United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-95-171; EA-95-277- Vogtle 1 & 2 (Georgia Power Co.)

May 29, 1996

EA 95-171 and EA 95-277

Georgia Power Company
ATTN: Mr. W. George Hairston, III
Executive Vice President
Post Office Box 1295
Birmingham, Alabama 35201


SUBJECT:  NOTICE OF VIOLATION 
          (Department of Labor Case Nos. 90-ERA-30, 91-ERA-001, and 91-ERA-011)

Dear Mr. Hairston:

On August 4, 1995, the Secretary of Labor issued a Decision and Remand Order in Department of Labor (DOL) Case No. 90-ERA-30, Marvin B. Hobby v. Georgia Power Company. The Secretary of Labor found that, in 1990, senior managers of Georgia Power Company (GPC or licensee) discriminated against Mr. Hobby, former General Manager of GPC's Nuclear Operations Contract Administration (NOCA), when Mr. Hobby's position was eliminated and he was forced to resign from GPC. In addition, the Secretary of Labor found that other acts of discrimination occurred such as relocation of Mr. Hobby's office, restrictions on his access to the building, and revocation of his executive parking privileges. The Secretary of Labor determined that GPC terminated Mr. Hobby for engaging in protected activities, which included his raising safety concerns related to the operation of the Vogtle Electric Generating Plant in an April 27, 1989 memorandum that Mr. Hobby provided to GPC's Vice President of Bulk Power. In the memo and during meetings, Mr. Hobby expressed concerns that the actual organizational structure governing operation of the licensee's nuclear facilities violated NRC requirements. This Decision and Remand Order rejected the Department of Labor's Administrative Law Judge's Recommended Decision and Order issued on November 8, 1991, which found that actions taken against Mr. Hobby were not motivated by his engaging in protected activity. Our concerns regarding the apparent violation of NRC requirements and a copy of the Secretary of Labor's Decision and Remand Order were transmitted to you by letter dated September 1, 1995.

A predecisional enforcement conference regarding this matter was conducted in the Region II office on October 4, 1995, to discuss the apparent violation, the root cause, and your corrective actions to preclude recurrence. This conference was open for public observation in accordance with Section V of the NRC Enforcement Policy, NUREG-1600. A report summarizing the conference was sent to you by letter dated October 11, 1995.

By Decision and Remand Order, dated November 20, 1995, in DOL Case Nos. 91-ERA-001 and 91-ERA-011, Allen L. Mosbaugh v. Georgia Power Company, the Secretary of Labor concluded that GPC discriminated against Mr. Mosbaugh when GPC terminated him. In his decision, the Secretary of Labor concluded that Mr. Mosbaugh had engaged in protected activity "by making lawful tape recordings that constituted evidence gathering in support of a nuclear complaint" and that other employees' potential unwillingness to communicate with Mr. Mosbaugh was not a legitimate reason for discharging him. This Decision and Remand Order rejected the DOL Administrative Law Judge's Recommended Decision and Order issued on October 30, 1992, which found that Mr. Mosbaugh did not establish that GPC violated the Energy Reorganization Act. A copy of the Secretary of Labor's decision was sent to you under separate cover on December 12, 1995.

On December 11, 1995, during a telephone conversation between you and Messrs. Ellis Merschoff and Bruno Uryc of my staff concerning Mr. Mosbaugh's case, you advised that a predecisional enforcement conference was not required at that time. On December 12, 1995, a letter was sent to you requesting that you provide an explanation of your views on the apparent violation, its root causes, and a description of planned corrective actions. In addition, you were given an opportunity to point out any disagreement with the facts and/or findings presented in the Secretary of Labor's decision. You also were asked to address the potential chilling effect that Mr. Mosbaugh's termination may have had on other employees. On December 13, 1995, GPC filed a Motion to Reopen the Record and for Further Hearings with DOL in this case. In your December 21, 1995 response to the NRC's December 12 letter, you requested that the NRC allow GPC to defer its response to the apparent violation until its Motion to Reopen is ruled upon. After review of GPC's Motion to Reopen and the December 21, 1995 request, the NRC concluded that deferral of the response to the apparent violation was not warranted. By letter dated January 12, 1996, the NRC requested that you provide a full response to the apparent violation and potential chilling effect by January 19, 1996. Your response of January 19, 1996 denied the apparent violation and addressed the potential chilling effect associated with the Secretary of Labor's findings.

Based on the Decision and Remand Orders issued by the Secretary of Labor, the NRC has determined that violations of NRC requirements occurred. The violations are set forth in the enclosed Notice of Violation (Notice). The violations involve the failure to adhere to the requirements of 10 CFR 50.7, Employee Protection, which prohibits discrimination against employees engaging in protected activities. During the predecisional enforcement conference and in your letter of January 19, 1996, GPC denied the violations involving Messrs. Hobby and Mosbaugh. Despite those denials, it is our view, based on the Secretary of Labor's decisions, that the facts support the conclusion that GPC violated the regulations applicable to employee protection as stated above. Therefore, the NRC adopts the Secretary of Labor's decisions in these cases and finds that the actions taken against Messrs. Hobby and Mosbaugh were acts of discrimination for their having engaged in protected activities.

These violations are of very significant regulatory concern because they involved acts of discrimination by senior corporate management. The NRC places a high value on the freedom provided to nuclear industry employees to raise potential safety concerns to licensee management or to the NRC. Section 210 (now 211) of the Energy Reorganization Act and 10 CFR 50.7 establish strict requirements for the protection of employees against discrimination for raising nuclear safety issues and the NRC Enforcement Policy calls for significant enforcement action in cases where senior corporate management violate these requirements. Therefore, these violations have been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level I.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $100,000 is considered for Severity Level I violations. Because the Statute of Limitations for imposing a civil penalty has expired, no civil penalty is being proposed for the violations. Had the Statute of Limitations not expired, we would have considered the circumstances surrounding these matters, including corrective actions and efforts to avoid a chilling effect, to determine whether to impose civil penalties to the full extent of NRC's statutory authority in these cases.

To emphasize the importance of ensuring that employees who raise real or perceived safety concerns are not subject to discrimination for raising those concerns and that every effort is made to provide an environment in which all employees may freely identify safety issues without fear of retaliation, harassment, intimidation, or discrimination, I have been authorized, after consultation with the Commission, to issue the enclosed Notice which includes two violations, each categorized at Severity Level I.

You are required to respond to the enclosed Notice and should follow the instructions specified in the enclosed Notices when preparing your response. In your responses, you should document the specific actions taken and any additional actions you plan to prevent recurrence. Although we recognize that the U.S. District Court for the Northern District of Georgia recently ruled that the Secretary's Order with regard to Mr. Hobby is not final or now immediately enforceable, we are, nevertheless, concerned that your decision in the Hobby and Mosbaugh cases -- that GPC would not immediately reinstate Messrs. Hobby and Mosbaugh as stated in the Decision and Remand Orders of the SOL -- may itself have a chilling effect on other employees. Therefore, in your response to this letter, you should describe any steps you intend to take to ensure that this decision by GPC will not create a chilling effect. After reviewing your response to the Notice, including any actions you have taken to address the potential chilling effects, and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure and your response will be placed in the NRC Public Document Room. To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

                                      Sincerely,




                                      Stewart D. Ebneter
                                      Regional Administrator
Docket Nos. 50-424, 50-425
License Nos. NPF-68, NPF-81

Enclosure: Notice of Violation

cc w/encl:
Mr. C. K. McCoy
Vice President
Vogtle Electric Generating Plant
Georgia Power Company
P. O. Box 1295
Birmingham, AL 35201

J. D. Woodard
Senior Vice President
Georgia Power Company
P. O. Box 1295
Birmingham, AL 35201

J. B. Beasley
General Manager, Plant Vogtle
Georgia Power Company
P. O. Box 1600
Waynesboro, GA 30830

J. A. Bailey
Manager-Licensing
Georgia Power Company
P. O. Box 1295
Birmingham, AL 35201

Nancy G. Cowles, Counsel
Office of the Consumer's
Utility Council
84 Peachtree Street, NW, Suite 201
Atlanta, GA 30303-2318

Office of Planning and Budget
Room 615B
270 Washington Street, SW
Atlanta, GA 30334

Office of the County Commissioner
Burke County Commission
Waynesboro, GA 30830

Harold Reheis, Director
Department of Natural Resources
205 Butler Street, SE, Suite 1252
Atlanta, GA 30334

Thomas Hill, Manager
Radioactive Materials Program
Department of Natural Resources
4244 International Parkway
Suite 114
Atlanta, GA 30354

Attorney General
Law Department
132 Judicial Building
Atlanta, GA 30334

Ernie Toupin
Manager of Nuclear Operations
Oglethorpe Power Corporation
2100 E. Exchange Place
Tucker, GA 30085-1349

Charles A. Patrizia, Esq.
Paul, Hastings, Janofsky & Walker
10th Floor
1299 Pennsylvania Avenue
Washington, D. C. 20004-9500


NOTICE OF VIOLATION
Georgia Power Company                                            Docket Nos. 50-424 and 50-425
Vogtle Electric Generating Plant                                 License Nos. NPF-68 and NPF-81
Units 1 and 2                                                    EA 95-171 and EA 95-277

As a result of Secretary of Labor decisions dated August 4, 1995 (90-ERA-030) and November 20, 1995 (91-ERA-001 and 91-ERA-011), violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

10 CFR 50.7 prohibits discrimination by a Commission licensee against an employee for engaging in certain protected activities. Discrimination includes discharge or other actions relating to the compensation, terms, conditions, and privileges of employment. Protected activities are described in Section 210 (now 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 Energy Reorganization Act.

A. Contrary to the above, in January and February 1990, Georgia Power Company (Licensee) discriminated against Mr. Marvin B. Hobby, then an employee of the Georgia Power Company, as a result of his having engaged in protected activities. The protected activities included Mr. Hobby's expressed concerns that the actual organizational structure governing operation of the Licensee's nuclear facilities violated NRC requirements. The Licensee terminated Mr. Hobby on February 23, 1990 and took other adverse actions as a result of his having engaged in these protected activities. The Secretary of Labor issued a Decision and Remand Order in Department of Labor case 90-ERA-30 on August 4, 1995, which found that Mr. Hobby's discharge as well as his office relocation, the denial of executive parking privileges and loss of access were acts of retaliation for engaging in these protected activities. (01011)

This is a Severity Level I violation (Supplement VII).

B. Contrary to the above, in September and October 1990, the Licensee discriminated against Mr. Allen L. Mosbaugh, then an employee of the Georgia Power Company, as a result of his having engaged in protected activities. The protected activities included making tape recordings that constituted evidence gathering in support of a nuclear complaint. The Secretary of Labor issued a Decision and Remand Order in Department of Labor cases 91-ERA-001 and 91-ERA-011 on November 20, 1995 finding that Mr. Mosbaugh's suspension and discharge were acts of retaliation for engaging in protected activity. (02011)

This is a Severity Level I violation (Supplement VII).

Pursuant to the provisions of 10 CFR 2.201, Georgia Power Company is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555 with a copy to the Regional Administrator, Region II, and a copy to the NRC Resident Inspector at the facility that is the subject of this Notice, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) the date when full compliance will be achieved. Your response may reference or include previously 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 to why the license should not be modified, suspended, or revoked, or why such other action as may be proper should not be taken. Where good cause is shown, consideration will be given to extending the response time.

Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated at Atlanta, Georgia
this 29th day of May, 1996

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