EA-93-059 - D.C. Cook 1 & 2 (American Electric Power Company)

May 12, 1998

EA 93-059

Mr. E. E. Fitzpatrick
Executive Vice President
Nuclear Generation Group
American Electric Power Company
500 Circle Drive
Buchanan, MI 49107-1395

SUBJECT:

WITHDRAWAL OF NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $25,000 (U.S. DEPARTMENT OF LABOR CASE NO. 92-ERA-37)

Dear Mr. Fitzpatrick:

This letter is in response to a letter from the American Electric Power Company's (AEP) Indiana Michigan Power Company, dated February 12, 1998, and subsequent correspondence, requesting the NRC withdraw a Notice of Violation (NOV) and Proposed Civil Penalty - $25,000 (Notice) issued to Indiana Michigan Power Company on August 5, 1993. AEP's request for withdrawing the Notice was based upon a decision by the Court of Appeals for the Sixth Circuit reversing a holding by the Secretary of Labor that discrimination had occurred in the above referenced case. The NOV was based on a Recommended Decision and Order issued on September 15, 1992, by a DOL Administrative Law Judge (ALJ) who found that American Nuclear Resources, Inc. (ANR), a contractor at the Donald C. Cook Nuclear Power Plant, had discriminated against Gregory Sprague, a tool accountability technician, for engaging in protected activity.

On December 1, 1994, the Secretary of Labor (SOL) issued a Decision and Order adopting the ALJ's Recommended Decision and Order. ANR subsequently appealed the SOL's Decision and Order to the Sixth Circuit of the U.S. Court of Appeals. By Order dated January 29, 1998, the U.S. Court of Appeals reversed the Decision and Order by the SOL. On March 12, 1998, DOL petitioned for a rehearing, which was denied by the court on April 3, 1998.

In light of the court's decision, the NRC has withdrawn the Notice of Violation and Proposed Civil Penalty, and closed this enforcement action without further action. However, we read the court's holding as confined narrowly to the particular circumstances of this case, and emphasize that the NRC will examine each situation on a case-by- case basis in order to determine whether discrimination occurred regardless of whether the alleged protected activity consisted of a single act or a continuing course of conduct. A single incident of raising a safety concern can constitute protected activity under Section 211 of the Energy Reorganization Act and Employee Protection regulations.

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

Sincerely, James Lieberman, Director Office of Enforcement

Docket Nos. 50-315; 50-316
License Nos. DPR-58; DPR-74