EA-99-314 - Numanco, L.L.C.

September 6, 2000

EA-99-314

Mr. Fred Erskine
Executive Vice President
Numanco, L.L.C.
One Memorial Place
7633 East 63^rd Place, 4^th Floor
Tulsa, OK 74133

SUBJECT:

NOTICE OF VIOLATION (NRC OFFICE OF INVESTIGATIONS REPORT NO. 3-1997-043S)

Dear Mr. Erskine:

This letter is in reference to an investigation by the U.S. Nuclear Regulatory Commission's (NRC) Office of Investigations (OI) into an alleged violation of the NRC requirement prohibiting discrimination against employees who engage in protected activities (i.e., 10 CFR 50.7, "Employee Protection"). On November 10, 1999, OI completed an investigation of potential employment discrimination against a radiation protection technician at the Commonwealth Edison Company's (ComEd) Dresden Nuclear Station, Unit 1. On January 25, 2000, the NRC provided a summary of the relevant facts to you and on March 15, 2000, a closed, transcribed, predecisional enforcement conference was held with ComEd and its contractor, Numanco, L.L.C., at the NRC Region III office.

The OI investigation determined that a radiation protection technician, employed by Numanco, told his immediate supervisor on October 31, 1997, that the Dresden Station, Unit 1 "counting room" was improperly used to decontaminate an individual. The technician spoke to a ComEd radiation protection supervisor about the same issue on November 3, 1997. The ComEd supervisor subsequently provided that information to the Numanco site coordinator and asked that Numanco resolve the issue. On November 4, 1997, the Numanco site coordinator contacted the technician to discuss the technician's concerns. At first, the technician was reluctant to speak to the Numanco site coordinator about this nuclear safety concern without an independent witness being present. The Numanco site coordinator told the technician that his employment would be suspended if he did not discuss his concern. The technician then spoke with the site coordinator about his issue and Numanco suspended the technician's employment immediately following that discussion.

Based on the results of the OI investigation, the information presented at the conference and in subsequent correspondence,⁽¹⁾ it was determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice). Specifically, 10 CFR 50.7 prohibits a contractor of an NRC licensee from taking an adverse employment action regarding the compensation, terms, conditions, or privileges of employment against an individual for providing an employer with information about a potential violation of NRC requirements. In this instance, the radiation protection technician provided information about a radiation protection issue to the Numanco site coordinator and his employment was suspended following that conversation. Numanco contends that the technician's employment was suspended with pay until an investigation could be conducted by Numanco into his initial refusal to speak with the site coordinator about the matter and not for having raised the safety concern. Regardless of this contention, the fact remains that the technician followed the direction of the site coordinator and provided the details of his safety concern, following which his employment was suspended. The NRC considers such a suspension, with or without pay, to be an adverse employment action regarding the terms, conditions, or privileges of employment, in violation of 10 CFR 50.7. A violation of this type cannot and will not be tolerated by the NRC as it could have a chilling effect on other employees who may no longer feel free to report nuclear safety concerns. The Numanco site coordinator was considered to be a low-level manager within the Numanco organization; therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, May 1, 2000, (Enforcement Policy) at Severity Level III.

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 future 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 its enclosure will be available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS) accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html.

		Sincerely,
		/RA/ James L. Caldwell for
		J. E. Dyer Regional Administrator

Docket No. 50-10

Enclosure: Notice of Violation

cc w/enclosure:
C. Bates, General Counsel
W. Briggs, Ross, Dixon & Bell, L.L.P.
O. Kingsley, ComEd

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NOTICE OF VIOLATION
Numanco, L.L.C. Tulsa, OK		Docket No. 50-10 EA-99-314

During an NRC investigation completed on November 10, 1999, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

10 CFR 50.7(a) prohibits discrimination by a Commission licensee or licensee contractor 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 or contractor with information about nuclear safety at an NRC licensed facility.

Contrary to the above, Numanco, L.L.C., a contractor of the Commonwealth Edison Company, discriminated against a radiation protection technician for engaging in protected activities. On November 4, 1997, a radiation protection technician engaged in protected activities when he expressed a nuclear safety concern about the improper use of the Dresden Station, Unit 1 "counting room" for decontamination activities to the Numanco site coordinator for Dresden Station Unit 1. Based on this protected activity, Numanco, L.L.C., suspended the employment of the radiation protection technician on November 4, 1997. (01013)

This is a Severity Level III violation (Supplement VII).

Pursuant to the provisions of 10 CFR 2.201, Numanco, L.L.C. is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555 with a copy to the Regional Administrator, Region III, and a copy to the NRC Resident Inspector at the Dresden Nuclear Station, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation or severity level; (2) the corrective steps that have been taken and the results achieved; (3) the corrective steps that will be taken to avoid further violations; and (4) the date when full compliance will be achieved. Your response may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response. 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 other action as may be proper should not be taken. Where good cause is shown, consideration will be given to extending the response time.

If you contest this enforcement action, you should also provide a copy of your response, with the basis for your denial, to the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001.

Because your response will be made available to the Public, to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public 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 6^th day of September 2000.

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¹   The correspondence consisted of a letter from the complainant dated April 5, 2000, a letter from Numanco dated June 1, 2000, and a letter from ComEd dated June 2, 2000.