[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