EA-98-518 - Zion 1 & 2 (Commonwealth Edison Co.)

November 3, 1999

EA 98-518

Mr. Oliver D. Kingsley
President, Nuclear Generation Group
Commonwealth Edison Company
ATTN: Regulatory Services
Executive Towers West III
1400 Opus Place, Suite 500
Downers Grove, IL 60515

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $110,000 (NRC OFFICE OF INVESTIGATIONS REPORT NO. 3-1998-012)

Dear Mr. Kingsley:

This refers to the investigation conducted by the NRC Office of Investigations (OI) between March 10 and October 15, 1998, at the Commonwealth Edison Company's (ComEd's) Zion Generating Station. Based on the findings of the investigation, an apparent violation was identified involving discrimination by ComEd against a Senior Reactor Operator for raising nuclear safety issues. The synopsis of the OI report and a summary of relevant facts were provided to ComEd by letter dated June 10, 1999, and a closed, transcribed, predecisional enforcement conference (PEC) was held in the NRC Region III office on July 7, 1999.

After review of the information developed during the investigation, the information that you provided during the enforcement conference, and the information provided by ComEd in a letter dated July 22, 1999, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty, and the circumstances surrounding it are described in detail in the previously provided summary of the OI investigation report. The violation involved employment discrimination in violation of the Commission's requirements in 10 CFR 50.7 (Employee Protection) by a Shift Operations Supervisor (SOS) against the Senior Reactor Operator (SRO) who raised nuclear safety concerns. Specifically, as a result of the SRO's having recommended that a component cooling water (CCW) pump be removed from service for troubleshooting, because of an oil leak and raising a concern about the performance of a safety-related, diesel generator load sequencing timer, the SOS deferred the SRO's participation in the shift manager qualification process (which he had previously been instructed to begin by a prior SOS) and lowered the SRO's performance appraisal which had been prepared by the SRO's shift manager.

At the PEC, ComEd representatives, including the SOS, presented information indicating that during 1997, ComEd management recognized a need to raise performance standards of the operating employees at the Zion Station and contended that the SRO was not ready to enter the shift manager development program and that his performance did not warrant the rating refusing to consider categorizing the CCW pump as inoperable rather than taking the pump out-of-service. They also asserted that the SRO did not follow-up to obtain answers to his questions about the load sequencing timer. While ComEd representatives asserted that the actions taken against the SRO were for legitimate business reasons, the examples of the SRO's performance weaknesses cited by ComEd as the basis for the employment actions were related to the raising of nuclear safety concerns and are, therefore, protected. The NRC recognizes that engaging in protected activities does not shield an employee against legitimate adverse employment actions. However, in this case, the NRC does not agree with ComEd that the SRO's handling of these safety-related concerns demonstrates the performance weaknesses asserted by ComEd. Therefore, the NRC has concluded that the actions taken against the SRO were due in part to his participation in activities protected by 10 CFR 50.7. The two related adverse actions are considered a single violation. Since the adverse employment actions were taken against the SRO by the SOS, a mid-level plant management official, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level II.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $88,000 is considered for a Severity Level II violation. Because the Zion Station was the subject of escalated enforcement actions within the two years preceding this violation,⁽¹⁾ 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. Credit was not warranted for the Identification or Corrective Action factors because the NRC identified the violation and no corrective actions have been proposed to date.

Therefore, to emphasize the importance of a safety conscious work environment that is free of discriminatory employment actions, to emphasize the need for prompt identification and comprehensive correction of violations, and in recognition of your previous escalated enforcement actions, 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) with the civil penalty assessed at $110,000 for the Severity Level II violation.⁽²⁾

The NRC recognizes that nuclear operations have ceased at the Zion Station. However, the NRC is concerned that discrimination by a mid-level plant official, along with the many additional employment discrimination allegations that were made about the management of the Zion Station at the same time may have had the potential to create a chilling effect among the employees who remain at the Zion Station and the employees transferred from the Zion Station to other NRC-licensed facilities operated by ComEd. Therefore, in light of a potential for a chilling effect among the employees who remain at the Zion Station and the employees transferred from the Zion Station, the NRC requests, in addition to the response required by this letter, that ComEd address whether employees at the Zion Station and the other ComEd nuclear stations are working in a safety conscious work environment where they feel free to readily report nuclear safety concerns.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. 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, its enclosures, and your response will be placed in the NRC Public Document Room.

		Sincerely,
		Original Signed By
		J. E. Dyer Regional Administrator

Dockets No. 50-295; 50-304
Licenses No. DPR-39; DPR-48

Enclosure:
Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl 1:
D. Helwig, Senior Vice President
C. Crane, Senior Vice President, Nuclear Operations
H. Stanley, Vice President, Nuclear Operations
R. Krich, Vice President, Regulatory Services
DCD - Licensing
R. Starkey, Decommissioning Plant Manager
R. Godley, Regulatory Assurance Supervisor
M. Aguilar, Assistant Attorney General
K. Nollenberger, County Administrator
Mayor, City of Zion
State Liaison Officer, Illinois
State Liaison Officer, Wisconsin
Chairman, Illinois Commerce Commission

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Commonwealth Edison Company Zion Nuclear Station Units 1 and 2

Dockets No. 50-295; 50-304 Licenses No. DPR-39; DPR-48 EA 98-518

During an NRC investigation conducted between March 10 and October 15, 1998, a violation of NRC requirements was 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 violation and associated civil penalty are set forth below:

10 CFR 50.7(a) 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. The protected activities were 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 providing a Commission licensee with information about nuclear safety at an NRC licensed facility.

Contrary to the above, the Commonwealth Edison Company discriminated against a senior reactor operator (SRO), through the actions of the shift operations supervisor (SOS), for having engaged in protected activities. Specifically, the SRO engaged in protected activities on October 14, 1997, when the SRO recommended that a component cooling water pump be taken out-of-service for trouble-shooting and also during October 1997, when the SRO raised a question about the design performance of a diesel generator load sequencing timer. Based in part on these protected activities, on October 24, 1997, the SOS lowered the SRO's performance rating and during October - November 1997 deferred the SRO's participation in the shift manager qualification process. (01012)

This is a Severity Level II violation (Supplement VII).
Civil Penalty - $110,000.

Pursuant to the provisions of 10 CFR 2.201, the Commonwealth Edison 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.

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, in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 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: Richard W. Borchardt, 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 III, 801 Warrenville Road, Lisle, IL 60532-4351.

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.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 3rd day of November 1999.

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^1. A Notice of Violation and Proposed Imposition of Civil Penalty - $110,000 was issued on January 15, 1998, for a Severity Level III problem associated with a programmatic breakdown in the implementation of the fitness for duty program at the Zion Station during 1997 (EA 97-249).

A Notice of Violation was issued on April 9, 1999, for a Severity Level III violation for the failure to properly protect Safeguards Information during the period of July 1997 to January 22, 1998 (EA 98-558).

^2. Application of the Enforcement Policy would normally result in a civil penalty of twice the base civil penalty ($176,000). However, consistent with the enforcement policy for a single violation, a civil penalty of $110,000 is being proposed.