ML040640468

Request for Reconsideration of Notice of Violation

ML040640468
Person / Time
Site:	Davis Besse
Issue date:	03/04/2004
From:	Congel F NRC/OE
To:	Harder L FirstEnergy Nuclear Operating Co
Hilton N, OE
References
IA-01-055
Download: ML040640468 (3)

Text

March 4, 2004 IA-01-055 Mr. Lynn R. Harder

[Home Address Deleted Under 10 CFR 2.390(a)]

SUBJECT:

REQUEST FOR RECONSIDERATION OF NOTICE OF VIOLATION Dear Mr. Harder This is in reply to your July 9, 2003, letter requesting the U.S. Nuclear Regulatory Commission (NRC) withdraw a Notice of Violation (Notice) issued to you on December 20, 2001. The Notice pertained to a violation of the NRC regulation prohibiting deliberate misconduct, 10 CFR 50.5, in association with a violation of 10 CFR 50.7, Employee Protection. The violation occurred at the FirstEnergy Nuclear Operating Companys (FENOC) Davis-Besse Nuclear Power Plant during January 2001. In requesting withdrawal of the Notice, you stated that you did not have the requisite deliberate and retaliatory intent because you were following an expectation of your management to determine why the author of a Condition Report (CR) did not have the CR reviewed by a security supervisor to assure the CR did not contain any Safeguards Information (SGI). You also contend that in initiating the investigation, you relied on your training under the Management Associated Results Company (MARC) principles and fact-finding investigations were not disciplinary in nature under the MARC process. In an April 1, 2002, letter you made similar assertions and requested the violation be withdrawn. On April 10, 2003, the NRC staff denied your prior request.

Notwithstanding your position that your actions were not deliberate or retaliatory and the fact-finding investigation under the MARC process was not disciplinary, information developed during the investigation conducted by the NRC Office of Investigations (OI) indicated that you had deliberate retaliatory reasons for initiating the fact-finding investigation. You did not limit the fact-finding investigation to the purported expectation of your management to determine why the CR was not reviewed for SGI. Rather, you expanded the inquiry beyond the lack of a review for SGI and inquired about individuals reasons for creating the CR and asking the author if he wanted to continue with the CR. As a result of that fact-finding investigation, the author rewrote the CR and deleted information that was critical of managers in the Security Department. At the time the CR was written, you were one of the managers in the Security Department; therefore, you were included in the critical comment. Information critical of security department managers, which included yourself, was deleted from the CR because of the fact-finding investigation. Further, the use of a fact-finding investigation under the MARC process was not previously used for similar issues. By initiating a fact-finding investigation in this instance, the author of this CR was treated differently from other authors of CRs which is considered disparate treatment of the author of the CR. Additionally, you directed that notes created during the fact-finding investigation be retained in the employees file. Individuals interviewed by OI, including your supervisor, indicated that a purpose of a fact-finding

L. Harder 2 investigation is to obtain information that can be used in a subsequent disciplinary action and the notes from such an investigation can be used in assessing the performance of an employee. Therefore, the NRC staff concluded that your actions were deliberate and your letters did not provide a sufficient basis or additional information to withdraw the violation.

Consequently, the violation will stand as stated in the Notice.

You also stated in your letter that we had not placed in proper context a statement from FENOCs January 22, 2002, response to the Notice, that you inappropriately tied the fact-finding investigation to a potential disciplinary process for using the CR process. That statement was used to summarize how the violation occurred. Regardless of the context of that statement, the FENOC Site Vice President wrote at the time of the violation that your actions did not meet FENOCs standards for maintaining a safety conscious work environment with regard to the generation of condition reports.

You requested that we withhold from public disclosure certain information that would normally be confidential because the disclosure of that information, notably your name, would constitute an unwarranted invasion of personal privacy. We will not redact your name from the Notice or related correspondence since the violation is not being withdrawn. Information in your July 9, 2003, letter identifying other individuals interviewed during the OI investigation will be redacted.

However, all other information (except for your home address and telephone number) will be made available to the public in accordance with 10 CFR 2.390 of the NRCs Rules of Procedure. The information will be available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of the NRCs document system (ADAMS). ADAMS is accessible from the NRC Web site at http://www.nrc.gov/reading-rm/.html (the Public Electronic Reading Room).

Please contact Mr. James Creed at telephone number 630-829-9857 with questions.

Sincerely,

/RA/

Frank J. Congel, Director Office of Enforcement cc: Roy P. Lessy, Jr.

Jonathan M. Krell Akin, Gump, Strauss, Hauer & Feld, L.L.P.

1333 New Hampshire Avenue, N.W., Suite 400 Washington, DC 20036

L. Harder 3 30 DAY ADAMS - PUBLIC RELEASE HOLD DISTRIBUTION:

ADAMS PARS SECY CA WTravers, EDO SCollins, DEDR DDambly, OGC JDyer, NRR HBell, OIG GCaputo, OI OPA JCaldwell, RIII GGrant, RIII JGrobe, RIII CPederson, RIII RCaniano, RIII CWeil, RIII JCreed, RIII CLipa, RIII RPaul, OI:RIII JUlie, OI:RIII NHilton, OE RFranovich, NRR Enforcement Coordinators, RI, RII, RIV OE r/f OE:IA file RAO:RIII SRI, Davis-Besse ML040640468 *Concurred by e-mail OFFICE RIII OE OE:DD NRR OGC OE:D NAME GGrant NHilton JLuehman RFranovich* ACoggins* FCongel DATE 2/19/04 3/4/04 3/4/04 2/20/04 2/25/04 03/4/04