EA-96-054 - Brunswick 1 & 2 (Carolina Power & Light Company)

April 4, 1996

EA 96-054

Carolina Power & Light Company
ATTN: Mr. W. R. Campbell, Vice President
Brunswick Steam Electric Plant
Post Office Box 10429
Southport, North Carolina 28461

SUBJECT: NOTICE OF VIOLATION (NRC Inspection Report Nos. 50-325/96-03 and 50-324/96-03)

Dear Mr. Campbell:

This refers to the inspection conducted on February 5-9, 1996, at the Brunswick facility. The inspection included a review of the circumstances involving the failure to comply with the requirements of your Fitness-for-Duty Program during operation of your on-site drug testing facility. The results of the inspection were formally transmitted to you by letter dated March 7, 1996. A closed predecisional enforcement conference was conducted in the Region II office on March 21, 1996, to discuss the apparent violations, the root causes, and your corrective actions to preclude recurrence. A list of conference attendees, NRC slides, and a copy of your presentation materials are enclosed.

Based on the information developed during the inspection and the information you provided during the conference, the NRC has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. Violation A, described in the Notice, involved two examples of failure to identify presumptive positive drug test results during on-site pre-screening operations. As a result of these failures, one individual with presumptive positive test results entered vital plant areas unescorted, and a second individual was authorized unescorted access for approximately one week although he did not actually enter a vital area. In the second case, the individual was subsequently confirmed to be positive for the use of illegal drugs and was permanently denied unescorted access. The root causes of Violation A were inattention to detail by contractor personnel and performance deficiencies of the laboratory manager.

Violation A represents a significant regulatory concern in that, in two instances, you failed to provide early detection of persons who potentially were not fit to perform duties within the protected area. Therefore, 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 III.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $50,000 is considered for a Severity Level III violation. Because your facility has been the subject of escalated enforcement actions within the last two years, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process described in Section VI.B.2 of the Enforcement Policy. Because you identified the violation during reviews of laboratory operations, the NRC determined that credit for the factor of Identification was appropriate. Your immediate corrective actions included revocation of site access for the two individuals upon discovery of the errors, performance of chemical screening retests, prompt reporting of the event to the NRC, and subsequent reassessment of the decision to grant site access for the individuals in accordance with approved procedures. Your additional corrective actions included: (1) suspension of your onsite laboratory operations promptly after identification of the second error; (2) a thorough investigation of laboratory operations including independent review of records; (3) independent audits by the contractor and your corporate staff; and (4) training of corporate Fitness-for-Duty and access authorization personnel, emphasizing the need for attention to detail in complying with procedural requirements. Based on these facts, the NRC determined that your actions were comprehensive and that credit was warranted for the factor of Corrective Action.

Therefore, to continue to encourage prompt identification and comprehensive correction of violations, I have been authorized, after consultation with the Office of Enforcement, not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty.

Violation B in the enclosed Notice involves two cases where you failed to adequately respond where reasonable grounds existed to suspect that the urine specimens obtained were altered or substituted. In these cases, each specimen was determined by your onsite laboratory to have a specific gravity of less than 1.003, a value which 10 CFR 26, Appendix A, Section 2.4(f)(2) sets forth as a reason to believe that the individual may alter or substitute a specimen. 10 CFR 26, Appendix A, Sections 2.4(g)(16) and (17) require that urine specimens suspected of being altered or substituted be forwarded to a laboratory for testing and that a second specimen be obtained as soon as possible under direct observation.

At the predecisional enforcement conference, you denied the violation based on your assessment that low specific gravity did not, as an isolated factor, constitute sufficient reason to believe that the sample may have been altered or substituted. You indicated that it has been the common and accepted practice at your facility, in cases of low specimen specific gravity which are not accompanied by any of the other factors delineated in 10 CFR 26, Appendix A, Section 2.4(f), to require prompt recollection of a specimen but not under direct observation.

In consideration of your position expressed at the conference, we noted that NUREG-1385, "Fitness for Duty in the Nuclear Power Industry: Responses to Implementation Questions," Section 4.7, provides clarifying guidance on this matter. The NUREG specifically addresses the question of whether collection personnel may exercise discretion when determining whether or not they have a reason to believe a sample may have been altered in a case where the specific gravity of the specimen is low. Although the NUREG acknowledges that low specific gravity accompanied by a plausible explanation would not normally cause one to believe that there has been an attempt to alter the specimen, collection personnel are expected to exercise prudent judgment and to observe the collection in questionable cases.

In the cases cited in Violation B, the NRC has concluded that you failed to demonstrate sufficient justification for concluding that the low specific gravity of the specimens did not constitute a reason to believe that the samples may have been altered or substituted. In particular, the specific gravity of the sample collected on January 15, 1996, was well below the specified limit; the specimen was obtained from an individual seeking initial site access who had not established a history of meeting Fitness-for-Duty requirements at your facilities; and you have provided no evidence that information was obtained to show a medical or physical reason for the low specific gravity. This individual subsequently tested positive for drug use. Although your written Fitness for Duty Program defined low specific gravity as constituting a reason to believe that a particular individual may alter or substitute the urine specimen, your program did not delineate allowable reasons to deviate from the standard practices described in 10 CFR Part 26 and did not have provisions to ensure that a conservative review of cases involving low specific gravity is conducted. Therefore, the failure to send the two specimens to the laboratory for further testing and the failure to collect additional specimens under direct observation has been categorized as a Severity Level IV violation.

At the predecisional enforcement conference, you provided information identified after completion of our inspection to correct the details of the January 10, 1996, example of Violation B as documented in paragraph 2.4 of Inspection Report Nos. 50-325/96-03 and 50-324/96-03. You stated that the Fitness-for-Duty Manager had been notified of the low specific gravity of this sample.

With regard to the apparent violation identified in Inspection Report Nos. 50-325/96-03 and 50-324/96-03 involving training of laboratory personnel, additional information identified after completion of our inspection and presented by you at the predecisional enforcement conference indicates that training of laboratory personnel was sufficient to meet regulatory requirements. Therefore, the NRC has concluded that a violation did not occur.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC 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 (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

Should you have any questions concerning this letter, please contact us.

Sincerely, Original signed by Stewart D. Ebneter Stewart D. Ebneter Regional Administrator

Docket No. 50-325 and 50-324
License No. DPR-71 and DPR-62

Enclosures:
1. Notice of Violation
2. List of Conference Attendees
3. NRC Slides
4. Licensee Presentation Handout

cc w/encls:
W. Levis, Director
Site Operations
Brunswick Steam Electric Plant
P. O. Box 10429
Southport, NC 28461

R. P. Lopriore
Plant Manager
Brunswick Steam Electric Plant
Carolina Power & Light Company
P. O. Box 10429
Southport, NC 28461

J. Cowan, Manager
Operations & Environmental
Support MS OHS7
Carolina Power & Light Company
P. O. Box 1551
Raleigh, NC 27602

W. D. Johnson, Vice President
and Senior Counsel
Carolina Power & Light Company
P. O. Box 1551
Raleigh, NC 27602

Dayne H. Brown, Director
Division of Radiation Protection
N. C. Department of Environmental
Commerce & Natural Resources
P. O. Box 27687
Raleigh, NC 27611-7687

Karen E. Long
Assistant Attorney General
State of North Carolina
P. O. Box 629
Raleigh, NC 27602

Robert P. Gruber
Executive Director
Public Staff - NCUC
P. O. Box 29520
Raleigh, NC 27626-0520

Public Service Commission
State of South Carolina
P. O. Box 11649
Columbia, SC 29211

Jerry W. Jones, Chairman
Brunswick County Board of Commissioners
P. O. Box 249
Bolvia, NC 28422

Dan E. Summers
Emergency Management Coordinator
New Hanover County Department of
Emergency Management
P. O. Box 1525
Wilmington, NC 28402

Norman R. Holden, Mayor
City of Southport
201 East Moore Street
Southport, NC 28461

NRC Resident Inspector
U.S. Nuclear Regulatory Commission
8470 River Road, SE
Southport, NC 28461

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NOTICE OF VIOLATION Carolina Power & Light Company Docket Nos. 50-325 and 50-324 Brunswick Steam Electric Plant License Nos. DPR-71 and DPR-62 Units 1 and 2 EA 96-054

During an NRC inspection conducted on February 5-9, 1996, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

A. 10 CFR 26.24(a)(1) requires that a licensee provide a means to deter and detect substance abuse by implementing chemical testing programs for persons subject to this part. The program shall include testing within 60 days prior to the initial granting of unescorted access to protected areas or assignment to activities within the scope of this part.

10 CFR 26, Appendix A, Paragraph 2.7(d) provides, in part, that urine specimens identified as presumptive positive by a licensee's testing facility shall be shipped to a Department of Health and Human Services (HHS) certified laboratory for testing.

Carolina Power and Light Company's "Fitness for Duty Program Policies and Procedures", Revision 3, dated July 10, 1991, provides that for the first confirmed positive chemical test, the licensee employee or contractor employee will be terminated and that unescorted access will be denied.

Carolina Power and Light Company's Procedure, "Nuclear Workers Screening Program for Unescorted Access," Attachment 1, dated March 20, 1995, provides that an individual failing one alcohol or drug test is not eligible for unescorted access.

Contrary to the above, the licensee failed to implement the chemical testing program, in that:

1. On January 8, 1996, testing facility personnel failed to identify a presumptive positive pre-screen test result for substance abuse, and the specimen was not shipped to an HHS-certified laboratory. The licensee failed to deny the individual unescorted access during the period January 8-12, 1996, and the individual entered vital areas without escort during this period.

2. On January 15, 1996, testing facility personnel failed to identify a presumptive positive pre-screen test result for substance abuse, and the specimen was not shipped to an HHS-certified laboratory. The licensee failed to deny the individual eligibility for unescorted access during the period January 19-26, 1996. The individual subsequently tested positive for drug use on January 29, 1996. (01013)

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

B. 10 CFR 26.24(a)(1) requires that a licensee provide a means to deter and detect substance abuse by implementing chemical testing programs for persons subject to this part. The program shall include testing within 60 days prior to the initial granting of unescorted access to protected areas or assignment to activities within the scope of this part.

10 CFR 26, Appendix A, Paragraph 2.4(g)(16), provides that all urine specimens suspected of being adulterated or found to be diluted shall be forwarded to the laboratory for testing.

10 CFR 26, Appendix A, Paragraph 2.4(g)(17), provides, in part, that whenever there is reason to believe that a particular individual may alter or substitute the urine specimen to be provided, a second specimen shall be obtained as soon as possible under the direct observation of a same gender collection site person.

10 CFR 26, Appendix A, Paragraph 2.4(f)(2) identifies a urine specimen with a specific gravity of less than 1.003 as constituting a reason to believe that the individual may alter or substitute a urine specimen.

Carolina Power and Light Company's "Fitness for Duty Program Policies and Procedures," Revision 3, July 10, 1991, defines the circumstance of a urine specimen determined by the laboratory to have a specific gravity of less than 1.003 as constituting a reason to believe that a particular individual may alter or substitute the urine specimen.

Contrary to the above, on January 10 and January 15, 1996, during chemical testing prior to initial granting of unescorted access to the protected area, the licensee failed to implement the chemical testing program in that two urine specimens with specific gravity readings lower than 1.003 were: (1) not forwarded to an HHS-certified laboratory for testing; and (2) in each case, a second specimen was not obtained under direct observation. (02014)

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

Pursuant to the provisions of 10 CFR 2.201, Carolina Power & Light Company is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555 with a copy to the Regional Administrator, Region II, and a copy to the NRC Resident Inspector at the Brunswick Steam Electric Plant, 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, (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 the license should not be modified, suspended, or revoked, or why such other action as may be proper should not be taken. Where good cause is shown, consideration will be given to extending the response time.

Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

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. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated at Atlanta, Georgia
this 4th day of April 1996