Nuclear Employer Alert

St. Lucie Retaliation Violation

Based primarily on the suspicious timing of events and the apparent fudging of records relating to those events, the NRC has concluded that Florida Power & Light discriminated against an outage contract worker because he submitted a condition report. The NRC issued NOVs to both the licensee and the contracting company and banned a former FPL executive from working in the industry for five years due to his alleged deliberate misconduct.

Background

The NRC's recent actions stem from two investigations by the NRC's Office of Investigations (OI), one into potential discrimination in violation of 10 CFR 50.7, the other into a potential violation of the completeness and accuracy obligations of 10 CFR 50.9.

During a March 2017 outage, the lead supervisor for Framatome’s refueling team at St. Lucie submitted a condition report (CR) about a requirement that Framatome workers wear multiple dosimeters while performing refueling work. The supervisor submitted the CR on March 13. On March 14, according to the NRC's findings, an FPL vice president sent an email about the CR to a Framatome Vice President and also called the Framatome Vice President. Framatome was planning on the supervisor going to support refueling work at an upcoming Turkey Point outage, a fact discussed in the FPL-VP to Framatome-VP call. The Framatome-VP in turn told a Framatome manager to cancel the supervisor's upcoming Turkey Point assignment.These events led to an allegation of discrimination to the NRC.

NRC's Analysis

According to the NRC: "The temporal proximity of the [supervisor's] submission of the condition report and the initiation of the adverse action by an FPL executive and the subsequent implementation of the adverse action within a few days by Framatome management was deemed a discriminatory act." (That wording is poor: the proximity itself was not "a discriminatory act"; rather, the timing was evidence of a causal connection.)

FPL and Framatome denied in predecisional enforcement conferences that any retaliation occurred. The NRC rejected their arguments, noting that the supervisor had been a good performer, the supervisor had managed his outage responsibilities well, and the FPL-VP's testimony that the reassignment was for legitimate reasons lacked credibility because it conflicted with the testimony of other interviewees.

Raising a legal point, FPL and Framatome argued that the supervisor did not suffer an adverse action because he did not lose any work time. According to the NRC: "A reasonable person would view the cancellation of the worker's pre-scheduled transfer as a materially adverse action and one that could potentially chill others who raise nuclear safety concerns."

Enforcement Actions

The NRC cited FPL for a Severity Level II violation of 10 CFR 50.7 and proposed a base civil penalty for the violation of $232,000. The NRC acknowledged the company's corrective actions (see sidebar). FPL has the opportunity to contest the NOV and to request ADR. Note that, according to NRC statistics, no other discrimination allegations have been submitted for St. Lucie since this event.

The NRC relied on the same findings in issuing an NOV to Framatome. In its cover letter to Framatome, the NRC stated: "The NRC considers violations of 10 CFR 50.7 significant because of the potential that individuals might not raise safety issues for fear of retaliation. Based on the willfulness and the level of the Framatome managers involved in the adverse action, this violation has been categorized in accordance with the 'NRC Enforcement Policy,' at Severity Level III." The NRC acknowledged Framatome's corrective actions, which were similar to FPL's.

The NRC did not propose a civil penalty for Framatome, based partly on the proposition that the discrimination was primarily instigated by FPL. Specifically: "(1) the NRC recognizes the influence exerted by FPL on Framatome’s management; (2) FPL, as the licensee, received a civil penalty ... as the initiator of the discriminatory act; and (3) the NRC recognized Framatome’s quick response in assigning an alternative, although not equal, position to the [supervisor], resulting in a relatively less severe adverse action."

Individual Enforcement Action

The NRC took enforcement action against the FPL-VP, Tom Summers. According to the NRC's correspondence, Summers "deliberately cancelled a contract employee’s assignment ... in part, because the contract employee entered a concern into St. Lucie’s corrective action program." The NRC cited Summers for a violation of the NRC's deliberate misconduct regulations (10 CFR 50.5).

In addition, the NRC found that Summers violated 10 CFR 50.9. According to the NRC, after Summers learned that the NRC was considering the 50.7 violation, he gave FPL an outage journal that contained information relevant to the discrimination concern. Summers had not provided the journal during an investigation by FLP's ECP, nor had he presented it when OI interviewed him. When FPL received the journal, it sent it to the NRC with a representation that it was highly relevant to OI's discrimination investigation. FPL subsequently advised the NRC that it questioned the outage journal's authenticity. The NRC found that the journal had been altered in an effort to avoid enforcement action:

OI’s investigation documented that previously, you claimed to have located the journal at St. Lucie Nuclear Plant shortly after your receipt of the apparent violation for the discrimination concern on October 19, 2018. A review of access authorization badge activity at St. Lucie Nuclear Plant indicated that you had not entered the plant. When confronted, you admitted to providing a false narrative about the discovery of the journal at St. Lucie Nuclear Plant. The results of a forensics analysis, procured by FPL, contradicted your claim that pertinent journal entries for the discrimination case were made in February and March of 2017. The forensics analysis, conducted in January 2019, indicated that the journal entries were less than a year old (i.e., as compared to the expected two years). The analysis included testing of pages that contained information pertinent to the discrimination case. Lacking specific testimony or evidence to the contrary and despite your testimony that the journal is an accurate record of events; the documentary and testimonial evidence obtained by OI during the investigation demonstrated that you deliberately provided incomplete and inaccurate information to FPL to influence an NRC proceeding, namely the upcoming St. Lucie discrimination case PECs to avoid potential NRC enforcement actions.

The NRC cited Summers for Level II violations of both 50.5 and 50.9. The NRC issued an order prohibiting Summers from any involvement in NRC-licensed activities for five years "because your actions have resulted in the loss of reasonable assurance that you may be relied upon, at this time, to comply with NRC requirements."

Summers at the time of the alleged discrimination was an experienced nuclear professional, having worked for Part 50 licensees since at least the late 1990's. Presumably, he has attended numerous SCWE and Safety Culture training sessions and was well aware of the prohibition against retaliation and the need for completeness and accuracy. If the NRC's conclusions about his behavior are correct, it is mysterious why such an experienced, high-level nuclear professional would take the actions he did.

Please let us know if you have any questions about these developments.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.