EA-04-103 - Soil Consultants, Inc.

October 6, 2004

EA-04-103

Soil Consultants, Inc.
ATTN: Mr. Joseph W. Dixon, President
9303 Center Street
Manassas, VA 20110-5547

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY-$9,600(OFFICE OF INVESTIGATIONS REPORT NO. 2-2003-061)

Dear Mr. Dixon:

This refers to an investigation conducted by the U.S. Nuclear Regulatory Commission (NRC), Office of Investigations (OI) at the Soil Consultants, Inc. (SCI) facility located in Manassas, Virginia. The purpose of the investigation was to determine if a former dispatcher employed by SCI was the subject of employment discrimination because he did not follow company policy by going to a supervisor to report an alleged nuclear incident, and because SCI believed the dispatcher had reported nuclear safety concerns to the NRC. The NRC's review of the OI report of Investigation (ROI) No. 2-2003-061, dated February 11, 2004, identified an apparent violation of the Commission's requirements in 10 CFR 30.7, "Employee protection," which was transmitted to SCI by letter dated June 28, 2004.

On August 18, 2003, a dispatcher at SCI related that he had been terminated by SCI on August 14, 2003, several days after the NRC conducted an inspection at the facility. The dispatcher indicated that SCI believed that he had notified the NRC about possible violations of NRC requirements resulting in the NRC inspections. SCI contended that there were legitimate non-discriminatory reasons for the actions taken against the dispatcher.

On August 12, 2004, the NRC conducted a predecisional enforcement conference (PEC) at the NRC Headquarters office in Rockville, Maryland, with you and members of your staff to discuss the apparent violation, its significance, the root cause(s), and your corrective actions. Although the OI did not substantiate the allegation of discrimination, based on the ROI and the information gathered during the PEC, the NRC determined that the dispatcher was terminated, in part, for discriminatory reasons in violation of NRC requirements. From the information gathered, it is apparent that SCI was concerned with who may have called the NRC about safety concerns. This is evident from the fact that SCI questioned a steel inspector regarding a call to the NRC, and required the dispatcher to sign a statement that the steel inspector had not made an anonymous call to the NRC as the dispatcher had previously stated. In addition, the adverse action was taken immediately after an SCI representative was informed by a SCI employee that an anonymous call had been made to the NRC.

Based on the severity of the adverse action taken, the level of management involved in the adverse action, and the potential impact to SCI's Safety Conscious Work Environment, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level II. See Enforcement Policy, Supplement VII.B.4.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $4,800 is considered for a Severity Level II violation. ¹ The NRC considered both the Identification and Corrective Action factors with respect to this violation in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. SCI is not deserving of identification credit because the violation was identified by the NRC, rather than self-reported by SCI. In addition, although you have taken some actions to address a chilling effect on the willingness of your employees to raise safety concerns, as documented in your letter dated December 15, 2003, to the NRC, no credit was given for Corrective Action because the actions described in your letter were narrowly focused and did not address management's understanding of the NRC's employee protection regulations. As a result, the civil penalty will be escalated by 100 percent. Therefore, to emphasize the importance of prompt identification and correction of violations, and a safety conscious work environment that is free of any chilling effect so that employees can bring forward nuclear and radiological safety concerns without fear of an adverse employment action, the NRC has decided, as provided for in Section VII.A.1 of the Enforcement Policy, to issue the enclosed Notice of Violation (NOV) and Proposed Imposition of Civil Penalty of $9,600, which is twice the base amount for the Severity Level II violation.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

On August 18, 2004, the Commission issued a decision in a case (Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 1; Sequoyah Nuclear Plant, Units 1 and 2; Browns Ferry Nuclear Plant, Units 1, 2 and 3), Commission Memorandum and Order (CLI-04-24)) involving employee protection provisions in 10 CFR 50.7 that addressed the legal standard for the NRC staff's use in all employee protection cases, including 10 CFR 30.7. The Commission stated that the staff must show, by a preponderance of the evidence, that a protected activity was a contributing factor in an unfavorable personnel action, and must also consider if the employer showed, by clear and convincing evidence, that it would have taken the same actions regardless of the employee's protected activities. You may wish to consider this decision in your response to the NOV and proposed civil penalty.

If you disagree with this sanction, you may request alternative dispute resolution (ADR) with the NRC. ADR is a general term encompassing various techniques for resolving conflict outside of court using a neutral third party. The technique that the NRC has decided to employ during a pilot program which is now in effect is mediation. In mediation, a neutral mediator with no decision-making authority helps parties clarify issues, explore settlement options, and evaluate how best to advance their respective interests. The mediator's responsibility is to assist the parties in reaching an agreement. However, the mediator has no authority to impose a resolution upon the parties. Mediation is a confidential and voluntary process. If the parties to the ADR process (the NRC and the licensee) agree to use ADR, they select a mutually agreeable neutral mediator and share equally the cost of the mediator's services. Generally, the NRC is willing to discuss the resolution of three potential issues: 1) whether a violation occurred; 2) the appropriate enforcement action; and 3) the appropriate corrective actions for the violation(s). Additional information concerning the NRC's pilot program is described in NUREG/BR-0317. The Institute on Conflict Resolution (ICR) at Cornell University has agreed to facilitate the NRC's program as an intake neutral. Intake neutrals perform several functions, including: assisting parties in determining ADR potential for their case, advising parties regarding the ADR process, aiding the parties in selecting an appropriate mediator, explaining the extent of confidentiality, and providing other logistic assistance as necessary. Please contact ICR at 877-733-9415 within 10 days of the date of this letter if you are interested in pursing resolution of this issue through ADR. You may also contact Nick Hilton, Office of Enforcement, at (301) 415-3055 for additional information.

In accordance with 10 CFR 2.390 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and your response will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which is accessible from the NRC Web site at the Public NRC Library. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/
		Frank J. Congel, Director Office of Enforcementr

Docket No.: 040-02384
License No.: SMB-00602

Enclosures:

1. Notice of Violation and Proposed Imposition of Civil Penalty
2. NUREG/BR-0254 Payment Methods (Licensee only)
3. Commission Memorandum and Order (CLI-04-24) - Licensee only - ML042310217

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Soil Consultants, Inc. Manassas, Virginia

Docket No. 03033635 License No. 45-15200-04 EA-04-103

Based on the U.S. Nuclear Regulatory Commission (NRC) Office of Investigations (OI) report 2-2003-061 and information gathered during the August 12, 2004, predecisional enforcement conference, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the NRC proposes to impose 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 particular violation and associated civil penalty are set forth below:

10 CFR 30.7 prohibits discrimination by a Commission licensee against an employee for engaging in certain protected activities. Discrimination includes discharge and other actions that relate to compensation, terms, conditions or privileges of employment. The activities which are protected are established by Section 211 of the Energy Reorganization Act of 1974, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act or the Energy Reorganization Act. Protected activities include, but are not limited to, reporting of safety concerns by an employee to his employer or the NRC.

Contrary to the above, on August 14, 2003, Soil Consultants Inc. (SCI), an NRC licensee, discriminated against one of its employees, Mr. Arthur Clark, for engaging in protected activities. Specifically, Mr. Clark was terminated, at least in part, because SCI believed that he had notified the NRC regarding possible violations of NRC requirements.

This is a Severity Level II violation (Supplement VII). Civil Penalty - $9,600.

Pursuant to the provisions of 10 CFR 2.201, SCI is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty. This reply should be clearly marked as a "Reply to a Notice of Violation; EA-04-103 and should include for the alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. Your response may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued as why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown, such as engaging in alternative dispute resolution.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty proposed above in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violation listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.C.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, statement as to payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Frank J. Congel, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region I.

Questions concerning this Notice of Violation and Proposed Imposition of Civil Penalty should be addressed to Russell Arrighi, Office of Enforcement, at 301-415-3936.

Because your response will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at the Public NRC Library. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.390(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

In accordance with 10 CFR 19.11, you are required to post this Notice within two working days.

Dated this 6th day of October 2004

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^1. For the purpose of considering civil penalties, SCI is considered to fall into the "small materials user" in Category "e" of Table 1A of the Enforcement Policy.