[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Notices]
[Pages 47532-47534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24012]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. STN 50-456, STN 50-457, STN 50-454, STN 50-455, 50-237,
50-249, 50-373, 50-374, 50-254, 50-265, 50-295, and 50-304]
Commonwealth Edison Company (Braidwood Station, Units 1 and 2),
(Byron Station, Units 1 and 2), (Dresden Nuclear Power Station, Units 2
and 3), (LaSalle County Station, Units 1 and 2), (Quad Cities Nuclear
Power Station, Units 1 and 2), and (Zion Nuclear Power Station, Units 1
and 2); Issuance of Director's Decision Under 10 C.F.R. Sec. 2.206
Notice is hereby given that the Director, Office of Nuclear Reactor
Regulation, has taken action with regard to a Petition submitted by the
National Whistleblower Legal Defense and Education Fund (Petitioner),
dated March 25, 1998, regarding Commonwealth Edison Company (ComEd).
The Petitioner requested that the NRC take corrective action and
impose civil penalties against ComEd. The Petitioner asserted that: (1)
ComEd's assertion in a pleading in a case before the U.S. Department of
Labor that the filing of a ``Problem Identification Form'' does not
constitute a protected activity fosters an atmosphere of intimidation
and chills the reporting of concerns in violation of 10 CFR Sec. 50.7;
and (2) ComEd intentionally imposed ``restrictive confidentiality''
aimed at prohibiting employees from providing information to the NRC in
violation of 10 C.F.R. Sec. 50.7.
The Director of the Office of Nuclear Reactor Regulation has denied
the Petition. The reasons for the denial are explained in the
Director's Decision under 10 C.F.R. Sec. 2.206 (DD-98-08), the complete
text of which follows this notice and which is available for public
inspection at the Commission's Public Document Room, the Gelman
Building, 2120 L Street, N.W., Washington, D.C. 20555-0001; and at the
local public document rooms; the Byron Public Library District, 109 N.
Franklin, P.O. Box 434, Byron, Illinois 61010; the Wilmington Public
Library, 201 S. Kankakee Street, Wilmington, Illinois 60481; Morris
Area Public Library District, 604 Liberty Street, Morris, Illinois
60450; Jacobs Memorial Library, 815 North Orlando Smith Avenue,
Illinois Valley Community College, Oglesby, Illinois 61348-9692; Dixon
Public Library, 221 Hennepin Avenue, Dixon, Illinois 61021; and
Waukegan Public Library, 128 N. County Street, Waukegan, Illinois
60085.
[[Page 47533]]
A copy of this Decision will be filed with the Secretary of the
Commission for the Commission's review in accordance with 10 C.F.R.
Sec. 2.206(c) of the Commission's regulations. As provided by this
regulation, this Decision will constitute the final action of the
Commission 25 days after the date of issuance unless the Commission, on
its own motion, institutes a review of the decision within that time.
Dated at Rockville, Maryland, this 31st day of August 1998.
For the Nuclear Regulatory Commission.
Frank J. Miraglia,
Acting Director, Office of Nuclear Reactor Regulation.
Director's Decision Under 10 CFR Sec. 2.206
I. Introduction
On March 25, 1998, the National Whistle Blower Legal Defense and
Education Fund and Mr. Randy Robarge filed a Petition with the U.S.
Nuclear Regulatory Commission (NRC) pursuant to Section 2.206 of Title
10 of the Code of Federal Regulations (10 CFR Sec. 2.206). (Although
Mr. Randy Robarge was also initially named as a Petitioner, the NRC was
notified by counsel for Mr. Robarge by written submittal dated June 26,
1998, that Mr. Robarge was withdrawing his Petition). The Petition
requested that the NRC take certain immediate ``corrective'' action and
impose civil penalties against Commonwealth Edison Company (ComEd)
based upon ComEd's: (1) ``Interference'' with the willingness of
employees to file Problem Identification Forms (PIFs); and (2)
``intentional prohibition'' of employees from directly communicating
information to the NRC. The Petitioner raised two issues. Specifically,
the Petitioner asserted, first, that ComEd's assertion in a pleading in
a case before the U.S. Department of Labor (DOL),1 98-ERA-2,
that the filing of a PIF does not constitute protected activity fosters
an atmosphere of intimidation and chills the reporting of safety
concerns in violation of 10 CFR Sec. 50.7. As a consequence, the
Petitioner requested the NRC to: (1) Immediately issue a Show Cause
Order requiring ComEd to explain why the filing of a PIF does not
constitute protected activity under Section 211 of the Energy
Reorganization Act of 1974, as amended, 42 U.S.C. Sec. 5851 (1988 and
Supp. V 1993) (ERA); (2) issue a Severity Level I violation and
appropriate civil penalty for taking action that ComEd knew or should
have known would prevent employees from filing PIFs; and (3) require
the licensee to post a public apology for claiming that the filing of a
PIF does not constitute a protected activity.
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\1\ The case involved an assertion by Mr. Robarge that he had
been discriminated against by ComEd for raising Nuclear Safety
concerns in violation of Section 211 of the Energy Reorganization
Act of 1974, as amended, 42 U.S.C Sec. 5851 (1988 and Supp. V.
1993).
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In addition, the Petitioner asserted that ComEd intentionally
imposed restrictive confidentiality provisions in a discovery agreement
in a pending DOL proceeding aimed at prohibiting employees from
providing information to the NRC in violation of 10 CFR Sec. 50.7. As a
consequence, the Petitioner requested that the NRC: (1) Issue a Show
Cause Order to ComEd requiring it to explain under oath why the
imposition of restrictive confidentiality clauses prohibiting employees
from directly communicating information to the NRC should not be
prohibited; (2) impose a Severity Level I violation and appropriate
civil penalty against ComEd for the intentional violation of 10 CFR
Sec. 50.7(f); (3) require ComEd to transmit to all individuals under
similar restrictive confidentiality terms notice that they are now free
to communicate information to the NRC; and (4) require the licensee to
release to the NRC copies of all restrictive confidentiality agreements
entered into by ComEd and any subcontractors employed by ComEd since
March 21, 1990 (the date the Federal Register notice of 10 CFR
Sec. 50.7(f) was published).
By letter dated April 29, 1998, I informed the Petitioner that the
Petition had been referred to me pursuant to 10 CFR Sec. 2.206 of the
Commission's regulations. I further informed the Petitioner that the
issues raised in the Petition did not constitute an immediate safety
concern at ComEd's nuclear facilities and that the information provided
did not warrant the immediate action that was requested, but that
action would be taken upon the Petition within a reasonable time.
On May 20, 1998, the NRC forwarded a copy of the Petition to the
licensee with a request to respond to the issues raised in the
Petition. The licensee responded to the NRC's request by letter dated
June 19, 1998.
II. Background
Mr. Randy Robarge, a former health physics supervisor at the Zion
Nuclear Power Station, filed a complaint with the U.S. Department of
Labor (DOL) under Section 211 of the ERA (98-ERA-2) claiming that he
was discriminated against and subjected to a retaliatory discharge for
filing PIFs. On November 26, 1997, during discovery in connection with
the pending litigation before the DOL Administrative Law Judge, Mr.
Robarge filed through his counsel a ``Request for Production of
Documents, Admissions, and Interrogatory Questions'' (Complainant's
Request). On February 5, 1998, ComEd filed through its counsel its
``Respondent's Response and Objections'' (Respondent's Response). In
addition, during discovery, counsel for Mr. Robarge and ComEd entered
into a joint agreement to provide for the confidentiality of certain
documents. The agreement was embodied in an Order signed by counsel for
both parties on March 23, 1998, entitled, ``Stipulation and Order
Governing Confidentiality of Document and Information''
(Confidentiality Order).2
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\2\ On June 8, 1998, the parties submitted to the DOL
Administrative Law Judge a joint motion seeking approval of a
settlement agreement and to protect its confidentiality and to
dismiss the claim. Attached to the motion was the settlement and
release agreement signed by counsel for both parties, as well as Mr.
Robarge. On June 10, 1998, the Administrative Law Judge issued a
Recommended Decision and Order recommending that the joint motion to
approve settlement agreement and for order of dismissal be granted,
and noted that the Recommended Decision and Order would become the
final order of the Secretary of Labor absent a petition for review
being received by the Administrative Review Board within ten
business days. We have been informated that the DOL has no record of
an appeal being filed.
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III. Discussion
The Petitioner makes two assertions in support of the request that
the NRC take the action requested. These assertions arise from
statements made by ComEd in the discovery documents described above.
First, the Petitioner claims that ComEd's response in its
Respondent's Response to a request made by Mr. Robarge in his
Complainant's Request (Request Number 3) amounts to an assertion that
the filing of PIFs is not a protected activity and, as such, will
``chill'' the reporting of safety concerns in violation of 10 CFR
Sec. 50.7. Request Number 3 requested that ComEd admit or deny the
following statement: ``The complainant engaged in protected activity
under Section 211 when he filed `PIFs' with the Respondent.'' In its
Respondent's Response, ComEd stated the following: ``Respondent objects
to the Request as being overly broad, vague and ambiguous in referring
generally to `PIFs' and for calling for a legal conclusion and,
therefore, this Request is denied.''
The Petitioner asserts that this ``cavalier attitude and
recalcitrance to admit that the filing of PIFs is protected activity''
by the licensee will ``chill'' the willingness of employees to file
PIFs and, as such, warrants that the NRC
[[Page 47534]]
issue a Show Cause Order to the licensee, issue a Severity Level I
violation and civil penalty, and require the licensee to post a public
apology. In support of this assertion, the Petitioner submitted as an
attachment to the Petition an affidavit by a ComEd employee that stated
that ComEd's denial that the filing of a PIF constitutes protected
activity ``chills'' the willingness of employees to file PIFs.
In construing ComEd's response to Request Number 3 in such a
manner, the Petitioner appears to have misconstrued the statement by
taking it out of context and misstating the licensee's position. In
making this statement, the licensee does not appear to be taking the
position that the filing of all PIFs was not a protected activity.
Rather, the licensee was objecting specifically to a request for
admission as being an inappropriate discovery request as a litigative
technique. Nothing in its response suggests that ComEd did not
recognize that the actual filing of a PIF could constitute protected
activity. In fact, in its response to the Petition, dated June 19,
1998, ComEd specifically stated that it recognizes that the preparation
of internal nuclear safety-related documents, such as PIFs, could give
rise to protected activity.3 Thus, there is no merit to this
assertion, nor does it warrant the action requested by the Petitioner.
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\3\ With regard to the attached affidavit (Exhibit 5 to the
Petition), the affiant indicates that he viewed the licensee's
response to request number 3 in its Respondent's Response to
represent ComEd's ``official legal position.'' It thus appears that
the affiant misunderstood the purpose of the response and its
limited significance as a litigation technique and the fact that
this statement did not constitute an ``official legal position''
about whether the filing of PIFs could constitute protected
activity.
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The Petitioner's second assertion is that ComEd intentionally
imposed a restrictive provision upon Mr. Robarge aimed at prohibiting
employees from providing information to the NRC in violation of 10 CFR
Sec. 50.7. To ``correct'' this practice, the Petitioner requests that
the NRC issue a Show Cause Order to ComEd, impose a Severity Level I
violation and civil penalty against ComEd, require ComEd to transmit to
all individuals under similar confidentiality terms notice that they
are now free to communicate information to the NRC, and require ComEd
to release to the NRC copies of all restrictive confidentiality
agreements entered into by ComEd and its subcontractors since March 21,
1990.
The provision that the Petitioner asserts was intended to prohibit
Mr. Robarge from providing information to the NRC in violation of NRC
requirements is Section 3(g) of the Confidentiality Order. Section 3(g)
of the Confidentiality Order states that confidential information may
be disclosed to governmental law enforcement agencies and other
governmental bodies pursuant to valid subpoena, provided that: (1) The
subpoenaed party give counsel for the designating party written notice
of the subpoena and, if so directed by the designating party, object to
such subpoena on a timely basis so as to preserve the designating
party's rights; and (2) the subpoenaed party proceed in good faith to
seek to obtain confidential treatment of the subpoenaed documents from
the relevant governmental body. The Confidentiality Order also contains
a provision (Provision 6) that would allow either party to challenge
the applicability of this stipulation to any document designated as
confidential.
The Petitioner alleges that Mr. Robarge objected through his
counsel to the wording of Section 3 (g) and requested that the
provision include an additional paragraph stating the following:
Nothing in this agreement shall constitute a prohibition on
either party to communicate directly with the U.S. Nuclear
Regulatory Commission any information or documentation that is
designated as ``confidential'' by either party except that the party
seeking to provide that material to the NRC shall clearly designate
the documents as ``confidential'' and request that the documents be
treated as confidential to the fullest extent reasonable under the
circumstance.
The Petitioner asserts that ComEd's counsel responded in a letter
dated March 19, 1998, that ``the language in your addendum is not
something that ComEd will stipulate to end a confidentiality order (or
an addendum to such an order). On the merits, this section goes
directly against the purpose for having a confidentiality order in the
first place.'' The Petitioner also states that ComEd's counsel
acknowledged to counsel for Mr. Robarge that ``the restrictive
confidentiality language is routinely incorporated in agreements
entered into by ComEd.'' The Petitioner asserts that these statements
demonstrate that the prohibition in communication with the NRC was
intentional rather than inadvertent, and that identical restrictive
language is routinely incorporated into ComEd agreements.
The language of which the Petitioner complains is reflected in the
Confidentiality Order executed by counsel for both parties as well as
the Administrative Law Judge (ALJ) presiding in the DOL proceeding
regarding Mr. Robarge's Section 211 complaint. Indeed, it appears that
the Confidentiality Order was executed by counsel for both parties on
March 23, 1998, and entered by the DOL ALJ on March 24, 1998; both
dates are after the exchange of correspondence alluded to by counsel
for Mr. Robarge with respect to his complaints about the possible
restrictive nature of the provision. To the extent that Mr. Robarge had
such concerns, they should have been raised in the first instance,
before the DOL ALJ. That agency has, in the past, expressed no
hesitation in assuring that agreements reached by parties to
proceedings before it under Section 211 do not contain provisions which
unlawfully interfere with an individual's right to engage in protected
activity, Polizzi v. Gibbs & Hill, Inc., 87-ERA-38 (Secretary of Labor,
July 18, 1989). There is no indication that Mr. Robarge requested that
the ALJ consider this matter in the first instance, or sought
reconsideration by DOL. In the absence of consideration of this matter
by the ALJ, NRC does not intend to take action.
IV. Conclusion
For the reasons discussed in the preceding section, no basis exists
for taking the actions requested by the Petitioner. Accordingly, the
Petition is denied.
A copy of the Decision will be filed with the Secretary of the
Commission for the Commission's review. The Decision will become the
final action of the Commission, 25 days after issuance unless the
Commission, on its own motion, institutes review of the decision within
that time.
Dated at Rockville, Maryland, this 31st day of August 1998.
For the Nuclear Regulatory Commission.
/s/ Frank J. Miraglia,
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation.
[FR Doc. 98-24012 Filed 9-4-98; 8:45 am]
BILLING CODE 7590-01-P
