ML20154B004

Advises That Commission Has Agreed Not to Review Director'S Decision DD-84-16.Time to Review Expired on 850104. Supporting Documentation Encl

ML20154B004
Person / Time
Issue date:	01/09/1985
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Plaine H NRC OFFICE OF THE GENERAL COUNSEL (OGC)
Shared Package
ML20154A989	List: DD-84-16, Advises That Commission Has Agreed Not to Review Director'S Decision DD-84-16.Time to Review Expired on 850104. Supporting Documentation Encl ML20154A985 ML20154B004
References
FOIA-85-584 DD-84-16, NUDOCS 8603040201
Download: ML20154B004 (14)

Text

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1. o UN'TED STATES

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• WUCLEAR REGULATORY COMMISSION

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January 9, 1985 OFFICE OF THE SECRETARY MEMORANDUM FOR: Herzel H. E. Plaine, Gener Counsel FRON: Samuel J. Chilk, Secreta

SUBJECT:

SECY-84-467 - DIRECTOR' IAL OF 2.206 PETITION (IN THE MR ER OF DUKE POWER COMPANY)

This is to advise you that the Commission (with all Commis-stoners approving) has agreed not to review 00-84-16.

Accordingly, the time allowed for the Commission to decide to take review was allowed to expire on January 4, 1985.

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1 1217 BROWN & ROOT. INC. v. DONOVAN pors.uon. Energy Reorgantsabon Act of 1E4. I 210ta), as amended. 42 U.S.C.A.

BROWN & ROOT INC Peutioner, I 5451(a).

v.

Raymond J. DONOVAN. Secretary of 2. Labor Relatices *=24.5 Labor, Respondent. Ebog of ncnconformance reports with No. &&-4484. his employer by quahty controlinspector at nucl**r 8'rdf*LAs f*cihtY *** n*L PM'*cte United Stataa Court of Appeals, ed var Energy Reorgantasuos Act sec. 1 Fifth Ctreunt. ban wh4h prohabita an employer frors das-charg ag an employee for commeaciag, :as-Dec.10,1944.

ufrug in, maniaung in or partaopassig in a proceed.ng for the adraanistranon or en-Employer petiuoned for review of an forcenent of that Act or the Atomie Ener.

order of the Ur.:ted States Department of gy Act; thenfore, employer's discharge of Labor, which affirmed an administrauve quahty control inspector for those fihngs law Judge's fmdmg that it decrimmated was not a violanon of that section. Erwrgy agamst an employee by discharging him Reorgantasuon Act of 1974, i 210ta), as for engag:ng m conduct protected by the amended, 42 U.S.C.A. I 5451(a).

Energy Reorganissuon Act. The Court of Appeals. E, Grady Jolly, Circuit Judge, held that; (1) Act secuon in quesuon does not Peudon for Revww of an Order of the protect filmg of purely mtsrnal quahty con. United Stataa Departrnent of Labor.

trol reports, and m fihtig of nonconfor.

mance reporta by employee with his em-ployer was not protected under that sec- Before G ARZA. JOLLY and DAVIS, Cir-bon, and thus his discharge for the fihngs cuit Judges.

was not a violanon of the Act.

Vacated and nmanded. E. GRADY JOLLY, Circuit Judge.

The peuuoner, Brown & Root, Inc., ap.

1. Labor Relations *=24.5 peals the order of the Secretary of Labor (Seentary) affirming an admmistrouve law Energy Reorganizauon Act secuon prohibsong an employer from d4 charging judge's firidmg that it dacrtrrunsted an employee for commenetag, tesufying m.

against an employee by discharging ham for engsgmg m conduct protected by see-mastsung in or partiopaung to a proceeding for the admmetrabon or enfortement of uon 210(a) of the Energy Reorgannat)on the requirements of that Act or the Atomic Act (ERAL 42 U.S C. t 5451(a) Because Energy Act does not protect the filmg of we find the fihng of such a report a not punty internal quahty control nports, protected by the statuta, the Secretary's rather, it ta designed to protect " whistle order is sacated and the case is nmaaded blowers'* who provide informauon to gov. for further considersuon not mconsistent ernmental enubes, not to the employer cor- with our holdirig here.

se e.e 8,m ead s e, Nemie, cienst.swa COPYRICHT 4 lled Dr WEST rUbusHING C0 The $pnesee $plek one liep Meme., Casse,r, aswee sumswsess no ten of uw opesess of tee emon

e 9

-w >

1218t BROWN & ROOT. INC. e. DONOYAN I, mmoved from h team and h defuta wm nrnappet but Bmndt suH cenaWmd Brown i knot =as the pnme contractor the number of defects enemsne. It was at h Comanche Peak Steam Dectne Pow. laut decovmd that bandt W ordmd er Stauon. a nuclear genereung facihty the wwng standard md in Se mapoccon.

naar Glen Rose Teams. In December 1981, Charles Atchaon became a field quahty The third NCR, No. 341 drafled by At.

control mspector for Brtwn & Root at W chaon in April 1942, contended that certam Comanche Peak site. It was W duty of a nspecuon testa conducted by inspectors ganhty control insputer to inaue a norgon- employed by Tezas Utihty Genersung formance report (NCRI wbenever he detect. Co w n W m nf h h k P d ed a condition wbch he corishiered did not g,,,

fr.eet contiset specif'ecauons- Atchmon ** * *R*was MN W ^

was opcifically responsibie for inspectmg drsft of em Mt os a supener's pipe whip restrair.t.itatalispon welds. N desk wuh a nota dat W NCR W oot yet controversy in the case centers on three ban issued and dat Atchmen was agne NCRs neued by Atenison. % first, "the aW to decusa'ng i it. b W days W 822 tevel meident." concerned defecta no- the supenor told Atchison that he mtended uced in March of 1982 by Atchison m weids recommending W voidmg of NCR No. 341, which were not hts specifs responsibihty and Atchison voiced no object.on. The but whnh were located near those he was NCR, with Atchison's note attached, was inspectang. After this incident. Atchison's given to Brsndt along with other papm, immediate supenor infonned him that includmg h supenor's promobon recom.

Brsndt, the ulumsta supenor, thoi.ght At, mendauon for Atchtson. Brandt and Pur-chison was mspecung beyond W scope of dy, anoWr supenor, taeufsed that they his job. The area was later remspwted inurpreted the note on the NCR ma na and the existance of some of the defecu anampt to gam levunge or negousta with that Atchtson had reported was confirmed. regard to the recommended promotaos. On The suond inodent, "NCR No 296." Apnl 12,1982, Brandt sent Purdy a memo-also occurnd m March 1982 after a craft rar. cum staung (Ast Atchison's services supervisor uked Atchmon to inspect some were no longer required because *he refus.

welds on unmetailed pipewhip restramu es to Unit his scope of responsMety."

that the crsft supervisor beheved to be Purdy tesufied Wt tocause he was urable defecuve. Four men wm asserned to map to place Atchison m another job, he fired trie defects in the pipewhip restraAnta. him.

Brandt was not sataaf.ed with the taain's Atchtson made a umely complamt that he first report, feehr.g that it showed an irn.

was discharged for acuvity protected under possMe number of defects. Atebson was

. 4.en se ila ana4h a

• hold

• Las se prevens fwnher

, I, An NCA is e *r u ese r ensernal repori* by wheth a f'ee.d qual ty control inspector notas e work ()t obtsen an NCR numeer from me NCR

, coordanasor, ()) soser the NCR numhet el the

• • <tesdenon IAas esiner oppnars not to conform so hold tag. (4) drah an hCR doeteibang the conde-to appw4ble coneiructeen steofimiorse or i.en and mapping not locauen, end il) tubmet wnish specifemmos the f act o' degree of son- the drah NCR for approval to the quality son.

formance es endeterminant The procedures re- trol supervisor quire the entpecor who cheer $es such a condo

., M ~ ~

, 1:1s BRO;N O ROOT, INC. v. DONOVAN section 5851(a).: N Department of hold Labor intracorporate quahty control report. We that the fdmg of such a report is not invesagated and agreed.a The admmistra-tive law judge found that Atchison had lied protected by the statute. This docuion a on has job apphcausa, falsifwd documents. predacated on three considerations: first, was a totally unrehable witness and that the statutory language cannot be stntched nothing he said could be beleved witnout to encompass such a filmg. Second, the independent corroboratson. She held with legislauve history of the Energy Reorgani-Atcheon, however, that filmg an NCR was zataon Act (ERA) does tiot support such an a protected actmty, that Atchison was extension of W meaning of secDon 5851.

fired for fihat the NCRs in " good feath," Dird, h structus, of the ERA (adicata and that the reasons swen by Brown & that secuen 5451(a) is daigned solely to Root for the discharge were protants.' protect from retahauon corporate "wh.stle

' N administrouve law judge recommended blowers" who inform responsible offeals reinstatement, back pay, and attorney's , g ,,,,,,,g, g , g,,,,

fees. he Secretary of Labor affirmed the adminstratave law judge's decision with the ancepuon of the rematatement which was denied because Atchison had falsified ^-

has educataonal gashficauons for this crit.

N language of section $451 cannot be ical job on several occasions.

constived to protect the fdmg of purely intarnal quahty control reporta. N role-

!!. vant language prohibita employer decrimi-

!!,21 The disputa in this case concerns **'* * '8 '** * "" '* P *3 F"

• h* h**;

whether under 42 U.S C. t Sa51(ad; an (1) commenced ... a proceedang under employer is tLarred from discriminatmg tha chapter or the Atoaue Emergy Act of against any employee for the fihrig of an (3) saansed or paeucapeeed or is abows to

2. Sectewn $856ts) prendet suist er participsie in any manner na thsch No emp6cyer, including a Comfrusaaen 1,. a proteadant et la any other meanet an tensee, an speist. Ant for a Commiunon h- sudh a pecatending or in any osher acsson to cense of a set stector or a suticontractor el a carry own the purpusse of this thspear et she Commeueon l.censee oc applicant, mey dis- Atomas Energy Act of 1954. as aseended l43 thatte any employee or oderwtas diasnme- US C. 208 8 et seg ).

rwe aseenas any emp6oyee with respect to hia companhaisert letms tortditeens or prwileges 3. Putswant to !# CLR. (( 24.124 e and 43 of empeeyment becawee the errtployee (or any USC l Stil(bl person acting purtumas to a reques; el the 4 at the hearing before the admsmarauwe law (1) sommem ed, c.auand to be sommericed. g F 1

or is stious le commence or sawas to be h'non was aet eNgtag that he W bout fared sommenced a peemoeding under trus crap. for filins NCRs but rather for tareesenseg to re ter of the Atomie Ene ry Act of 1954. aa '8 'h' h"'I"' A*ful*'ory Comane en. No en.

amended l42 US C. 2011 et seg.L or a pro- dence adduced at trsal would support an aanf ar, seeeeng for the admametration or entotte. ence that any of the managemem twrwanne.

mens of any requerernent impoemd under 6nvohed in Atchaton a termanation were aware e

this shapest et the Alesn#4 Ettetgy Att 6f of swah threata. The At). howeves, based her i

1954, as ameeded, d*5's.on on her finding shal Brown and pass (2) newilied of to abows to teetly in any terminated Alcheton for filing NCAS such ptoceedsms or',

M .-

1220 BROWN & ROOT, INC. v. DONOVAN 1954 [together referred to below as "The eral t nn after a list of specifies to mean Acts") ... or ... for the administranon something wholely urastrained by the spe-or enforeement of the requirements of cifica. Although this is merely a common-

. . . [the Acts). sense rule for interpreung a untence, in cases of statutory construccon we know (2) testatied . in any such proceeding h 6 u **5ade Wm'* M C.

(3) aaaisted or parucipated , m any Sands. SurAerland Statutory Constese.

manner in such a proceedmg or in any gion 6 47.17 at 103-04 (34 Ed.1M3) (1983 other action to carry out the purposes of SuppJ.

. . . [the Acts). The Secretary has urged the word "ac.

42 U.S.C. I 5851(a). gn,.. be construed na any conduct or act.

The Secretary does not contend that the but such a meanmg seems unkkely. First.

. fihng of an internal quahty report could be the Secretary's construcuon runs agamat either a " proceeding under" the Acts or a the common sense rule discussed above.

" proceeding for the admmistrsuon or err Moreever, the statute protecta parncipation forcement of" the Acts; "proceedtag" con- "in any other scuon." which imphes an cededly refers to a formal legal or admints- " action" is a kmd of structured proceedmg trative proceeding as the term is used in in which a person may parucipate, not just secuon 5851. Thus the act of filing must any act a person may perform. The Secre-be parucipauon "m any other acuon to tary argues that the proceedmrs expressly carry out the purposes of" the Acts if it is lated exhaust the class of all thmgs similar f

protected conduct. Puttmg aside for the to these proceedings and thenfore main-moment the broader quesuons of purposes tams that "scuons" must be given a mearr and policies behind section $851 we mg beyond this class of similartty. We do first examine what meanmg an ordmary not agree that the listed specifics exhaust reader would give to the language of see- the class. For example, although we do tion 5351. "(!)t should be generally as. not decide a matter not before us, it sp-sumed that Congress expresses its pur- pears that a congressional invesugstory poses through the ordinary meaning of the proceed ng or other official mvestigations words it uses. . Escondido Afutual are quh likely acuons" beanng suffectent Wotte it la Jolla. -liS ,104 S Ct.

similanty to " proceedings under" the Acts 2!05. 2110, M led 2d 753 (1984L Absent ,, ,.proceedmgs for the admmtstratan or a clearly expressed legislauve mtenuon to enforcement" of the Acts to warrant pro-the contrary, statutory language must orde te bon under section 5851.

canly be regarded as controlhng. /d.

Second the Snretary's mterpntauon Beause the general term "m any other would render much of the language of sec.

acuon" follows a reference to specific types tion 5851 redundant if the word " actions" of proceedmgs, it is most Masonable to has his suggested meaning, then the mean-presume that the term "acuons" refers to ing of the enure section could just sa easily something similar to the specific proceed. have been expressed without menuon of ings menuoned eather m (ne sentence. any "proceedmgs" at all. Such a construc.

Only excepuonally does a wnter use a gen- uon seems strained. Nettste i. Board of

BROWN & ROOT, INC. v. DONOVAN 1:21 Public /astructiovi, 548 F.2d 559 n. 38 (5th None of these factors support the Secre.

tary in the present cue.

Cir.1977).

First, the Secretary of Labor does not Third, a statuta should be interpreted in its endrety. See Sutherland at 27. The appear to have gnat expertae in mattere of nuclear safety. See ford #otor Credit language of the remainder of the ERA e. Melhollist 444 U.S. 555,100 S.Ct. 790 does not support the Secretary. The word "acuan" is not used elsewhere in the ERA 797. 63 led 2d 22 (1960), Asopelles at 911, t to mean general conduct. Sec6cn 5871te) While secuan 5851 concerne employee pro-

• begma: "no sust, actaon or other proceed. tecuon to some entent and the Secretary is charged generally with matters concerning inp... " (emphasis added), implymg ar. we

" action" is a kmd of proceeding. Sectaon the employeeemployer relataonship,

• 5851(e), enctled " Commencement of Ac. cannot ignore the fact that secuoc 5451 is bon," authorues the Secre'.ary to file a pnmanly designed to wrve the major pur-poses of the ERA, in this case, nucleet

" civil acuon" and states: "In acuena* We safety. Nuclear energy involves ques 6 ens brought under this subsecuen.

of great scientific and engmeenng sophind-usually presume words are used consistent- cauon well beyond that required in orde-ly through a statuta. /d. In summary, it seems highly unhkely that an ordmary nary industnal relauona. The Department wntar of Enghsn sould have used the of Energy (m parucular, tne Nuclear Rega-words of secuon 5851 to mean what the latory Commasion; has special competenee Secre.ary says they mean. It is much in this area, not the Department of Labor.

more hkely that "acuon" is used to mean Second, the ler.gth of time in which the somethmg similar to formal procadmgs Seenury has adhend u his interpnuboo under the Acu or for the administrauon or of the statute is not great. Under Aie-enforcement of the requ2rements of the yelles the Secretary a cpmion, especally if Acts. left undisturbed by Ccngrees, is to be tak-en na evidence of congressional meanaag, B.

but "[t]here is no reason to expect admanus-trauve *F'ney m'mb'N to d3P *Y l a

• Poem!

The Seentary claims that ta interpnta, fidebty to the or gmal mtent of the legisla-uon of secuon 5451 ts enutled to substan- don rather than the current pobcaes of the tial deference as the interpreta6cn gwen a Admmistrsoon and the Congress. ,, If statute by the agency charged with its ntagntauon has penM dr@

administracon. Atoyelles Sportsme t's Several changsa of Adminatrauon. that League r Marsh,115 F.2d 891 (5th Cir. may be a diffennt matter." Posner, Stat-1983) 3 (collec6ng cites). However, Ato- uto*y Interrettorian. 50 U Cn LRev. 800.

pelles cited three factors which influence 8' "' '

I the degree of deference to be accorded an ' I 'I b # * " "

agency's mterpretadon: first, the degne menu undu which me Santary clauna

! of agency arperuse necessary to reach the aumonty only data to M. this facur does interpretation; second, cor.ststancy in not weign henvJy m his favor.

length of adherence to the mtarpretauon, Third, as we have pomted out above, the and third, the exphcitness of the congres.

language of secuvn 5A51 does not appear, sional grsnt of authonty to the agency a

~  %

1222 BROWN & ROOT, INC. v. DONOVAN upheitly or implicitty, to protect the filing Act.sJ S. Rep. No. 848. 95th 'Cong., 24 of internal reporta; quita W reverse is Seas. 29 (1978), U.S. Code Cong. & Admin.

true. The Secntary's rehance on Avo. News 1978, p. 7303 femphasis added).

yelles is unwarranted, we will not a,pplY h rule of that case in disregard of the In rebuttal, the Secretary draws atten-policies on which the rule is grounded. tion to W statement of a sponsor of the

"[A)n agency's interpretation cannot be legisladon: "lat me point out that the pro.

sustained if . . it conflicts with the clear tecuon afforded is intended to apply, even language and legislauve hatory of the stat" if no formal proceeding is actually insatut.

ute." Escondido at 2114, n. 22- ed as a result of the employee's assistance or parucipauon. Statement of Sen. Gary \

Hart,124 Cong. Rec. 2M71 (1978).

IV. g However, the statements of indmdual A' lepslaton, mn sponnon, an mw.h b The legulauve history of secoon 5851 conclusive en the issue of congranasonal

' strongly supports mterTretaung an "ae- intant than are official committee reports, tica" as similar to formal proceedings un- and, in addiuon. Senator Hart's statement der or to administer or enform the require- is not ir.conststant with our readseg of the statute. We read secuon 5851 as requiring ments of N Acts. The Conference Com-mittee report desenbed the purposes of the an **acuon" to be similar to the proceedings secuon as follows: expressly deser%d in that section. We do not now consider what degne offornishly The Senate Bill amended the Energy an "acten" must have under that section, Reorganusuon Act of 1974 to provide ar.d this appears to be the only matter protecuon to employees of Comtntsson addreased by the Senator's statement.

I cersees, applicar ta, contractors, or sub-contractors frorr discharges or disertmh B.

nation for taking part cr assisung in adminutrature or legal proceedings of Attempts to analogize secuon 5851 to thi[ Nuclear Regulato y/ Co.nmassion. poruons of the Nanonal Labor Relauons The House amendment contained no simb Act and W Feder1d Mme Safety Act are lar provvion, and the conferees agned to r>ot persuasive. Tree Secevcary rebes on a

• S' U* I* P '*"- staterrient in s Senate Report to the effect H.R. Rep. No. 1796. 95th Cong., 24 Sess. that secten !A51 t, s,4bstanually idenucal to provisions i,i W Clean Air Act and 16-17 (1978), U.S. Code Cong. & Admm- Fweral Water Pollabon Control A ct, News,1978, pp. 7303, 7309 temphasis add-ed). which, the Secretary argues, were pat.

terned on provtsions of the Mine Safety Act The Report of the Senate Committee on [MSA) S Rep No. 848, 95th Cong., 2d 1 Environment and Public Workers a to simp Seas. 2) (1978). However, the MSA, which lar effect: "This secuen offers protecuon was amended only one year before the

'j to employees who bebeve they have been ERA, contains language erpressly prote.1-fired or disenminated agamst as a result of ing employees films internal complaints-the fact that they have testified, piten No person shall discharge or in any way endence, or brought suit under (ute dtsenmmata against .. any mmer .

.' -4,

• BROWN & ROOT, INC. v. DONOVAN 12:3 because such miner . . has filed or made a complaint under or relatmg to this any effect on the government's abihty to chapter, including a complaint noufymg obtain infonnauon will be at most indirect.

the operator or the operator's agent, ly impaired if the filmg of purely internal of an alleged danger or safety or health reports, not directed to the competent violation in a . . mine. agency, is left unprotected. There may be some such remote effect, and this might by 30 U.S.C. I 815deX1), amended by Pub.L some be counted a cost of our decision, but 95164, Stat.1303.

Title !! i 201, Nov. 9,1977, 91 an extension of regulauon would itself bnng a burden of inemased interference ne ERA has no such express language, with internal procedures, not intended by By the absence of this language it may be Corignes.

as convincingly argued that in drafting the

., ERA Congnss intended to deny protection he Seentary's argument that h re to the filer of an mternal report. Compari. would be benefits from increased regula.

aons with the MSA do not seem to b* tion under sect 2on 5881 is not so clear as to helpfulin this case. penunde us against h weight of the ERA's language that the words of Con.

The Secretary also rebes on a case decid.

ed under the National labor Relations Actmean. gross mean what the Secretary says they In the present case, for example, (NLRA), NLRB s Sentner, 405 U.S.117, the admmistrsuve law judge found that h 92 S.Ct. 798, 31 led.2d 19 (1972). How. employee falsif:ed his quahfications in his ever, Senvener, m which an employee gave job application and other records; the wntten, sworn statements to an NLRB judge decided that tesumony provided by field examiner,is not parucularly helpfulin the employee was ao untrustworthy that it the present case, which involves the filing could only be considered it it were substan.

of a purely ir.ternal report. First, the NLRA expressly prohibita disentnination uated by evidence over which the employee agamst employees who have "given testi- had no control. Nevertheless, the judge mony under this Act." It does no violence found the employee had filed his quality to tne language of the NLRA to interpret control reports m " good faith." nis exam.

si,ir,ed, sworn statementa as "tesumony." pie md: cates that interference with employ.

Second, the Secretary strenuously argues ee. employer relauonships would be quite that the Senteer deession is especzallywere substanualif adopted. the Secretary's mterpretauon appheable to this case because Sen'taer was predicated to some extent on the possi.

bihty that failure to protect employee con. g,~

tacts with NLRB agents might " dry up" A.

the NLRB sources of informauon and thus undermine the regulatory structure Con. De structure of the ERA indicates that gress had put in place. In Sentacr, how. svetaon 5651 is designed to protect " whistle ever, the government s abihty to obtain ,, g 3 g ,

necessary informauon would have been de g g rectly impaired if W Board's own agents E* '#"'

could not have contacted an employee with.

Subchapter !! of the ERA sets up h out the employee feanng retaliation; here, structure by which Congress intended W

~

1224 BROWN & ROOT. INC. v. DONOVAN safety of adelear installations to be as- quences would seem to extend far beyond

• sund. De subchapter creates the NRC the purpose and structure of the ERA. !!,

and its various consutuent monitonng, re- as the Secnury maintains, all conduct of a search and enforcement agencies. ERA, quality control inspector believing he is 42 U.S.C. H 5341-45, 5847-50. The offi- helping to ensure the safety of a nuclear eers of these agewes an charged with the plant is protected by section 5851, then the investigation,cf nuclear facilides. Corre- same would appear to be true of all engi-spondingly, nuclear corporsoons and corpo- neers and architects who work on the de-rate officers are charged with ensunng sign of the plant. The Secretary's readmg that safety violations an nported and that of the statute would appear to protubst the regulanons are enforced under sectaon discipline or discharge of such people for 5846. Officers failing to rcport violadons any daagreement with their employers on are subject to civil penaldes. Thus, the any rnatters which involve plant safety.

basic structure of the ERA is not designed Moreover, the same would appear to be to modify the employeeemployer relation- true for crery employee. Since a wide ship, but rather to rely on corporate offi- range of decuions in a nuclear company cers to manage the corporadon in compli- will have some beartog on plant safety, the ance with their obligations to ensure public Secretary asks us to adopt an interpreta-safety. tion that would radically restructure the he role of sectaon 5851 in this legislauve employeeemployer relationship in all nucle-framework is clear: to protect the integnty ar corporations on the basis of a general of the regulatory structure and to guard " catch all" provnion attached to the end of against the possibility that corporate offi. a statute. If the statutory languages were cers will not provide the necessary informa. not enough to persuade us that the Secre-tion, section f,E51 protects employees who tary's interpretation is incorrect, these lim.

provide competent government officials itless consequences would certainly gwe us with direct informadon. Thus, section pause.

5851 protects corporate "whatJe blowers."

If a corporate cfficer fails to act on an internaf rrpcrt entical of safety condi, B.

tions, he is liable under sect 2on 5846. He fact that Congress has laid down, or While an individual employee disciplined caused to be laid down. more refined and for the filing of an internal report is not express regulations concerning the nuclear endtled to redress under sect >ou 5846, any industry than any other industry in the officer responsible for the d2scipline must nation, caudons us against extendmg this bear in mind that he will be subject to regulatory scheme by implying protection sanedon. Thua, the overs!! plan of the of nternal filings where none exista ex-ERA is to maintain put.A* cafety not r* pressly. De fact that Congress has pro-structure the employee-employer relatian- duced so many detailed provisions govern-ship. ng the nuclear industry indicates the leg:s-In this regard we are t.oubled by the lature may well have attempted to ap-Secretary's inability to confine in a pnnei- proach the Ime where it believed the added pied way the logical consequences of his costs of regulation exceed benefits. Edgar proposed interpretation; tiene conse- v. AIITE, 457 U.S. 624,102 S.Ct. 2629, 73

,, % v 1:25 BROWN & ROOT. INC. v. DONOVAN Vll.

1 Ed 2d 269 (19821 (holding that additional prosecuon afforded investors by state secu- We are, of course, mindful that our hold.

rities statutes would " overprotect" inves- i b bis a em a split b h cio tors to their detriment); we Easterbrook, eu ta. Tbe Nmth Circuit has previously Statutes' Domain 50 U.ChiLRev. 533, held that the filing of internal quality con-542 (1983). If this is so, for a court to trol reporta is prtaected by sectum 5851.

interpret the statute to authorise "more in Mdd v. Wie US F.2d 1159 the same vein" will result m regulation (92 Cir.19M MdW's holding a where conta exceed benefits, upsetting the 16 mue is phud pMy on At balance mtended by Congress. Id. We h NM ht miM as hih believe that respect for the detailed ex. between the provisions of the Mine Safety press regulatory structure set up by Con. Act and secnon 5851. As we have pointed gress counsels us to take a cautious ap- out a h MSA conuins lanw es.

proach m mterpreung the general phrase pressly protecting internal filings. Accord-any other action to carry out the purposes ingly, the MSA, in our view, provides no of" the Acts. This caution is an additional suppon for MdM's inurpmudon of reason for interpreting the general term mtion 5851.

" action" an denoung something closely sim-

1. ackomak also finds a rationale for ex-ilar to the " proceedings" expressly men. tendmg protection to internal filings be-tioned in section SSSI. cause: "In a real sense, every acten by quality control inspectors occurs 'in an VI. NRC proceeding / because of their duty to enforce NRC nphons? Mmak at We accordmgly hcid that employee con- . One maw d:Wuh with Ws h duct which does not involve the employee's ale is that den appean u k no suppon contact or involvement with a competent for it in ** lanp*E*. k@tive hry or organ of government is not protected un, * *#""*"" "I *h*

der secton 5851. We do not purport tc Of equal concern to us is the fact that dtjine what consututes protected conduct there is no principled way to contain tnis under section 5651; such a determination is rauonale. The officers of a nuclear corpo-unnecessary to the resoludon of this case. radon and the corporadon itself are re-We do not say that an employee states a elaim under secuon 5851 if he merely alleg. qutred by law to enforce NRC regulanons.

This would imply. under the Ninth Circuit es employer discrimination on the basis of employee contact or involvement with a reasonmg, that "[i)n

" nuclear a real sense, corporations " occurs every aedon by competent organ of government; however, 'in an NRC proceedmg/ because of their absent such contact or involvement, the employee does not make out a claim under duty to enforce NRC reguladons." so th this sec6cn. We do not attempt to say all employee interacuons with the corpors-taon would be protected as par 6cipation in what protected conduct under secdon 5851 an NRC proceedmg. This obviously is not is; we indicate only what it is not Since the mearung of section 5851 and neither the the filmgs in this case were purely internal, Secretary nor the Ninth Circuit has sug-we hold they were not within the scope of gested any satisfactory way in which this sectaon 5851.

.4 __-

1224 -

BROWN & ROOT, INC. v. DONOVAN rationale might be contained. #ackoodak and there is certainly no discussion of the suggests that it only forbids the discharge issue in that cose. We betwve that had the of quality controlinspectors "because they matter been argued, the outcome of that do their job too well." Id. The natncuon case might well have been different.

of the holding to quality control ir.:pectors appears to be unsupported by the language or structum of the statute. "This effort to -

circumvent the plam meaning of the stat, in this opinion we have concluded that ute by creating ambiguity where none ax. the Secretary's interpretation of secuon ists is unpersuasive." Escondido at 2115 5851 is unsupported by the language, legis.

(discussing the statutory interpretatson in lative history, structure or punoses el the Escondido Mutual Water v. Eclolla, 692 ERA. We find that Atchison's coeduct F.2d 1223 (9th Cir.1983). was not protected under section 5851 and The Second Circuit has also applied see-

• • • "I I **** ** ** b'*"I*'I '

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tion 5851 to the filing of internal quality reports. Consolidated Edison v. Dono- enti n not incomtent with our holdmg ten. 673 F.2d 61 (2d Cir.1982). However, hm.

neither party challenged this applicauon VACATED and REMANDED.

Adm. Offre. U.S. Courta-West Publishing Company. Samt Paul. Mmn.

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N 0"T"I T I'0 N V0TE RESPONSE SHEET

, T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION FROM: COMMISSIONER ASSELSTINE SUMECT: sscy-84-4s7 - ornscrOa's osnzat Or 2.20s Pertr10n (in MATTsR OF DUKs POWsR COMPANY)

APPROVEDL DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION

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DAlt SECRETARIAT NOTE: PLEASE.ALSO RESPOND TO AND/OR COMMENT ON OGC/0PE NRC-SECY FORM DEC. 80 MEMORANDUM IF ONE HAS BEEN ISSUE po,o es.3 g3 -

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FREOD0es OF INF00stlAT40N ACT REQUEST J. M. Felton, Director F0.TA 52'fl Division of Rules and Records Office of Administration gg g [ ,2d Y7 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 j l

. Re: Freedom of Information Act Request j Regarding Enforcement Action EA 84-93 )

i

Dear Mr. Felton:

Pursuant to the Freedom of Information Act (5 USC 5552) and the NRC's implementing regulations thereunder (10 CFR 69.3 et seq.) I hereby request l on behalf of Duke Power Company all documents related to and underlying Enforcement Action No. EA 84-93 being taken against Duke Power Company.

This enforcement action is reflected in the Notice of Violation and Proposed Imposition of Civil Penalty issued August 13, 1985.

1 This request extends not only to all relevant documents at NRC Headquarters relating to the enforcement action and the events surrounding Mr. Gary E. " Beau" Ross, but also to all such documents within NRC Region l 4 II including any such documents reflecting any communications between Region l II and NRC Headquarters. This request includes, but is not limited to, all 4 documents reflecting, underlying, or otherwise relevant to:

1. Any communications between NRC employees and/or representatives and

! members and/or representatives of Palmetto Alliance, the Government Accountability Project and/or any other outside group or individual concerning possible enforcement action cased on the events surrounding Mr.

Ross and/or the concerns expressed by the welding inspectors at Catawba i Nuclear Station, and/or alleged harassment and/or ittimidation of any

! quality control / quality assurance inspector at the Catawba Nuclear Station.

2. The June 4, 1985 Director's Decision (DD-85-9), including alternative drafts or proposals, and ir.cluding all documents reflecting any independent fact-finding investigation conducted by NRC in connection with the enforcement action or concerning Mr. Ross.

3. Any decision to engage or not to engage in any independent fact-finding in connection with the enforcement action and Mr. Ross.

4. Deliberations regarding whether the record developed before the Atomic Safety and Licensing Board was adequate to support a finding of discrimination within the meaning of 42 USC 55851 and/or 10 CFR S50.7. This request also extends to any documents reflecting deliberations whether the C

%5 W N W(lf. _- -- . - - - - . - - - - -.

I i

J. M. Felton, Director  !

b. S. Nuclear Regulatory Commission [

August 19, 1985 Page two ,

1

! record developed before the Atomic Safety and Licensing Board was adequate I

to support the Board's finding of discrimination. .

5._ Deliberations regarding the appropriate severity level to be assigned the alleged violation.  !

6. Any communications between representatives of the NRC and  ;

representatives of the Department of Labor relating to this enforcement action or the events surrounding Mr. Ross.

4 . 7. The Commission's decision not to review 00-85-9, including documents

underlying and reflecting the ' majority votes of Chairman Palladino and l Commissioners Bernthal and Asselstine, and documents underlying 'and reflecting the dissenting views of Commissioners Roberts and Zech.  ;

8. The August 13, 1985 Notice of Violation including alternative drafts or proposals.

9. The August 13, 1985 Proposed Inposition of Civil Penalty, including

alternative drafts or proposals.

I would appreciate your prompt response to this requa t within the ten working day permd provided in 10 CFR 59.9. Duke Power Company's deadline

for responding to the Notice of Violation and Proposed Imposition of Civil Penalty .is September 12, 1985. The documents I am requesting could well i prove to be significant to that response. Accordingly, I hope that this request will be met as expeditiously as possible. If you cannot meet this

! request within the period set out in the regulations, please notify me as soon as possible, and tell me when you will be able to respond.

! Sincerely, Albert V arr, Jr.

c: James N. Taylor l

Jane A. Axelrad l

1.

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