In the Matter of: Stone & Webster Construction, Inc.; Confirmatory Order (Effective Immediately), 57532-57534 [2010-23519]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 182 (Tuesday, September 21, 2010)]
[Notices]
[Pages 57532-57534]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23519]


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NUCLEAR REGULATORY COMMISSION

[NRC-2010-0301; EA-10-054]


In the Matter of: Stone & Webster Construction, Inc.; 
Confirmatory Order (Effective Immediately)

I

    Stone & Webster Construction, Inc. (SWCI), a Shaw Group company 
(referred to as Shaw), provides integrated services to various 
industries including the nuclear power industry. Shaw provides services 
to over thirty (30) operating nuclear plants and other facilities 
regulated by the U.S. Nuclear Regulatory Commission (NRC or 
Commission).
    This Confirmatory Order is the result of an agreement reached 
during an alternative dispute resolution (ADR) mediation session 
conducted on August 24, 2010 in Washington, DC.

II

    By letter dated June 2, 2010, the NRC identified to Shaw an 
apparent violation of 10 CFR. 50.7, ``Employee Protection,'' relating 
to the termination of a former painter foreman in May 2004 at the 
Browns Ferry Nuclear Power Plant. The apparent violation was issued 
based on the U.S. Department Labor (DOL) Administrative Review Board's 
(ARB) September 24, 2009 decision (ARB Case No. 06-041). The ARB 
reversed a January 9, 2006, DOL Administrative Law Judge's (ALJ) 
recommended decision (2005-ERA-6) where, following an evidentiary 
hearing, the ALJ had concluded that Shaw had not violated section 211 
of the Energy Reorganization Act, as amended, by terminating the former 
painter foreman. Shaw denies that it has retaliated against the former 
painter foreman for engaging in a protected activity and is pursuing 
its legal challenge to the ARB decision.
    In its June 2, 2009 letter, the NRC offered Shaw the opportunity to 
provide a written response, attend a pre-decisional enforcement 
conference, or request ADR in which a neutral mediator with no 
decision-making authority would facilitate discussions between the NRC 
and Shaw and, if possible, assist the NRC and Shaw in reaching an 
agreement. Shaw requested to use ADR to resolve differences it had with 
the NRC.
    On August 24, 2010, the NRC and Shaw met in an ADR mediation 
session arranged through the Cornell University Institute on Conflict 
Resolution. This Confirmatory Order is issued pursuant to the agreement 
reached during the ADR process.

III

    A. The NRC acknowledged that Shaw, for its own business reasons, 
had already put in place during the past several years the following 
policies, practices and programs that support Safety Conscious Work 
Environment (SCWE) and Safety Culture:
    At the parent company, The Shaw Group Inc., level:
     The SpeakUp Program is a toll-free hotline and Web site in 
which workers can report issues to the Company. Reports can be made 
anonymously;
     The Stop Work Policy gives employees authority to 
immediately stop any work activity that presents a danger to him/her, 
co-workers, clients, partners or the public without fear of reprimand 
or retaliation;
     The Targeting Zero Program focuses on achieving zero 
environmental, health and safety incidents; it minimizes health and 
safety risks to employees, clients, the public and the environment;
     The Employment Discipline Policy prohibits retaliation for 
exercising the right to raise safety concerns;
     Mandatory Code of Corporate Conduct training for all 
employees with computer access;
     Consideration of integrity and compliance as performance 
factors in annual employee performance evaluations;
     Periodic independent culture surveys.
    For nuclear maintenance sites:
     A SCWE Procedure outlines the Company's expectations, and 
each individual's responsibilities for establishing and maintaining a 
SCWE;
     The New to Nuclear Workforce Orientation Program provides 
training and resources specific to working in the nuclear industry for 
workers coming in without nuclear experience;
     New Hire Orientation informs new hires about Shaw's Safety 
Culture and SCWE expectations, and informs them of their 
responsibilities and programs available to them, including SpeakUp and 
Stop Work and Shaw's non-discrimination and harassment policies;
     Supervisor Challenge (Oral Boards) evaluates supervisors' 
skills in the key focus areas including leadership, human performance, 
work performance, and reinforcing expectations.
    For new nuclear construction sites:
     An on-site Employee Concerns Program, modeled on resources 
in NEI 97-05 is available to all site workers;
     Procedure Maintaining a Strong Nuclear Safety Culture & 
Safety Conscious Work Environment, modeled on NEI 09-12 and RIS 2005-
018, describes Shaw's expectations for a SCWE and the methods by which 
it will establish and maintain it;
     Shaw provides SCWE training comprised of four modules: In-
processing for all personnel; 90-day enhanced training with case 
studies for new craft personnel; nuclear professional for office 
workers; and training for supervisors and above;
     Shaw conducts periodic SCWE surveys based on NEI 09-12 
survey tool.
    B. During the ADR mediation session, an agreement in principle was 
reached where Shaw agreed to take the following additional actions:

    1. Within 2 months of issuance of this Confirmatory Order, Shaw 
will issue a written communication from a Shaw Power Group senior 
executive to Shaw employees in its Nuclear Services (i.e., 
construction) and Nuclear Maintenance Divisions working at nuclear 
facilities addressing: (a) A recent DOL ARB decision that concluded 
that retaliation occurred at a SWCI facility in 2004; b) that Shaw 
strives to maintain a SCWE; and (c) that nuclear workers have 
multiple avenues in which to raise concerns and identifying these 
avenues.
    2. Where not already required by the applicable nuclear facility 
licensee, Shaw will establish an Executive Review Board (ERB) that 
will include management personnel at or above the level of the site 
project manager, including legal and/or human resources 
participation, to review all proposed significant adverse actions 
(defined as three or more days off without pay up to and including 
termination for cause, but excludes reductions-in-force and other 
ordinary layoffs) at any NRC-regulated maintenance site to ensure 
these actions

[[Page 57533]]

comport with applicable employee-protection requirements and to 
assess and mitigate the potential for any chilling effect. Within 3 
months of issuance of this Confirmatory Order, Shaw will establish 
requirements for the ERB in a new or existing Nuclear Maintenance 
Procedure to become effective during this three-month period.
    3. Within 3 months of issuance of this Confirmatory Order, Shaw 
will revise the SpeakUp program brochure issued at its nuclear 
facilities to include use of the program to raise safety concerns.
    4. Consistent with the requirements of the nuclear facility 
licensees, Shaw will perform SCWE surveys including craft workers, 
at its Nuclear Maintenance sites and review the survey results for 
actions as appropriate. Within 24 months of issuance of this 
Confirmatory Order, Shaw will complete a substantial number of these 
surveys and will have scheduled surveys for the remaining sites, if 
any, to be completed within the following 12 months. Shaw will 
provide semi-annual status reports to the NRC Office of Enforcement 
regarding status toward completion of this action.
    5. At Nuclear Maintenance sites, where not already provided by 
the nuclear facility licensees, Shaw will provide SCWE training to 
all Shaw Nuclear Maintenance supervisors and above to include an 
overview of regulatory requirements and case studies. Shaw will 
complete this action within 24 months of issuance of this 
Confirmatory Order.
    6. For 24 months following issuance of this Confirmatory Order, 
Shaw will collect, review and assess for each of its Nuclear 
Maintenance sites, data regarding labor grievances, significant 
human resources actions, and ECP and SpeakUp concerns. Shaw's 
Compliance Council, chaired by the Chief Compliance Officer, will 
review this compilation of data quarterly for SCWE trends and 
recommend actions to line management as appropriate.

    On September 9, 2010, Shaw consented to the issuance of this 
Confirmatory Order with the commitments, as described in Section V 
below. Shaw further agreed that this Confirmatory Order is to be 
effective upon issuance and that it has waived its right to a hearing.

IV

    Since Shaw has agreed to take additional actions, as set forth in 
Item III.B above, the NRC has concluded that its concerns can be 
resolved through issuance of this Confirmatory Order and thereby has 
agreed not to pursue further action in connection with the NRC's June 
2, 2010 letter to Shaw arising out of the ARB's September 29, 2009 
decision (ARB Case No. 06-041).
    I find that Shaw's commitments as set forth in Section V are 
acceptable and necessary and conclude that with these commitments the 
public health and safety are reasonably assured. In view of the 
foregoing, I have determined that public health and safety require that 
Shaw's commitments be confirmed by this Confirmatory Order. Based on 
the above and Shaw's consent, this Confirmatory Order is immediately 
effective upon issuance. By no later than thirty (30) calendar days 
after the completion of the requirements in Section V, Shaw is required 
to notify the NRC in writing and summarizing its actions.

V

    Accordingly, pursuant to Sections 104b, 161b, 161i, 161o, 182 and 
186 of the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202 and 10 CFR Part 50, It is hereby ordered, 
effective immediately, that:

    1. Within 2 months of issuance of this Confirmatory Order, Shaw 
will issue a written communication from a Shaw Power Group senior 
executive to Shaw employees in its Nuclear Services (i.e., 
construction) and Nuclear Maintenance Divisions working at nuclear 
facilities addressing: (a) A recent DOL ARB decision that concluded 
that retaliation occurred at a SWCI facility in 2004; b) that Shaw 
strives to maintain a SCWE; and (c) that nuclear workers have 
multiple avenues in which to raise concerns and identifying these 
avenues.
    2. Where not already required by the applicable nuclear facility 
licensee, Shaw will establish an Executive Review Board (ERB) that 
will include management personnel at or above the level of the site 
project manager, including legal and/or human resources 
participation, to review all proposed significant adverse actions 
(defined as three or more days off without pay up to and including 
termination for cause, but excludes reductions-in-force and other 
ordinary layoffs) at any NRC-regulated maintenance site to ensure 
these actions comport with applicable employee-protection 
requirements and to assess and mitigate the potential for any 
chilling effect. Within 3 months of issuance of this Confirmatory 
Order, Shaw will establish requirements for the ERB in a new or 
existing Nuclear Maintenance Procedure to become effective during 
this three-month period.
    3. Within 3 months of issuance of this Confirmatory Order, Shaw 
will revise the SpeakUp program brochure issued at its nuclear 
facilities to include use of the program to raise safety concerns.
    4. Consistent with the requirements of the nuclear facility 
licensees, Shaw will perform SCWE surveys including craft workers, 
at its Nuclear Maintenance sites and review the survey results for 
actions as appropriate. Within 24 months of issuance of this 
Confirmatory Order, Shaw will complete a substantial number of these 
surveys and will have scheduled surveys for the remaining sites, if 
any, to be completed within the following 12 months. Shaw will 
provide semi-annual status reports to the NRC Office of Enforcement 
regarding status toward completion of this action.
    5. At Nuclear Maintenance sites, where not already provided by 
the nuclear facility licensees, Shaw will provide SCWE training to 
all Shaw Nuclear Maintenance supervisors and above to include an 
overview of regulatory requirements and case studies. Shaw will 
complete this action within 24 months of issuance of this 
Confirmatory Order.
    6. For 24 months following issuance of this Confirmatory Order, 
Shaw will collect, review and assess for each of its Nuclear 
Maintenance sites, data regarding labor grievances, significant 
human resources actions, and ECP and SpeakUp concerns. Shaw's 
Compliance Council, chaired by the Chief Compliance Officer, will 
review this compilation of data quarterly for SCWE trends and 
recommend actions to line management as appropriate.

    The Director, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by Shaw of good 
cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Shaw, may request a hearing within 20 days of its publication in 
the Federal Register. 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, DC 20555, 
and include a statement of good cause for the extension.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the participant should 
contact the Office of the Secretary by e-mail at 
hearing.docket@nrc.gov, or by telephone at (301) 415-1677, to request 
(1) a digital ID certificate, which allows the participant (or its 
counsel or representative) to digitally sign

[[Page 57534]]

documents and access the E-Submittal server for any proceeding in which 
it is participating; and (2) advise the Secretary that the participant 
will be submitting a request or petition for hearing (even in instances 
in which the participant, or its counsel or representative, already 
holds an NRC-issued digital ID certificate). Based upon this 
information, the Secretary will establish an electronic docket for the 
hearing in this proceeding if the Secretary has not already established 
an electronic docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at https://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
https://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through the Electronic Information Exchange (EIE), 
users will be required to install a Web browser plug-in from the NRC 
Web site. Further information on the Web-based submission form, 
including the installation of the Web browser plug-in, is available on 
the NRC's public Web site at https://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at https://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document. The 
E-Filing system also distributes an e-mail notice that provides access 
to the document to the NRC Office of the General Counsel and any others 
who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at https://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
MSHD.Resource@nrc.gov, or by a toll-free call at (866) 672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 
20852, Attention: Rulemaking and Adjudications Staff. Participants 
filing a document in this manner are responsible for serving the 
document on all other participants. Filing is considered complete by 
first-class mail as of the time of deposit in the mail, or by courier, 
express mail, or expedited delivery service upon depositing the 
document with the provider of the service. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
https://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, or the presiding officer. Participants 
are requested not to include personal privacy information, such as 
social security numbers, home addresses, or home phone numbers in their 
filings, unless an NRC regulation or other law requires submission of 
such information. With respect to copyrighted works, except for limited 
excerpts that serve the purpose of the adjudicatory filings and would 
constitute a Fair Use application, participants are requested not to 
include copyrighted materials in their submission.
    If a person (other than Shaw) requests a hearing, that person shall 
set forth with particularity the manner in which his interest is 
adversely affected by this Confirmatory Order and shall address the 
criteria set forth in 10 CFR 2.309(d) and (f).
    If a hearing is requested by 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 Confirmatory Order should be 
sustained.
    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 V above shall be final 20 days from the date this 
Confirmatory Order is published in the Federal Register without further 
order or proceedings. If an extension of time for requesting a hearing 
has been approved, the provisions specified in Section V shall be final 
when the extension expires if a hearing request has not been received.
    A request for hearing shall not stay the immediate effectiveness of 
this order.

    Dated at Rockville, Maryland, this 10th day of September 2010.

    For the Nuclear Regulatory Commission.
Roy Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2010-23519 Filed 9-20-10; 8:45 am]
BILLING CODE 7590-01-P