DOL Home > OALJ > Whistleblower > Fields v. Florida Power Corp., 96-ERA-22 (ALJ Mar. 11, 1997) |
Date: March 11, 1997
Case No.: 96-ERA-22
In the Matter of:
David A. Fields,
Robert P. Weiss, and
Jack D. Stewart
Complainants
v.
Florida Power Corporation
Respondent
This case arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. §5851 (hereinafter "the Act" or "the ERA"), and the implementing regulations found at 29 C.F.R. Part 24. Pursuant to the Act, employees of licensees of or applicants for a license from the Nuclear Regulatory Commission (hereinafter "the NRC") and their contractors and subcontractors may file complaints and receive certain redress upon a showing of being subjected to discriminatory action for engaging in a protected activity. The following abbreviations shall be used herein: "RX" for Exhibits attached to Respondent's Motion for Summary Decision and "CX" for Exhibits attached to Complainants' Response to the Motion.
There is currently pending before this Administrative Law Judge, Respondent's Motion for Summary Decision and/or Dismissal. Said Motion was submitted on or about November 25, 1996, and argues (1) that summary decision and/or dismissal of the entire complaints is proper based upon the §5851(g) affirmative defense, and/or (2) that summary decision and/or dismissal of part of the Fields and Weiss complaints is proper based upon the statute of limitations found at 42 U.S.C. §5851(b)(1). Complainants exercised their right to respond to the Motion by Complainants' Response to FPC's Motion for Summary Decision and/or Dismissal, dated December 5, 1996.1 I have also considered Respondent's Reply to Complainants' Response to Motion for Summary Decision in reaching my determination of whether to grant the
otion.
I also granted the parties the benefit of appearing before this Judge to present oral argument on the Motion. The Motion hearing was conducted on December 19, 1996, in Tampa, Florida, and I have duly considered the persuasive arguments of both counsel which were then presented.
There are certain irrefutable facts established by the various supporting documents attached to Respondent's Motion for Summary Decision and Complainants' Response thereto. Among these documents, which I may properly rely upon in considering the pending Motion, are Complainants' deposition testimony, the Complainants' testimony before the Nuclear Regulatory Commission's Office of Investigations, and a number of letters from the NRC to the parties. I have found the Complainants' above-mentioned depositions and testimony of particular relevance because, for purposes of this Motion, I assume it to be truthful and in accordance with testimony they would have given in a hearing before this Administrative Law Judge.
The irrefutable facts are these:
1. Respondent operates the CR-3 nuclear power plant located in Crystal River, Florida.
2. Complainants were reactor operators at the CR-3 nuclear plant. As reactor operators, the Complainants were licensed by the NRC and subject to regulatory and licensing requirements. Compl., ¶ 2. Complainant Fields occupied a position as the Nuclear Shift Supervisor, Complainant Weiss was the Assistant Shift Supervisor, and Complainant Stewart was one of two Chief Nuclear Operators.
3. The Make-up Tank (MUT) is one of the primary safety systems in the event of a loss of coolant accident (LOCA) at CR-3.
4. The Complainants were concerned that Curve 8, a curve which provides the pressure/level limits for the Make-up Tank, was invalid. The Complainants' concern(s) about Curve 8 were serious. See RX A, Fields Deposition (hereinafter Fields Depo.), p. 54, 78 (reason to believe catastrophic events could happen); RX B, Weiss Deposition (hereinafter Weiss Depo.), pp. 65-66 (Weiss believed there was a potential for catastrophe at the plant); RX __,2 Stewart Deposition (hereinafter Stewart Depo.), pp. 12-13 (Stewart states the potential for catastrophe was that crews were operating in a region
where a LOCA could occur). See Also Compl., ¶¶ 59 and 61 (which set forth the Complainants' belief that they had a duty to verify a critical safety issue).
5. It is uncontroverted that on September 4 and 5, 1994, the Complainants each participated in adding hydrogen to the MUT and then rapidly reducing the water level. Compl. ¶¶ 62-63, 72-73; Fields Depo., pp. 109-110.
6. There was no plan to perform these acts prior to the beginning of the respective shifts. Fields Depo., pp. 151, 226, 419; Weiss Depo., pp. 226, 351-52; RX 53, NRC Office of Investigation (hereinafter "OI") Interview of Complainant Weiss, December 1, 1994, p. 7; RX 54, NRC OI Interview of Complainant Fields, December 1, 1994, pp. 10-15.
7. It was Mark van Sicklen's3 idea to perform these acts on September 4, 1994. Weiss Depo., pp. 126, 158-59. Van Sicklen suggested the acts to Complainant Weiss and Weiss took the idea to Complainant Fields. Weiss Depo., pp. 126-27, 158-59.
8. In the middle of the shift on September 5th, Complainant Weiss and van Sicklen suggested to Stewart that they should try the evolution again. Stewart Depo., p. 68.
9. These acts triggered a control room annunciator alarm, Compl. ¶¶ 63 and 73; Fields Depo. pp. 97, 109-110, 159-169, 172-173; which remained in alarm on September 4th for forty-three (43) minutes, and on September 5th for thirty-five (35) minutes. Fields Depo., pp. 489-90; RX 32, Memorandum From D. Fields to G. Halnon Dated March 15, 1995, p. 3; RX 35, Memorandum from D. Fields to S. Ebneter Dated May 23, 1995, p. 3. See Also Weiss Depo., pp. 38, 43. A timeline of the September 5 acts was drafted by Complainants Fields and Weiss. See RX 14, Problem Report 94-0267, Dated September 7, 1994; RX 18, OP-103B Curve 8 Verification 9/5/94; RX 29, LER 94-009-00, Dated December, 1994; RX 52, "Timeline MUT lvl decrease 9/5/94."
10. It is a fact that the only reason the Complainants conducted the acts was to challenge the validity of Curve 8. Fields Depo., pp. 78, 85, 114; Weiss Depo., pp. 177, 178; Stewart Depo., pp. 55, 56, 76. There were no operational reasons for the acts. Fields Depo., p. 77; Weiss Depo., p. 76; Stewart Depo., p. 76.4 The intent was to give Engineering data that would convince them that there was a problem with the Curve. Weiss Depo., p. 98; Fields Depo., pp. 78, 86; Stewart Depo., pp. 12, 164-65.
11. Weiss states the decision to challenge Curve 8 on the 4th
and the 5th was a deliberate and intentional decision on his part. Weiss Depo., p. 184.
12. Stewart admits that it is a fact that if a crew deliberately takes a plant beyond any of the parameters of Curve 8, i.e., the 55 inch low and 86 inch high, that a test procedure is needed. Stewart Depo., p. 21.
13. Complainants did not consult with the CR-3 Engineering Department before conducting their acts, either on the 4th or the 5th, Weiss Depo., p. 100, nor did they consult management or the Shift Manager regarding their acts, Fields Depo., pp. 80, 418-25; Weiss Depo., pp. 83-84, 88-89; RX C, Affidavit of Gregory Halnon, para. 5; RX D, Affidavit of Bruce Hickle, para. 4; nor did they consult the NRC. Fields Depo., p. 52; Weiss Depo., p. 253. Stewart admits that neither Complainant Fields nor Complainant Weiss told him that they had talked with Greg Halnon; Bruce Hickle, Director of Nuclear Plant Operations; or Dr. P.M. Beard, Senior Vice-President of Nuclear Operations, about the tests. Stewart Depo., p. 123.
14. Weiss states he did not tell a shift supervisor of the actions because he was using routine procedure to check it out. Weiss Depo., p. 27. Weiss calls the steps of the process routine, a series of routinely performed evolutions. Weiss Depo., pp. 72, 128, 352. Weiss believed he was fully authorized to do what he did. Weiss Depo., p. 71. Fields explains that he did not consult with the NRC because "what we planned to do was clearly within our authority to perform," Fields Depo., p. 52, i.e., it was within OP-402, a pre-approved procedure. Fields Depo., pp. 65, 153. See Also RX 32, supra para. 9.
15. Weiss admits, however, that it was not routine to call the auxiliary building operator and tell him to dress out, Weiss Depo., p. 72; nor was it routine to add hydrogen at a high level and do an entire bleed down to the low level while the plant was in alarm. Weiss Depo., p. 73. See Also Stewart Depo., pp. 28-29, 37, 46-47 (stating the non-routine nature of the acts performed).
16. Complainant Stewart does not know if it is routine to add hydrogen at the high level and do a bleed to the low level, although he states that he had never done it before. Stewart Depo., 29. During Complainant Stewart's OI interview, the investigator asked if it was "a routine evolution or routinely [sic] to post someone at the makeup tank at that area in order to vent the makeup tank during a hydrogen fill operation?" Stewart Depo., p. 115, (Quoting RX 55, Stewart's OI Interview of December 1, 1994, p. 11). Stewart answered "No.
We don't anticipate challenging any curves." Stewart Depo., p. 115. Complainant Stewart admits it is not a routine conversation to discuss what would happen if a LOCA came in. Stewart Depo., p. 28.
17. Complainants did not know, at the time of their acts, that Curve 8 was a design basis. Stewart Depo., pp. 63, 149; RX 32, supra para. 9, at p. 3; RX 35, supra para. 9, at p. 3. Complainants have, however, stated they suspected Curve 8 was nonconservative. Stewart Depo., p. 148; RX 35, supra para. 9, at p. 5.
18. Complainants did not know, at the time of their acts, what the definition of a test was. Stewart Depo., p. 93; CX 66, NRC Investigative Interview of R. Weiss, August 31, 1995, at p. 37.
19. An NRC OI Report states Respondent had apparently violated NRC regulations by failing to exercise the appropriate management oversight and control in an attempt to preclude intentional violation of plant procedures. RX 59, Letter From NRC to P.M. Beard, Dated July 7, 1995, at p. 2.
20. An NRC Notice of Violation and Imposition of Civil Penalties, dated on or about July 10, 1996, states that the NRC has determined Respondent has committed a number of significant violations of NRC requirements. RX 58, Letter From NRC to P.M. Beard Dated July 19, 1996. Among these violations was a violation for routinely exceeding operating limits associated with operating procedure OP-103B, Curve 8, and a violation in which a crew of licensed operators conducted unauthorized tests on two separate occasions in an effort to resolve safety issues that had not been promptly addressed by Respondent. RX 58, supra, at p. 2. In regards to the latter action, the NRC Description of Violations also states that although "this violation resulted from the independent actions of a single shift operating crew, FPC as the employer of the operators involved bears responsibility for their actions as employees." RX 58, supra, at Enclosure 1, p. 2.
21. A February 13, 1996, Report of Investigation by the NRC OI, states its conclusion as follows: "the shift supervisor, assistant shift supervisor, and two chief operators on the midnight shift of September 4 and 5, 1994, deliberately conducted an evolution, not required by plant conditions, for the specific purpose of gathering data. Furthermore, when the allowable makeup tank overpressure was exceeded, the operators deliberately delayed taking appropriate action to reduce makeup tank overpressure while gathering that data." RX 64, NRC OI Report of Investigation Dated February 13, 1996, Synopsis, at p. 1.
22. The NRC determination of violation letter sent to Complainant Fields states
RX 61, Letter From NRC to D. Fields, Dated July 10, 1996.5
23. The NRC determination of violation letter directed to Complainant Stewart states
RX 62, Letter From NRC to J. Stewart, Dated July 10, 1996.
24. In response to these letters, the attorney representing Complainants Fields and Weiss wrote the NRC that his clients were "gratified to see that the NRC's final ruling on the 'MUT Issue' concluded that 'enforcement is not warranted' and no Notice of Violation is being issued. The plant operators believe that the blame for the episode is appropriately being placed squarely on the shoulders of the Florida Power Corporation." CX 67, Letter From R. Hendrix to NRC, Dated July 19, 1996, at p. 1. The attorney continues, however, to express dissatisfaction with the language in regards to "unauthorized tests" and the operators' failure to meet standards for nuclear power plant operators. Accordingly, the attorney requested a hearing to appeal the NRC findings. CX 67, supra. A similar letter was addressed to the NRC on Complainant Stewart's behalf. CX 67, supra.
25. The NRC's response to both letters stated that a request for appeal is premature, given the fact that the NRC had not yet taken any enforcement action directly against the Complainants and that the NRC would not rescind its letter describing findings of unauthorized tests. See CX 67, Letter From NRC to R. Hendrix, Dated August 23, 1996; Letter From NRC to B. Morris Dated September 9, 1996.
The resolution of Respondent's Motion for Summary Decision and/or Dismissal hinges upon the interpretation of §5851(g) of the Energy Reorganization Act.6 That Section provides
The section serves as a bar to a complainant's ERA claim once it is determined that he or she has caused a deliberate violation of the ERA or AEA. See English v. General Elec. Co., 683 F.Supp. 1006, 1014 (E.D.N.C. 1988), aff'd on other grounds, 871 F.2d 22 (4th Cir. 1989), rev'd on other grounds, 496 U.S. 72 (1990); Dotson v. Anderson Heating and Cooling, Inc., 95-CAA-11 (Sec'y July 17, 1996), (ALJ October 2, 1995). The
legislative history reveals that "in order to avoid abuse of the protection afforded under [the ERA], the committee has added a provision which would deny its applicability to any employee who, without direction from his employer, deliberately violates or willfully contributes to a violation of any standard, requirement, or regulation under the act." S. Rep. No. 848, 95th Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.C.C.A.N. 7303, 7304. The meaning of the section is rendered unclear inasmuch as the statute does not include definitions of the pertinent terms.
On the one hand, Respondent argues the section should be interpreted to require only that Complainants deliberately committed an act which resulted in a violation of the relevant law. According to this interpretation, Respondent argues, it would be irrelevant whether Complainants knew that the act they deliberately committed was illegal.
On the other hand, Complainants argue the
statutory language must be interpreted to require a complainant
know7 his acts are
illegal. Complainants, noting that there is "no authority
that a mere violation of nuclear safety regulatory regulations
justifies discriminatory conduct," Complainants' Response, p.
8, would have this Administrative Law Judge apply an NRC regulation
in interpreting §5851(g).8 As Complainants summarize in their response to
Respondent's Motion, the deliberate misconduct standard of the NRC
regulation requires an intentional act or omission that the person
knows constitutes a violation of nuclear regulatory requirements.
Complainants' Response, p. 9.
It is a basic tenet of statutory construction
that if statutory language is clear and unambiguous on its face
then it must be given its plain meaning and no resort to the
underlying legislative history is appropriate. See Generally
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510 (10th Cir.
1985), cert. denied, 478 U.S. 1011, 106 S. Ct. 3311. As has
been previously mentioned, the statute at issue does not define the
terms "deliberately causes." Accordingly, the anatomy of
the statute itself, legislative history, and underlying policy will
aid in the resolution of the issue. See Generally Kansas Gas &
Elec. Co., 780 F.2d at 1511.
42 U.S.C. §5851, et seq., was
designed as "an administrative procedure" to
"offer[] protection to employees who believe they have been
discriminated against as a result of the fact that they have
testified, given evidence or brought suit..." under the AEA or
the ERA. English, 683 F.Supp. at 1013 (Citation Omitted).
"Employee protection was the paramount congressional
intent." Id. The purpose of the statute is to avoid a
nuclear catastrophe by encouraging employees in the nuclear power
industry to report perceived safety violations in good faith
without fear of retribution or retaliation. See, e.g., Rose v.
Secretary of Labor, 800 F.2d 563, 565 (6th Cir. 1986).
It has also been opined, however, that there is "a well
defined and dominant national policy requiring strict adherence to
nuclear safety rules.... Nothing could be plainer than the public
interest in the safe operation of nuclear power plants that
underlies [the] panoply of federal regulations." Iowa Elec.
Light & Power v. Local Union 204, 834 F.2d 1424, 1427-28 (8th
Cir. 1987).
To compound the challenge of interpreting the
statute, the case law interpreting §5851(g) is sparse at best.
ost of the cases which could be found concerned issues of
preemption, see English, supra p. 9; a few cases mentioned
the section in only a passing reference, see Kansas Gas & Elec.
Co., 780 F.2d at 1510; another case resolved the issue by
finding that the section did not bar the complaint because it was
found that complainant neither knew about nor condoned the illegal
act, Creekmore v. ABB Power Sys. Energy Services, Inc.,
Decision & Remand Order (Sec'y February 14, 1996) (remanded on
other grounds); and, finally, another case held that complainant's
admission of reading provided answers out loud during an EPA
mandated examination was sufficient to determine that complainant
deliberately participated in an activity which violated the Act.
See Dotson, supra p. 10 (adopting the ALJ's
Recommended Decision Dismissing Complaint October 2, 1995).
There are a few cases wherein §5851(g) was
discussed in an Administrative Law Judge's Recommended Decision &
Order. The discussions, however, were rendered dicta because the
subsequent Final Order by the Secretary dismissed the complaints on
timeliness grounds. See Hadden v. Georgia Power Co., 89-ERA-21 (Sec'y February 9, 1994), (ALJ May 21, 1990); McKinney v.
Tennessee Valley Auth., 92-ERA-22 (Sec'y November 16, 1993),
(ALJ March 17, 1992); English v. General Elec. Co., 85-ERA-2
(Sec'y February 13, 1992), (ALJ August 1, 1985). I am unable to
give the recommendations rendered by the ALJs in the above-cited
cases any precedential value because the Secretary, the body with
the power to issue final decisions in these cases, has rendered a
decision on other grounds.
Complainant has accurately pointed out that
there exists provisions similar to 42 U.S.C. §5851(g) in a
number of other Federal statutes. See Complainants' Motion,
n.18 (Citing 15 U.S.C. §2622(e) (Toxic Substances
Control Act); 33 U.S.C. §1367(d) (Water Pollution Control
Act); 42 U.S.C. §300j-9(i)(6) (Safe Drinking Water Act); 42
U.S.C. §6971(d) (Solid Waste Disposal Act); and 42 U.S.C.
§7622(g) (Clean Air Act)). The Senate Report accompanying the
ERA provision that was ultimately enacted notes that the ERA
provision is substantially identical to the provisions in the Clean
Air Act and the Federal Water Pollution Control Act. See S.
Rep. No. 848, 95th Cong., 2d Sess. 30 (1978), reprinted in
1978 U.S.C.C.A.N. 7303. I have attempted to locate precedent
interpreting the analogous provision in either or both of these
statutes and have been similarly met with discouraging results.
See Jackson and Roskam v. Ketchikan Pulp Co., 93-WPC-7 and 8, at n.3 (Sec'y March 3, 1996), (ALJ March 10, 1994)
(stating the Secretary assumes, "without deciding, that
[Complainant's] attempt to dispose of a cable into the water did
not exclude him from protection under the WPCA"); Pooler v.
Snohomish County Airport, 87-TSC-1, at n.14 (Sec'y February 14,
1994), (ALJ March 10, 1988) (in which the Secretary declined to
address the arguments pertaining to §2622(e) because it was
not relied upon in the ALJ's final analysis).
Respondent's argument is premised upon the
Secretary's adoption of the ALJ's decision in Drew v. Jersey
Central Power and Light Co., 81-ERA-3 (Sec'y January 13, 1984),
(ALJ June 16, 1982). In Drew, the respondent was
attempting to bar complainant's claim by invoking §5851(g).
The Secretary held that there was no substantial evidence that
Complainant deliberately caused any violation of any requirement of
the law. The Secretary stated that on both occasions of the
illegal acts,9
Complainant believed he was acting properly. I am unable to
discern the Secretary's reasoning from the text of the decision
itself, which disposes of the §5851(g) issue in a short one
paragraph. The Drew case, therefore, provides me little
guidance in the present task.
In support of Complainants' argument is a Court
of Appeals decision from the Eighth Circuit. See Iowa Elec.
Light & Power, 834 F.2d 1424. The issue in the Iowa
Electric case was whether the respondent would have to
reinstate a complainant who was discharged for deliberately
violating important federally mandated safety regulations. The
Court stated "we are not concerned with what [Complainant]
says he did not know about the details [of the federal regulation].
It is enough that he did know that he was short circuiting an
important safety system required by the federal government as a
measure to protect the public...." Id. at 1426. It was
only in considering whether the violation was excusable, so as to
warrant reinstatement, that the Court noted the violation was
serious and knowing. Id. at 1429.10
Cognizant of this precedent, legislative
history, and public policies, I cannot adopt Complainants'
interpretation of §5851(g). To do so would render the section
virtually ineffectual because there is the potential that every
complainant would deny knowledge that his deliberately performed
acts were violative of an ERA and/or AEA provision. Such an
interpretation would be in contravention of the purpose of
§5851(g), which is to "avoid abuse of the protection
afforded," supra p. 10, because the protection of
section (g) would depend greatly upon the veracity of the
complainant, the person whom the legislature wanted to restrain
from abusing the statute.
Moreover, such an interpretation would create a
standard whereby complainants would be expected to make a
determination, prior to doing an act, that the act would be
violative of the ERA and/or AEA. These violations are adjudicated
by this Office and/or determined by the NRC through investigations
and hearings. It is, in fact, the rare case where an actor commits
a violation knowing it to be a violation. It is, in fact, the
common case where an act is committed that is later discovered to
be a violation.
This Judge finds Complainants' argument that I
should construe the "deliberately causes" language in
§5851(g) similarly to the deliberate misconduct language in 10
C.F.R. 50.5(c) to be without merit. My reasons for this are
twofold. First, the language of the regulation specifically states
it is supplied "for purposes of paragraph (a)(1) of" that
section. Secondly, there is no similar definition in the Employee
Protection section of the NRC regulations. See Generally 10
C.F.R. 50.7. The language of the NRC's Employee Protection
regulation actually mirrors the language of the ERA. See 10
C.F.R. 50.7(a)(3). Furthermore, I see no reason to apply the
definition of deliberate misconduct to the definition of
deliberately causes because these are two distinct concepts.
My interpretation of the statute is further
supported by considering the common usage of the words which are
the center of the present dispute. A respondent must establish
complainant deliberately caused a violation, i.e., a
respondent must establish a complainant, fully aware of what he or
she is doing and with careful and unhurried consideration, see
Webster's Dictionary, brought into existence, id., a
violation of the ERA or AEA. It is by substituting these common
definitions for the statutory words "deliberately
causes," that it becomes even more evident that there is no
requirement that respondent show complainant had
"knowledge" that the act would be illegal. See
Generally Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y
August 7, 1995) (wherein the Secretary looked, in part, to the
common usage of the word "demonstrate" to resolve an
issue of statutory interpretation).
This is not to say that respondents in general
should have an easy case of making out the §5851(g)
affirmative defense. See Jackson and Roskam, supra p. 13,
(describing 33 U.S.C. §1367(d) as an affirmative defense);
Hadden, supra p. 13, (describing 42 U.S.C. §5851(g) as
an affirmative defense).11 Applying the Secretary's analysis in Jackson and
Roskam to the circumstances of this case, Respondent would have
to prove (1) that the act was done without direction from the
employer, (2) that Complainants deliberately did an act, and (3)
that the act caused a violation of ERA or AEA requirements. See
Generally Jackson and Roskam, supra p. 13.
Respondent Florida Power Corporation has met its
burden of establishing the §5851(g) affirmative defense in
this case. Furthermore, Respondent is entitled to have this claim
disposed of by summary decision because all facts relevant to this
defense have been conclusively established. As is more fully
discussed below, there exists no genuine issue of material fact
which would prevent an entry of dismissal on the basis that
Complainants deliberately caused a violation of law.
I will now apply this law to the irrefutable
facts of the case at hand. Complainants did not consult with the
CR-3 Engineering Department before conducting their acts, either on
the 4th or the 5th, Weiss Depo., p. 10; nor did they consult
management or the Shift Manager regarding their acts, Fields Depo.,
pp. 52, 80, 418-25; Weiss Depo., pp. 83-84, 88-89, 253; RX C,
Affidavit of Gregory Halnon, para. 5; RX D, Affidavit of Bruce
Hickle, para. 4; nor did they consult the NRC, Weiss Depo., p. 253;
CX 66, NRC Investigative Interview of R. Weiss, August 31, 1995, p.
19. Complainant Fields does not argue that he performed these acts
at the direction of management. Complainant Stewart, however, has
stated that he spoke with his management, referring to Complainant
Fields, the nights of September 4 and 5. Stewart Depo., pp. 25,
27, 122. Complainant Stewart describes himself as a "lowly
guy" who believed Complainants Fields and Weiss were working
with the Manager of Nuclear Operations, Greg Halnon, all along to
resolve the problem presented by Curve 8. Stewart Depo., p. 121-22. Stewart states that if Complainant Fields ordered him to do
something and Stewart did not see it as an undue risk to the plant,
he would do it because Fields had the authority to order him to do
it. Stewart Depo., pp. 9-10, 36.
Of course, Complainant Stewart admits that
neither Complainant Fields nor Complainant Weiss told him that they
had talked with Greg Halnon; Bruce Hickle, Director of Nuclear
Plant Operations; or Dr. P.M. Beard, Senior Vice-President of
Nuclear Operations, about the tests. Stewart Depo., p. 123.
Stewart describes the issue of the validity of Curve 8 as being
closed out by management if the crew did not come up with some
information to feed back to engineering. Stewart Depo., pp. 12,
164-65. Furthermore, Stewart states that van Sicklen was one of
the principal engineers of the curve challenge on the 4th. Stewart
Depo., pp. 39-40. In fact, Stewart describes that sometime in the
middle of the shift on the 5th, Fields, Weiss and van Sicklen
suggested trying the evolution again.12 Stewart Depo., pp.
68-69. Stewart admits that if no procedural guidance allowed the
crew to perform the acts, it would have been necessary to notify
management. Stewart Depo., p. 27.
This Administrative Law Judge, assuming all
facts in the light most favorable to Complainant Stewart, still
cannot find that he acted at the direction of his Employer as is
contemplated by §5851(g). At the very least, Stewart knew the
idea of challenging Curve 8 originated with van Sicklen, who
proposed it to Complainants Fields and Weiss. At the very least,
Stewart knew the proposed acts originated with and remained within
the knowledge of his fellow crew. Given this minimal knowledge and
the fact that the proposed acts were to be performed on a primary
safety mechanism, Complainant Stewart should realistically have
seen the undue risk to the plant and sought management approval.
The outcome of Complainant Stewart's claim that
he performed these acts at the direction of management may have
been different if there were some evidence to the effect that
Stewart believed Fields was taking direction from upper management.
From the testimony of Stewart himself, however, it is clear that he
was aware that the original idea to challenge the Curve came from
van Sicklen. In addition, it is only logical to conclude that
Stewart was aware that the evolutions were not directed by
management based on his testimony that the evolutions were
necessary to produce data that would prevent management from
closing out the issue of Curve 8.
Any similar argument advanced by Complainant
Weiss is similarly insufficient for this Administrative Law Judge
to conclude that Complainant Weiss was acting at the direction of
his employer. In his OI interview, Weiss states van Sicklen came
to him when the Curve 8 issue appeared to be getting closed out and
asked Weiss to perform acts to verify the curve. See RX 53,
p. 7. See Also Weiss Depo., p. 127. Weiss then discussed
the idea with Fields. Weiss also states that the attempts to
resolve the concerns about Curve 8 were running "into a brick
wall" and that when "nothing happens, then someone's got
to do something at that point." CX 66, supra para. 18,
at p. 49.
This Administrative Law Judge, having determined
that the acts performed by Complainants on the 4th and 5th were not
directed by the Respondent, will now determine whether
Complainants' acts were deliberate. Complainant Weiss himself
succinctly stated during deposition that the decision to challenge
Curve 8 was a deliberate and intentional decision. Each
Complainant has affirmed, under oath, that the reason they
conducted the acts was to challenge the validity of Curve 8. The
Complainants allowed the annunciator alarm to remain in alarm
status for extended periods of time in order to collect the data
they perceived they needed to convince Engineering of the
invalidity of Curve 8. The evidence before this Administrative Law
Judge concerning the issue of Complainants' deliberateness is
overwhelming and I will simply refer to the Summary of the
Evidence, paras. 4, 6, 7, 8, and 10.
Finally, it is necessary to determine whether
the deliberate actions caused a violation of the ERA or AEA.
Respondent argues "the undisputed facts establish that the
Complainants unquestionably violated the terms of their operator
licenses by intentionally performing two unauthorized tests on the
UT." Respondent's Motion, p. 26. The facts upon which
Respondent relies in presenting this argument are the NRC Notice of
Violation issued to Respondent together with its enclosures, RX 58;
the NRC findings, RX 61 and 62; and the NRC OI findings, RX 63 and
64. Respondent suggests "because the NRC has the sole
authority to make such determinations, they are binding upon and
cannot be second-guessed or excused by another tribunal, including
the Department of Labor." Respondent's Motion, p. 28, n.24.
I call this quotation a "suggestion," rather than an
argument, because it is made as a passing statement in a footnote
and is not supported by any legal authority.
Complainants, of course, argue that whatever the
NRC findings may constitute, they do not constitute a finding of
deliberate misconduct as defined in 10 C.F.R. 50.5(c), which is the
standard Complainants wish to have incorporated into §5851(g).
In addition, Complainants stress the fact that this ALJ is not
bound by the NRC's conclusions. Complainants' Response, p. 15, n.8
(Citing Creekmore, 93-ERA-24 (Dep. Sec'y February 14, 1996),
p. 4 (in which the Deputy Secretary opined "the [NRC]
investigation report is a relevant public document of a Federal
agency and I will take notice of it")). In Creekmore,
the Deputy Secretary reviewed the evidence of record and concluded
that he disagreed with the findings of the NRC.
The gravamen of Complainants' argument on this
point is that while Complainants may have violated NRC regulations,
they did so unknowingly. This is supported by Complainant Fields'
written statements which state, "If I had realized that the
curve represented a design basis, I would not have authorized
performance of the test.... Although I regret performing the test
and causing a violation, I do not believe that this one event
should be the downfall of a fifteen year career." RX 32,
supra para. 9, at p. 3. Complainant Fields also writes
"Control room personnel performed an evolution in which we
unknowingly violated a design basis curve without the proper
procedural review." RX 28, Interoffice Correspondence From D.
Fields to J.A. Frijouf, Dated December 6, 1994, p. 2.
In the case sub judice, I have arrived at
the conclusion that the uncontroverted facts, as established by
Complainants' own testimony and various documents, support the
NRC's determination in regards to each Complainant. Accordingly,
I have considered the NRC letters and reports and am persuaded by
the findings therein.
This Judge applauds the Complainants for their
keen analysis which led to the discovery of a serious safety issue.
I cannot, however, condone the method by which they chose to
accumulate supporting data for their concern(s). As the NRC has
stated, the ends simply do not justify the means. Therefore, I
somewhat regretfully find that the evidence in this case
conclusively establishes those facts necessary to a 42 U.S.C.
§5851(g) defense.
In conclusion, it is necessary to determine
whether this defense bars all or part of the Complainants'
complaints. Complainant Fields filed a fifty-nine (59) page
complaint in this matter, excluding supporting materials. Both
Complainants Weiss and Stewart filed four (4) page complaints which
incorporate the information and documentation supplied by the
Fields complaint.
The Complainants allege Respondent retaliated
against them as a direct result of their disclosure of violations
of the Act, violations of NRC rules and regulations, and their
initiation, assistance, and participation in actions which had
commenced, or caused to be commenced, a proceeding under the Act.
See Fields Compl., ¶ 7; Weiss Compl., ¶ 7; Stewart
Compl., ¶ 7. Complainants have argued that their complaints
state a cause for protected activity distinct from and unrelated
to the September 4th and 5th tests.13
Specifically, Complainant Fields states he engaged
in protected activity which cannot be barred by the §5851(g)
defense when he reported serious safety concerns with regards to
directives issued by Respondent's management to maintain critical
reactor support and emergency systems, when he insisted that
Respondent not present misinformation on the Licensee Event Report,
and when he attempted to avoid Respondent placing blame on the
operators and the reporting of management's directives to operate
on or near Curve 8. See Complainants Motion for
Reconsideration and Clarification, ¶¶ 2 (Citing Compl.,
¶ 3), 12, 16.14
Accordingly, Complainants argue that the §5851(g) defense does
not operate to bar their entire complaints.
Assuming, as this Judge must, that Complainants
actually engaged in all of these actions,15 it is not possible to
allow any part of their complaints to survive. Section 5851(g)
acts as a complete bar to subsection (a) relief. See
supra, p. 10. See Also English v. General Elec.
Co., supra p. 10. The defense is unqualified, and
logically so. Complainants attempt to disentangle their alleged
additional protected activities from the September 4th and 5th
tests is made in vain. Each of the alleged protected activities
which pre-date the tests were related to the Curve 8 issue and, as
Complainants have stated, resulted in the tests which violated NRC
regulations. See Motions for Reconsideration and
Clarification, ¶ 2. Finally, the alleged protected activities
which post-date the tests would not have happened but for the
occurrence of the tests.
It is, therefore, determined that the
complaints, in their entirety, have been barred.
Based on the foregoing, I hereby recommend that
Respondent's Motion for Summary Decision be GRANTED. I base
this recommendation upon an application of the uncontroverted facts
to an interpretation of 42 U.S.C. §5851(g) which is consistent
with that section's legislative history and underlying policy;
consistent with the common usage of the relevant terms; and
consistent with what little case law there exists interpreting the
section.
DAVID W. DINARDI
NOTICE: This Recommended Decision Dismissing Complaint and the
administrative file in this matter will be forwarded for review to
the Administrative Review Board, U.S. Department of Labor, Frances
Perkins Building, Room S-4309, 200 Constitution Avenue, N.W.,
Washington D.C. 20210.
DWD:jw:gcb
1CX J, admitted at
the December 12, 1996, Motion hearing, is Complainants' Amended
Response to FPC's Motion for Summary Decision and/or Dismissal.
The Amended Response was provided for the sole purpose of including
citations of deposition transcripts previously omitted due to
unavailability at the time the original response was filed.
2This is an
unlettered exhibit supplied to this Judge upon its availability
from the transcriber.
3Mr. van Sicklen
is not a Complainant in the present action. He was, however, a
participant in the actions performed. At the relevant time, Mr.
van Sicklen was employed as a Chief Nuclear Operator at CR-3.
4There was no
operational reason to add hydrogen. Fields Depo., p. 77; Stewart
Depo., p. 76. Stewart states the "operational reason"
that the crew lowered the level from 86 to 55 inches was to find
out if Curve 8 was valid or not. Stewart Depo., p. 77. See
Also Fields Depo., p. 78. I find this to be a circuitous
statement.
5Also attached as
Exhibit 61, is the NRC letter to Complainant Weiss, which is, for
all intents and purposes, virtually identical to Complainant
Fields' letter.
6Although
Respondent has also moved for partial summary decision and/or
dismissal on the Fields and Weiss complaints based upon the
applicable statute of limitations, this Judge does not reach a
determination of that issue because of the §5851(g) defense.
7Whether
Complainants intend to suggest an actual or constructive knowledge
standard is irrelevant because, as is more fully discussed below,
I find that the statute does not require a complainant have
knowledge of the illegality of his action(s).
8The NRC
regulation can be found at 10 C.F.R. 50.5(c). Pursuant to this
regulation, certain persons, as defined at 50.5(a), in the nuclear
industry are subject to enforcement action in accordance with 10
C.F.R. Part 2, subpart B, for engaging in deliberate misconduct
that causes a violation of law or NRC regulation. Deliberate
misconduct is defined as "an intentional act or omission that
the persons knows" would cause or constitutes a violation of
law or regulation. 10 C.F.R. 50.5(c).
9The acts
occurred on two occasions: (1) Complainant repaired a defective
valve without a prior written approval of the welding procedure,
and (2) Complainant retained an original copy of an internal non-conformance report.
10The Court
found the violation was serious and knowing by inferring
complainant knew the safety rule and that the safety feature was
important. After having been denied permission, complainant
deliberately proceeded to defeat that safety system, thereby
committing a knowing violation of the safety rule. Iowa Elec.
Light & Power, 834 F.2d at 1429-30.
11The ALJ's
recommendation in Hadden describes §5851(g) as an
affirmative defense. As previously mentioned, the ALJ's decision
is deprived of its precedential value because of the Secretary's
subsequent decision dismissing on timeliness grounds. It is cited
on this point only for its persuasiveness.
12Stewart
initially attributes the idea to again conduct the evolution on the
5th to Weiss and van Sicklen. He later includes Fields in the
group who originated the idea. Of course, during his OI interview,
Stewart seems to indicate that the idea to conduct the evolution
was more of a group decision. See RX 55, NRC OI Interview of
J. Stewart, December 1, 1994, p. 7 ("And we talked about the
whole situation, said, well, what can we do that could bring to
light what we're doing, you know, what our concerns are here. And
it was suggested that we put the make-up tank on the curve").
For purposes of this Motion, I must construe this evidence in the
light most favorable to Complainants. Therefore, I will assume the
idea to re-run the evolution on the 5th came, in part, from
Complainant Fields.
13See
Complainant Fields' Motion for Reconsideration and Clarification,
¶ 1; Complainants Weiss and Stewart Motion for Reconsideration
and Clarification, ¶ 2. These Motions, although prematurely
filed, have been considered by this Administrative Law Judge.
14Although
Complainants Weiss and Stewart are not as clear as to their
allegation of other protected activity, their Motion for
Reconsideration and Clarification might be read to encompass the
same acts as those enumerated by Complainant Fields.
15In
considering this Motion for Summary Decision, this Judge must view
the facts in the light most favorable to the non-moving party. I
will note that the evidence renders Complainant Fields' contention
that he personally "reported" safety concerns with
regards to management directives to maintain critical reactor
support and emergency systems to be somewhat dubious. See
otion for Reconsideration and Clarification, ¶¶ 2 and 4.
Cf. Fields Depo., pp. 6, l. 25 - p.7, l. 6; p. 7, ll. 20-24;
p. 8, ll. 3-12; p. 21, ll. 13-25; p. 23, l. 10 - p. 24, l. 3; p.
29, ll. 13-25; p. 30, ll. 1-5; p. 31, l. 21 - p. 32, l. 6. For
purposes of this Motion, however, this Judge shall assume that
Complainant Fields did, in fact, personally engage in this
"reporting."
[Page 10]
[Page 11]
[Page 12]
[Page 13]
[Page 14]
[Page 15]
[Page 16]
[Page 17]
[Page 18]
Administrative Law Judge