EA-99-060 - Coriell Institute for Medical Research

June 2, 1999

EA 99-060

David P. Beck Ph.D.
President
Coriell Institute for Medical Research
401 Haddon Avenue
Camden, New Jersey 08103


SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY –
               $4,400 (U.S. Department of Labor Case No. 97-ERA-46)

Dear Dr. Beck:

This letter refers to an investigation conducted by the NRC Office of Investigations, as well as a decision by the U.S. Department of Labor (DOL), regarding a complaint filed on April 18, 1997, by a former employee of Coriell Institute for Medical Research (Coriell) in Camden, New Jersey. The former employee alleged that he was terminated for raising safety concerns. A DOL Administrative Law Judge (ALJ) issued a Recommended Decision and Order on December 3, 1997, finding that Coriell discriminated against the employee because he engaged in protected activities, in violation of Section 211 of the Energy Reorganization Act of 1974, as amended. The Recommended Decision was adopted by the DOL Administrative Review Board (ARB) on February 26, 1999. As a result of this apparent violation, on May 3, 1999, a transcribed predecisional enforcement conference was held with Mr. Mintzner, and other members of your staff, to discuss the apparent violation, its causes, and your corrective actions. A copy of the enforcement conference report was forward to you on May 18, 1999.

After considering the DOL finding, the evidence developed by the Office of Investigations (OI), and the information that you provided during the conference, the NRC has concluded that a violation of the Commission's regulations has occurred. The violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice). The circumstances surrounding the violation are described in detail in the ALJ's Recommended Decision and Order dated December 3, 1997. The violation concerns the finding of discrimination which is a violation of 10 CFR 30.7, "Employee Protection." Specifically, a laboratory technician raised a safety concern regarding unnecessary exposure to employees from phosphorus-32, in a Coriell laboratory on September 13, 1996. The employment of that technician was terminated by Coriell on November 21, 1996. DOL concluded that the employment termination was, at least in part, in retaliation for the employee raising this safety concern.

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. Protected activities are established in 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, providing the Commission or his or her employer information about alleged violations of either the Atomic Energy Act or the Energy Reorganization Act. In this case, the discriminatory actions were initiated by the employee's supervisor, and taken by the Vice President. Therefore, this violation has been categorized at Severity Level II in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $4,400 is considered for a Severity Level II violation. Since the violation is categorized at Severity Level II, 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. No credit is warranted for identification since you did not identify the discriminatory actions. Credit is warranted for your corrective actions since your corrective actions were considered prompt and comprehensive. Your corrective actions were described at the conference, as well as in your letter dated February 20, 1998, in response to a NRC "chilling effect letter" issued on February 4, 1998. The actions included: (1) preparation of a written policy statement that indicates employees are to be encouraged to identify safety concerns without fear of retaliation; (2) distribution of this policy to all employees; (3) meeting with all supervisors to discuss the ALJ decision; and (4) meeting with all employees to discuss the Coriell policy for identification and reporting of safety concerns.

To emphasize the importance of continuously assuring a work environment that is free of any harassment, intimidation, or discrimination against those who raise safety concerns, 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 $4,400, for the Severity Level II violation set forth in the Notice.

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. You may reference your previous submittal, as appropriate. After reviewing your response to this Notice, including your proposed corrective actions 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 (PDR). To the extent possible, your response should not include any personal privacy or proprietary information so that it can be placed in the PDR without redaction.

		Sincerely,
		ORIGINAL SIGNED BY JAMES T. WIGGINS
	FOR	Hubert J. Miller Regional Administrator

Docket No. 030-02537
License No. 29-11811-01

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl:
State of New Jersey

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ENCLOSURE
NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Coriell Institute for Medical Research Camden, New Jersey

Docket No. 030-02537 License No. 29-11811-01 EA 99-060

Based on a decision by the U.S. Department of Labor (DOL) Administrative Review Board (ARB), dated February 26, 1999, and the evidence developed during an investigation conducted by the NRC Office of Investigations, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure 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 30.7(a) prohibits, in part, 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 protected activities are established in 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. 10 CFR 30.7(a)(1)(i) provides that protected activities include, but are not limited to, providing the Commission or his or her employer information about alleged violations of either the Atomic Energy Act or the Energy Reorganization Act named in 10 CFR 30.7(a) or possible violations of requirements imposed under either of those statutes. Contrary to the above, on November 21, 1996, Coriell Institute for Medical Research discriminated against an employee for engaging in protected activities when Coriell terminated the employment of the employee as a result of raising safety concerns regarding unnecessary exposure to employees from the use of phosphorus-32 in a laboratory. (01012) This is a Severity Level II violation (Supplement VII). Civil Penalty – $4,400.

Pursuant to the provisions of 10 CFR 2.201, Coriell Institute for Medical Research (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.

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 or the cumulative amount of the civil penalties if more than one civil penalty is proposed, in accordance with NUREG/BR-0254, by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 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 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, statement as to 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 I.

Your response will be placed in the NRC Public Document Room (PDR); therefore, to the extent possible, it should not include any personal privacy or proprietary 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).

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

Dated this 2^nd day of June 1999