United States Nuclear Regulatory Commission - Protecting People and the Environment

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

June 12, 2000

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: ORDER IMPOSING CIVIL MONETARY PENALTY - $110,000 ZION NUCLEAR STATION UNITS 1 AND 2

Dear Mr. Kingsley:

This refers to the February 3, 2000, letter from the Commonwealth Edison Company (ComEd) in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our letter dated November 3, 1999. Our letter and Notice described one violation identified during an investigation conducted by the NRC Office of Investigations. 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 previous escalated enforcement actions issued for the Zion Nuclear Station, a civil penalty of $110,000 was proposed.

In the response, ComEd denied the violation and protested the civil penalty. ComEd contended that the actions taken against the Senior Reactor Operator (SRO) by the Shift Operations Supervisor (SOS) were based upon the SRO's "performance weaknesses" and were taken for legitimate business reasons. The response also indicated that the NRC had not demonstrated any evidence of retaliatory intent by the SOS against the SRO and that the NRC had failed to consider 10 CFR § 50.7(d).

The first of the SRO's performance weaknesses given by ComEd concerned the SRO's actions with respect to a pump which was leaking oil. The SRO recommended that the pump be taken out of service because a root cause analysis had not been done to determine the source of the leak. The SOS contended that the pump did not need to be taken out of service, but should remain available for use since the leak had apparently stopped. He also contended that the SRO's actions indicated that he did not consider other opinions in determining how to deal with issues and did not exhibit an appreciation for the overall safety implications of his actions. The fact that the SRO's actions were not reversed at the time counters the argument that the decision constituted a performance weakness.

The second example ComEd provided of a performance weakness by the SRO concerned his question about a station blackout sequencing timer for the emergency diesel generators. The SOS contended that the SRO did not take "ownership" of this issue when he did not pursue the answer to his question. However, since the SRO conducted a technical review of the issue prior to raising his question, it appears that he did demonstrate some level of "ownership" of the issue.

ComEd also asserts that the evidence presented by the NRC did not demonstrate elements of retaliatory intent. The NRC disagrees with ComEd and believes that an adequate evidentiary basis exists for a reasonable inference of retaliatory intent related to the protected activity that contributed to the decision to take the adverse action. As an example, the inference can be drawn from the fact that one of the examples cited as a basis for the adverse action (the SRO's recommendation that the component cooling water pump be taken out of service) specifically involved a safety issue in which the SRO disagreed with the SOS. The SOS, who claimed that the SRO's actions did not evidence a proper safety perspective, had the authority to override the SRO's decision, but did not. Furthermore, in the second instance cited above, it was the SOS who had been the supervisor of the group responsible for scheduling the work on the station blackout sequencing timer in a manner which was questioned by the SRO. When the SRO raised the question about the timer, the SOS did not follow up on that issue or evidence ownership of it, but this was not considered a performance weakness on his part.

With respect to your assertion that the NRC failed to properly consider 10 CFR § 50.7(d), that provision applies to cases in which the actions taken are unrelated to the protected activities of the employee involved. In this case, the bases for the actions taken against the employee included two instances directly related to his protected activities and thus section 50.7(d) is not applicable.

After considering your response and for the reasons given above, we have concluded that the violation occurred as stated in the November 3, 1999 letter and Notice, and neither an adequate basis for withdrawing the violation, reducing the severity level, or mitigating or rescinding the civil penalty was given. Accordingly, we hereby serve the enclosed Order on ComEd imposing a civil monetary penalty in the amount of $110,000. As provided in Section IV of the enclosed Order, payment should be made within 30 days in accordance with NUREG/BR-0254. In addition, at the time payment is made, a statement indicating when and by what method payment was made, is to be mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738. We will review the effectiveness of your corrective actions during a subsequent inspection.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter and its enclosures will be made available to the public.

Sincerely,

/RA/

Frank J. Miraglia, Jr.
Deputy Executive Director
   for Reactor Programs

Docket Nos. 50-295; 50-304
License Nos. DPR-39; DPR-48

Enclosure:
Order Imposing Civil Monetary Penalty

cc w/encl.:
D. Helwig, Senior Vice President
H. Stanley, PWR Vice President
R. Krich, Vice President, Regulatory Services
DCD - Licensing
R. Starkey, Decommissioning Plant Manager
T. Marini, Regulatory Assurance Manager
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


UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of )
)
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

ORDER IMPOSING CIVIL MONETARY PENALTY

I

The Commonwealth Edison Company (Licensee) is the holder of Operating Licenses No. DPR-39 and No. DPR-48, issued by the Nuclear Regulatory Commission (NRC or Commission) on October 19, 1973, and November 14, 1973, respectively. The licenses authorized the Licensee to operate the Zion Nuclear Station, Zion, Illinois, in accordance with the conditions specified therein. On February 13, 1998, the Licensee ceased nuclear operations at the Zion Nuclear Station.

II

The NRC Office of Investigations (OI) conducted an investigation of the Licensee's activities at the Zion Station from March 10 to October 15, 1998. The results of this investigation indicated that the Licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee by letter dated November 3, 1999. The Notice states the nature of the violation, the provision of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violation.

The Licensee responded to the Notice in a letter dated February 3, 2000. In its response, the Licensee denied the violation and protested the civil penalty.

III

After considering the Licensee's response and the statements of fact, explanation, and argument for withdrawing the proposed civil penalty contained therein, the NRC staff has determined that the violation occurred as stated and that the penalty proposed for the violation designated in the Notice should be imposed.

IV

In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:

The Licensee pay a civil penalty in the amount of $110,000 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time of making the payment, the licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

The Licensee may request a hearing within 30 days of the date of this Order. 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. A request for a hearing should be clearly marked as a "Request for an Enforcement Hearing" and shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region III, 801 Warrenville Road, Lisle, IL 60532-4351.

If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing. If the Licensee fails to request a hearing within 30 days of the date of this Order (or if written approval of an extension of time in which to request a hearing has not been granted), the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Attorney General for collection.

In the event the Licensee requests a hearing as provided above, the issues to be considered at the hearing shall be:

(a) whether the Licensee was in violation of the Commission's requirements as set forth in the Notice referenced in Section II above, and

(b) whether, on the basis of that violation, this Order should be sustained.

FOR THE NUCLEAR REGULATORY COMMISSION

/RA/

Frank J. Miraglia, Jr.
Deputy Executive Director
for Reactor Programs

Dated this 12th day of June 2000

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