EA-97-471 - Construction Products Research, Inc.

January 16, 1998

EA 97-471

Construction Products Research, Inc.
Five Star Products, Inc.
ATTN: Mr. H. Nash Babcock
435 Stillson Road
Fairfield, Connecticut 06430-3148

SUBJECT:

NOTICE OF VIOLATION (Office of Investigations Case No. 1-93-027R)

Dear Mr. Babcock:

This letter is in reference to the Nuclear Regulatory Commission (NRC) Office of Investigations report of investigation, which was completed on September 23, 1997. The report concluded that Construction Products Research, Inc. (CPR), and Five Star Products, Inc. (Five Star), violated the employee protection provision of the Energy Reorganization Act of 1974 (ERA). The NRC's investigation found that CPR and Five Star, through the actions of senior management officials, discriminated against Mr. Edward P. Holub, former Director of Research for CPR, for engaging in protected activities within the scope of the ERA. A copy of the synopsis of the Office of Investigations report is enclosed.

Mr. Holub's protected activities included raising safety concerns with the NRC regarding the quality of testing products that CPR and Five Star supplied to nuclear power plants, and cooperating with the NRC in connection with its investigation of CPR and Five Star. As determined by NRC's Office of Investigations, during the period December 22, 1992, to January 22, 1993, CPR and Five Star discriminated against Mr. Holub by: (1) placing him on an involuntary leave status; (2) instructing other employees not to discuss the ongoing NRC investigation of CPR and Five Star with him; (3) denying him access to his office and other facilities in the companies; and (4) terminating him from employment.

Based on the information developed in this case, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice), and involves the failure of CPR and Five Star to adhere to the requirements of 10 C.F.R. 50.7, which prohibits discrimination against employees for engaging in protected activities. The violation is of very significant regulatory concern because it involved an act of employee discrimination by senior corporate officials, the president and vice president of CPR, and the president and vice president of Five Star. The sphere of influence of such individuals is significant, and the impact of discrimination committed at this level has the potential to create a chilling effect throughout the company. The NRC places a high value on the freedom provided to nuclear industry employees to raise potential safety concerns to their management or to the NRC. Section 211 of the ERA and 10 C.F.R. 50.7 establish strict requirements for the protection of employees against discrimination for raising nuclear safety issues. The NRC considers cases such as these, where senior corporate officials discriminate against an employee in violation of 10 C.F.R. 50.7, to be very significant. Therefore, in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy, NUREG-1600), this violation has been categorized at Severity Level I.

CPR and Five Star are not permitted at this time to provide or supply products, including grout and concrete, certified as safety-grade to NRC licensees, as a result of a prior enforcement action which was issued by the NRC on December 1, 1995 (IA 95-058), and modified by a Stipulation entered into on December 28, 1995. Notwithstanding that prohibition, CPR and Five Star have a continuing obligation to comply with 10 CFR Part 21 with respect to the products it has supplied to NRC licensees and contractors for licensees in the past. It is important that CPR and Five Star maintain an environment conducive to raising concerns relating to the companies' continuing responsibilities to meet NRC requirements. Accordingly, you are required to respond to this Notice within 30 days of this letter. Any response should follow the instructions specified in the enclosed Notice. Your response should document the specific actions taken and any additional actions you plan to prevent recurrence. It should explain why the NRC should have confidence that your employees, to the extent that they are engaged in licensed activities, are free to raise safety concerns to their employer or to the NRC, without fear of retaliation. After reviewing your response to this Notice, including your proposed corrective actions, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.

In accordance with 10 C.F.R. 2.790 of the NRC's "Rules of Practice," a copy of this letter and its enclosure will be placed in the NRC Public Document Room (PDR). Your response to this letter will also be placed in the PDR. Accordingly, 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 enclosed Notice is not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980, Pub. L. No. 96-511.

		Sincerely,
		Samuel J. Collins, Director Office of Nuclear Reactor Regulation

Docket No. 999-01253

Enclosures:

1.  Notice of Violation
2.  Synopsis of OI Report


cc:
Harold James Pickerstein, Esq.
Trager and Trager
1305 Post Road
Fairfield, Connecticut 06430

Michael F. McBride, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
1875 Connecticut Avenue, N.W.
Suite 1200
Washington, D.C. 20009-5728

Edward P. Holub
96 Haviland Drive
Trumbull, Connecticut 06611

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NOTICE OF VIOLATION
Construction Products Research, Inc. Five Star Products, Inc. Fairfield, Connecticut		Docket No. 999-01253 EA 97-471

As a result of the Nuclear Regulatory Commission (NRC) staff's review of the NRC Office of Investigations report of investigation, which was completed on September 23, 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 violation is listed below:

10 C.F.R. 50.7, in part, prohibits discrimination by a contractor or subcontractor of a Commission licensee or applicant 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 211 of the Energy Reorganization Act of 1974, as amended, and in general relate to the administration or enforcement of a requirement imposed under the Atomic Energy Act or the Energy Reorganization Act.

Contrary to the above, in December 1992 and January 1993, Construction Products Research, Inc. (CPR), and Five Star Products, Inc. (Five Star), a subcontractor and a contractor to Commission licensees, respectively, through the actions of the president and vice president of CPR, and the president and vice president of Five Star, discriminated against Mr. Edward P. Holub, former Director of Research of CPR, as a result of his having engaged in protected activities. The protected activities included Mr. Holub raising safety concerns to the NRC regarding the quality of testing products CPR and Five Star supplied to nuclear power plants, and cooperating with the NRC in connection with its investigation of CPR and Five Star. Between December 22, 1992 and January 22, 1993, CPR and Five Star: (1) placed Mr. Holub on an involuntary leave status; (2) instructed other employees of CPR and Five Star not to discuss the ongoing NRC investigation of CPR and Five Star with him; (3) denied him access to his office and other facilities in the companies; and (4) terminated him from employment. CPR and Five Star committed these acts in retaliation for Mr. Holub's engaging in protected activities.

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

Pursuant to the provisions of 10 CFR 2.201, CPR and Five Star, a subcontractor and contractor to Commission licensees, respectively, are 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 Chief, Special Inspection Branch, Division of Inspection and Support Programs, Office of Nuclear Reactor Regulation. The reply must be clearly marked as a "Reply to a Notice of Violation" and should include: (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; (4) the date when full compliance will be achieved; and (5) a statement as to why the NRC should have confidence that your employees, to the extent that they are engaged in licensed activities, are free to raise safety concerns to their employer or to the NRC, without fear of retaliation. Your response may reference or include previous 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 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 161(c) of the Atomic Energy Act, 42 U.S.C. 2201(c), the 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 Rockville, Maryland
this 16th day of January 1998