United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-99-012 - Perry 1 (FirstEnergy Nuclear Operating Company)

EA 99-012

May 20, 1999

Mr. Lew W. Myers
Vice President - Nuclear
FirstEnergy Nuclear Operating Company
P. O. Box 97, A200
Perry, OH 44081


SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $110,000; (NRC Office of Investigations Report Number 3-98-007)

Dear Mr. Myers:

This refers to the investigation completed by the NRC Office of Investigations (OI) at the Perry Nuclear Power Plant owned by Centerior Energy Corporation (now FirstEnergy Nuclear Operating Company (FENOC)) on December 10, 1998. A summary of the OI report was sent to FENOC on January 26, 1999. The investigation was conducted to determine whether a Radiation Protection Supervisor (RPS) at the Perry facility was discriminated against for providing testimony as a witness in a hearing concerning another employee. Based upon the evidence developed, OI determined that the Perry Radiation Protection Manager (RPM) discriminated against an RPS for engaging in protected activities within the scope of 10 CFR 50.7. The RPS's protected activities pertained to a July 17, 1997, deposition that the RPS was to give in a Department of Labor (DOL) hearing concerning alleged employment discrimination against another individual at the Perry facility. The RPS had previously indicated to Centerior Energy representatives that his testimony would not be favorable to the Centerior Energy Corporation. The discrimination against the RPS consisted of a July 16, 1997, verbal counseling and the placement of a July 17, 1997, memorandum documenting the verbal counseling in the RPS's section personnel file on July 22, 1997. By letter dated January 26, 1999, the NRC invited FENOC to attend a predecisional enforcement conference (PEC). FENOC elected to forego a PEC and, instead, responded to the NRC's findings in writing by letter dated March 10, 1999. The NRC provided a copy of FENOC's response to the RPS who provided a written assessment of FENOC's response to the NRC by letter dated March 30, 1999.

The NRC has determined that a violation of NRC requirements occurred. The violation is described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and involves the failure of FENOC to adhere to the requirements of 10 CFR 50.7, which prohibits discrimination against an employee engaged in protected activities.

This violation is a very significant regulatory concern because it involved employee discrimination by the RPM, a mid-level facility manager, against an employee for testifying in a DOL proceeding. Such testimony is a protected activity in the Commission's employee protection regulations. Furthermore, the sphere of influence of the RPM is broad.

Discrimination committed at this level has the potential to create a chilling effect throughout the Radiation Protection Department and could influence individuals in other plant departments. Therefore, in accordance with NUREG-1600, "General Statement of Policy and Procedure for NRC Enforcement Actions (Enforcement Policy)," this violation has been categorized at Severity Level II.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $88,000 is considered for this violation. Because the Perry facility has been the subject of escalated enforcement actions within the last two years (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. Identification credit was not warranted because the violation was identified by the NRC. Corrective Action credit was not warranted because FENOC has not implemented corrective actions to address the root causes of the violation. For example, FENOC's letter stated, in part, that the RPM was unfamiliar with the requirements of 10 CFR 50.7 and that the RPM did not understand what activities were protected under the regulations. The NRC considers this a potential root cause of this violation for which FENOC has not implemented corrective action. It is disturbing to the NRC that a mid-level manager would not be familiar with the Commission's employee protection regulations. In addition, the NRC takes issue with FENOC's assertion in its letter that no employment action related to compensation, terms, conditions or privileges of employment was ever taken against the supervisor. "Discrimination" as used in employment protection regulations encompass any actions that may affect, or have the potential to affect, an individual's employment. Clearly, verbal counseling and a memorandum documenting such counseling placed in an employee's personnel file have the potential to affect employment and therefore fall within the scope of "discrimination" as defined by 10 CFR 50.7. Since Identification and Corrective Action credit were not warranted, the civil penalty assessment for the violation was twice the base ($176,000). However, section VI.B.2 of the Enforcement Policy limits the civil penalty to $110,000 per day for any one violation.

Therefore, to emphasize the importance of maintaining a safety conscious work environment including permitting employee participation in DOL proceedings without fear of retaliation, I have been authorized after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Regulatory Effectiveness, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $110,000.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. Your response should document the specific actions taken and any additional actions planned to prevent recurrence, and it should explain why the NRC should have confidence that employees at the Perry facility are free to participate in protected activities without fear of retaliation. The NRC will use your response, in part, to determine whether further NRC 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 enclosure, and your response will be placed in the NRC Public Document Room.

Sincerely,

Original signed by   

James L. Caldwell

for   

J. E. Dyer
Regional Administrator

Docket No. 50-440
License No. NPF-58

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty


cc w/encl:
H. Hegrat, Manager, Regulatory Affairs
R. Schrauder, Director, Nuclear Engineering Department
W. Kanda, General Manager, Nuclear Power Plant Department
N. Bonner, Director, Nuclear Maintenance Department
H. Bergendahl, Director, Nuclear Services Department
State Liaison Officer, State of Ohio
R. Owen, Ohio Department of Health
C. Glazer, State of Ohio Public Utilities Commission


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

FirstEnergy Nuclear Operating Company
Perry Nuclear Power Plant
Docket No. 50-440
License No. NPF-58
EA 99-012

During an NRC investigation completed on December 10, 1998, a violation of NRC requirements was identified. In accordance with NUREG-1600, "General Statement of Policy and Procedure for NRC Enforcement Actions," 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 violation and associated civil penalty is set forth below:

10 CFR 50.7(a), "Employee Protection," in part, prohibits discrimination by a Commission licensee against an employee for engaging in certain protected activities. Discrimination includes discharge and other actions that relate to the compensation, conditions, terms, 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 Energy Reorganization Act. Protected activities, include but are not limited to, an employee testifying in any Commission proceeding, before Congress, or at any Federal or State proceeding regarding any provision (or proposed provision) of either the Atomic Energy Act or the Energy Reorganization Act of 1974.

Contrary to the above, Centerior Energy Corporation (currently FirstEnergy Nuclear Operating Company) a Commission licensee, through the actions of the Radiation Protection Manager, discriminated against a Radiation Protection Supervisor (RPS), on July 16, 1997, as a result of the RPS engaging in protected activities. The RPS's protected activities consisted of participation in a U.S. Department of Labor (DOL) proceeding. Specifically, the Radiation Protection Manager gave the RPS verbal counseling concerning the deposition he was to provide in the DOL proceeding on July 17, 1997, and placed a memorandum documenting the verbal counseling in the RPS's section personnel file on July 22, 1997. (01012)

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

Pursuant to the provisions of 10 CFR 2.201, FirstEnergy Nuclear Operating 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 violation: (1) admission or denial of the 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 to why the Proposed Imposition of Civil Penalty 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 errors 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: 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; and a copy to the NRC Resident Inspector at the Perry facility.

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 20 th day of May 1999


1.   Three Severity Level III violations with a $100,000 civil penalty were violations issued on November 18, 1997, for inadequate corrective actions, technical specification adherence, and the failure to identify an Unreviewed Safety Question (Eas 96-482, 96-542, 97-047, and 97-430). These violations were identified during inspections conducted from December 1996 to August 1997.

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