[Federal Register Volume 62, Number 17 (Monday, January 27, 1997)]
[Notices]
[Pages 3923-3925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1857]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[IA 96-101]
Joseph R. Bynum; Order Prohibiting Involvement in NRC-Licensed
Activities (Effective Immediately)
I
Since April 1993, Joseph R. Bynum has held the position of Vice
President, Fossil Operations in the Fossil and Hydro Power organization
of the Tennessee Valley Authority (TVA or Licensee). At the time of the
events described in this Order, Mr. Bynum was employed as Vice
President, Nuclear Operations, in the Licensee's corporate organization
and was responsible for the oversight of TVA's nuclear program at its
four nuclear reactor sites. During this time, the Licensee held five
operating licenses and four construction permits issued by the Nuclear
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 50.
License Nos. DPR-77 and DPR-79 authorized the Licensee's operation of
the Sequoyah Nuclear Plant in Soddy-Daisy, Tennessee; License Nos. DPR-
33, DPR-52, and DPR-68 authorized operation of the Browns Ferry Nuclear
Plant in Athens, Alabama; Construction Permit Nos. CPPR-91 (now
Operating License NPF-90) and CPPR-92 authorized the construction of
the Watts Bar Nuclear Plant in Spring City, Tennessee; and Construction
Permit Nos. CPPR-122 and CPPR-123 authorized the construction of the
Bellefonte Nuclear Plant in Scottsboro, Alabama.
II
Following receipt of information regarding alleged discrimination
against Mr. William F. Jocher, former Manager, Chemistry and
Environmental Protection in TVA's corporate organization, the NRC
Office of Investigations (OI) initiated an investigation, Case No. 2-
93-015, on April 15, 1993. OI completed its investigation on August 31,
1995, and concluded that: (1) Mr. Jocher ``was engaged in protected
activities during his employment at TVA, and received an adverse
employment action in the form of a threat of termination by TVA if he
did not resign''; (2) ``the reason proffered by TVA for this adverse
action, namely that Jocher's performance in the area of management
skills was inadequate, was primarily pretextual''; and (3) ``despite
denials by the TVA managers involved, the methodology of Jocher's
engagement in protected activity was the primary reason for the adverse
action'' against him.
In addition, on June 29, 1993, Mr. Jocher, filed a complaint with
the U. S. Department of Labor (DOL). In his DOL complaint, Mr. Jocher
alleged that he was forced to resign from employment with TVA as a
result of carrying out activities protected by the Atomic Energy Act of
1954. He further stated that his forced resignation was based on his
activities in revealing deficiencies in the plant chemistry programs at
the Sequoyah Nuclear Plant, revealing TVA's non-compliance with NRC
approved guidelines, and revealing inconsistencies between actual facts
and TVA management's reports to the NRC and other TVA oversight groups.
DOL efforts to conciliate the matter between Mr. Jocher and TVA
were unsuccessful, and on April 29, 1994, the DOL District Director
(DD) issued the initial finding of the DOL compliance action in the
case. The DOL DD concluded that Mr. Jocher was a protected employee
engaged in protected activity within the scope of the Energy
Reorganization Act, and that discrimination, as defined and prohibited
by the statute, was a factor in the actions which comprised his
complaint.
Following an appeal by TVA, administrative hearings were conducted
before the DOL Administrative Law Judge (ALJ). On July 31, 1996, the
DOL ALJ issued a Recommended Decision and Order (RDO) in the case (DOL
Case No. 94-ERA-24) finding that TVA discriminated against Mr. Jocher
in violation of Section 211 of the Energy Reorganization Act. On
November 20, 1996, the ALJ issued a Recommended Order of Dismissal,
based on a conciliation agreement between Mr. Jocher and TVA, and on
November 22, 1996, the DOL Administrative Review Board issued a Final
Order Approving Settlement and Dismissing Complaint.
Both the ALJ and OI stated that Mr. Joseph R. Bynum, the former
Vice President of Nuclear Operations of TVA, ordered the forced
resignation of Mr. Jocher. By letter dated August 26, 1996, Mr. Bynum
was informed of the DOL findings and the OI investigation results and
requested to attend a predecisional enforcement conference. On
September 23, 1996, a closed, transcribed conference was conducted with
Mr. Bynum, legal counsel, and management representatives of TVA. During
the conference and in a written statement provided to NRC Region II
prior to the conference, Mr. Bynum vigorously denied any violation of
10 CFR 50.5, Deliberate Misconduct, and stated that he did not
discriminate against Mr. Jocher for engaging in protected activities.
He attributed his decision to ask for Mr. Jocher's resignation to Mr.
Jocher's poor management skills, and stated that he (Mr. Bynum) used
poor judgement in not coordinating the personnel action with the
appropriate TVA offices (i.e., Human Resources, Office of General
Counsel). Mr. Bynum provided a detailed description of the events and
circumstances surrounding Mr. Jocher's departure and addressed specific
conclusions drawn by the DOL ALJ.
Based on the NRC staff's review of the evidence gathered by OI, the
ALJ decision, and the views presented by Mr. Bynum at the predecisional
enforcement conference, the NRC staff is satisfied that discrimination
against Mr. Jocher by Mr. Bynum, who is currently the TVA Vice
President for Fossil Operations, as described in the ALJ RDO and the OI
Report, had occurred when Mr. Bynum ordered the forced resignation of
Mr. Jocher. In reaching this determination the staff considered among
other things: (1) The close timing between some of the protected
activities in March 1993, i.e., formal notification by the NRC that it
would be investigating the safety issues raised by Mr. Jocher, and the
adverse action taken against Mr. Jocher on April 5, 1993; (2)
statements made by TVA managers that Mr. Bynum ordered the forced
resignation of Mr. Jocher; (3) inconsistent statements made by Mr.
Bynum and the two managers who carried out the forced resignation of
Mr. Jocher with respect to why and how the employment decision was
made, and whether Mr. Jocher was placed in a six month improvement
program in March, 1993; (4) inconsistencies in the various statements
given by Mr. Bynum regarding his knowledge of Mr. Jocher's protected
activities, most notably the
[[Page 3924]]
post-polygraph interview where he stated that he was aware that Mr.
Jocher had submitted several safety complaints and Significant
Corrective Action Reports, in light of TVA's processes for handling
safety issues of which Mr. Bynum should have been fully cognizant; (5)
the results of Mr. Bynum's voluntary polygraph examination which
indicated deception with respect to key questions related to the
termination of Mr. Jocher; and (6) the lack of adequate documentation
by TVA as to Mr. Jocher's inadequacies as a TVA manager.
The staff adopts, in essence, the conclusions reached by OI and the
DOL ALJ and believes that Mr. Jocher would not have been forced to
resign on April 5, 1993 but for his engaging in protected activities.
Therefore, it is concluded that, on April 5, 1993, Mr. Bynum's
deliberate actions against Mr. Jocher were in violation of Section 211
of the Energy Reorganization Act and 10 CFR 50.5, Deliberate
Misconduct. Further, Mr. Bynum's actions caused TVA to be in violation
of 10 CFR 50.7, Employee Protection.
III
Based on the above, the staff concludes that Mr. Joseph R. Bynum,
an employee of the Licensee, has engaged in deliberate misconduct in
violation of 10 CFR 50.5 that has caused the Licensee to be in
violation of 10 CFR 50.7. NRC must be able to rely on the Licensee and
its employees to comply with NRC requirements, including the
requirement that prohibits discrimination against employees for
engaging in protected activities. Joseph R. Bynum's actions in causing
the Licensee to violate 10 CFR 50.7 have raised serious doubt as to
whether he can be relied upon to comply with NRC requirements in the
future.
Consequently, I lack the requisite reasonable assurance that
licensed activities can be conducted in compliance with the
Commission's requirements and that the health and safety of the public
will be protected if Joseph R. Bynum were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health,
safety and interest require that Joseph R. Bynum be prohibited from any
involvement in NRC-licensed activities for a period of five years
retroactive to May 1, 1993, the date in which he was transferred out of
the Licensee's nuclear organization. If Mr. Bynum is currently involved
in or overseeing NRC-licensed activities at TVA or any other licensee
of the NRC, he must immediately cease such activities, and inform the
NRC of the name, address and telephone number of the employer, and
provide a copy of this order to the employer. Additionally, Joseph R.
Bynum is required to notify the NRC of his first involvement in NRC-
licensed activities following the prohibition period. Furthermore,
pursuant to 10 CFR 2.202, I find that the significance of Mr. Bynum's
conduct described above is such that the public health, safety and
interest require that this Order be immediately effective.
IV
Accordingly, pursuant to sections 103, 161b, 161i, 182 and 186 of
the Atomic Energy Act of 1954, as amended, and the Commission's
regulations in 10 CFR 2.202, 10 CFR 50.5, and 10 CFR 150.20, it is
hereby ordered that:
A. For a period of five years from May 1, 1993, Joseph R. Bynum is
prohibited from engaging in, or exercising control over individuals
engaged in NRC-licensed activities. NRC-licensed activities are those
activities which are conducted pursuant to a specific or general
license issued by the NRC, including, but not limited to, those
activities of Agreement State licensees conducted pursuant to the
authority granted by 10 CFR 150.20. This prohibition includes, but is
not limited to: (1) Using licensed materials or conducting licensed
activities in any capacity within the jurisdiction of the NRC; and (2)
supervising or directing any licensed activities conducted within the
jurisdiction of the NRC.
B. Following the five-year period of prohibition in Section IV.A
above, at least five days prior to the first time that Joseph R. Bynum
engages in, or exercises control over, NRC-licensed activities, he
shall notify the Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, Washington, D.C. 20555, of the name, address,
and telephone number of the NRC or Agreement State licensee and the
location where the licensed activities will be performed. The notice
shall be accompanied by a statement that Joseph R. Bynum is committed
to compliance with NRC requirements and the reasons why the Commission
should have confidence that he will comply with applicable NRC
requirements.
The Director, Office of Enforcement, may, in writing, relax or
rescind any of the above conditions upon demonstration by Mr. Bynum of
good cause.
V
In accordance with 10 CFR 2.202, Joseph R. Bynum must, and any
other person adversely affected by this Order may, submit an answer to
this Order, and may request a hearing on this Order, within 20 days of
the date of this Order. Where good cause is shown, consideration will
be given to extending the time to request a hearing. A request for
extension of time must be made in writing to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission Washington, D.C. 20555,
and include a statement of good cause for the extension. The answer may
consent to this Order. Unless the answer consents to this Order, the
answer shall, in writing and under oath or affirmation, specifically
admit or deny each allegation or charge made in this Order and shall
set forth the matters of fact and law on which Joseph R. Bynum or other
person adversely affected relies and the reasons as to why the Order
should not have been issued. Any answer or request for a hearing shall
be submitted to the Secretary, U.S. Nuclear Regulatory Commission,
Attn: Chief, Docketing and Service Section, Washington, DC 20555.
Copies also shall be sent to the Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant
General Counsel for Hearings and Enforcement at the same address, to
the Regional Administrator, NRC Region II, 101 Marietta Street, Suite
2900, Atlanta, GA 30323, and to Joseph R. Bynum if the answer or
hearing request is by a person other than Joseph R. Bynum. If a person
other than Joseph R. Bynum requests a hearing, that person shall set
forth with particularity the manner in which his or her interest is
adversely affected by this Order and shall address the criteria set
forth in 10 CFR 2.714(d).
If a hearing is requested by Joseph R. Bynum or a person whose
interest is adversely affected, the Commission will issue an Order
designating the time and place of any hearing. If a hearing is held,
the issue to be considered at such hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Joseph R. Bynum, or any
other person adversely affected by this Order, may, in addition to
demanding a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, the provisions
specified in Section IV above shall be effective and final 20 days from
the date of this Order
[[Page 3925]]
without further order or proceedings. If an extension of time for
requesting a hearing has been approved, the provisions specified in
Section IV shall be final when the extension expires if a hearing
request has not been received. An answer or a request for hearing shall
not stay the immediate effectiveness of this Order.
Dated at Rockville, Maryland, this 13th day of January 1997.
For the Nuclear Regulatory Commission.
Edward L. Jordan,
Deputy Executive Director for Regulatory Effectiveness, Program
Oversight, Investigations, and Enforcement.
[FR Doc. 97-1857 Filed 1-24-97; 8:45 am]
BILLING CODE 7590-01-P