EA-96-051 - Turkey Point 3 & 4 (Florida Power & Light Co.)

EA 96-051

Florida Power and Light Company
ATTN: Mr. T. F. Plunkett
President - Nuclear Division
P. O. Box 14000
Juno Beach, FL 33408-0420

Dear Mr. Plunkett:

This refers to the Secretary of Labor Decision and Remand Order (Decision) issued on January 19, 1996, in Department of Labor (DOL) Case No. 92-ERA-010, Regino R. Diaz-Robainas vs. Florida Power and Light Company. The Secretary of Labor reversed previous DOL decisions by the DOL Area Director and DOL Administrative Law Judge and concluded that Florida Power and Light Company (FP&L) discriminated against Mr. Diaz-Robainas, a former FP&L employee, when he was terminated on August 19, 1991, for his failure to submit to a psychological evaluation which was ordered by FP&L in retaliation for his engaging in protected activities. The Secretary of Labor found that Mr. Diaz-Robainas' protected activities included: (1) identification of various technical issues involving safety concerns, regarding projects with which he was associated; (2) various verbal complaints to management alleging he was being discriminated against for identifying safety concerns; and (3) assertions made to FP&L management that he would go to the media and the Nuclear Regulatory Commission (NRC). The Secretary of Labor denied your Motion for Reconsideration by Order dated April 15, 1996.

In a letter dated March 25, 1996, the NRC described the apparent violation and transmitted a copy of the Secretary of Labor's Decision to you and provided you an opportunity to either respond to the apparent violation in writing or request a predecisional enforcement conference. In your April 24, 1996, response, you requested a predecisional enforcement conference, denied the violation, and stated that no corrective actions were required; however, you did refer to recent FP&L initiatives designed to ensure that employees feel free to raise safety concerns. A predecisional enforcement conference regarding this matter was conducted in the Region II office on June 14, 1996. This conference was closed to public observation and was transcribed. A letter summarizing the conference was sent to you by letter dated June 21, 1996.

Based on the information developed by the Secretary of Labor, the information provided in your April 24, 1996 letter, and the information you presented at the conference, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and involves the failure of FP&L to adhere to the requirements of 10 CFR 50.7, Employee Protection, which prohibits discrimination against employees for engaging in protected activities. At the predecisional enforcement conference, FP&L denied the violation stating that Mr. Diaz-Robainas' referral to a psychologist to undergo a fitness-for-duty evaluation was based on a pattern of declining performance and behavioral observations, and he was terminated for direct insubordination for refusing to comply with the referral order. Despite your denial, the NRC adopts the Secretary of Labor's decision in this case and finds that the action taken against Mr. Diaz-Robainas was an act of discrimination for his having engaged in protected activities. The Secretary of Labor's decision is based on his analysis of the DOL adjudicatory record and his determination that FP&L's order that Mr. Diaz-Robainas "undergo a psychological evaluation was based solely on retaliatory animus for his protected activity." [92-ERA-010, Decision and Remand Order at 8.] In addition, FP&L had full and complete opportunity to present all relevant evidence before the DOL. Absent any compelling information to refute the Secretary of Labor's conclusion, the NRC finds no basis at this time to challenge the decision.

The NRC recognizes that licensees are required by 10 CFR 73.56 to observe employee behavior in order to detect behavioral changes which could lead to acts detrimental to public health and safety; however, such programs cannot be utilized in retaliation for engaging in protected activities and raising safety concerns. Although at the conference you stated that the DOL decision in this case could result in increased management reluctance to question an individual's fitness-for-duty for fear of legal retribution, the NRC maintains that full compliance with access authorization and fitness-for-duty requirements can be achieved through effectively implemented and safety-motivated programs. NRC agrees with the Secretary of Labor's findings in this particular case, as described in his Order dated April 15, 1996, denying your Motion for Reconsideration, that "this decision does not undermine the employer's duty to participate in the NRC's behavioral observation program and to refer or remove an employee whose fitness it questions."

While any discrimination against a person for engaging in protected activities is cause for concern to the NRC, this violation is of very significant regulatory concern because it involved discrimination by a member of management above first-line supervision. The NRC places a high value on the freedom provided to nuclear industry employees to raise potential safety concerns to their management and to the NRC. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level II.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $80,000 is considered for a Severity Level II violation. In this case, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. The NRC determined that credit for Identification was not appropriate because the violation was identified by the DOL and not by the licensee. In your letter of April 24, 1996, and at the conference, you stated that corrective actions were not required because no violation occurred and that existing programs have been effective in assuring that employees feel free to raise safety concerns. However, you indicated that the following actions had been initiated recently regarding the FP&L Employee Concerns Program: (1) you reaffirmed management expectations in this area by issuance of a memorandum dated December 11, 1995 (DOL Case No. 94-ERA-53, Gary Phipps vs. Florida Power and Light Company); (2) in early 1996, selected FP&L managers were trained on handling employee concerns; and (3) an independent assessment of the Employee Concerns Program was conducted. Notwithstanding these actions, the NRC has determined that credit is not warranted for the factor of Corrective Action. Specifically, you have not reinstated Mr. Diaz-Robainas as directed in the Decision and Remand Order of the Secretary of Labor. We recognize that there is some question whether the Secretary's Order with regard to reinstatement and assessment of damages is final or immediately enforceable; however, we are concerned that lack of compliance with the Secretary of Labor's Order may itself have a chilling effect on other employees.

Based on the severity level of the violation and NRC's determinations regarding Identification and Corrective Action, a civil penalty in the amount twice the base would normally be assessed. However, consistent with Section 234 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2282, the maximum civil penalty for a single violation may not exceed $100,000 per day. Therefore, 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 or discrimination, I have been authorized, after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and Research, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the maximum amount of $100,000 for the Severity Level II violation.

At the conference you stated that FP&L has appealed the Secretary of Labor's Decision in this case to the United States Court of Appeals for the Eleventh Circuit. In view of the judicial appeal in this case, NRC has determined that it is appropriate to defer your submittal of a written response to the Notice and payment of the associated civil penalty pending the outcome of the appeal in this case. Accordingly, FP&L may defer written response and payment of the proposed civil penalty until 30 days after judicial review of this case is completed and a decision based on the review is issued. In the interim, FP&L should keep the NRC informed of the status of the appeal and provide copies of the briefs and any other filings in the case to the Director, Office of Enforcement. In addition, if the case is successfully appealed and the Secretary of Labor's Decision is reversed, the NRC will reconsider this enforcement action at that time.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and any response you may provide will be placed in the NRC Public Document Room (PDR). Any response that is provided, to the extent possible, 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.

Docket Nos. 50-250, 50-251
License Nos. DPR-31, DPR-41

Enclosure: Notice of Violation and Proposed
Imposition of Civil Penalty

cc w/encl:
John Hosmer
Vice President, Engineering
Commonwealth Edison Company
Executive Towers West III
1400 Opus Place, Suite 900
Downers Grove, IL 60515

H. N. Paduano, Manager
Licensing & Special Programs
Florida Power and Light Company
P. O. Box 14000
Juno Beach, FL 33408-0420

Plant General Manager
Turkey Point Nuclear Plant
P. O. Box 029100
Miami, FL 33102

R. J. Hovey
Site Vice President
Turkey Point Nuclear Plant
P. O. Box 029100
Miami, FL 33102

G. E. Hollinger
Licensing Manager
Turkey Point Nuclear Plant
P. O. Box 4332
Miami, FL 33032-4332

J. R. Newman, Esq.
Morgan, Lewis & Bockius
1800 M Street, NW
Washington, D. C. 20036

John T. Butler, Esq.
Steel, Hector and Davis
4000 Southeast Financial Center
Miami, FL 33131-2398

Attorney General
Department of Legal Affairs
The Capitol
Tallahassee, FL 32304

Bill Passetti
Office of Radiation Control
Department of Health and
Rehabilitative Services
1317 Winewood Boulevard
Tallahassee, FL 32399-0700

Jack Shreve, Public Counsel
Office of the Public Counsel
c/o The Florida Legislature
111 West Madison Avenue, Room 812
Tallahassee, FL 32399-1400

Armando Vidal
County Manager of Metropolitan
Dade County
111 NW 1st Street, 29th Floor
Miami, FL 33128

Joe Myers, Director
Division of Emergency Preparedness
Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100

Lydel L. Erwin, District Director
U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
299 East Broward Blvd. Suite 407
Fort Lauderdale, FL 33301

Honorable Robert G. Mahony
Administrative Law Judge
Office of Administrative Law Judges
800 K Street, N.W., Suite 400
Washington, D.C. 20001-8002

Gail Coleman
Deputy Associate Solicitor
Division of Fair Labor Standards
Office of the Solicitor
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210

As a result of review of a Secretary of Labor Decision and Order of Remand dated October 23, 1995, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600, the Nuclear Regulatory Commission 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 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. The activities which are protected include, but are not limited to, reporting of safety concerns by an employee to his employer or the NRC.

Contrary to the above, the Florida Power and Light Company (FP&L) discriminated against Mr. Regino R. Diaz-Robainas for engaging in protected activities. Specifically, as determined by the Secretary of Labor, on August 19, 1991, FP&L terminated Mr. Diaz-Robainas for his failure to submit to a psychological evaluation which was ordered by FP&L on July 30 and August 19, 1991, in retaliation for his having engaged in protected activities. Mr. Diaz-Robainas' protected activities, among other things, included the identification and reporting of safety concerns during the period of February through August 1991. (01012)

This is a Severity Level II violation (Supplement VII).
Civil Penalty - $100,000.

Pursuant to the provisions of 10 CFR 2.201, Florida Power and Light Company is hereby required to submit a written statement or explanation regarding the this Notice of Violation and Proposed Imposition of Civil Penalty (Notice) to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days after judicial review of this case is completed and a decision based on the review is issued. This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each 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. 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. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, 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 the time specified, 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 violations 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.B.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, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Mr. James Lieberman, 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 II and a copy to the NRC Resident Inspector at the Turkey Point facility.

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 16th day of July 1996