels. In his' view, the reversal in position was based on additional analysis of the information contained in the closed 01 investigation.

The retired Region IV O! investigator who conducted Of investigation 1-96. 007 was contacted by OlG. The 01 in'vestigator advised OlG that he felt strongly that his investigation had substantiated the claim of H&l.

The OlG attorney who had headed the NRC task force told 010 that he also felt the case for discrimination was substantiated. He recalled that the decision of the December panel was to proceed 1/22/99 1:11:29 PM

01G Report 99-01s Page 12 of 20 with action on case 1 96 007: however. he said there was also some discussion of holding off on the

' enforcement action pending completion of another ongoing investigation involving the same NU official. The senior OGC attorney told OlG that he was not aware of the reason for the ultimate reversal in the enforcement decision. He acknowledged that he was not in attendance at the June 1998 enforcement panel, and he could not recall being informed of such a meeting.

The Director of SPO and his Technical Assistant attended both enforcement panel meetings during which 01 case 1-96-007 was discussed. Both told OIG that they read the 01 report ofim estigation prior to the December 2,1997 panel meeting and did not feel that a case for discrimination had been substantiated. However, neither of them actively participated in the enforcement panel discussion nor did they object to the plan to move forward with enforcement action. The Director of SPO recalled a conversation with the Director of OE shortly following the December panel in which the Director of OE expressed concerns about proceeding with enforcement action. The Director of SPO did not recall seeing the draft Conference Choice letter prepared by Region 1.

l The OGC attomey assigned to provide legal advice to the NRC staff regarding O! Case 1-96-007 told OlG that he felt the case for H&I was not strong. However, he did not voice an opinion during the December 2 panel meeting. Despite his view on the lack of strength in the case, the attomey said that OGC would have posed "no legal objection" to the staffproceeding with enforcement action.

The OGC supervising attorney told OlG that he had been briefed by the OGC attorney assigned to the enforcement case. The supervising attorney attended the June 8,1998, panel but was not present at the earlier panel. He explained that the role of OGC was to advise the NRC staff on the strengths l and weaknesses in a case. The supervising attorney said that the OGC opinion was that there was sufficient circumstantial evidence to proceed with enforcement action if the NRC staff wished; however. OGC believed that the case would be difficult to prove. The supervising attomey added that while the case was not considered to be a strong one. OGC was prepared to provide the necessary legal support to pursue the matter if the NRC staff decided to proceed with l enforcement action.

Review of Closed Commission Briefings on Millstone i There were four closed Commission briefings on investigative matters associated with Millstone

! between December 1997 and June 1998. Briefings were held on December 11.1997; February 18, t

1998; April 30,1998: and May 29.1998. All of the NRC Commissioners were present at the December. February and April briefings. Commissioner DI AZ was the only Commissioner who was not present at the May briefing. The Office Directors of 01. OE, and SPO attended the briefings along with senior representatives from OGC and the Office of the EDO. The NRC Inspector General and Assistant inspector General for Investigations (AIGI) were present at the meetings for the purpose of providing a separate briefing on OlG matters, A review of the transcript for the December 11,1997, meeting by OIG revealed that the Director of 01 informed the Commission of the results of the December 2,1997, enforcement panel. He informed the Commission that there was a preliminary consensus that two of the employees 1/22/99 1:11:29 PM O

O!O Repon 99-(11s Page 13 of 20 terminated as part of the January 1996 RIF had been the subject of discrimination by a NU Vice

, President. The Director of 01 advised the Commission that the staff was continuing a review of the evidence and transcripts. A discussion then followed between a Commissioner and the Director of OE regarding the amount of fine normally associated with a Severity Level 1 enforcement action.

In an apparent reference to the same investigation during the next closed Commission briefing on

( February 18,1998, the Director of 01 indicated that the Staff was "looking at whether in fact discrimination did occur". The Director indicated that "it's diflicult to say that he (the NU VP) absolutely was involved in making the decision" to terminate the employees in question.

in the April 30.1998, Commission briefing, both the Director of OE and 01 told the Commission that the staff was still reviewing the case involving discrimination; however, they were awaiting the l

completion of another 01 investigation prior to making a final decision on enforcement action. The case which was still pending involved an allegation of discrimination by the same NU vice president.

OIG Review of Pending Discrimination Investigation (1-97-007)

OlG inteniews and review of documents disclosed that the pending 01 discrimination case referred to curing the April 30,1998, Commission briefing was 01 case 1-97-007 (not to be confused with 01 case 196-007). The 01 Report ofInvestigation was signed by the Director of 01 on May 18,1998.

The report was sent to the U.S. Attorney in Connecticut on May 28,1998. On June 22,1998, the U.S. Attorney declined prosecution in the matter and returned the case to the NRC for possible enforcement action. Although this case did not contain a written conclusion by Of at the request of the U.S. Attorney, the Region I FOD told OlG that he believed that the claim ofII&I had been substantiated. 01 case 1-97 007 was not discussed at an NRC enforcement panel until July 28.1998.

The panel decided that no enforcement action should be taken. 01 did not appeal the decision of the panel.

NRC Commissioners Provide Views on Investigative Briefings and Staff Enforcement Decisions l The Chairman and Commissioners McGAFFIGAN and DICUS were separately inteniewed by OlG. .

The three Commissioners expressed dissatisfaction with the manner in which the closed briefings on investigations were conducted. Among the problems cited by the Commissioners were the DOJ i

' restrictions calling for the exclusion of their staffs from the briefings as well as restrictions preventing note-taking during the briefings. The Commissioners mentioned that the briefings were confusing and lacked the continuity necessary to follow a specific case from one briefing to the next.

1/22/99 1:11:29 PM t

1 010 Repon 99-01s Page 14 of 20 After reviewing the transcript of the December 11,1997. Commission briefing. all three {

Commissioners said that they would have expected the NRC staff to inform them of any ch.mges to the plan to take enforcement action as outlined in the briefing. One of the Commissioners said it would have been " good government" for the NRC staff to inform the Commission of any changes in the plan.

When asked if a matter such as this would have impacted their decision regarding the Commission vote on the restart of Millstone. the three Commissioners advised that their decisions were based on assessments of the plant conditions at the time of the vote in June 1998. However, the Chairman said that she would have questioned the licensee more closely in the area of Employee Concerns if there was an enforcement action involving discrimination by a former vice president pending at the time of the restart vote. The three Commissioners expressed concem about how potential enforcement action regarding 01 case 1-96-007 was ialtimately handled by the NRC staff. One of the Commissioners expressed a view that the staff should have consulted with the Commission prior to closing out the issue. Another Commissioner felt that the staff should have briefed the Commission  !

on the basis for the reversal in their initial position regarding enforcement action.

Commission issues Staff Requirements Memorandum on Millstone Following a February 19,1998. public Commission briefing on Millstone. the Commission promulgated a Staff Requirements Memorandum (M980219A dated March 18.1998) which directed that all future meetings or reports regarding Millstone include, among other things, the following:

" Crisp, clear analyses of the restart-related issues with recommendations (where appropriate) for the l Commission, including those related to enforcement. allegations, and petitions.

Evidence whether the licensee has made sufficient progress and fixed the underlying problems in employee concerns and the corrective action and configuration management processes."

Two of the Commissioners said that the March 1998 Staff Requirements Memorandum requesting that the NRC staff provide the Commission with crisp and clear analyses of restart-related issues including enforcement actions should have included issues such as the status of the enforcement action on 01 case 1 96-007. ,

NRC Staff Closes Out Allegations Related to Janusry 1996 RIF OlG leamed that on July 20,1998, a letter was sent to the licensee from Region I SPO advising of the completion of four 01 investigations (01 cases 1-96-007,1-96-014,1-96-034, and 1-96-048)into the claims of retaliation by multiple employees in connection with the January 1996 RIF at NU. That letter informed the licensee that "(b)ased upon its review of this matter, the NRC staffconcluded that I/22/99 1:1li29 PM

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OlG Report 99-01s Page 15 of 20 there was not sufficient evidence to substantiate the allegations of discrimination". The letter goes on

' to state, "In a related matter. we note that you have initiated actions to address the NRC Order dated October 26,1996, to establish a ' safety conscious work environment' program, strengthen leadership skills, and foster a team-building relationship between management and the workforce to preclude future actual or perceived incidents of the type that prompted these im estigations" In late July 1998. letters were prepared and sent from Region I to the former NU employees uho had complained of discrimination to the NRC. OlG leamed that the letters were used to administratively closcout the allegations in Region 1. The letters sent to the former employees whose cases had not been investigated by 01 included the following statement:

Although an 01 investigation was not initiated to examine your specific claim of discrimination. the NRC concluded, based on its generic review of NU's workforce reduction process. that you were not terminated on January 11,1996, for having raised safety concerns. Your concern was not substantiated."

The closeout letters containing the above paragraph were drafted and sent from Region 1. Inteniews of Region 1 personnel disclosed that the intent of the letter was to convey an agency view on the overall process used by NU in identifying personnel for inclusion in the RIF.

The NRC AAA told OlG that the Region 1 allegation close out letters sent to the individuals uhose cases were not investigated by 01 could have been better worded. He felt that a broader statement concerning the overall review of the layoff process would have been more appropriate rather than the statement that an investigation was not conducted and the allegation could not be substantiated. He

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explained that while there is a strong preference for closcout letters to contain a statement as to

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whether or not the specific allegation had been substantiated the situation with the layoff at Millstone was unique since it involved in excess of 20 allegations associated with one event. The AAA did not recall reviewing the closeout letters sent to the allegers by Region I.

l OlG Review ofInformation from Licensee and Region 1 Allegation Files As stated earlier in this report. shortly following the January 1996 RIF, Region I requested information from NU on 23 of the employees included on the list of 102 employees terminated by NU. 01G interviews determined that the list of 23 names was compiled based on Region I staff memory and name recognition of employees who had formerly been involved in some sort of protected activity at Millstone. A few other names from the list of 102 employee were added at random by Region 1 in order to avoid the creation of a list which strictly included the names of individuals known to have raised safety concerns.

1/22/99 1:11:29 PM

O!G Repon 99-01s Page 16 of 20

)' OlG found no record of a review of NRC allegation files or licensee Employee Concerns records by the NRC staff as part of their efron to determine if NU management selected employees for A

termination without regard to past involvement in raising safety concerns. For example. as pan of this inquiry, OlG compiled a list of the names of all individua:s who made allegations regarding Millstone to Region 1. OIG also obtained a list of the 102 employees terminated as pan of the January 1996 RIF. Two of the employees terminated as pan of the RIF had raised concerns with Region I prior to their temlinations.

In response to a request from 01G. the licensee advised that approximately 3200 employees were evaluated as part of the January 1996 RIF process. NU also provided a list of all emplo)ees who had formally raised concerns with the NU Employee Concerns Program (ECP) from 1990 to 1996. A comparison of those names with the list of employees terminated in January 1996 disclosed that three of the terminated employees had previously raised formal concerns with the ECP at Millstone.

Two of the terminated employees who had previously raised concems with the Millstone ECP were not included on the Northeast Utilities "Added Assurance" review list.

CONCLUSIONS

1. Pursuant to a verbal agreement with the U.S. Attorney's Office in New Haven. Connecticut, in the fall of 1996, the 01 Repons ofInvestigation related to Millstone which were referred to the Department of Justice (DOJ) did not contain synopses. written conclusions or agents' analyses of information. However. when the cases were retumed by DOJ to the NRC for action,01 did not

' include written conclusions. Consequently, there was no official 01 position regarding the results of these 01 Repons ofInvestigations. With respect to 01 Case 1 96-007,01 staff had divergent opinions regarding the investigative conclusions in the case. The 01 case investigator believed that discrimination had been substantiated aginst a former NU Vice President. while the Region I FOD believed that it had not. The 01 Director. while less certain. tended to agree with the FOD's position.

Despite an 01 internal procedure which could have been used. this difference in opinions was not resolved prior to the agency's December 1997 enforcement panel

2. During a December 1997 enforcement panel attended by OE,01. SPO, Region I and OGC, a decision was made to proceed with enforcement action against NU for a Severity Level I violation of 10 CFR 50.7 (Employee Protection) in connection with 01 Case 1-96-007. During this enforcement panel. the 01 case investigator and the NRC task force leader argued convincingly that discrimination had been substantiated against the former NU Vice President. All attendees at the meeting were given the opportunity to express their views. By the e+ f the meeting, there were no opposing arguments to the panel's decision to proceed with enforcenant action. The NRC Commission was subsequently briefed on the proposed action and a draft Conference Choice letter was prepared by Region I. However, OE did not proceed with the planned enforcement action. 1 In June 1998, the NRC staff conducted a second enforcement panel on 01 Case 1-96-007. l l

1/22/99 1:11:29 PM J

OlG Report 99-0Is Page 17 of 20 co ',

' Representatives from OE,01. SPO, Region I and OGC attended this panel as well. Although there was no new investigative information des eloped on the case since the December meeting. the panel decided to close the matter without any enforcement action. O!G could find no written record of the reasons supponing the change in position. OlG determined that the decision not to proceed with enforcement action had already been made prior to the June 1998 meeting. and the panel was held to administratively close the case from an enforcement perspective. OlG determined that only minimal discussion of the meri:s of the case was conducted during this panel. The two strongest proponents for proceeding with enforcement action during the initial panel in December 1997 were not present at the June 1998 panel.

During the course of this inquiry. 010 found two occasions related to the handling of the Millstone discrimination cases where the NRC staffs subsequent actions were not consistent with what they had briefed the Commission, in January 1997, the Commission was briefed that once the 01 Reports ofInvestigation were retumed by DOJ. inv,estigative conclusions and agents' analyses would be added to .he reports prior to discussion at an NRC enforcement panel. However, OlG learned tl e enclusions were never added to the 01 reports. In another Commission briefing in April 1N Qe Commission was told that the staff was awaiting the completion of 01 investigation 1-97-007 involving a claim of discrimination against the san 3e former NU Vice President prior to making a decision on enforcement action in related 01 case 1-96-007. liowever. information from the second case was not included in the June 1998 enforcement panel which ultimately reversed the decision of an earlier panel with regard to 01 Case 1 96-007.. Additionally, with respect to 01 Case 1-97-007, the Region I FOD advised OlG that discrimination by the former NU Vice President had been substantiated by 01:

however, no enforcement action was taken in that case as well.

OlG found that NRC Management Directive 8.8 does not require that all allegations of discrimination be investigated. Consequently. the NRC staffdecided to investigate only the allegations which contained the strongest evidence of discrimination. OlG was told that decision was based. in part, on the NRC's position that they need not prove multiple instances of discrimination to take enforcement action against a licensee. Based on the above approach, 010 found that the NRC staffs decision to investigate only the cases which provided the strongest evidence of discrimination was not inappropriate. However, the NRC staffs handling of enforcement action regarding 01 case 1-96-007 runs counter to this stated enforcement philosophy.

In letters dated in July 1998. from the NRC Region I staff, a number of allegers were informed that their claims of discrimination were not substantiated even though no investigation was conducted. Because the NRC did not conduct an investigation into these allegations. the NRC staff had insufficient information on which to base this conclusion.

CHRONOLOGY OF EVENTS Dat e -------------------- Even t 01/11/96 NU terminates approximately 102 employees as part of Reduction in Force (RIF) 1/22/99 1:11:29 PM

OlG Report 99-Ols

~ Page 18 of 20 L:

3, 02/08/96 NRC Region I requests information from NU regarding process used in identifying employees to be terminated 02/15/96 NU responds to NRC request of 02/08/96 03/96 NRC forms Task Force to look at NU RIF process 04/19/96 NRC task force briefs NRC senior managers: Directed not to prepare written repon: 01 to conduct investigations 04/30/96 01 upgrades investigation 1 96-007 to full field investigation and initiates case no. 1-96-014 06/96 NRC designates three Millstone plants as Category 3 plants requiring Commission approval prior to restart 08/14/96 NRC issues Confirmatory Order directing licensee to implement ICAVP

~ 09/11/96 Senior NRC management directs Task Force to prepare written report l

10/02/96 Task Force submits written repon to NRC senior management: Limited distribution on report.

10/24/96 NRC issues Confirmatory Order directing licensee to develop comprehensive plan for reviewing safety concerns raised by employees 11/21/96 01 case 1-96-007 completed and sent to U.S. Attorney 1/7/97 Commission briefing on status of 01 investigations, discusses addition ofconclusion to reports 04/23/97 01 case 1-96-014 completed and sent to U.S. Attomey 09.7/97 01 case 1 96-034 completed and sent to U.S. Attorney 1/22/99 1 1:11:29 PM

O!G Report 99-01s Page 19 of 20 7'

08/05/97 01 case 1-96-048 completed and sent to U.S. Attorney 12/02/97 Enforcement Panel meets to discuss 01 case 1-96-007; Plan to proceed with Enforcement Action f

12/05/97 Correspondence from the Region 1 FOD to DOJ discussing preliminary enforcement decision to proceed on 01 case 1-96-007 )

i

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12/11/97 Closed brie 6ng for Commission by 01 on status of Millstone cases 12/14/97 Public Commission briefing on Millstone 12/23/97 Draft Conference Choice letter provided by Region i SPO to OE and SPO 02/18/98 Closed Commission briefing by 01 on status of Millstone cases.

I l

02/19/98 Public Commission briefing on Millstone l

03/18/98 Commission directs staffin SRM to provide " crisp, clear analysis of the restart-related issues with recommendations.. .. including those related to enforcement" 4

04/02/98 Meeting in 01 spaces to discuss status of 01 Millstone investigations attended by 01. OE.

SPO, OGC, Region I 04/30/98 Closed Ccmmission briefing on Millstone investigative issues 05/01/98 Public Commission briefing on Millstone 05/18/98 Director of 01 signs report on 01 Case No. 1-97-007 l

l l

05/28/98 01 Case 1 9, 007 forwarded to U.S. Attomey in Connecticut I/22/99 1:11:29 PM I

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OIG Report 99-01s Page 20 of 20 ti 4 05/29/98 Closed Commission briefing on status ofinvestigative issues at Millstone 06 02/98 Public Commission briefing on Millstone .

06/09/98 Second enforcement panel held. Decision made not to proceed with enforcement action on 01 case 1-96-007.

06/15/98 Commission issues SRM providing restart authorization for Millstone 3 06/22/98 U.S. Attorney declines prosecutive interest in 01 Case 1-97-007 06/29/98 NRC authorizes NNECO to commence restart action for Millstone 3 07/28/98 Enforcement panel held on 01 case 1-97-007: Decision not to proceed with enforcement action i

f 4

1/22/99 1:11:29 PM

Staff Memoradum - Millstone Inspector General Inquiry ATT ACHM ENT '1 To use FOl'RTII 011A RTER 1998 9,

REPORT TO NRCr g

,. Staff Memorandum - Millstone Inspector General Inquiry Reports Page l News and Information l NRC Home Pape l E-mail January 27,1999 l i

MEMORANDUM TO: Chairman hekson l

FROM: William D. Travers Executive Director for Operations

SUBJECT:

YOUR MEMORANDUM OF JANUARY 7,1999, REGARDING OlG. INQUIRY, CASE NO.99-01S This is in response to your January 7,1999, memorandum regarding the Office ofinspector General Event Inquiry, Case No. 99-OlS, NRC's Handling of Harassment and intimidation (H&l) Complaints at Millstone. You requested a response by January 22,1999, but at our request extended this due date 4 until January 27,1999. l The inspector General (IG) report principally addresses the NRC staffs investigation and subsequent enforcement action stemming from allegations of harassment and intimidation in connection with the January 1996 layoff at the Millstone plants. Although the IG report did not address the enforcement decision itself, it did address a number of concems about processes that were used in reaching the I decision.

We agree that there is need to improve some of the staffs investigation and enforcement processes and as described below, the staff has developed near term and longer-term actions to address the issues raised in this report. The lack of documentation at various steps in the -valuation process could .

reasonably lead to questions as to how the enforcement decision was reached on OI Repon 1-96-007.

It is staffs view, however, that all of the available information was appropriately considered in reaching the enforcement decision.

The staffs lessons learned, corrective actions and clarifying points follow. Specific responses to your questions are in Attachment 1. We have also included additional information which provides background on the processes or circumstances surrounding this case.

Lessons Learned The staffs review of the IG repon has resulted in a number oflessons leamed which we have already implemented or are implementing. Moreover, as discussed with you, we are initiating a broader, consultant-assisted, programmatic assessments of the Enforcement and Investigations programs. i Specifically, the initial lessons learned can be summarized as follows:

(1) Better documentation is needed to close 01 investigations, not documented in the normal manner.

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(2) Better documentation is needed to reflect the deliberative enforcement process.

(3) Better communications are needed in closed Commission briefings by OI and OE related to investigative activities and associated enforcement deliberations.

(4) Better communications are needed in letters to allegers closing out multiple allegations of http://www.nre. gov /OPA/ reports /edo012799.htm 3/11/99

Staff Memoradum - Millstone Inspector General Inquiry Page 2 of14

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4 discrimination where only a sample of the alleged acts of discrimination were investigated.

Corrective Actions Accordingly, the following corrective actions have been or will be tc. ken:

(1) Effective immediately, for cases where the Department of Justice (DOJ) has specifically requested that 01 not generate written conclusions prior to their review of a matter, written conclusions will be provided by O! once DOJ retums the case to the NRC.

(2) On January 14,1999, further guidance addressing documentation of the status of deliberations during the enforcement process was issued by the Director of OE in the enclosed Enforcement ,

Guidance Memorandum (EGM)99-001. Traming was given to OE, Regional, NRR, and NMSS enforcement coordinators on EGM 99-001 during a counterpart meeting held on January 20.1999.

I (3) At least quarterly briefings will be offered to the Commission to discuss sensitive O!

investigations and associated enforcement implications and status. The staff will provide written {

i information to facilitate the meeting. The Commission will be informed of substantive changes in i status that occur between meetings. The first briefing occurred on January 15,1999. Appropriate guidance will be prepared by June 1999 to document this practice. {

(4) Letters clarifying NRC's actions will be sent to the allegers who received letters stating that their allegations were not substantiated, even though investigations were not conducted into their individual claims. It is expected that such letters will be issued by February 6,1999.

(5) Current enforcement practices will be reviewed for adherence to the guidance in the Enforcement manual. The guidance in the Enforcement Manual for the enforcement panel process will be reviewed for improvements. These reviews will be completed by June 1999.

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1 (6) Current investigation practices will be reviewed for adherence to the Investigation Procedures l

Manual. The guidance in the Investigation Procedures manual for handling internal disputes will be reviewed for improvements. These reviews will be completed by June 1999.

As mentioned earlier, we are initiating a broader, consultant-assisted assessments of the Enforcement an Investigation programs. These assessments, similar to the one currently underway in the Office of i Nuclear Reactor Regulation (NRR), will address fundamental questions such as what are the desired '

outcomes for these programs and what are the most effective strategies to accomplish thsm. -

Clarifying Points in regard to a number of the repon conclusions, the following clarifying points are provided.

Conclusion 2. This conclusion states, that as a result of the December 1997 enforcement panel meeting, a decision was made to take enforcement action and the Commission was so informed.

Although the Enforcement Strategy Form incorrectly states otherwise, in fact, the position af the .

Director of the Office of Enforcement (OE), based on the panel discussion, was to proceed with development of the case pending further review of the evidence and receipt of additional information.

As recognized in the body of the IG report, the preliminary nature of this decision is reflected in a December 5,1997, letter from the 01 Region 1 FOD to the Department of Justice (DOJ) (Page 7), and in several closed meetings with the Commission (Page 12).

Conclusion 4. This conclusion implies that the staff may have led the Commission into thinking that http://www.nre. gov /OPA/ reports /edo012799.htm 3/11/99

Stcff Memoradum - Millstone Inspector General Inquiry Page 3 of14 the investigative conclusions and agents' analyses would be added to the repon before the discussion

" at the enforcement panel. While there may have been miscommunication, there was no intention to mislead (see Page 5 last paragraph of repon).

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Corciusion 5. This conclusion states that " ..the NRC staffs decision to investigate only the cases which provided the strongest evidence of discrimination was not inappropriate. However, the NRC staffs handling of enforcement action regarding 01 Case 1-96-007 runs counter to this stated

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enforcement philosophy." It is not clear what enforcement philosophy was not met. Since the staff concluded that discrimination was not substantiated for this case enforcement action was not taken.

Attachments:

1. Responses to Questions

2. Enforcement Guidance Memorandum 99-001, Guidance for Preparing and Maintaining EA Requests & Enforcement Strategy Forms, dated January 14,1999

3. Sample letters to Allegers Subject to the Januaq 1996 Layoffs RESPONSES TO QUESTIONS A fuller discussion of the lessons leamed and other issues associated with the IG report are addressed below in response to the questions raised in your January 7,1999, memorandum.

. Should 01 analyses and conclusions be added to 01 reports following a Department ofJustice (DOJ) prosecutorial decision? If not, why not?

Response: Yes. Effective immediately, where DOJ has specifically requested that 01 not prepare written conclusions prior to its review,01 will provide written conclusions and synopses after DOJ retums the case to the NRC. A agent's analysis will also be provided in cases where 01 concludes that it has substantiated wrongdoing. 01 will amend its Investigations Procedures Manual to reflect these changes.

Additional Information:

01 Reports ofInvestigation (ROI) which are forwarded to DOJ for prosecutive consideration normally include conclusions and agent's analyses. The lack of conclusions and analyses in most of the Millstone reports issued over the past three years was a decision made to honor the request of the U.S. Attorney's Office in Connecticut that the Millstone and Haddam Neck 01 cases, which were being reviewed for prosecutive merit, not include thi.c information. However,01 did provide the enforcement staff with its views after the cases were retumed to the staff from DOJ, as is the general practice. Accordingly, in processing 01 repon 1-96-007, the relevant information was available to the enforcement staff and was considered in reaching the enforcement decision.

Although 01 conclusions and analyses are imponant, it should be noted that 01 conclusions do not serve as the basis for staff actions, and, while helpful to the staff, do not have evidentiary value.

Rather, it is the evidence gathered by 01 which must be evaluated to determine if that evidence is sufficient to suppon going forward with a case. Thus, the staff" examine [s] the underlying facts and evidence and develop [s] its own conclusions" in accordance with Commission direction in a March I8,1986, Staff Requirements Memorandum (SRM) (M860312). The SRM further stated that "The http://www.nrc. gov /OPA/ reports /edo012799.htm 3/11/99

Staff Memoradum - Millstone Inspector General Inquity Page 4 of14 staffis not obligated to accept without question the conclusion of the 01 repon." The overall process will be enhanced by ensuring, in the future, that written conchsions and agent's analyes wiM br provided as described above.

As to whether the staffled the Commission to believe that the investigative conclusions an awms' analyses would be added to the report before the discussion at the enforcement panel, there muy hv

• been miscommunication. However, there was no intention to mislead the Commission (see Pae f last paragraph of report). The lack of written 01 conclusions are not believed to have adverselv impacted the subject enforcement deliberations or the enforcement decision since the views of Rn 01 management and the investigator were known for case 1-96-007.

. If 01 analyses and conclusions are not going to be added to OI repons following a prosecutorial decision, but rather articulated orally by OI representatives during enforcement panels and similar meetings with the NRC staff, what steps should be taken to preserve the views of official positions of 01 to the extent they provide the bases for NRC enforcement actions? Should the oral views be documented? How should this information be made available to agency officials involved in enforcement action decisions? What special precautions are necessary in handling the information to ensure it is not leaked?

Response: As noted above, written conclusions and, for substantiated cases, analyses, will be provided by 01 following DOJ's review.

. Are synopses, conclusions, or agent's analyses excluded from all OI reports (cases) that are referred to a U.S. Attomey's office? If so, why? How long has this been a practice?

Response: No, these elements were excluded only for certain Millstone and Haidam Neck repons issued since Novem'ser 1996.

AdditionalInformation:

As noted above, synopses, conclusions, and O1 agent's analyses normally are included in 01 reports referred to the DOJ or to a U.S. Attomey's Office. The situation involving 01 rem rts on Northeast Utilities, Millstone, and Haddam Neck is believed to be the only time conclusions or analyses have been excluded at the request of DOJ. It is noted that the manner in which the evidence in this matter was shared with DOJ is typical of and consistent with the form in which such information is commonly communicated by investigative agencies, as DOJ attorneys frequently become involved in the evaluation of evidence at an early stage of most complex investigations.

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. The senior Office of the General Counsel (OGC) attorney who headed up the NRC workforce reduction process task force and who was a proponent for proceeding with an enforcement )

action in 01 case 1-96-007 at the December 2,1997, enforcement panel, was not informed of the June 9,1998, enforcement panel. Should steps be taken to ensure continuity of the same office representatives, if possible, at all subsequent enforcement panels conceming a particular l case? If so, what steps should be taken?  !

Response: Yes, on January 14,1999, the Director of OE issued Guidance for Preparing and http://www.nre. gov /OPA/ reports /edo012799.htm 3/11/99

I Staff Memoradum - Millstone Inspector General Inquiry Page 5 of14 Maintaining EA [ Enforcement Action] Requests & Enforcement Strategy Forms - EGM 99-001, addressing documenting and coordinating enforcement deliberations. Additional guidance will be 1 developed by February 26,1999 to formalize existing practice that the same office representatives, if i practicable, should attend all enforcement panel meetings for a panicular case. Additionally, funher l enhancements for providing continuity in the enforcement process will be considered as a result of l assessments of the Enforcement and Investigations programs.

Additional information:

By way of background, enforcement panels are convened to assist the Director of OE and Regional Administrators in rea:hing enforcement decisions. Normally, as provided by the Enforcement Manual, representatives of OE, the involved region, and the program office attend enforcement panels. The Director or Deputy Director of OE, represents OE, a regional Division Director or other regional SES manager represents the region, and the Project Manager or Project Director represents NRR ( in the case of NMSS, the NMSS enforcement coordinator represents NMSS). OGC attends the more significant panels, including those involving wrongdoing and discrimination, to provide legal advice and counsel. Other participants include enforcement specialists from OE, NRR, and the region, inspectors, investigators, other supervisors, and individuals who have relevant information for the enforcement decision. Following the panel, OE issues the Enforcement Strategy Form, in accordance with the Enforcement Manual, reflecting the positions of the panel. The region, after receiving a copy of the Strategy Form and briefing the Regional Administrator, informs OE if the Regional Administrator has a different view.

Current practice is that the office or regional representative at an original panel should normally attend the subsequent panels to provide continuity. Sometimes representatives cannot attend a follow '

up panel. In such cases, depending on the issues, the panel may be rescheduled or conducted without the person present. If conducted without the previous representative, the representative who was not present shoulgt normally be briefed if there was a substantive change in the decision and the case, if necessary, repancled. It should be noted that it is not unusual for positions arrived at during an initial panel meeting to be changed based on additional deliberations. If these deliberations take place outside the panel process without the involvement of the office or regional representatives from previous panels, OE is responsible for coordinating with the appropriate office or region to determine if that office or region is satisfied with the revised position or if another panel is needed.

Some NRC staff may attend a panel to provide information relevant to the enforcement review but who do not panicipate in the full enforcement review. For example, in some cases it is important to have a program office staff member with panicular technical knowledge at the panel to discuss how a particular requirement has been applied in the past or what was the basis of a licensing requirement; that individual's presence may not be needed for all funher panels on the same case.

In addition, it is routine to have 01 staff, including the investigator, panicipate at an initial enforcement panel to assist the staffin understanding the investigation by providing a " road map" through the evidence, answering questions, and adding insights for enforcement considerations. This occurred at the December 1997 panel on Case 1-96-007. However, as noted earlier, the 01 conclusions, while helpful, are not dispositive. The staff must reach its own conclusions as to the facts. It must also decide whether the case has sufficient strength to proceed. Thus, once the views of I l 01 are known,01 representation may not be needed at subsequent meetings where the evidence is l examined and the strength of the case considered by the staff responsible for the enforcement decision, and by the OGC enforcement attorneys responsible for providing legal advice and counsel to the staff.

Continuity of OGC representation at enforcement panel meetings is desirable and is, in most situations, assured by OGC (although OGC does not attend all enforcement panel meetings). In this l case, the attorney from the responsible unit of OGC who was assigned to provide legal advice and counsel in this matter, in fact, attended both the December 2,1997 enforcement panel meeting and http://www.nrc. gov /OPA/ reports /edo012799.htm 3/11/99 1

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I Staff Memoradum - Millstone Inspector General Inquiry Page 6 of14

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the June 9,1998 enforcement panel meeting. .

/ The participation of the Senior OGC attorney who headed up the NRC workforce reduction l task force was sought at the December 1997 panelin the interest of obtaining his insights l based on his earlier involvement in the task force effort. As noted at Page 11 of the IG report, it is unclear whether or not the senior OGC attorney was informed of the June 9.

1998, enforcement panel. In any event, the staff did not seek to exclude the senior OGC attorney involved in the NRC task force from the June 1998 panel.

The senior OGC attorney who headed up the NRC workforca reduction process task force does not normally provide legal advice and counsel to enforcement panels. However, OGC management had determined that the senior OGC attorney.would be responsible for handling any administrative hearing that might result from an enforcement action on this matter. As a result, his position was discussed at various times prior to the June 1998 enforcement panel by t7ose attorneys who did have the lead responsibility to provide enforcement counsel. He did not attend the June 1998 enforcement panel meeting but his views were known and were reiterated by the OGC enforcement attorneys who did attend this meeting.

. What steps should be taken to ensure documentation of the reasons / bases for changes in enforcement panel decisions on a particular case? Who is responsible for preparing and retaining such documentation?

Response: EGM 99-001 was issued on January 14,1999, to provide additional guidance for the use of Strategy Forins which document the status of the enforcement deliberations.

This EGM supplements the existing guidance in the Enforcement Manual which provided that Strategy Forms be prepared only after a panel meeting. This new guidance provides for amending the Strategy Form as positions change during subsequent panels or other deliberations, and provides for a brief basis for the changed position. Further enhancements for providing documentation of enforcement decisions may be developed as a result of the ongoing staff review and planned programmatic assessment of the Enforcement and Investigations programs.

The Strategy Form is completed by the OE enforcement specialist and concurred in by OE management. In certain routine cases involving materials licensees, the case is delegated to the regian and the Strategy Form is prepared by the regional enforcement specialist. The guidance in the Enforcement Manual provides that copies of the form are sent to the region, the responsible program office, and OGC, if an OGC attorney attended the panel, and that the recipients are to promptly notify OE if the form does not reflect the position of their region or program office. OE is reinforcing these directions to assure that proper distribution is made.

As described in ESM 99-001, the Director of OE maintains a notebook of Strategy Forms filed by EA (Enforcement Actions) numbers. A copy is also maintained in the enforcement 4 case files of OE, as well as in the active files of the enforcement specialists. Generally, they are retained in OE files for about two years after the case is processed.

. What steps should be taken to ensure that parties at a subsequent enforcement panel on a particular case review decisions and rationales for the decision made at prior I'

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cnforcem:nt pan:Is on th3 sam 3 case?

!- Response: As was done during the June 1998 panel, it is standard practice to include consideration of the past status of a case at any subsequent panels on the case. EGM 99- l 001 formalizes this practice and directs that the past Strategy Forms be brought to subsequent panels.

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. What is the standard for determining whether harassment and intimidation or a 10 CFR 50.7 violation has occurred (e.g., more likely than not, no doubt, a consensus, etc.)?

Response: It is the staffs practice to initiate enforcement action if there is a reasonable expectation that it can successfully demonstrate that the violation occurred. This involves consideration of all information - both that which suppods and that which refutes - available at the time it initiates the enforcement action, to assure that the essential elements of the violation can be established, in the context of harassment and discrimination matters under 10 C.F.R. @ 50.7 (and its counterparts elsewhere in the Commission's regulations), this requires, in general terms, that the staff be able to demonstrate, by credible evidence, (1) that an individual engaged in protected activity, (2) that an adverse employment action was taken and (3) that the protected activity was at least a contributing factor in that employment action. (The Commission's regulations do not automatically render a person who engaged in protected activity immune from discharge or discipline for legitimate reasons, or from adverse action warranted by nonprohibited considerations.)

Rarely is the case straightforward with direct evidence. In most cases, the decision that discrimination occurred is inferred from competing and circumstantial evidence. Evidence must be examined and judgments made on the ability to prove the case. Frequently, different staff looking at the same evidence, may arrive at different conclusions as to whether the violation occurred. In addition, in those instances in which a complaint has also been filed with the Department of Labor, DOL may also have a different view on the case.

The different v;ews are considered in deciding whether the staff is satisfied it has sufficient evidence and a reasonable expectation that it can prove the case. In the end, the stati must be able to demonstrate, by a preponderance of the evidence, that it is more likely than not that discrimination occurred.

. How are enforcement decisions made (e.g., through consensus, majority rules, OE or i OGC has final say, polling, etc.)? What weaknesses are evident from your review of the IG's description of the enforcement panel meetings? How should this process be improved?

I Response: The Executive Director for Operations (EDO) and the principal enforcement officer of the NRC, the Deputy Executive Director for Regulatory Effectiveness (DEDE), ,

have been delegated authority to approve and issue all escalated enforcement actions. The  !

Director of OE has been delegated the authority to approve certain escalated enforcement

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actions provided the Regional Administrator and Program Office are not in disagreement i with the action. Subject to the oversight and direction of OE and with approval of the DEDE, where necessary, regional offices normally issue Notices of Violations and civil penalties. l i

Additionally, enforcement pa,nels are conducted with the goal of reaching a consensus l decision. This consensus is not always reached and as a result the OE Director must make the decision.

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F l StafrMemoradum - Millstone Inspector General Inquiry Page 8 of14 l'

However, if the Regional Administrator or the lead program office (and in this case, the Director of the NRR Special Project Office (SPO) which had responsibility for Millstone instead of Region I at the time this 01 case was investigated and processed for enforcement action) disagrees with the position of the Director of OE, then, in accordance with the delegations of authority to the Director of OE, which are described in the Enforcement Manual, the matter is escalated to the DEDE or the EDO. Consequently, in developing his position on cases, the Director of OE seeks the agreement of the '

appropriate Regional Administrator (or in this case, the Director, SPO) and coordinates cases as warranted with the program offices. In addition to the regional and program offices, OE also coordinates with OGC on the more significant cases, including all cases involving potential wrongdoing such as alleged discrimination. If OGC has a legal objection to proceeding with a case, that issue must be resolved before the enforcement decision is finalized.

The above description applies to the majority of escalated cases. In accordance with the delegations of authority to the Director of OE, certain cases must also be approved by the DEDE. In addition, as provided in section lll of the Enforcement Policy, certain cases require Commission consultation. Finally, in cases involving Ol investigations, if there are disagreements between OE and 01, the Director of 01 must decide whether the difference needs to be elevated to the Commission. This is discussed in response to Question 9.

The principal weakness in the processing of case 1-96-007 was poor documentation. The EA Request and Enforcement Strategy Form serves as a status note and briefing aid during deliberations. The Strategy Form for the December 1997 panel accurately stated that assignments were made to begin developing the enforcement documents, it'cluding a Commission paper, to initiate the enforcement process with a letter to the licensee.

However, the Strategy Form did not reflect, as is more fully discussed below, that there were reservations about the case and that the position of the Director of OE, based on the panel discussion, was to proceed with development of the case pending further review of the evidence and receipt of additional information. As recognized in the IG report, the preliminary nature of this decision is reflected in a December 5,1997, letter from the Of Region i FOD to the Department of Justice (DOJ)(Page 7), and in closed meetings with the Commission (Page 12). A final decision was subject to receipt of the investigator's notes supporting his position, further review of the evidence, a review of precedent court cases, and a review of relevant testimony from the investigation in Case 1-97-007. Therefore, the Strategy Form mistakenly leaves the impression that the result of the panel was final when, in fact, it was preliminary.

It is noted that it is not unusual to decide to begin preparing a case, e.g. begin drafting the enforcement documentation and Commission paper, as was done in this case, at the same time that deliberations are continuing. However, prior to issuing EGM 99-001, the preliminary nature of the decision in such cases was not reflected on the Strategy Forms.

As a result of the new EGM, the Strategy Forms should be clearer in the future.

Further enhancements for providing documentation of the enforcement decisions may be developed as a result of the ongoing reviews and planned programmatic assessment of the Enforcement and Investigations programs.

i Additional inf_o_rmation:

This, like many other wrongdoing cases, was a difficult case for reaching consensus.

Nonetheless, the staff values the different perspectives brought by different individuals in arriving at an informed enforcement decision. The fact that there were different views, is a strength of the process. During the December panel, there was a healthy excharige of http://www.nrc. gov /OPA/ reports /edo012799.htm 3/11/99 l

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Staff Memoradum - Millstone Inspector Gener J Inquiry Page 9 of14 individuals' differcnt vi ws. Prior to the June panel, additional reviews of the evidence and numerous discussions occurred such that the panel meeting was briefer.

The December 1997 panel did not reach a final decision, although the Enforcement Strategy Form incorrectly states otherwise. During the Decernber panel, the Ol Region l Field Office Director (FOD) emphasized the need to review closely all the evidence, including the transcripts, especially those transcripts of the former Senior Vice President, since the staff was trying to decide if discrimination occurred and who was responsible. The FOD also noted that the former Senior Vice President would be subject to additional interview (s) as part of another irastigation that might produce relevant information. During the panel, the former Ol investigator was also asked to provide OE a list of the specific points that would support his position as to whether discrimination occurred, so that his points could be reviewed against the actual evidence. Subsequent to the December panel, the Ol investigator provided the requested information. The Director, OE, was of the view that further reviews were needed before he could conclude that discrimination occurred. OE staff members both before and after the December 1997 panel had reservations about whether discrimination occurred. OGC advised that though there was a prima facie case, the case was not strong. Both the Director of SPO and his Technical Assistant had indicated that they had read the 01 report and did not feel a case had been substantiated.

Further, the Director SPO noted that soon after the meeting, the Director of OE discussed reservations with him concerning whether discrimination occurred.

Furthermore, as noted above, Ol recognized that the staff had not resolved the enforcement approach in this case. The Region i FOD notified DOJ in a letter dated December 5,1997, shortly after the panel, that a preliminary decision was made. Similar information was provided to the Commission in a December 11,1997, closed Commission meeting where the Director of Ol, as noted in the IG report, told the Commission that a preliminary consensus had been reached and that the staff was continuing to review evidence and transcripts. The Director of 01 continued to inform the Commission during the February 18, and April 30,1998, Commission meetings, that the staff was still reviewing the l case. During the April meeting, the Director noted that the staff was awaiting information from another investigation involving the same former Senior Vice President.

Additional deliberations continued within the staff and with OGC. Applicable court cases were reviewed as was the evidence compiled in the investigation. This review included considering the points made by the investigator. The additionalinterview of the former l

Senior Vice President, conducted as part of a separate investigation, was also considered.

Notwithstanding the language used on the December 1997 Strategy Form, a final decision had not been made to go forward in this case. Rather, as noted above, additional deliberations should be documented as they occur.

The result of the deliberations and reviews of the evidence between December 1997 and June 1998 it was determined that there was insufficient evidence to proceed with an enforcement action. The June 1998 panel confirmed those deliberations. As noted in the IG report, the senior SPO representative in Region I who supported a finding of discrimination was involved in the June panel. In light of the prior deliberations, which admittedly were not documented, the June 1998 panel meeting essentially confirmed those prior discussions resulting in a briefer panel meeting.

. Should the official position of each office that participated in an enforcement panel be documented?

Response: Yes, the official position of OE and the lead program offices or regions involved http://www.nre. gov /OPA/ reports /edo012799.htm 3/11/99 l

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l in an enforcement action is reflected in the concurrences of the enforcement document.

i The Strategy Form should reflect the position of the representatives of all offices or the region involved. The procedures for obtaining regional and office concurrence or comments are contained in the Enforcement Manual. The use of the Strategy Form, as enhanced by EGM 99-001 provides for better documentation of the status of the deltberations and positions of the representatives of the involved offices and region. The assessment reviews, already noted, will consider additional improvements to this documentation.

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Add _itional lnformation:

As noted above, the EA Request and Enforcement Strategy Form serves as a status note l

and briefing aid during deliberations. During deliberations for many cases, especially the t more complicated ones and many of the wrongdoing cases, positions change from the time I the investigation or inspection report is first reviewed until the final enforcement decision is )

made. The enforcement specialists in OE and the regions are expected to be aware of the I status of the cases.

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The staff also notes that consistent with Commission direction in an SRM dated February 11,1985 concerning SECY 84-429, Policy 22 of the Office of Investigations, November 5,  !

1984, Ol does not take positions on enforcement actions. Nevertheless, Ol has an important role in the enforcement process by developing the evidence needed in cases ,

involving wrongdoing and providing valuable insights which assist the staff in its review of j the evidence. As noted earlier in response to Question 1, the Commission, in a March 18, l 1986 SRM stated that "the staff is not obligated to accept without question the conclusions  !

of the 01 report." However, in the interest of maintaining Ol's independence and as a check on the process for considering cases of potential wrongdoing, if the Director of Ol believes consultation with the Commission is warranted, the staff prepares a Commission paper addressing the dispute as provided in section Ill(5) of the Enforcement Policy.

Nevertheless, both 01 and the enforcement staff recognize that written conclusions and analyses are important. The written analysis in an Ol report provides a " road map" that assists the staff in understanding how 01 reached its conclusion. Ol's written conclusions reduce the potential for misunderstandings and serve as a basis to address differences. 01 has internal procedures to address differing views regarding written conclusions in 01 reports. Although the procedures were not formally initiated in this case, the spirit and intent ,

of the procedure, i.e., ensuring that differing views are provided, was met. In fact, the Ol investigator, the Region I Field Office Director (FOD) and Director of Of were all present at the December 1997 enforcement panel meeting and had the opportunity to express their l views. Although 01 management did not share the view of the investigator, they encouraged him to articulate his views and he did so.

! . Who ultimately is responsible or accountable for an enforcement decision?

I l Response: The Director of the Office of Enforcement is responsible unless the decision is escalated to the DEDE, EDO, or Commission. See also the answer to item 8.

. Although the Region 101 Field Office Director (FOD) believed that the claim of H&l had been substantiated in Of case 1-97-007, how did the July 28,1998, enforcement pansi reach the conclusion that no enforcement action was warranted? Were the panel's reasons for its conclusion documented? Did Ol challenge the decision of the panel? If not, why not?

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Staff Memoradum - Millstone Inspector General Inquirv Page11of14

, Response: The facts associated with 01 case 1-97-007 were informally discussed among OE, SPO field office, regional enforcement staff supporting SPO, and OGC staffs several times prior to the July 28,1998 enforcement panel. During these discussions, the general consensus was that the case was weak and the evidence in 01 Repod 1-97-007 did not support a finding for discrimination. Although the report did not contain any written investigative conclusions as to whether discrimination occurred, the view of the Region i FOD and the 01 investigator who performed the investigation was that discrimination by the licensee had occurred. However, contrary to the statement in the IG report, the FOD did not believe that there was sufficient evidence to substantiate that the former Senior Vice President deliberately caused the discrimination.

The July 1998 panel discussion was not lengthy. There was agreement among OE, OGC, SPO, and the regional enforcement staff that the evidence was not sufficient to initiate an action based on a finding of discrimination. It was proposed that no enforcement action be initiated for Of case 1-97-007. 01, having had the oppodunity to present its position, did not feel the need to challenge the panel's decision since the investigator recognized that the case was a close call. Thus, the decision was not presented to the Commission.

The EA Request and Enforcement Strategy Form for the July 28,1998 enforcement panel stated that no action was to be taken based on 011-97-007. The rationale for this decision was not explicitly stated on the form. However, the decision was based on the undocumented deliberations that occurred before the panel was convened which had not changed as a result of the discussions during the panel with O! representatives. As a result -

of EGM 99-001, these deliberations will be better documented in the future.

. On what basis does the Department of Justice advise the Chairman and Commissioners against having their staffs pres 9nt and against taking notes at and retaining notes from closed investigative briefings?

Response: The basis for the position of the U.S. Attorney's office in Connecticut, as stated in its January 2,1997, letter to the 01 Region I Field Office Director is as follows:

Ordinarily, this Office would oppose any disclosures conceming tiie investigation of potential criminal matters. ...

It is critical to the integrity of the investigative process that all matters discussed during this meeting remain confidential. The NRC has experienced a number of " leaks" that give this office pause in sanctioning this proposed meeting. We request, therefore, that non-Ol attendees of this meeting take no notes and prepare no memoranda concerning these discussions. Additionally, we ask that 01 make no representations to anyone concerning the position of this Office on any particular matter, or on the investigative effnit in general.

The " leaks" that the letter referenced dealt with Ol reports on Millstone / Spent Fuel Pool and Maine Yankee /RELAP5YA.

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. What improvements should be made in briefing the Commission on investigative matters to enhance continuity of knowledge and inform the Commission of significant changes in the disposition of cases? How should communication in closed investigative briefings be improved such that the Commission can stay informed on a http://v, ww.nrc. gov /OPA/ reports /edo012799.htm 3/11/99

F Staff Memoradum - Millstone Inspector General Inquiry Page 12 of14 p:rticul:r casa from bri;fing to bri fing, can be appris:d of any changes in the case from briefing to briefing, and can ensure that there is appropriate continuity regarding )

h the case?

Response: Quarterly briefings will be offered to the Commission to discuss sensitive O!

investigations and associated enforcement implications and status. This will not preclude. ,

more frequent meetings to notify the Commission of sensitive issues occurring between j meetings. The staff will provide written information that can be followed in conjunction with  !

the oral briefing. In subsequent briefings, any investigation or enforcement action that has been previously discussed will be updated until the investigation is closed or decision made  ;

on issuance of an enforcement action. Any significant deviation from the previously briefed i status on 01 efforts will be highlighted during the oral presentation by 01. Written I information was provided at the closed Of Commission meeting held on January 15,1999. I While these meetings will continue to be closed, as with any sensitive closed meeting, l necessary Commission and EDO staff may attend on a need-to-know basis. The j Commission will be informed by either memorandum or personal communications from the )

staff of substantive changes in status that occur between meetings. The above '

arrangements will be formalized in appropriate guidance documents by June 1999. This should improve the information flow on sensitive cases. Further enhancements for communications may be developed as a result of the consultant- assisted, programmatic.

assessment of the Enforcement and Investigations programs.

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. The ev > u . 'quiry (p.17, paragraph 6) concluded that a number of allegers were informed at their claims of discrimination were not substantiated even though no investigation of their individual allegations was conducted. The IG inquiry indicated I that because NRC did not conduct an investigation into these allegations, the NRC staff had insufficient information on which to base this conclusion. Should all allegations of discrimination be investigated in order to make individual determinations as to whether each allegation is substantiated? ,

Response: No. All allegations of discrimination should not be investigated. Conversely, NRC should not make determinations on whether an individual was subject to ,

discrimination without an investigation into the merits of the individual's case.

The purpose of NRC investigations is to determine if the actions of the licensee resulted in l a violation of 10 CFR 50.7 (Employee Protection) such that corrective actions are needed to '

address the chilling effect of an environment where employees may be reluctant, or  :

" chilled", from bringing health and safety concerns to the attention of licensee management l or the NRC. It is not to provide a personal remedy (e.g, back pay, reinstatement); the l Department of Labor (DOL) has that responsibility. The staff does not investigate every case of alleged discrimination. The IG report noted that the NRC is not required by NRC Management Directive 8.8 to investigate all allegations of discrimination. ,

Additional Inforrnation:

As to the January 1996 layoffs, a number of allegers were informed that their claims of l discrimination were not substantiated even though no investigation of their individual allegations was conducted. The letters stated that (1) several investigations were conducted, concerning multiple individuals, to determine whether these employees were l terminated in retaliation for having engaged in protected activity for raising safety concerns; and (2) a comprehensive review of the NU workforce reduction process, as it applied to l

l http://www.nrc. gov /OPA/repc rts/edo012799.htm 3/11/99

Staff Memoradum - Millstone Inspector General Inquiry Pcge 13 of14 employees who had previously engaged in protected activities, was conducted by the NRC.

s The letter also indicated tha' based on those investigations and reviews, the NRC concluded that there was not sufficient evidence to substantiate those allegations of discrimination. The letter further noted that although an Ol investigation was not initiated to examine the individual's specific claim of discrimination, the NRC concluded, based on its i generic review of the NU workforce reduction process, that the individual was not '

terminated for having raised safety concerns, and the individual's concern was not substantiated.

These letters should not have stated that a conclusion had been made for cases where the l individual's specific case was not investigated by 01. The staffintends to send each of those individuals a supp'emental letter to apologize for the miscommunication and to clarify the NRC's actions with respect to its evaluation of the January 1996 layoffs and its position on the individuars allegation. A sample of the letter is attached.

While the staff did not investigate each allegation of discrimination from the January 1996 j layoffs, it did conduct four investigations involving nine individuals who had alleged discrimination based on these layoffs. These investigations included claims of discrimination which presented the strongest potential for being substantiated. In the staffs view, in light of the purpose of NRC investigations, it appropriately balanced the need to understand whether the layoffs were discriminatory, against the need to avoid adversely  ;

affecting other wrongdoing investigations at Millstone and other sites. The IG report states '

that "...OlG found that the staffs decision to investigate only the cases which provided the strongest evidence of discrimination was not inappropriate." Following completion of the I review of the four investigations, the staff concluded that further investigations of the remaining allegations associated with the January 1996 layoffs were not warranted.

It should be noted that the IG report stated that "the NRC staffs handling of enforcement action regarding Ol Case 1-96-007 runs counter to this stated enforcement philosophy." It is not clear what enforcement philosophy was not met. Since the staff concluded that I discrimination was not substantiated for the cases that were investigated, enforcement action was not taken.

in addition, the staff does not believe that additionalinvestigat!Ons associated with the layoffs in January 1996 are warranted as NRC investigations ; Mesignd as noted l above, to determine if tne actions of the licensee resulted in a wolation of 10 CFR 50.7 '

(Employee Protection) such that significant corrective actions are needed to address the chilling effect of an environment where employees may be reluctant, or " chilled", from bringing health and safety concerns to the attention of licensee management or the NRC. In '

that regard, since the 1996 layoffs, NRC has taken significant action against NU to address the environment for raising safety concerns, including the issuance of an Order that required a third party oversight of Northeast Utilities's efforts to develop a safety conscious work environment at the Millstone site. As confirmed by the third party oversight organization and NRC evaluations, licensee management actions at Millstone have resulted in an improved environment for raising safety concerns.

Attachment 3 SAMPLE LETTER SAMPLE LETTERS TO ALLEGERS SUBJECT TO THE JANUARY 1966 LAYOFFS I am sending you this letter to clarify the information I provided you in my letter. That letter described the NRC evaluation of Northeast Utilities' termination of approximately 100 )

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http://www.nre. gov /OPA/ reports /edo012799.htm 3/11/99  ;

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r' Staff Memoradum - Millstone Inspector General Inquiry Page 14 of14 employees, including yourself, in January 1996.

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As I noted in my previous letter, several investigations were conducted, concerning multiple individuals, to determine whether those employees were terminated in retaliation for having l raising safety concerns. However, the NRC did not conduct an investigation of the

terminations of each of the individuals laid offin January 1996 claiming discrimination.

l Rather, the NRC selected a sample of the individuals terminated in January 1996, and the NRC Office of Investigations conducted four investigations addressing those layoffs. Based .

on the review of the evidence obtained during those Of investigations, the NRC concluded that there was not sufficient evidence to substantiate that those specific individuals were dismissed for raising safety concerns. On this basis, the NRC determined that there was not sufficient evidence to conclude that the overall process applied by NU to effect the workforce reduction was discriminatory and thus further investigations were not warranted.

The NRC considers this determination appropriate, particularly since the purpose of an NRC investigation of discrirnination in this or any other instance is not to provide a remedy to any individual who may have been wrongfully terminated, but rather to determine whether a licensee has violated the NRC regulations which prohibit discrimination for raising safety issues. Providing a personal remedy is the responsibility of the United States Department of Labor, which will undertake an investigation of any complaint filed with it, provided the complaint is filed within 180 days of the alleged discrimination as i noted in an earlier letter to you dated .

My earlier letter informed you that there was not sufficient evidence to conclude that discrimination was a factor in the NU terminations in January 1996. That letter also advised l that in your specific case, an 01 investigation was not initiated to examine your specific claim of discrimination. Despite that fact, that letter further stated that the NRC concluded, based on its generic review of the NU workforce reduction process, that you were not terminated for having raised safety concerns. The letter incorrectly stated that the NRC had reached a conclusion regarding your specific case in fact, we had not.

The NRC apologizes for the letter of and regrets any misunderstanding that may have resulted from it. If you have any additional questions, please contact me at http://www.nrc. gov /OPA/ reports /edo012799.htm 3/11/99

ATTACllMENT S

.i S " *' TO l.IIC FOURTil OUARTER 1998 REPORT TO NR_C a , "*"*%

\ United States Nuclear Regulatory Consnission I office of Public Affairs, Region I 475 Allendale Road Eins of trussia, PA 19406 g f

% ** / Internet: Faxe 610/337-5241 dpsenrc. gov or nasearc. gov

Contact:

Diane screnci (610/337-5330) IUR INNEDIATE RELEA9E Neil A. Sheehan (610/337-5331)

NRC STAFF PROPOSES 388,'000 FINE AGAINST NORTHFAST NUCLEAR E)R DISCRIMINATORY ACTION AGAINST 2 EMPLOYEES AT MI

$88,000 fine against Northeast Nuclear Energy Company for discriminating against two contract employees in 1997 at Hillstone station in Waterford, Conn.

organization (Little Harbor Consultants) Investigations by the NRC, th both workers lost thei: all concluded that jobs after raising concerns about the adequacy of the plant's motor-operated valve program manual.

NRC has further cenfirmed that the firings were recommended by the emphyees' supervisor and supported by the manager of the motor-operated valve department in which the employees and the supervisory officials then worked.  ;

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Furthermore, NRC investigators found, the recommendation i

for dismissal was neither questioned nor objected to by the I official who was then the plant recovery officer. Neither was the action which questioned reviewed it. by the contracts or 3egal departments, As the result of its own investigation and one by Little-Harbor Consultants -- which monitored Millstone's safety conscious work environment -- the company rescinded the tenninations and offered to reinstate the two individuals.

HubertInJ.a letter to the company, NRC Region I Administrator t4111er said the NRC recognizes that Northeast took

• appropriate actions to ensure that a work environment exists at Millstone in which' employees feel free to raise concerna. But,  !

he said these dismissals "resulted in a significant violation 1 of the employee protection standards" of NRC because of the l involvement of supervisor. As officials above the level of first-line a result, NRC characterized the violations as a

enforcement policy.problem, the second highest in the agency's Severity Level II l

.Mr._M_i_ller said a_civi,l_,. penalty is warranted given that:

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p, . 1) the then recovery officer and legal and contracts'

• departments failed to question.the termination reconsm endation;

2) . senior managers failed to identify and correct the management problems in the motor-operated valve department in recognize and respond to the indications 3) of retaliatio NRC's employee protection regulation, despite on's the C October 1996and, environments order

4) calling for a safety conscious work of discrimination. The NRC issued three civil penalties forMillst such violations between 1993 and 1996.

action. Northeast has 30 days to respond to the enforcement l t l

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[ n UfwTso STATES NUCLEAR REGULATORY COMMISSION s.o.ca i l

k..... ans os pausskre nsnSeens wis -

March 9,1999 EA 97-461 Mr. R. P. Meccl. Vloe President Nuclear Oversight and Regulatory Affairs

• /, Mr. Devid A. Smith, Manager, Regulatory .

Affairs for Millstone Statson NORTHEAST NUCLEAR ENERGY COMPANY Post Office Sox 128 Waterford,Connectinut 06385 i

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CML PENALTIES - $86,000 (Office of investigations Report 1-07030) l Dear Mr. Neoct This refers to the subject investigseon conduded by the NRC Offlee ofinvesheebens (01) et Northeast Nuclear Energy Company's (NhriCo) Millstone Station aAeryou had informed the NRC, in Septon,ber 1997, that separate invesGgelions by your Employee Conceme Program, as well as

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tiy your contractor, Little HarborConsultants, hed found that two contractor employees in your Motor  !

Operated Valve (MOV) department, had been rotellated against forengaging in pnotected actMties The 01 Irt;::z ^* - confirmed

. those findines, noting that the terminations of the two contractor employees coneututed discrimination. The synopsis of the subject 01 report was forwarded to you wth our letter, dated August 26,1998. Although thet letter offered you the opportunity for an enforcement conference, you declined a conference and instead sent the NRC a response, dated September 30,1998, in which you ednweled that the violation occurved, and also deserteed the causes and consdive actions.

The termination of the employment of the two contractoremployees occurred in August t997, mRer the two individuals had raised conoems about the MOV program manual and the process by which the manuel wee being reviewed. The terminations were recommended by the then MOV Supervisor, and were supported by the then MOV Manecer, both of whora were eleo contractor employees. Further, the recommendation was nellherquestioned nor objected to by the Recovery Ofrecer involved with management oversight or the MOV program activttlee, after the MOV " ^r+c+

briefed him on the recommendahon, nor was it quesboned by opior Departments within NNEco, inafuding the Controds or Leger Departments during their reviews, as you Al Jg-j in your September 30,1996, letter to the NRC.

One of the corstractor engineers, who had raised questions regarding the adequacy of the MOV program menuel, requested a copy of the menuel for his review on or about July 22,1997.

Although the MOV Supervisor had indicated, in a meeting with his eleff tut dey, that he would provide the manuel for review the next day aflor incorporating some revisione, the individuet was not provnfed a copy by the MOV 8upervisor, and the supervisor had sent an emos to his deperiment l

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Northeast Nuoloar Energy Company 2 indiating that no one had requested to review the manual. In a telephone conversation on July 2 19g7, the individual questioned the MOV Supervisor about the process for review of the manual.

The supervisor requested that the Individual come to the MOV Manager's office to disoues the issue. After the indMdual refused to come to the MOVManager's offloe despite repeated requests, the supervisor considered the indMdual's actions to be insubordinate. The supervisor contends this insubordnation was the principal basis for recommending termination of the individuars employment. '

The MOV Supervisor ateo contended that he had additional performance-related reasons to recommend termination of the contractor's employment. He contended that the contreotor employee had not completed an assignment and had worked on several projeds outside the scope of his assigned duties without approval However, there was no evidence documenting such problems at the time they occurred. nor was there evidence that the MOV Supervisor brought such leaues to the contesotor employee's attention.

The second contrador engineer had also expressed a desire to the MOV Supervisor to complete a review of the MOV program manuel for adequacy and accuracy. He had principal roeponsibility '

for a csiticalltem that would be incorporated in the manual. and had relood lesues relating to the completion of the manual. The MOV Supervisor sought this contract employee's termination bemuse of an alleged failure to meet deadlines and because of an inddent in which the eraployee had allegedly raised his voice wMh the MOV Supervisor and threatened to quit. SimBar to the first oordroctor employee, the MOV Supervisor had not documented perceived performance problems irwolvmg the second contreeter employee et the time of occurrence.

Notwithstanding the MOV Supervisor's articulated reasons for seeldng the termination of the two contractor employees, the NRC has concluded that the terminations were motivated, et least in port, by the indMduals' engagement in protected activities. The recommendation for termination that was made was close in time to the protected scfivities. Further, eithough the supervisor stated that he had other concems regarding the individuals' performance since at least June 1997, as noted, these concems were not discussed w!!h the individuals nor were they documented in the supervitor's log book until July 22, igg 7, two days before the MOV Supervisor recommended the terminations to NNECo's Contracts Department. In addition, Ol's investigation e8dted evidence that the MOV  ;

Supervloor and Manager felt pressure to complete the MOV program menus! in socordance with NNECo's schedule and porosived the two contractor employees as roadblocks in that effort.

While the NRC is conoemed with the termination recommendations made by the then MOV supervisor, and the support for them by the then MOV Manager, the NRC is equally conmemed with the failures by the responsble Recovery Officer, as well as other departments within NNEco, including the Contracts and Legal Departments, who had the opportunity to question the appropriateness of the recommended terminabons but failed to do so. As noted in the utile Harbor report, both the contracts and I.spel Departments fated to recognize the potential for entslietion during the terminallon review process. The Uttle Harbor report eleo noted that neither Department asked for any substantiation of the aboged performance issues that were the basis for the terminations, even though the Contracts Department had been provided some knowledge about problems within the MOV Department. In fact, the adual letters releasing the indMduals were prepared by NNEco's Contracts Department. Further, as also noted in the Little Harbor report, your senior management was tiowin recognizing and responding to the indioetions of rutellstlen.

1 Northeast Nuclear Energy Company 3 The NRC recognizes that subsequent to these findings, you took significam action to reverse the terminations, as wel! as improve the ollmate et the Millstone station to onours that a work environment exists such that employees feelfree to raise safety concems. Nonetheless. the actions by the then MOV Supervisor and MOV Manager in recommending the terminatione, and the lack of question *rng the appropriateness of the *erminations by the responsible Rooovery Omcor, as well as other NNEco Departments, resulted in a significant vlotation of the employee protection standards set forth in 10 CFR 501. Given that individuals above a f!rst line supervisor contributed to the violation, the violation is categorized at Severity Level il in accordanos with the NRC Enfortement Policy, "Geners! Statement of Polloy and Procedures for NRC Enforcement Actions,"

NUREG-1600 (Enforcement Policy),

in accordance with the Enforooment Policy, a base cMI penalty in the amount of $66,000 is considered for a Seventy Level lt violation. Since this cose involves a Severity Level 11 violation, the NRC considered whether credit was warranted for identificateon and Correchve Action in awhacs with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy.

Credit is warranted for identification since the violation was initially identified by your Employee Concems Program. Credit is also werranted for Corrective Actions which were considered comprehenelve. These actions,which were described in your March 31,1998, and September 30, 1993 letters to the NRC. Included, but were not limited to: (1) rescinding the terminations, retreeting the termination letters, and offering reinstatement to the two individuals whose employment was terminated; (2) conduct of en Employee Concems Oversight Panel survey in September 1997 to .

ensure that there was no lingering effect in the MOV department: (3) conduct of a self-assessment by the Comrscis Department in October igg 7 to preclude repetition; (4) conduct of a meeting of all first line end above supetvisors to discuss the topic of a safety conscious work environment;.and (5) creation of en Executive Review Board to review aff proposed disapline more sevece than e verbal woming. -

However, the enforcement policy also states that Severtty Level 1 or il violations should normally result in a civil penefty regardless of the consideration of identification and corrective action.

Consistent with the polley, and to emphasize the significanoe that the NRC atteches to any finding of discrimination, as well as the importance of current management ensuring a sefety conscious work environment where employees feel fme to raise safety cornatne, e cMI penalty is werTanted in this case, particularly given: (1) the failures by the responsible Recovery Officer and the Contrada and Legal Departments to question the basis for the proposed terminations, despite the opportunities to do so; (2) the failures by senior management in not identifying the management problems in the MOV Department in sufficient time to prevent the terminations, and in being slow in recognizing and responding to the indications of retahation, es noted in the Little Narbor report; (3) the failure by management to provide training to its contractor supervisors relehne to the NRC's employee protecbon regulation. notwithstanding the Commission's Order dated October 24,1995, conooming the need to address schons invoMng a lack of a safety conscious work environment, and to ensure that employees een re'ee safety concomt without fear of retoUstion; and (4) the poet history of cesortmination vioistions invoMng the Mitistone station, as evidenced by the three discrimination civil penetties issued between 1992 er,51996. Therefore, I have been authonzed, after consultation with the Dwedor. Ollice of Enforcement, and the Deputy Executrve Director for Nudoar Reedor Regulation, Regionel Operobons, erul Research, to proponse a bees cMI penalty in the amount of $a8,000 for the vicistion set forth in the enclosed Notice. But for youridentification of the violation in September 19g7, es well as your prompt reeassion of the terminations of the two individuels, the cM1 penalty amount would have been higher

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Northeast Nuclear Energy Company 4 The NRC has conc!uded that information regarding both the reason for the violation, arvt the conective actions teken and planned to correct the violation and prevent recurrence, are already adequetely addressed on the docMt in your September 30,1990 letter. Therefore, you are not '

required to respond to the provisions of 10 CFR 2.201 unless the description therein does not eacurately reRed your conective eations oryourposition in that cese, orif you choose to provide additionalinformation, you should ibliow the instructions speolflod in the enolosed Notice. The NRC will use your response, in pait, to determine whether further enforcement oc6on is necessary to ensure compliance with regulatory requirements.

in socordance with 10 CPR 2.790 of the NRC's

• Rules of Practios." a copy of this letter, and your response will be pleasd in the NRC Put>lic Document Room (PDR).

sincerely.

s v

. Hubert J; Mine!

ResponalAdministrator Dod.et Nos; 50-245: 50-336; $0-423 1.icumos Nos. DPR 21: DPR-65; NPF-49

Enclosure:

Notice of Violabon and Pit > posed imposition of CMI Penalty S

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Northeast Nuclear Energy Company 5 cc w/encd:

B. Kenyon, Preanient and Chief Executrve Offloor- Nuclear Group L. Olivier, Senior Vice President & Chief Nucteer Officer J. Cerfin, Vloe President - Human Servioes F. Rothen, Vloe President. Work Services M. Brothers, Vlee President . Operations R. Neoct, Vice President - Nuc6 ear Oversight and Reguietory Mfairs D. Amerine, Vien Prueldent- Human Services E. Herkness, Drector, Unit 1 Operations L. Cuoco, 2: squire G. Hicks, Dirwetor - Nuclear Training Sonoces (CT)

J. Price, Director - Unit 2 operations C. Schwarz, aractor- Unit 3 operations S. Sherman, Audits and Evaluations J. Egan, Esquire N. Button, Psquire V. Juliano, Waterford Library J. Bucidngham, Department of Putse Utility Control

- S. Comley, We The People D. Katz, Citizens Awareness Network (CAN)

R. Bessilakis, CAN J. Block, Attomey, CAN

6. Luxton, Citizens Regulatory Cornmission (CRC)

T. Concennon, Co-Chelt for NEAC E. Woonacott. Co Chairman, NEAC Representative G. fiamm State of Connecticut SLO Designee

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ENCLOSURE NOTICE OF VIOLATION AND PROPOSED IMPOSmON OF CML PENALTY

, Northeest Nuclear Energy Company Docket Nos. 50 245; 50-336; 50-423 Mitstone Uruts 1,2,3 License Nos. DPR-21; DPR 65; NPF-49 -

EA 97-401 During an NRC Investigation conducted by the NRC Offlee ofinvestigations (01), a violation of NRC requnrements was identifled. In accordance with the " General Statement of Petiey and Procedure for NRC Enforcement Actions,"NUREG-1600, the NRC proposes to lmpose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act),42 U.S.C. 2282, and 10 CFR 2.205. The partkxJiarviolabon and associated civil penaRy are set forth belour.

10 CFR 50.7 prohibits, in part, discrimination by a Commission licensee against an employee or contractor for engaging in certain protected activities. Disu'miiMw. includes discherge or other actions relating to the comperisation, terr ts, conditions, and privileges of employment. The activilles which are protected include, but are not limRed to, reporting of safety concerns by en employee to his employer.

Contrary to the above, between July and August 1997, the Boonsee discriminated against two contractor employees within the Motor Operated Valve (MOV) Department due to their involvement in protected actMties. speoinostly, the employment of the contractor emoloyees was terminated in August 1997, at least in part because the indrviduals had rotsed conoems about the MOV progrom manual and the process by whkh it was being reviewed. Each of the two terminations constitutes a separate instance of discriminanon which is being combined as one violation. (01012)

This is a Severtty Level 11 violation. (Supplement V11).

Civil Penalty . $es.000.

Pursuant to the provisions of 10 CFR 2.201, Northeast Nucteer Energy Company (NNECo or Licaname) is harmby required to submit a wntion statement or explanebon to the Director, omee of Enforcement, U.S. Nuclear Reguistory Commission, within 30 days of the date of this Nation of Violation and Fiwd imposition of Civii Pensky (Notice). This reply should be clearly marked as s " Reply to a Notice of Violation" and should indude fbr wech alleged violation: (1) edmission or denial of the alleged vloistoon; (2) the reasons for the v6olation if admitted, and if denied, the reasons why; (3) the corredive steps that have been taken and the reeutts schieved; (4) the conective steps that wl!! be taken to evold further violations; and (5) the data when fue comptance wfN be achievet However, the NRC has concluded that infonnation regarding the reason for the violabon, and the correcttve actkms teken and planned to corred the violation and proverd recurrence, is already adequately addressed on the docket in NNEco's September 30,1998 letter. Thererors, NNEco j is not required to respond pursuant to 10 CFR 2.201 unless the description therein does not '

occwately reflect NNEco's corrective odions or its position. Consideration may be given to extending the response time for good cause shown. Under the authortty of section 182 of the Act.

42 U.S.C. 2232. this response shall be submitted under oath or affirmetton.

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% Encioeure 3 Within the some time as provided for the response required above under 10 CFR 2.201, the Licensee may pey the civil penalty by letter addressed to the Director, Offion of Enforcement, U.S.  !

Nuclear Regulatory Commission, with a chocic, draft, rnoney order, or electronic transfer payatW to the Treasurer of the United States in the amount of the cMI penalty proposed above, or the cumuletive amount of the dvil penalties if more than one cM! penalty is proposed, or may protest imposition of the elvlt penalty in whole or in part, by a written answer addressed to the Deredor Office of Enforcement, U.S. Nuclear Regulatory Commission. Should tne Ucensee feil to answer within the time specified, an orderimposing the eMI pensity will be issued. Should the Uoensec i orect to file so answerin accordance with 10 CFR 2.205 protesting the cMI penefty, in whole or in port, such answer should be clearly merked as an

• Answer to a Notice of Violation" and may: (1) deny the violetions listed in this Nation, in whole or in part; (2) demonstrate extenuatino circumetences; (3) show error in this Notice; or (4) show other reasons wity the penalty should not be imposed. In addition to protesting the cMI penalty in whole or in part, such answer may request remission or mitigation of the penemy.

In TCO,v mittgotion of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any wntion enewer in socordance with 10 CFR 2.20s i i

should be set forth separeiely from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate ports of the 10 CFR 2.201 reply by specific reference (e.g., cJting page and peregraph numbers) to avoid repetition. The attention of the Ucensee is directed to the other provisions of 10 CFR 2.205, regardirsg the procedure for imposing a civR penalty.

Upon fauvre to pay any civt penalty due which subsequently has been determined in accordance with the appliceble provisions of 10 CPR 2.205, this metter may be referred to the Attomey General.

and the penalty, unless cow,Wi.. '_ J, remided, or mitigated, may be collected by oMI action pureuent to Section 234c of the Act,42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Mr. James Ueberman Director, Ofnce of .

ErWorcement U.S. Nuclear Regutetory Commission, One White Rint North,11555 RockvlBe Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Reguistory Commission, Region i and a copy to the NRC Resident inspedor et the feellity that is the subject of this Notice. Because your response will be pisood in the NRC Public Documerd Room (PDR),

to the esdent posenble, it should not include any personal prfveoy, proprietary, or esfspuerds information so that it can be pieeed in the PDR without redaction. If personal privacy or propr6stasy information is necessary to provide an acomptable response, then plosee provide a bracketed copy of your responee that iderstifies the information that should be protected and a redaded copy of your response that deletes such information if you request withholding of such material, yX must j speelfleelly identify the portions of your response that you seek to have withheld and pic, vide in detail the benes for your claim of withholding (e.g., explain why the disclosure of informabon will i i

create an unwerranted invasion of persons! privacy or provide the information required by 10 CFR 2.790(b) to s@ port e request for withholding con 4 dentist commerciel or gnancial intbrmation). If safeguards information is necessary to provide an acceptable response, please provide the level of protection desenbod in 10 CFR 73.2t.

Deled at King of Prussia, Pennsylvanie this 9th day of March 1999 4

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