United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-96-177 - Salem 1 & 2 (PSEG Nuclear, LLC)

December 11, 1996

EA 96-177

Mr. Leon R. Eliason
Chief Nuclear Officer and President
Nuclear Business Unit
Public Service Electric and Gas Company
Post Office Box 236
Hancocks Bridge, New Jersey 08038

SUBJECT: Notice of Violation and Proposed Imposition of Civil Penalties - $80,000
(Office of Investigations (OI) Reports 1-94-006R and 1-94-053)

This refers to the two investigations, OI Reports 1-96-006R and 1-94-053, conducted from February 18, 1994 to April 30, 1996 and from November 21, 1994 to April 25, 1996, respectively, at the Salem Generating Station. These investigations found that an Onsite Safety Review Engineer (OSRE) and a Safety Review Engineer (SRE) were harassed, intimidated and discriminated against by a former manager of the Nuclear Safety Review (NSR) Group as a result of raising safety concerns. Specifically, as noted in the synopses of the two subject reports, forwarded to you with our letter, dated July 1, 1996, OI found that this former Manager, NSR, had (1) discriminated against the OSRE by virtue of negative comments in the OSRE's performance appraisals due to the individual's involvement in events associated with a December 3, 1992, incident involving two of his subordinates (both of whom were Safety Review Engineers) (OI Report 1-94-006R, hereafter OI Report No. 1); and (2) discriminated against an SRE by virtue of his transfer to the Hope Creek Safety Review Group (SRG) from the Salem SRG (OI Report 1-94-053, hereafter OI Report No. 2). On September 11, 1996, the NRC conducted a predecisional enforcement conference with you and members of your staff in King of Prussia, Pennsylvania, to discuss the findings of the two subject OI investigations.

With respect to OI report No. 1 (sent to you on July 1, 1996), OI found that the former Manager, NSR, provided negative comments in an interim performance assessment of the OSRE in November 1993, and in a subsequent final appraisal in May 1994. One of the negative comments criticized an April 7, 1993, memoranda that the OSRE had written to each of the two SRE subordinates who were involved in a December 1992 discrimination incident that the NRC dispositioned on April 11, 1995 by the issuance of a Severity Level II violation and an $80,000 civil penalty (EA 94-239). In the April 1993 memoranda, the OSRE was supportive of the two subordinates with respect to their roles in the December 1992 incident. Another negative comment in the former Manager, NSR's appraisals of the OSRE criticized an October 12, 1993, memorandum that the OSRE had sent to the former Manager, NSR, discussing a concern with the former Manager, NSR, on October 4, 1993, regarding SORC members anticipating criticism for acting in support of safety after a system engineer presented a temporary modification to the SORC. The OSRE had entitled the memorandum, "Atmosphere of Intimidation". The former Manager, NSR, included both of these examples in the OSRE's appraisals as examples of poor judgement by the OSRE. With respect to OI Report No. 2, OI found that the SRE, by virtue of his transfer to the Hope Creek Safety Review Group (SRG) from the Salem SRG, against his wishes, was harassed and discriminated against by the former Manager, NSR, as a result of raising a safety issue.

At the predecisional enforcement conference, your staff contended that these individuals were not discriminated against, noting that the former Manager, NSR's actions were motivated by valid, non-discriminatory reasons. However, the NRC does not agree with your contentions and believes that discrimination had occurred. For example, the April 1993 memoranda for which the OSRE was criticized in his assessment, was sent by the OSRE to his two SRE subordinates at a time when the former Manager, NSR, was not yet the OSRE's supervisor, and at a time which was outside the performance assessment period. In addition, the former Manager, NSR, criticized the OSRE for terminology used in the October 12, 1993, memorandum which was written by the OSRE after the Manager, NSR, specifically asked the OSRE to put his views in writing for the benefit of senior management, following a discussion regarding the SORC issue. The former Manager, NSR did not directly communicate his criticism of the terminology of the October memorandum until the November, 1993 interim performance assessment. Lastly, with respect to the SRE, the Manager, NSR, included this individual in a termination list prepared at the request of the then Vice President, Nuclear, a few days after the former Manager, NSR, approved the SRE's involuntary transfer to the Hope Creek SRG. The then Vice President, Nuclear, promptly removed the individual's name from the termination list on the basis that it would send the wrong message to the organization. The SRE was subsequently transferred back to the Salem SRG by the new Director-QA/NSR after the new Director assumed his position.

As stated to you in the April 11, 1995, letter, transmitting a civil penalty for the discrimination of two SREs who attempted to process a safety issue in accordance with station procedures by submitting an incident report at the Salem Station (EA 94-239), your organization has the responsibility to ensure that a work environment exists such that employees feel free to raise safety concerns. The actions of the former Manager, NSR, in late 1993 and early 1994, did not adhere to these standards, and did not provide an appropriate example for management, supervisors, or staff within their line organization, nor for the other PSE&G organizations with which they interfaced. Given the management status of the former manager, NSR, these actions constitute violations of NRC requirements classified in the aggregate in accordance with the NRC Enforcement Policy, "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600 (Enforcement Policy), as a Severity Level II problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $80,000 is considered for a Severity Level II problem. For Severity Level II violations, the NRC considers whether credit is warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Credit was not given for Identification since the NRC identified the violation. However, the NRC recognizes that subsequent to the identification of the violation by the NRC, actions were taken to correct the violation and prevent recurrence. The corrective actions were described at the enforcement conference, as well as in your July 21, 1995, response to a chilling effect letter sent to you on June 21, 1995, concerning the DOL Area Director finding of discrimination in the case filed with DOL by the OSRE. These corrective actions included, but were not limited to (1) the President and Chief Nuclear Officer personally expressing his expectations to all employees that they should feel free to resolve their concerns through line management and existing procedures; (2) creation of the Employee Concerns Program as part of the February 1995 reorganization of the QA/NSR Department, and a subsequent revision to the program after conducting a benchmark survey at other plants; and (3) institution of a more comprehensive employee training program which includes explaining some of the more subtle forms of discrimination which can hinder or frustrate the process of employees bringing concerns to be dealt with. Based on these actions, credit is warranted for your comprehensive corrective action in this case.

In addition, the NRC recognizes that the adverse actions in this case occurred in the 1993 and 1994 time period and happened under a different management team. The NRC also recognizes that a settlement agreement was entered between you and the OSRE in the DOL proceeding, and that the SRE was transferred back to the Salem SRG. Nonetheless, to emphasize the significance that the NRC attaches to any finding of discrimination, as well as the importance of current management ensuring a safety-conscience environment where employees feel free to raise safety concerns, I have been authorized, after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations, and Research, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the base amount of $80,000 for a Severity Level II problem stemming from violations of 10 CFR 50.7.

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 include, for the docket, your corrective actions to improve and monitor the overall program for raising safety concerns at the Salem and Hope Creek facilities. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, and your response will be placed in the NRC Public Document Room (PDR).

                            Sincerely,

                            ORIGINAL SIGNED BY:

                            Hubert J. Miller
                            Regional Administrator

Docket Nos. 50-272; 50-311
License Nos. DPR-70; DPR-75

Enclosure: Notice of Violation and Proposed
Imposition of Civil Penalty

cc w/encl:
L. Storz, Senior Vice President - Nuclear Operations
E. Simpson, Senior Vice President - Nuclear Engineering
E. Salowitz, Director - Nuclear Business Support
C. Schaefer, External Operations - Nuclear, Delmarva Power & Light Co.
D. Garchow, General Manager - Salem Operations
J. Benjamin, Director - Quality Assurance & Nuclear Safety Review
D. Powell, Manager, Licensing and Regulation
R. Kankus, Joint Owner Affairs
A. Tapert, Program Administrator
R. Fryling, Jr., Esquire
M. Wetterhahn, Esquire
P. MacFarland Goelz, Manager, Joint Generation Atlantic Electric
Consumer Advocate, Office of Consumer Advocate
W. Conklin, Public Safety Consultant, Lower Alloways Creek Township
Public Service Commission of Maryland
State of New Jersey
State of Delaware


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Public Service Electric and Gas Company             Docket Nos. 50-272; 50-311
Salem Generating Station                            License Nos. DPR-70; DPR-75
                                                    EA 96-177

During NRC investigations, conducted on February 18, 1994 to April 30, 1996 and on November 21, 1994 to April 25, 1996, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the NRC 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 violations and associated civil penalty are set forth below:

I. 10 CFR 50.7 prohibits, in part, discrimination by a Commission licensee against an employee for engaging in certain protected activities. Discrimination includes discharge or other actions relating to the compensation, terms, conditions, and privileges of employment. The activities which are protected include, but are not limited to, reporting of safety concerns by an employee to his employer.
A. Contrary to the above, the licensee, through its former manager of NSR, discriminated in November 1993 and May 1994 against a former Onsite Safety Review Engineer (OSRE) at the Salem Generating Station. Specifically, by virtue of negative comments in his performance appraisals, the OSRE was harassed and retaliated against by the NSR manager due to his involvement in events associated with a December 3, 1992 incident, involving two of the OSRE's subordinates who were engaged in protected activity described in the Enforcement Action (EA 94-239) issued on April 11, 1995. (01012)
B. Contrary to the above, the licensee, through its former manager of NSR, discriminated against a Safety Review Engineer (SRE) at the Salem Generating Station. Specifically, by virtue of an involuntary transfer to Hope Creek, the SRE was harassed and retaliated against by the NSR manager as a result of raising a safety issue during the December 3, 1992 incident described above. (01022)

These violations represent a Severity Level II problem. (Supplement VII).
Civil Penalty - $80,000.

Pursuant to the provisions of 10 CFR 2.201, Public Service Electric and Gas Company (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. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, 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 violations 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, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Mr. 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 and a copy to the NRC Resident Inspector at the facility that is the subject of this Notice.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards 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). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated at King of Prussia, Pennsylvania
this 11th day of December 1996

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