EA-96-060 - Bartlett Nuclear, Inc.

 June 4, 1996  
 EA 96-060 
 Mr. Jerry W. Hiatt 
 Group Vice-President - Technical Services 
 Bartlett Nuclear, Incorporated 
 Plymouth, Massachusetts 02360 
 
 SUBJECT: U.S. DEPARTMENT OF LABOR CASE NO. 95-ERA-47 
 Dear Mr. Hiatt: 
This letter refers to the Department of Labor (DOL) Administrative Law Judge's (ALJ) Recommended Decision and Order, dated December 12, 1995, which found that one of your former employees, who had worked at the Northeast Nuclear Energy Company's Millstone facilities, was discriminated against by Northeast Nuclear Energy Company (NNECO) and you for raising safety concerns at the facility. Based on the NRC review of the ALJ Recommended Decision and Order, the NRC finds that a violation of the Commission's regulations set forth in 10 CFR 50.7, "Employee Protection," has occurred. Under 10 CFR 50.7, discrimination by a Commission licensee, or contractors, against an employee or contractor employee for engaging in protected activities is prohibited. Although both you and Northeast were offered the opportunity for an enforcement conference, you both declined such a conference, and instead, submitted written responses to the apparent violations.
 
Although you denied, in your March 15, 1996 letter that you discriminated against the individual and have filed a motion for reconsideration of the DOL ALJ Decision and Order, the NRC adopts the findings of the DOL ALJ and concludes that a violation of NRC requirements occurred in case, 95-ERA-47. Based on the NRC review of the ALJ recommended decision, the NRC concludes that Bartlett was, in part, responsible for the violation of discrimination. The violation is described in the enclosed Notice of Violation (Notice). 
 
Protected activities include providing the Commission information about possible violations of requirements imposed under either the Atomic Energy Act or the Energy Reorganization Act, requesting the Commission to institute enforcement action against his or her employer for the administration or enforcement of these requirements, or testifying in any Commission proceeding. The actions taken by you against the former employee (who was a Senior Health Physics Technician) after he raised concerns to the NRC, constitute a violation of 10 CFR 50.7. The violation is categorized at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), (60 FR 34381, June 30, 1995). The violation is significant because it could have a chilling effect on other licensee or contractor personnel in that it might deter them from identifying and/or raising safety concerns. 
 
You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. Since the NRC enforcement action in this case is based on the Recommended Decision and Order of the DOL ALJ, which is still being reviewed by the Secretary of Labor, you may delay submission of certain portions of the response as described in the enclosed Notice until 30 days after the final decision of the Secretary of Labor. Notwithstanding, as part of your response, you may reference, as appropriate, prior submittals to the NRC. In that portion of your response which describes corrective steps you have taken, you are required to describe any additional actions that you plan to take to minimize any potential chilling effect arising from this incident.
 
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, 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.
 
The response directed by this letter and the enclosed Notice are not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980, Public Law No. 96-511. 
                                     Sincerely,




                                    Thomas T. Martin 
                                    Regional Administrator
 
 Enclosure: Notice of Violation 
 cc w/encl: 
 T. C. Feigenbaum, Executive Vice President - Nuclear, NNECO 
 State of Connecticut SLO 
 Commonwealth of Massachusetts 
  NOTICE OF VIOLATION 
 Bartlett Nuclear, Incorporated                                              EA 96-060
Plymouth, Massachusetts
 
Based on the Recommended Decision and Order of Remand by a DOL Administrative Law Judge, dated December 12, 1995, (Reference: DOL case No. 95-ERA-47), a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:
 
 
10 CFR 50.7(a), in part, prohibits discrimination by a Commission licensee, a contractor or subcontractor of 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 (ERA) of 1974, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act (AEA) or the Energy Reorganization Act. The protected activities include but are not limited to providing the Commission information about alleged violations of the ERA or the AEA or possible violations of requirements imposed under either of these statutes.
 
 
 
Contrary to the above, as determined in the DOL Administrative Law Judges's Recommended Decision and Order, 95-ERA-47, dated December 12, 1995, Bartlett Nuclear, Inc., discriminated against Adam McNiece, a senior health physics technician for engaging in protected activities. (01013)
 
 
This is a Severity Level III violation (Supplement VII). 
 
Pursuant to the provisions of 10 CFR 2.201, Bartlett Nuclear, Inc. (Bartlett) 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 I, within 30 days of the date of the final decision of the Secretary of Labor in this case. This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation, and (2) the corrective steps that have been taken and the results achieved. In addition, also pursuant to the provisions of 10 CFR 2.201, Bartlett Nuclear, Inc. is required to submit a written statement or explanation within 30 days of the date of this Notice of Violation and should include for each alleged violation: (1) the corrective steps that have been taken and the results achieved; (2) the corrective steps that will be taken to avoid future violations, and (3) 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 to show cause why additional enforcement action or 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.
 
The response noted above (Reply to 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, and the NRC Resident Inspector at the Millstone facilities.
 
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 King of Prussia, Pennsylvania 
this 4th day of June 1996