Petitions; Director's decisions: Envirocare of Utah, Inc.,
FR, September 21, 1998 › Notices › Nuclear Regulatory Commission
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Federal Register: September 21, 1998 (Volume 63, Number 182)NoticesPage 50258-50262From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr21se98-88
NUCLEAR REGULATORY COMMISSION
Docket No. 40-8989; License No. SUA-1559Envirocare of Utah, Inc.; Issuance of Director's Decision Under 10 CFR 2.206
Notice is hearby given that the Director, Office of Nuclear Material Safety and Safeguards, has taken action with regard to a Petition for action under 10 CFR 2.206 received from Dr. Thomas B. Cochran, Director of Nuclear Programs, on behalf of the Petitioner, Natural Resources Defense Council (NRDC), dated December 12, 1997, as supplemented May 6, 1998, with regard to Envirocare of Utah, Inc. (Envirocare). Specifically, by letter dated December 12, 1997, the Petitioner requested that NRC (1) conduct an immediate investigation of issues raised in the Petition and immediately suspend Envirocare's NRC license; (2) conduct an investigation of possible criminal violations of section 223 of the Atomic Energy Act of 1954, as amended (the Act); (3) immediately suspend Envirocare's license with the State of Utah, under section 274j(2) of the Act; (4) investigate the adequacy of the State of Utah agreement state program to protect whistleblowers; (5) contact each current and former Envirocare employee personally, on a confidential basis, to advise them of their rights to inform the NRC of unsafe practices and violations, to inform them of the protections available to them, and to ask them if they have any information which they wish to disclose, on a confidential basis or otherwise; and (6) order a special independent review of Envirocare's relationships with its employees, along the lines of the review ordered by the NRC for the Millstone site.
Petitioner asserts, as a basis for the December 12, 1997, request, that Envirocare's employee-related practices and contractual provisions constitute a violation of 42 U.S.C. Sec . 5851 (Section 211 (``Employee Protection'') of the Energy Reorganization Act of 1974(ERA)) and the NRC's whistleblower protection regulations under Parts 19 and 40 of Title 10 of the Code of Federal Regulations (i.e., 10 CFR 19.16, 19.20, and 40.7). Specifically, Petitioner states that current and former Envirocare employees who have provided to governmental authorities information adverse to Envirocare's interests fear for their lives and the lives of their families should their identities become known to Envirocare. Petitioner also states that certain provisions in Envirocare's standard employment contract prevent its employees from disclosing to the NRC information concerning unsafe practices and violations under the NRC license and threaten them with severe financial penalties in the event of a disclosure. By letter dated January 16, 1998, NRC acknowledged receipt of NRDC's December 12, 1997, Petition.
With respect to the May 6, 1998, Supplement, NRDC requested that (1) NRC suspend all licenses Envirocare has with the NRC; (2) NRC request the State of Utah to suspend all licenses that Envirocare holds with the State of Utah under the purview of the Utah Division of Radiation Control; (3) the license suspensions indicated in (1) and (2) above are to be enforced until such time as NRC and the State of Utah have completed the actions under (4) and (5) below; (4) NRC undertake a program, in cooperation with the State of Utah and the Environmental Protection Agency (EPA), to contact each and every current and past employee on an individual basis and obtain a sworn statement from each, indicating: (i) whether they were intimidated by the unlawful Envirocare Employee Agreement; (ii) whether they withheld or altered any health, safety, or environmental information in any Envirocare report, or in any written or oral communication with any official of the State of Utah, EPA or NRC; and, (iii) whether they failed to report any health, safety, or environmental information to appropriate authorities; and in cases where there was information withheld, altered, or not reported, identify fully what the information was; (5) NRC investigate the extent to which such information, revealed under (4) above, has affected existing and past licenses held by Envirocare issued by the NRC or the State of Utah, under the purview of the Utah Division of Radiation Control.
In support of Petitioner's May 6, 1998, request, NRDC asserted that NRC now has before it new information that it did not have at the time that NRDC's earlier Petition (dated January 8, 1997) requesting enforcement action against Envirocare was denied by NRC on
[Page 50259]February 5, 1997. NRDC's Petition dated January 8, 1997, was addressed in Director's Decision (DD-97-02) which was issued on February 5, 1997. Petitioner further stated that this new information consists of NRC's letter of December 8, 1997, to Charles A. Judd, indicating that Envirocare's employee protection policies were in violation of NRC's Whistleblower Protection Regulations.
By letter dated June 9, 1998, NRC acknowledged receipt of the May 6, 1998, Petition and indicated that, because of the similarity of requested actions with those of the December 12, 1997, Petition that the May 6, 1998, Petition is being considered as a Supplement to the December 12, 1997, Petition.
The Director, Office of Nuclear Material Safety and Safeguards, has determined that the requests should be denied for the reasons stated in the ``Director's Decision Under 10 CFR 2.206'' (DD-98-09), the complete text of which follows this notice and which is available for public inspection in the Commission's Public Document Room, the Gelman Building, located at 2120 L Street, N.W., Washington D.C. 20555 and is also available on the NRC Electronic Bulletin Board at (800) 952-9676.
A copy of this Decision has been filedwith the Secretary of the Commission for the Commission's review in accordance with 10 CFR 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 review of the Decision within that time.
Dated at Rockville, Maryland, this 14th day of September 1998.
For the Nuclear Regulatory Commission. Carl J. Paperiello, Director, Office of Nuclear Material Safety and Safeguards.
I. Introduction
On December 12, 1997, and May 6, 1998, Dr. Thomas B. Cochran, Director of Nuclear Programs, Natural Resources Defense Council (NRDC), filedPetitions with the U.S. Nuclear Regulatory Commission (NRC) pursuant to Title 10 of the Code of Federal Regulations, Section 2.206 (10 CFR 2.206). In these Petitions, NRDC requested that NRC take action to immediately suspend all licenses held by Envirocare of Utah, Inc. (Envirocare). Specifically, NRDC requested that NRC take the following actions.
Petition of December 12, 1997
(1) Conduct an immediate investigation of issues raised in the Petition and immediately suspend Envirocare's NRC license.
(2) Conduct an investigation of possible criminal violations of section 223 of the Atomic Energy Act of 1954, as amended (the Act).
(3) Immediately suspend Envirocare's license with the State of Utah, under section 274j(2) of the Act.
(4) Investigate the adequacy of the State of Utah agreement state program to protect whistleblowers.
(5) Contact each current and former Envirocare employee personally, on a confidential basis, to advise them of their rights to inform the NRC of unsafe practices and violations, to inform them of the protections available to them, and to ask them if they have any information which they wish to disclose, on a confidential basis or otherwise.
(6) Order a special independent review of Envirocare's relationships with its employees, along the lines of the review ordered by the NRC for the Millstone site.
NRDC asserts, as basis for the December 12, 1997, request, that Envirocare's employee-related practices and contractual provisions constitute a violation of 42 U.S.C. Sec . 5851 (Section 211 (``Employee Protection'') of the Energy Reorganization Act of 1974 (ERA)) and the NRC's whistleblower protection regulations under Parts 19 and 40 of Title 10 of the Code of Federal Regulations (i.e., 10 CFR 19.16, 19.20, and 40.7). Specifically, NRDC asserts that current and former Envirocare employees, who have provided to governmental authorities information adverse to Envirocare's interests, fear for their lives and the lives of their families should their identities become known to Envirocare. NRDC also states that certain provisions in Envirocare's standard employment contract prevent its employees from disclosing to the NRC information concerning unsafe practices and violations under the NRC license and threaten them with severe financial penalties in the event of a disclosure. By letter dated January 16, 1998, I acknowledged receipt of NRDC's December 12, 1997, Petition.
Petition of May 6, 1998
(1) Suspend all licenses Envirocare has with the NRC.
(2) Request the State of Utah to suspend all licenses that Envirocare holds with the State of Utah under the purview of the Utah Division of Radiation Control.
(3) The license suspensions indicated in (1) and (2) above are to be enforced until such time as NRC and the State of Utah have completed the actions under (4) and (5) below.
(4) Undertake a program, in cooperation with the State of Utah and the Environmental Protection Agency (EPA), to contact each and every current and past employee on an individual basis and obtain a sworn statement from each, indicating: (i) whether they were intimidated by the unlawful Envirocare Employee Agreement; (ii) whether they withheld or altered any health, safety, or environmental information in any Envirocare report, or in any written or oral communication with any official of the State of Utah, EPA or NRC; and, (iii) whether they failed to report any health, safety, or environmental information to appropriate authorities; and in cases where there was information withheld, altered, or not reported, identify fully what the information was.
(5) Investigate the extent to which such information, revealed under (4) above, has affected existing and past licenses held by Envirocare issued by NRC or the State of Utah, under the purview of the Utah Division of Radiation Control.
In support of NRDC's request in this Petition, NRDC asserted that NRC now has before it new information that it did not have at the time that NRDC's earlier Petition, dated January 8, 1997, requesting enforcement action against Envirocare that was denied by NRC on February 5, 1997. NRDC's Petition dated January 8, 1997, was addressed in DD-97-02, issued February 5, 1997. NRDC stated that this new information consists of NRC's letter of December 8, 1997, to Charles A. Judd, indicating that Envirocare's employee protection policies were in violation of NRC's whistleblower protection regulations.
NRC's letter dated June 9, 1998, acknowledged receipt of the May 6, 1998, Petition and indicated that, because of the similarity of requested actions with those of the December 12, 1997, Petition, the May 6, 1998, Petition would be considered as a supplement to the December 12, 1997, Petition.
As was indicated in the NRC's acknowledgment letters dated January 16, 1998, and June 9, 1998, NRDC's requests for action concerning Envirocare's license with the State of Utah and the Utah Agreement State Programs concern matters that do not fall within the scope of matters ordinarily considered under 10 CFR 2.206. As indicated in the June 9, 1998, acknowledgment letter, these matters were addressed by Richard L. Bangart, Director of the Office of State Programs, in his February 18, 1998, letter to NRDC. Accordingly, this Director's Decision
[Page 50260]will only address the NRDC requests for action that relate to the license to receive, store, and dispose of certain byproduct material issued to Envirocare by NRC, pursuant to Section 11e.(2) of the Act.<SUP>1</SUP> Allegations of possible criminal violations of section 223 of the Act have been referred to the Federal Bureau of Investigation (FBI). Although matters of federal criminal violation clearly fall under the jurisdiction of the FBI, the NRC staff has, in the course of its investigations into NRC-related matters, reviewed and examined documents bearing on these matters. NRC's evaluation of this information, which has been acquired either directly, or examined under condition of confidentiality, will be discussed briefly, to the extent possible, in Section III of this Decision.
\1\ In its Petition of May 6, 1998, NRDC requests the NRC to suspend all licenses Envirocare has with NRC. The only license that has been issued to Envirocare by the NRC is the NRC license to receive, store, and dispose of uranium and thorium byproduct material, issued November 19, 1993, pursuant to Section 11e.(2) of the Act.
II. Background
Envirocare operates a radioactive waste disposal facility in Clive, Utah, 128 kilometers (80 miles) west of Salt Lake City in western Tooele County. Radioactive wastes are disposed of by modified shallow land burial techniques. Envirocare submitted its license application to the NRC in November 1989 for commercial disposal of byproduct material, as defined in Section 11e.(2) of the Act (11e.(2) byproduct material). On November 19, 1993, NRC completed its licensing review and issued Envirocare an NRC license to receive, store, and dispose of uranium and thorium byproduct material. Envirocare began receiving 11e.(2) byproduct material in September 1994 and has been in continuous operation since.
To ensure that the facility is operated safely and in compliance with NRC requirements, the staff conducts routine, announced inspections of the site. Areas examined during the inspections include management organization and controls, operations review, radiation protection, radioactive waste management, transportation, construction work, groundwater activities, and environmental monitoring. The NRC has conducted ten inspections of the Envirocare facilities between April 14, 1994, and June 25, 1998, in conjunction with the 11e.(2) byproduct material license and has cited the licensee for ten violations. None of the violations are related to concerns raised in the NRDC Petitions. All violations were categorized in accordance with the guidance in NUREG-1600, ``General Statement of Policy and Procedures for NRC Enforcement Actions'' (Enforcement Policy) at a Severity Level IV.<SUP>2</SUP> The most recent inspection, conducted June 22-25, 1998, resulted in the issuance of two citations. The first violation relates to failure to follow procedures; the second violation results from failure to perform confirmatory ground-water sampling. The results of the June 1998 inspection are documented in Inspection Report 40-8989/ 98-01 which was issued on July 24, 1998.
\2\ As explained in Section IV. of the Enforcement Policy, violations are normally categorized in terms of four levels of severity (Severity Level I being the most significant). A Severity Level IV violation is defined as a violation of more than minor concern which, if left uncorrected, could lead to a more serious concern.
In addition to the routine, announced site inspections described above, the staff has, since January 1997, conducted many investigations, interviews, and telephone conversations with numerous individuals into aspects of Envirocare's operations, including matters relating to concerns raised in NRDC's 10 CFR 2.206 Petitions. The staff's investigations included interviews with former Envirocare employees.
III. Discussion
NRDC asserts two bases in support of its requested actions: (1) Envirocare's employment contract non-disclosure covenant threatens the financial well being of employees who want to provide information regarding Envirocare operations, and (2) current and former Envirocare employees fear for their lives and lives of their families. NRDC states that it is apparent from sworn affidavits, compiled in the State of Utah Legislative Auditor General Investigation of Envirocare, that current and former employees of Envirocare fear for their lives and for the lives of their families. NRDC further states that Envirocare has required employees to enter into an employment agreement with onerous provisions that impose significant monetary penalties for disclosing safety-related information. NRDC, furthermore, asserts that such threatening practices constitute a violation of Section 211 of the ERA, 10 CFR Secs. 19.16, 19.20, and 40.7. The NRC has evaluated these matters and found no basis to take the requested actions.
As an initial matter, NRDC requests that the NRC immediately suspend Envirocare's NRC licenses. The NRC's Enforcement Policy describes the various enforcement sanctions available to the Commission once it determines that a violation of its requirements has occurred. In accordance with the guidance of Section VI.C.2 of the Enforcement Policy, Suspension Orders may be used: (a) to remove a threat to the public health and safety, common defense and security, or the environment; (b) to stop facility construction when (i) further work could preclude or significantly hinder the identification or correction of an improperly constructed safety-related system or component or (ii) the licensee's quality assurance program implementation is not adequate to provide confidence that construction activities are being properly carried out; (c) when the licensee has not responded adequately to other enforcement action; (d) when the licensee interferes with the conduct of an inspection or investigation; or (e) for any reason not mentioned above for which license revocation is legally authorized. Furthermore, in accordance with the guidance in Section VI.C.3. of the Enforcement Policy, Revocation Orders may be used: (a) when a licensee is unable or unwilling to comply with NRC requirements; (b) when a licensee refuses to correct a violation; (c) when a licensee does not respond to a Notice of Violation where a response was required; (d) when a licensee refuses to pay an application fee under the Commission's regulations; or (e) for any other reason for which revocation is authorized under Section 186 of the Act (e.g., any condition that would warrant refusal of a license on an original application). Pursuant to 10 CFR 2.202(a)(5), the Commission may issue an immediately effective order to modify, suspend, or revoke a license if the Commission finds that the public health, safety, or interest so requires or that the violation or conduct causing the violation was willful.
In this case the NRDC has not provided the NRC with substantiated information supporting the existence of circumstances that would provide a basis for immediate suspension of the Envirocare license. Furthermore, neither the investigations conducted by the NRC nor by the FBI have revealed evidence providing a basis for suspension of the license.
Assertion 1
Envirocare's Employment Contract Non-disclosure Covenant Threatens Financial Well Being of Employees Who Want to Provide Information Regarding Envirocare Operations
Prior to the filing of NRDC's Petition dated December 12, 1997, the NRC reviewed Envirocare's Whistleblower
[Page 50261]Protection Policy; its Environmental Compliance Program; and its Employment Agreement. By letter dated December 8, 1997 (the letter referenced by NRDC in support of its May 6, 1998, Petition), the NRC notified Envirocare that its written company policies were inconsistent with Section 211 of the ERA, 42 U.S.C. 5851, and
As a result of its review, the NRC requested Envirocare to modify its Whistleblower Protection Policy, Environmental Compliance Program, and Employment Agreement to ensure compliance with NRC requirements. By correspondence dated January 21, 1998, Envirocare responded to the NRC's December 8, 1997, letter. Among other things, Envirocare amended its Whistleblower Protection Policy, Environmental Compliance Program, and Employment Agreement in an effort to bring those documents into compliance with NRC requirements. NRC reviewed Envirocare's modifications to its corporate policies and employment agreement and concluded that they satisfied NRC requirements. By letter dated February 9, 1998, the NRC staff informed Envirocare that it found the modifications acceptable.
Moreover, by letter dated December 31, 1997, the NRC required Envirocare to respond to the allegations raised in the December 12, 1997, Petition. That letter requested Envirocare to indicate whether it intended to enforce its Employment Agreement against current and former employees who have engaged, or do engage, in protected activities cognizable under Section 211 of the ERA and
With respect to asserted violations by Envirocare of Section 211 of the ERA and
Additionally, NRC's investigations included interviews and meetings with individuals including representatives of the organizations (law firms and the State of Utah, Office of Legislative Research and General Counsel) identified in NRDC's letter of January 21, 1998.<SUP>3</SUP> It was suggested by NRDC that the individuals identified in its January 21, 1998, letter may possess information relating to the asserted violations of NRC's whistleblower regulations by Envirocare. The FBI, although focusing on alleged criminal activities (bribery and extortion) associated with Envirocare's then-President Khosrow Semnani, did, in the course of these investigations, also acquire information bearing on the above NRC-related matters. This information was investigated by the NRC and revealed no evidence that any current or former Envirocare employee has received threats of financial harm or has felt threatened by Envirocare's employment non-disclosure covenant.
\3\ In its acknowledgment letter dated January 16, 1998, the NRC requested the NRDC to provide the NRC the names of ``unidentified individuals (and attendant background information) referenced in the Petition,'' indicating that confidentiality consistent with the NRC allegation program would be provided. The NRDC's letter of January 21, 1998, responded to that request.
Assertion 2
Current and Former Envirocare Employees Fear For Their Lives and Lives of Their Families
Allegations of possible criminal violations of the Act had been referred to the FBI as indicated in my letter of January 16, 1998. Nonetheless, in the course of its various investigations, the NRC staff acquired information bearing on the matter of death threats. The scope of NRC's investigations conducted for Assertion 2 was identical to that conducted for Assertion 1 and is described above.
In addition, the Utah Attorney General's Office had initiated a criminal investigation in early 1997 into the matter of the relationship (alleged bribery/extortion) between Mr. Larry F. Anderson, former Director of the Utah Division of Radiation Control and Mr. Khosrow B. Semnami, former President of Envirocare. This alleged bribery/extortion investigation was later assumed by the FBI. The FBI's investigation into this matter has resulted in a July 22, 1998, filing of a Cooperation Agreement between Mr. Semnani and the U.S. Attorney's Office. No information surfaced during the FBI investigation indicating that death threats had been made against either present or former employees by Mr. Semnani or other officers of Envirocare.
Based on the investigations of Envirocare that have been conducted by the NRC and the FBI, there has been no evidence uncovered indicating that any current or former Envirocare employee: (1) has received threats of financial harm or has felt threatened by Envirocare's employment contract non-disclosure covenant, or (2) fears for his/her life or the lives of his/her family as a result of threats received, either directly or indirectly, from any officer of Envirocare.
IV. Conclusion
On the basis of the above assessment, I have concluded that no substantial health and safety issues have been raised regarding Envirocare that would require initiation of the action requested by the NRDC. As explained above, the NRDC has not provided any specific information that would provide a basis, for suspension of the Envirocare license. Furthermore, neither the investigations conducted independently by the NRC nor by the FBI have revealed the existence of circumstances that would warrant immediate suspension of the
[Page 50262]Envirocare license. Accordingly, the Petitioner's request for action is denied.
Dated at Rockville, Maryland this 14th day of September 1998.
For the Nuclear Regulatory Commission. Carl J. Paperiello, Director, Office of Nuclear Material Safety and Safeguards.
FR Doc. 98-25177Filed9-18-98; 8:45 amBILLING CODE 7590-01-P
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This document cites
- US Code - Title 42: The Public Health and Welfare - 42 USC 5851 - Sec. 5851. Employee protection
- Code of Federal Regulations - Title 10: Energy - 10 CFR 19.16 - Requests by workers for inspections.
- Code of Federal Regulations - Title 10: Energy - 10 CFR 2.202 - Orders.
- Code of Federal Regulations - Title 10: Energy - 10 CFR 2.206 - Requests for action under this subpart.
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