ML050560239
| ML050560239 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 02/25/2005 |
| From: | Congel F NRC/OE |
| To: | Bezilla M FirstEnergy Nuclear Operating Co |
| Arrighi RJ, OE | |
| References | |
| 3-2004-006, 3-2004-018, EA-04-224 | |
| Download: ML050560239 (6) | |
Text
February 25, 2005 EA-04-224 Mr. Mark B. Bezilla Vice President-Nuclear, Davis-Besse FirstEnergy Nuclear Operating Company Davis-Besse Nuclear Power Station 5501 North State Route 2 Oak Harbor, OH 43449-9760
SUBJECT:
APPARENT VIOLATION OF EMPLOYEE PROTECTION REQUIREMENTS (OFFICE OF INVESTIGATIONS REPORT NOS. 3-2004-006 AND 3-2004-018)
Dear Mr. Bezilla:
This letter refers to two investigations conducted at the FirstEntergy Nuclear Operating Company (FENOC) Davis-Besse Nuclear Power Station (Davis-Besse) by the U.S. Nuclear Regulatory Commissions (NRC) Office of Investigations (OI). The purpose of the investigations was to determine if former AVI Food Systems, Inc. (AVI) employees at Davis-Besse were the subject of employment discrimination in violation of 10 CFR 50.7. The OI investigations substantiated that three AVI employees were threatened with termination for attempting to raise a potential fitness-for-duty (FFD) concern to the AVI/Davis-Besse Facilities Coordinator. This issue was discussed with you during a February 25, 2005, telephone conversation. The enclosed Reports of Investigation (ROI) Nos. 3-2004-006 and 3-2004-018 provide an overview of the evidence gathered during these investigations. The ROIs are only being provided to predecisional enforcement conference (PEC) participants. Further release of this information is not permitted.
Based on the staffs review of the OI investigations, an apparent violation of 10 CFR 50.7, Employee protection, was identified and is being considered for escalated enforcement action in accordance with the General Statement of Policy and Procedure for NRC Enforcement Actions (Enforcement Policy), NUREG-1600. The current Enforcement Policy can be found on the NRCs Web site at www.nrc.gov; select What We Do, Enforcement, then Enforcement Policy. The apparent violation(s) involve a former AVI Assistant Manager, a Catering Supervisor, and a Catering/delivery employee who were threatened by an AVI Manager with termination of employment for attempting to raise an FFD concern about an AVI Cashier at Davis-Besse. In addition, a second AVI Manager threatened the former Catering/delivery employee with termination and caused her constructive discharge (forced termination) because of her attempt to raise the FFD concern. Since the NRC has not made a final determination in this matter, no Notice of Violation is being issued at this time. In addition, please be advised that the number and characterization of the apparent violation(s) may change as a result of further NRC review.
M. Bezilla In order for the NRC to resolve this apparent violation, we are offering FENOC the opportunity either request alternative dispute resolution (ADR) or attend a closed PEC. During our discussion on February 25, 2005, we requested that certain representatives from AVI and FENOC participate in the ADR session and/or the PEC. Both options are discussed in the paragraphs that follow.
The purpose of the PEC would be to obtain information to assist the NRC in making an enforcement decision. This may include information to determine whether a violation occurred, information to determine the significance of a violation, information related to the identification of a violation, and information related to any corrective actions taken or planned. The conference would provide an opportunity for you to give your perspective on these matters and any other information that you believe the NRC should take into consideration in making an enforcement decision. A PEC does not mean that the NRC has determined that a violation has occurred or that enforcement action will be taken.
The NRCs Enforcement Policy permits the individuals who were the subject of the alleged employment discrimination to participate in the conference. Accordingly, the former AVI Assistant Manager, Catering Supervisor, and Catering/delivery employee would be invited to attend the PEC. The former AVI employees may participate by observing the conference and, following the presentation by FENOC, may, if desired, present their views on why they believe discrimination occurred and comment on the FENOC presentation. FENOC would then be afforded an opportunity to respond and the NRC may ask some clarifying questions. Under no circumstances would the NRC staff permit FENOC or the former AVI employees to cross-examine or question each other.
Instead of a PEC, you may request ADR with the NRC. ADR is a general term encompassing various techniques for resolving conflict outside of court using a neutral third party. The technique that the NRC has decided to employ during a pilot program which is now in effect is mediation. Additional information concerning the NRC's pilot program is described in the enclosed brochure (NUREG/BR-0317) and can be obtained at http://www.nrc.gov/what-we-do/regulatory/enforcement/adr.html. The Institute on Conflict Resolution (ICR) at Cornell University has agreed to facilitate the NRCs program as an intake neutral. Please contact ICR at 877-733-9415 within 10 days of the date of this letter if you are interested in pursing resolution of this issue through ADR.
Enclosed is a redacted copy of OI Report Numbers 3-2004-006 and 3-2004-018. The OI reports provide an overview of the evidence gathered during these investigations. Portions of the OI reports have been redacted, but the substantive issues related to this case remain. The OI reports are only being provided to FENOC at this time. After a full review of the circumstances, the NRC may conclude that no enforcement action is warranted. Therefore, we request that you not make the OI reports available to the general public. If a PEC is held, the other PEC participants will be sent a copy of the redacted OI reports.
No response regarding the apparent violation is required at this time. However, please contact Mr. Russell Arrighi, Senior Enforcement Specialist, Office of Enforcement, at (301) 415-3936 or via e-mail at rja1@nrc.gov, within 15 days of the date of this letter to notify the NRC if you choose to have a PEC.
M. Bezilla In accordance with 10 CFR 2.390 of the NRC's "Rules of Practice," a copy of this letter, without the enclosure, will be made available electronically for public inspection in the NRC Public Document Room or from the NRCs document system (ADAMS), accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html.
Sincerely,
/RA/
Frank J. Congel, Director Office of Enforcement Docket No. 50-346 License No. NPF-3
Enclosures:
- 1. Redacted Copy of the Office of Investigations Report of Investigation No. 3-2004-006 (EXEMPT FROM PUBLIC DISCLOSURE)
- 2. Redacted Copy of the Office of Investigations Report of Investigation No. 3-2004-018 (EXEMPT FROM PUBLIC DISCLOSURE)
- 3. NUREG/BR-0317 Post-Investigation ADR Program cc w/out encl: The Honorable Dennis Kucinich G. Leidich, President - FENOC J. Hagan, Senior Vice President Engineering and Services, FENOC L. Myers, Chief Operating Officer, FENOC Plant Manager Manager - Regulatory Compliance M. OReilly, Attorney, FirstEnergy Ohio State Liaison Officer R. Owen, Administrator, Ohio Department of Health Public Utilities Commission of Ohio President, Board of County Commissioners of Lucas County C. Koebel, President, Ottawa County Board of Commissioners D. Lochbaum, Union Of Concerned Scientists J. Riccio, Greenpeace P. Gunter, N.I.R.S.
DISTRIBUTION: WITHOUT ENCLOSURE ADAMS (PARS)
E. Merschoff, DEDR F. Congel, OE J. Luehman, OE N. Hilton, OE R. Arrighi, OE L. Chandler, OGC J. Moore, OGC J. Longo, OGC J. Dyer, NRR J. Craig, NRR R. Franovich, NRR G. Suh, NRR, DLPM D. Thatcher, NRR, DLPM S. Sands. NRR, DLPM Davis-Besse Senior Resident Inspector G. Caputo, OI R. Paul, RIII:OI J. Caldwell, RIII:RA J. Strasma, RIII:PA K. OBrien, RIII G. Grant, RIII C. Thomas, RIII C. Ariano, RIII R. Lickus, RIII P. Buckley, RIII DRPIII DRSIII J. Kwaiser, RIII C. Pederson, RIII,DRS DB0350 RidsNrrDipmIipb EA File OE Day File ADAMS ACCESSION NO.: ML050560239 E:\Filenet\ML050560239.wpd OFFICE OE:ES OGC OE:DD OE:D NAME RArrighi GLongo JLuehman FCongel DATE 12/29/04 1/16/05 1/13/05 2/25/05 C = COVER E = COVER & ENCLOSURE N = NO COPY
Enclosure 1 Redacted Copy of the Office of Investigations Report No. 3-2004-006
Enclosure 2 Redacted Copy of the Office of Investigations Report No. 3-2004-018