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EA-97-180 - Mattingly Testing Services, Inc.

October 31, 1997

EA 97-180

Mattingly Testing Services, Inc.
ATTN: Mark Mattingly, President
Post Office Box 3126
Great Falls, Montana 59403

SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $10,000
(U.S. DOL Case 95-ERA-40 and OI Report No. 4-95-019S)

Dear Mr. Mattingly:

This refers to the investigation of Mattingly Testing Services, Inc. (MTSI), completed on April 16, 1997 (Office of Investigation (OI) Report Nos. 4-95-019 and 4-95-019S) at MTSI's Billings, Montana facility and the March 11, 1997 Department of Labor (DOL) Administrative Law Judge's (ALJ) Recommended Decision and Order (RDO). The ALJ found that Mattingly Testing Services, Inc. (MTSI), discriminated against a former MTSI employee for engaging in protected activities in violation of Section 211 of the Energy Reorganization Act (ERA). Specifically, the ALJ found that MTSI discriminated against the former employee when it terminated him April 17, 1995, for having raised nuclear safety concerns to the NRC (DOL case No. 95-ERA-40). On April 18, 1997, the DOL Administrative Review Board dismissed the case based upon a settlement between MTSI and its former employee without issuing a decision on the merits. The NRC's OI investigation also concluded that MTSI had discriminated against the former employee by terminating his employment for raising safety concerns to the NRC.(1)

By letter dated June 11, 1997, you were informed that, based upon its review of the ALJ's recommended decision and transcripts from the DOL proceedings, the NRC had determined that the action taken against the former employee may have been in violation of 10 CFR 30.7, and that a transcribed telephonic predecisional enforcement conference had been scheduled to discuss this apparent violation. The transcribed conference was held on August 13, 1997.

Based on a thorough review of all the available information related to the case, including information which you provided during 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).

During the August 13, 1997 conference with the NRC, as well as during the DOL proceedings, you maintained that the former employee was fired because he had performed a poor inspection and had missed a significant number of welding defects on girders intended for use on a bridge project. You stated that your former employee was not fired for his protected activities. Notwithstanding this argument, the NRC has determined that MTSI has not shown that it would have terminated the former employee solely for having conducted a poor inspection, absent his having brought safety concerns to the NRC. The NRC has concluded that MTSI discriminated against its former employee in violation of 10 CFR 30.7. In reviewing the significance of the violation, we considered the fact that the former employee brought significant and legitimate issues to the attention of the NRC, for which the NRC ultimately took significant enforcement action.(2)

Therefore, we have concluded that this violation should be categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level III.

In accordance with the Enforcement Policy in effect at the time of the adverse action, a civil penalty with a base value of $5,000 is considered for a Severity Level III violation. Because your company has been the subject of escalated enforcement action within the last two years, 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. In this case, the violation was identified through the DOL adjudicatory process, and therefore, credit for identification is not warranted.

With regard to corrective actions for discrimination violations, the NRC considers the promptness and comprehensiveness of licensee actions taken to address the broader environment for raising concerns in the workplace, and to provide a remedy to the individual who was the subject of the discrimination at issue. MTSI stated at the conference that it encourages employees to identify problems to MTSI senior management and that its employees fully understand their right to raise safety issues directly to the NRC. However, MTSI has not provided any information regarding specific actions it took between April 1995, when MTSI fired the former employee, and April 1997, when a settlement was reached in the DOL proceeding, to insure that his termination did not have a chilling effect upon other employees raising safety concerns directly to the NRC. Therefore, no credit is warranted for corrective action.

Therefore, to emphasize the importance of this violation as well as to emphasize the importance of identification and comprehensive correction of violations, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the amount of $10,000 for this Severity Level III violation.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with 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 (PDR).

Sincerely, Ellis W. Merschoff
Regional Administrator

Docket No. 030-20836
License No. 25-21479-01

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

cc (w/encl):
State of Montana
Mr. Michael Timmons

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Mattingly Testing Services, Inc.
Great Falls, Montana		 Docket No. 030-20836
License No. 25-21479-01
EA 97-180

Based on the results of an NRC investigation completed on April 16, 1997, and the NRC's review of a U.S. Department of Labor Administrative Law Judge's Recommended Decision and Order dated March 11, 1997 (ERA 95-ERA-40), and the information received at the predecisional enforcement conference on August 13, 1997, 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 violation and its associated civil penalty are set forth below:

10 CFR 30.7(a) 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. Under 10 CFR 30.7(a)(1)(I), the activities which are protected include, but are not limited to, the reporting by an employee to his employer or to the NRC information about alleged regulatory violations.

Contrary to the above, on April 17, 1995, the licensee discriminated against Mr. Michael Timmons for engaging in protected activity. Specifically, Mr. Timmons was terminated from his position because he provided safety concerns to the NRC.

This is a Severity Level III violation (Supplement VII).
Civil Penalty - $10,000.

Pursuant to the provisions of 10 CFR 2.201, Mattingly Testing Services, Inc. (Licensee) 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 (Notice). 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 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 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.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: 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.

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. 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 2.790(b) to support a request for withholding confidential commercial or financial information).

Dated at Arlington, Texas,
this 31st day of October 1997

1 In an earlier Recommended Decision Denying Complaint, the ALJ had found that MTSI did not discriminate against the former employee. However, the case was remanded based upon a determination that the ALJ erred in limiting testimony and refusing to admit certain evidence, as well as new evidence which was admitted in the second DOL proceeding. OI had also conducted an earlier investigation in which discrimination against the former employee was not substantiated.

2 A Severity Level II Notice of Violation assessing a $15,000 civil penalty was issued to MTSI on May 5, 1995 (EA 95-035) for multiple violations of radiography requirements. In addition, Notices of Violation were issued to the individuals who committed the deliberate violations mentioned above. An Order was also issued.

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