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EA-99-060 - Coriell Institute for Medical
Research
June 2, 1999
EA 99-060
David P. Beck Ph.D.
President
Coriell Institute for Medical Research
401 Haddon Avenue
Camden, New Jersey 08103
SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY
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$4,400
(U.S. Department of Labor Case No. 97-ERA-46)
Dear Dr. Beck:
This letter refers to an investigation conducted by the NRC Office of
Investigations, as well as a decision by the U.S. Department of Labor
(DOL), regarding a complaint filed on April 18, 1997, by a former employee
of Coriell Institute for Medical Research (Coriell) in Camden, New Jersey.
The former employee alleged that he was terminated for raising safety
concerns. A DOL Administrative Law Judge (ALJ) issued a Recommended Decision
and Order on December 3, 1997, finding that Coriell discriminated against
the employee because he engaged in protected activities, in violation
of Section 211 of the Energy Reorganization Act of 1974, as amended.
The Recommended Decision was adopted by the DOL Administrative Review
Board (ARB) on February 26, 1999. As a result of this apparent violation,
on May 3, 1999, a transcribed predecisional enforcement conference was
held with Mr. Mintzner, and other members of your staff, to discuss the
apparent violation, its causes, and your corrective actions. A copy of
the enforcement conference report was forward to you on May 18, 1999.
After considering the DOL finding, the evidence developed by the Office
of Investigations (OI), and the information that you provided during the
conference, the NRC has concluded that a violation of the Commission's
regulations has occurred. The violation is cited in the enclosed Notice
of Violation and Proposed Imposition of Civil Penalty (Notice). The circumstances
surrounding the violation are described in detail in the ALJ's Recommended
Decision and Order dated December 3, 1997. The violation concerns the
finding of discrimination which is a violation of 10 CFR 30.7, "Employee
Protection." Specifically, a laboratory technician raised a safety concern
regarding unnecessary exposure to employees from phosphorus-32, in a Coriell
laboratory on September 13, 1996. The employment of that technician was
terminated by Coriell on November 21, 1996. DOL concluded that the employment
termination was, at least in part, in retaliation for the employee raising
this safety concern.
10 CFR 30.7 prohibits discrimination by a Commission licensee against
an employee for engaging in certain protected activities. Discrimination
includes discharge and other actions that relate to compensation, terms,
conditions, or privileges of employment. Protected activities are established
in Section 211 of the Energy Reorganization Act of 1974, as amended, and
in general are related to the administration or enforcement of a requirement
imposed under the Atomic Energy Act or the Energy Reorganization Act.
Protected activities include, but are not limited to, providing the Commission
or his or her employer information about alleged violations of either
the Atomic Energy Act or the Energy Reorganization Act. In this case,
the discriminatory actions were initiated by the employee's supervisor,
and taken by the Vice President. Therefore, this violation has been categorized
at Severity Level II in accordance with the "General Statement of Policy
and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.
In accordance with the Enforcement Policy, a base civil penalty in the
amount of $4,400 is considered for a Severity Level II violation. Since
the violation is categorized at Severity Level II, the NRC considered
whether credit was warranted for Identification and Corrective Action
in accordance with the civil penalty assessment process in Section VI.B.2
of the Enforcement Policy. No credit is warranted for identification since
you did not identify the discriminatory actions. Credit is warranted for
your corrective actions since your corrective actions were considered
prompt and comprehensive. Your corrective actions were described at the
conference, as well as in your letter dated February 20, 1998, in response
to a NRC "chilling effect letter" issued on February 4, 1998. The actions
included: (1) preparation of a written policy statement that indicates
employees are to be encouraged to identify safety concerns without fear
of retaliation; (2) distribution of this policy to all employees; (3)
meeting with all supervisors to discuss the ALJ decision; and (4) meeting
with all employees to discuss the Coriell policy for identification and
reporting of safety concerns.
To emphasize the importance of continuously assuring a work environment
that is free of any harassment, intimidation, or discrimination against
those who raise safety concerns, I have been authorized, after consultation
with the Director, Office of Enforcement, to issue the enclosed Notice
of Violation and Proposed Imposition of Civil Penalty (Notice) in the
amount of $4,400, for the Severity Level II violation set forth in the
Notice.
You are required to respond to this letter and should follow the instructions
specified in the enclosed Notice when preparing your response. In your
response, you should document the specific actions taken and any additional
actions you plan to prevent recurrence. You may reference your previous
submittal, as appropriate. After reviewing your response to this Notice,
including your proposed corrective actions and the results of future inspections,
the NRC will determine whether further NRC enforcement action is necessary
to ensure compliance with NRC regulatory requirements.
In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy
of this letter, its enclosure, and your response will be placed in the
NRC Public Document Room (PDR). To the extent possible, your response
should not include any personal privacy or proprietary information so
that it can be placed in the PDR without redaction.
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Sincerely,
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ORIGINAL SIGNED BY
JAMES T. WIGGINS
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FOR |
Hubert J. Miller
Regional Administrator
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Docket No. 030-02537
License No. 29-11811-01
Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty
cc w/encl:
State of New Jersey
ENCLOSURE NOTICE OF VIOLATION AND
PROPOSED IMPOSITION OF CIVIL PENALTY
Coriell Institute for Medical Research
Camden, New Jersey |
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Docket No. 030-02537
License No. 29-11811-01
EA 99-060
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Based on a decision by the U.S. Department of Labor (DOL) Administrative
Review Board (ARB), dated February 26, 1999, and the evidence developed
during an investigation conducted by the NRC Office of Investigations,
a violation of NRC requirements was identified. In accordance with the
"General Statement of Policy and Procedure for NRC Enforcement Actions,"
NUREG-1600, the Nuclear Regulatory Commission proposes to impose a civil
penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended
(Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violation and
associated civil penalty are set forth below:
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10 CFR 30.7(a) prohibits, in part, discrimination by
a Commission licensee against an employee for engaging in certain
protected activities. Discrimination includes discharge and other
actions that relate to compensation, terms, conditions, or privileges
of employment. The protected activities are established in Section
211 of the Energy Reorganization Act of 1974, as amended, and in general
are related to the administration or enforcement of a requirement
imposed under the Atomic Energy Act or the Energy Reorganization Act.
10 CFR 30.7(a)(1)(i) provides that protected activities include, but
are not limited to, providing the Commission or his or her employer
information about alleged violations of either the Atomic Energy Act
or the Energy Reorganization Act named in 10 CFR 30.7(a) or possible
violations of requirements imposed under either of those statutes.
Contrary to the above, on November 21, 1996, Coriell Institute for
Medical Research discriminated against an employee for engaging in
protected activities when Coriell terminated the employment of the
employee as a result of raising safety concerns regarding unnecessary
exposure to employees from the use of phosphorus-32 in a laboratory.
(01012)
This is a Severity Level II violation (Supplement VII).
Civil Penalty - $4,400.
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Pursuant to the provisions of 10 CFR 2.201, Coriell Institute for Medical
Research (Licensee) is hereby required to submit a written statement or
explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory
Commission, within 30 days of the date of this Notice of Violation
and Proposed Imposition of Civil Penalty (Notice). This reply should be
clearly marked as a "Reply to a Notice of Violation" and should include
for each alleged violation: (1) admission or denial of the alleged
violation, (2) the reasons for the violation if admitted, and if
denied, the reasons why, (3) the corrective steps that have been taken
and the results achieved, (4) the corrective steps that will be taken
to avoid further violations, and (5) the date when full compliance will
be achieved. If an adequate reply is not received within the time specified
in this Notice, an order or a Demand for Information may be issued as
why the license should not be modified, suspended, or revoked or why such
other action as may be proper should not be taken. Consideration may be
given to extending the response time for good cause shown.
Within the same time as provided for the response required above under
10 CFR 2.201, the Licensee may pay the civil penalty proposed
above or the cumulative amount of the civil penalties if more than one
civil penalty is proposed, in accordance with NUREG/BR-0254, by submitting
to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, a statement indicating when and by what method payment
was made, or may protest imposition of the civil penalty in whole or in
part, by a written answer addressed to the Director, Office of Enforcement,
U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer
within the time specified, an order imposing the civil penalty will be
issued. Should the Licensee elect to file an answer in accordance with
10 CFR 2.205 protesting the civil penalty, in whole or in part, such
answer should be clearly marked as an "Answer to a Notice of Violation"
and may: (1) deny the violation listed in this Notice, in whole or
in part, (2) demonstrate extenuating circumstances, (3) show
error in this Notice, or (4) show other reasons why the penalty should
not be imposed. In addition to protesting the civil penalty in whole or
in part, such answer may request remission or mitigation of the penalty.
In requesting mitigation of the proposed penalty, the factors addressed
in Section VI.B.2 of the Enforcement Policy should be addressed. Any written
answer in accordance with 10 CFR 2.205 should be set forth separately
from the statement or explanation in reply pursuant to 10 CFR 2.201, but
may incorporate parts of the 10 CFR 2.201 reply by specific reference
(e.g., citing page and paragraph numbers) to avoid repetition. The attention
of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding
the procedure for imposing a civil penalty.
Upon failure to pay any civil penalty due which subsequently has been
determined in accordance with the applicable provisions of 10 CFR 2.205,
this matter may be referred to the Attorney General, and the penalty,
unless compromised, remitted, or mitigated, may be collected by civil
action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.
The response noted above (Reply to Notice of Violation, statement as to
payment of civil penalty, and Answer to a Notice of Violation) should
be addressed to: James Lieberman, Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, One White Flint North, 11555 Rockville
Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator,
U.S. Nuclear Regulatory Commission, Region I.
Your response will be placed in the NRC Public Document Room (PDR); therefore,
to the extent possible, it should not include any personal privacy or
proprietary information so that it can be placed in the PDR without redaction.
If personal privacy or proprietary information is necessary to provide
an acceptable response, then please provide a bracketed copy of your response
that identifies the information that should be protected and a redacted
copy of your response that deletes such information. If you request withholding
of such material, you must specifically identify
the portions of your response that you seek to have withheld and provide
in detail the bases for your claim of withholding (e.g., explain why the
disclosure of information will create an unwarranted invasion of personal
privacy or provide the information required by 10 CFR 2.790(b) to
support a request for withholding confidential commercial or financial
information).
In accordance with 10 CFR 19.11, you may be required to post this Notice
within two working days.
Dated this 2nd day of June 1999
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