ML062680108

Memo to Congel from Caldwell, Proposed Enforcement Action for Fitness for Duty Issue at Kewaunee Nuclear Plant

ML062680108
Person / Time
Site:	Kewaunee
Issue date:	11/19/2003
From:	Caldwell J Region 3 Administrator
To:	Congel F NRC/OE
References
EA-03-105, FOIA/PA-2006-0113, IA-03-024, OI 3-2002-004
Download: ML062680108 (14)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION REGION III 801 WARRENVILLE ROAD LISLE, ILLINOIS 60532-4351 November 19, 2003 EA-03-105 IA-03-024 MEMORANDUM TO: Frank J..nel, Director I Ef ment FROM: James L.C ellC, Regnon1 Administrator

SUBJECT:

PROPOSE!D ENFORCEMENT ACTION FOR FITNESS FOR DUTY ISSUE AT KEWAUNEE NUCLEAR PLANT (OFFICE OF INVESTIGATIONS REPORT NO. 3-2002-004)

Attached for your review and concurrence Is a draft enforcement package (proposing a Severity Level III violation and a $60,000 civil penalty) to Nuclear Management Company for a willful violation, representing careless disregard, of the fitness for duty program at the Kewaunee Nuclear Plant. Also attached Is a closeout letter to the individual responsible for the violation.

Attachments: As stated cc w/attachments: D. Dambly, OGC J. Luehman, OE J. Dixon-Herrity, OE G. Longo, OGC R. Franovich, NRR CONTACT: Charles H. Well, EICS (630) 810-4372

'0,",aLia" in tnis record was deleted An accordance with the Freedom of Injormatioff Act~ exemptions 2.

PROPO'ý- EN CEMENT ACTIO T R RELEASE WITHOUT T PPROVAL C F ENFORCEMENT

November 19, 2003

• EA-03-105 IA-03-024 MEMORANDUM TO: Frank J. Congel, Director, Office of Enforcement

/RA/

FROM: James L. Caldwell, Regional Administrator

SUBJECT:

PROPOSED ENFORCEMENT ACTION FOR FITNESS FOR DUTY ISSUE AT KEWAUNEE NUCLEAR PLANT (OFFICE OF INVESTIGATIONS REPORT NO. 3-2002-004)

Attached for your review and concurrence is a draft enforcement package (proposing a Severity Level III violation and a $60,000 civil penalty) to Nuclear Management Company for a willful violation, representing careless disregard, of the fitness for duty program at the Kewaunee Nuclear Plant. Also attached is a closeout letter to the Individual responsible for the violation, Attachments: As stated cc w/attachments: D. Dambly, OGC J. Luehman, OE J. Dixon-Herrity, OE G. Longo, OGC R. Franovich, NRR CONTACT: Charles H. Well, EICS (630) 810-4372 FILE NAME: G:\EICS\03-105 SLIII & CP - IA-03-024.wpd To receive a copy of this d,:ument, Indicate in the box: TC = Copy w/o att/encl TE = GOlatt/encl N = No copy OFFICE RIll 4111 1 E R110 J2 N Rill I Rill t I- E Rill N RIIl N INAME Well b I Be~o Reynolds -/3t56 Ped* s ceaytoR ell IDATE 10/03 1 03 1W 141 -- I /0)03 MI3 OFFICIAL RECORD COPY V PROPO ENFORCEMEN CTION, NOTSE WITHOUT THE PPROVAL OF THE DIR FICE OF ENF EMENT

EA-03-105 Mr. Thomas Coutu Site Vice President Kewaunee Nuclear Plant Nuclear Management Company, LLC N490 Hwy 42 Kewaunee, WI 54216-9511

SUBJECT:

NOTICE OF VIOLATION AND PRI 'ION OF CIV111--NALTY

$60,000 (NRC OFFICE OF INVEE )RTS NO. 3-2002-004)

Dear Coutu:

This refers to Information received by the U.S ulatory Isslon (NRC) on November 8, 2001, concerning the alleged Impler t the NRC required fitness for duty (FFD) program at the Nu Mal 1 ion's (NMC) Kewaunee Nuclear Plant. The Issue was investig by N an ffice of Investigations (01) and an apparent violation of the Ke ee FF ogram upervisor employed by Day and Zimmerman Nuclear Power Syste ), a tractor he Kewaunee Nuclear Plant, was identified. A summary of the 01 was dled to C on June 9, 2003, and a predecislonal enforcement con ce (P h ith NMC on July 16, 2003. A PEC was held onAu t 5, 2003,w &Z su Based on d ng the"' C and 01 investigations, information you provided uly 16, and in your August 29, 2003, letter, and Information provided by ervhs on August 5, 2003, the NRC has determined that a violation of NR n o. The violation is cited in the enclosed Notice of Violation a ton Ivil Penalty (Notice) and the circumstances surrounding the viol are desc July 16 and August 19, 2003, letters. During the approximate time od of July/Aug D&Z employees told a D&Z supervisor that they refused to wor ith a third D&Z e e because they believed the other employee was "a drunk."

the same time p ad, and after receiving the information that the other D&Z employee lieved to be aa nk," the supervisor detected an odor that may have been alcohol on ployee. Th supervisor stated he received FFD training as a part of general e traini unescorted access to the Kewaunee Nuclear Plant and he believed that eobserve the employee for signs of Impairment. The supervisor stated that hhe employee and did not detect any sign of impairment; therefore, he did not initila y other requirement of the FFD program. Representatives of NMC at the PEC on July 16, 2003, Indicated that the supervisor was required to order a for-cause FFD test of the D&Z employee after the supervisor detected the possible odor of alcohol on the employee. In PROPOS NFO CEMENT ACTO OT R RELEASE WITHOUT TH PPROVAL HED OR, OFFIC F ENFORCE -

view of the supervisor's training, having been Informed that the employee had an alleged alcohol consumption problem, and detecting the possible odor of alcohol on the employee, the supervisor's failure to have the D&Z employee submit to a for-cause FFD test is considered a willful violation, representing careless disregard, of the FFD program at the Kewaunee Nuclear Plant. Therefore, the 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 II1.

In accordance with the Enforcement Policy, a base civil penalty in the un 60,000 is considered for a Severity Level III violation. Because this w s a willf , the NRC considered whether credit was warranted for Identificatio XoC n in accordance with the civil penalty assessment process in Section VI. the Eof !icy. WhiEdn the NRC recognizes that NMC performed several Inve tions to 1M 6; nevertheless, an allegation to the NRC, and not Indep ent a y N C, investigative activity that Identified the violation. Ther is not warran I" Identificationcivil penalty adjustment factor. The NRC d that credit was "rantedfor the CorrectiveAction civil penalty adjustment factor. C ions consisted of, but were not limited to: (1) coaching and counseling the D&Z s Inding all employees of the appropriate actions If an employee Is suspected elng ,3) modifying FFD procedures; and (4) Improving employee FFD tral Therefore, to emphasize the Importance of - on of tions and the need to maintain the work environment at a nucl

• o r om the effects of drugs and alcohol, I have been authorized, afconsu on ctor, Office of Enforcement, to Issue the enclosed Notice of Viol and P dI n of Civil Penalty (Notice) in the base amount of $60,000 for rity e I viol on.

As described In our letter of Ju ,2003, tent lation of 10 CFR 50.9, "Completeness and Accura of Informati' rc"at Issue, was originally considered for enforce ]on. S to that Interviewed several witnesses and presenits at th C on July 16, 2003. Following, the PEC, NMC conducte Inten bmitted the results to the NRC with your August 29, 2003, letter, of th Indicated that several witnesses furnished significantly di ation than that provided In their earlier Interviews with 01.

As a result ;a ter d not be conclusively determined because of the

change, mattepr* rmation, C staff has decided not to pursue enforcement action for this 0 Une 9, 2003, lette sodiscussed alleged employment discrimination at NMC's Beach Nuclear t that may have related to the FFD Issue at the Kewaunee Nuclear F**From n I ul the ation obtained ncluded by 01 duringdiscrimination that employment that Investigation occurred. A copyNo.

(01 Report of 3-2002 the 01 senclosed with that letter. Also In that letter, we requested that NMVC a ntial "chilling effect" that may have resulted from that FFD Issue. From the Info on you presented at the PEC on July 16, 2003, it does not appear that a "chilling effect" occurred and we have no further questions in that regard.

PROPOSE 0OT ONFORCEM RELEASE WITHOUT THE . ROVAL OF THE DIRECTOR, OFFICE FORCEMENT

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 further 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 made available electronically for public inspection In the NRC Pulic Document Room or from the NRC's document system (ADAMS), acce ible froke NRC Web site at http:/lwww.nrc.gov/reading-rm/adams.html. Should you to pond, your response, to the extent possible, should not Include any per;onal pn ietary, or safeguards information so that the response can be mad ilable *ic without redaction. The NRC also includes significant enforcem 'ctions on it bte at ,A www.nrc.gov; select What We Do, Enforcement, thenJlnifican1. 0 . -'. I Mct Sincerely, Jam well Docket No. 50-305; 50-266; 50-301 License No. DPR-43; DPR-24; DPR

Enclosure:

Notice of Violation an osed.

Imposition of Clvi cc w/encl: D. Graham r, IBurc jperations Shairma iý*n Commission te Llim sident

er, WýEPCo J. Cow tive Vice President Chief t Licensin D. Weea , Nuclear Asset Manager G. Are lanager, Regulatory Affairs J. R Esquire General Counsel J eil, Jr., Shaw, Pittman, is & Trowbridge Duveneck, Town Chairman Town of Two Creeks A. Bie, Chairperson, Wisconsin Public Service Commission PROPOS ENFOR EN T NOT F R RELEASE WITHOUT TH17PRO VAL OF THE DIRECTOR, OFFICE NE~iT

S. Jenkins, Electric Division Wisconsin Public Service Commission PROPOý ENFO TACTION,NO FOR RELEASE WHOT APPROVAL OF THE DIRECTOR, OFFI CEMENT

ADAMS Distribution:

ADAMS PARS SECY CA WTravers, EDO SCollins, DEDR FCongel, OE JDyer, NRR RZimmerman, NSIR DDambly, OGC HBell, OIG GCaputo, 01 OPA GGrant, Rill CPederson, RIll SReynolds, Rill RCanlano, Rill PHiland, Rill JCreed, Rill PLouden, Rill TVegel, Rill CWelI, Rill f TMadeda, Rill JDixon-Herrity, OE GLongo, OGC RFranovich, NRR Enforcement Coordinators RI, RII, and RIV OE:EAS OE:ES OE:MA OE:WEB RAO:RIII OA.C:RIII SRI, Kewa

WDR, DF lrrDipmlipb PL JRK1 PROP

• E FORCEMENT IONINO FOR RELEASE WITHOUT Tr APPROV OFT RECTOR, OFF E T

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY Nuclear Management Company, LLC Docket No. 50-305 Kewaunee Nuclear Plant License No. DPR-43 EA-03-105 A During an NRC Investigation concluded on November 29, 2002, a viol requirements was identified. In accordance with the "Gene IStatem y and Procedure for NRC Enforcement Actions," NUREG-16003,1V RC rnpose a civil penalty pursuant to Section 234 of the Atomic Energy Ad_ f 1954, as Act),

42 U.S.C. 2282, and 10 CFR 2.205. The particular A n and a*s4 pOnalty arpset o.

forth below:

10 CFR 26.20 requires, in part, that each licensi to 10 CFR Part 2 tablish and Implement written policies and procedures c ),'neetthe general performance objectives and specific requireme, M*art 26, Including policies to address the abuse of legal drugs (e.g. alcoli 10 CFR 26.24(a) requires, in part, emi mical testing and detect de ans to deter programs for persons subject to 11 ;Possible after receivng substance abuse, Including testinS cau!

credible Information that an Indi*

Kewaunee Nuclear Power rNui AdrninisPve Directive (NAD) 01.04, "Fitness for Duty Program," Revisk Nov ,

er 16 1 I*mplements the requirements of 10 CFR Part 26 with th rat onn rk environment that is free from the effeof drug and abuse of NAD 01-04 provides, in part, that N ' 0appl' ,rsons applied for or who have been granted r Power Plant.

Sectri 01.

the K nt Fitness for Duty Program. General Nuclear ProX Oral Observed

'Be Vdures thatJust have beenTesting,"

Cause is one established of the to Implement nenting ýi described In Section 7 of NAD 01.04.

'Section 2.0 of Revision A, April 18, 1995, provides, in part, that the procedure apr to all persons granted unescorted access to the Kewaunee Nuclear Power Plant.

bservation of employees, contractors, and vendors for indication of any on impairInjob performance. When such behavior Is detected,of ection havior 1.4.4 may NPwhich provides, part, that the licensee Is committed to a programand rrective measures shall be taken, including an investigation of the circumstances an evaluation of the risk Involved In continuing unescorted access to the Kewaunee Nuclear Power Plant.

PROPOSE NFORCEME TION, NO SE WITHOUT THE PROVAL OF THE D ,FICE OFMEN EMENT

Contrary to the above, during July and August 2001 a supervisor for Day and Zimmerman Nuclear Power Systems (D&Z), a contractor at the Kewaunee Nuclear Plant, failed to take corrective measures after receiving credible Information about on the-job behavior which may impair the performance of a D&Z employee. Specifically, two (D&Z) employees told the supervisor that they refused to work with another employee because the other employee was "a drunk." The supervisor subsequently detected the possible odor of alcohol on the D&Z employee, who was repoled as "a drunk," and the employee had unescorted access to the protect d area - e Kewaunee Nuclear Plant. After detecting the possible odor of hotl he D&Z employee, the supervisor failed to initiate an investigajtion of t: stances and failed to perform an evaluation of the risk in contin,Aft I a 3o all i~idual

! unescorted access to the protected area of the Kewaunee Ný@ar Powe.}ii...

• This is a Severity Level III violation (Suppleme Civil Penalty - $60,000 Pursuant to the provisions of 10 CFR 2.201, Nuclear MzaT Lompany, LLC (Licensee) is hereby required to submit a written statement or explai 0 ctr Office of Enforcement, U.S. Nuclear Regulatory Commission, In 3 date of this Notice of Violation and Proposed Imposition of Civil Penal e). Thl ]Id be clearly marked as a "Reply to a Notice of Violation, EA-03-1 0 includ, ch alleged violation:

(1) admission or denial of the alleged viola siolation if admitted, and if denied, the reasons why, (3) the correc steps ken and the results achieved, (4) the corrective steps that e tak a violations, and (5) the date when full compliance will be achieve an ad a ot received within the time specified in this Notice, an order o man r Infom n may be issued as why the license should not be modified, suspen r revo or why ,h other action as may be proper should not be taken. Conside may en to nding the response time for good cause sh Under the - of Se e Act, 42 U.S.C. 2232, this response shall be 4° d'und - ffirmati Within the as pr e response required above under 10 CFR 2.201, the Licensee ma vii pe r addressed to the Director, Office of Enforcement, U.S. Nuclear, R ommi h a check, draft, money order, or electronic transfer payable to e Uni States in the amount of the civil penalty proposed above or may t st impos vil penalty in whole or in part, by a written answer addressed to the ector, Office o ent, U.S. Nuclear Regulatory Commission. Should the Li e fall to answer e time specified, an order Imposing the civil penalty will be Is Should the Li ee elect to file an answer in accordance with 10 CFR 2.205 ting the civil pe , in whole or in part, such answer should be clearly marked as an er to a Notice iolation" and may: (1) deny the violation listed in this Notice, in whole (2) de trate extenuating circumstances, (3) show error in this Notice, or (4) show the penalty should not be Imposed. In addition to protesting the civil penalty art, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with PROPOSED FORC F RELEASE W1 OUT THE ROVALOF CT-OR9 OFFMCE FENEORCJMENT

10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determinein accordance with the applicable provisions of 10 CFR 2.205, this matter ay e. rred to the Attorney General, and the penalty, unless compromised, remitted, or at . m ay be collected by civil action pursuant to Section 234c of the Act,2 U.S.

The response noted above (Reply to Notice of ViolationUfter with pfj ýivil penalty adi Answer to a Notice of Violation) should be addressed t rank J. I-t NI otg White ' h $ .

U.S. Nuclear Regulatory Commission, Enforcement, Pike, Rockville, MD 20852-2738, with a copy to the R inistrator, U. j r Regulatory Commission, Region Ill, and a copy to the dent Inspector a Kewaunee Nuclear Plant Because your response will be placed In the NRC PuBirc Do (PDR), to the extent possible, It should not Include any personal privac tryrds

, Information so that it can be placed in the PDR without reda nal priv roprietary Information is necessary to provide an acceptable resp rovd racketed copy of your response that Identifies the information Ihoul da redacted copy of your response that deletes such Information you re st Iof such material, you must specifically Identify the portions of y spon at you o have withheld and provide in detail the bases for your claim of hIding expla* y the disclosure of Information will create an unwarranted invasion rsonal a(,y or - ide the Information required by 10 CFR 2.790(b) to support a est for oklin fidential commercial or financial information If safeguard ation Is provide an acceptable response, please cribed I '3.21.

provide t*,.W of p Dated PROPOSSE 'NFORC ENT 6,NTF RELEýAS ITUT-~

TH~ ROVAL OF THE DIRECTOR, OFFICE OFt ORCEMENT

IA _*"'2 IDA

[Homne Address Deleted Under 10 CFR 2.790(a)]

SUBJECT:

NRC OFFICE OF INVESTIGATIONS )RT NO.

Deal AL/ -

This refers to an Investigation conducted by the U.S. Ni y Commission (NRC)

Office of Investigations (01) into an apparent violationa red fitness for duty (FFD) program at the Kewaunee Nuclear Plant. The. knt Company (NMC),

the operator of the Kewaunee Nuclear Plant, also a Csummary of the 01 Investigation was provided to you on June a prei aal enforcement conference (PEC) was held with you on Au Based on Information developed by thetC and In , Information provided by NMC during a PEC on July 16, 200 rma n August 29, 2003, letter from NMC, and Information you provid u# ng tih ugust 5, 03, PEC, the NRC has concluded that a violation of NRC requirem urr In sum ry, during the approximate time period of July/August 2001, at I two D plo told you that they refused to work with another D employeie be hey beli ployee was "a drunk.' Within the same time peno after e Info the D&Z employee was ma drunk," you detecte*c h een ac ol on that employee. -You told the NRC staff that after dete C oe, you watched the employee and did not make any observation hat th could not perform his assigned responsibilties.

Therefore, you *tanunder the FFD program (e.g. having the employee submit toFE s isoto-he NRC staff that you received FFD training during ccess to the Kewaunee Nuclear Plant. At the PEC on July 16, icated that you were required to order a for-cause FFD test of e tected the possible odor of alcohol on the employee.

ur prior knowledge that the employee had. an alleged alcohol d after you detected the possible odor of alcohol on the employee, D&Z employee submit to a for-cause FFD test is considered a willful careless disregard, of the FFD program at the Kewaunee Nuclear Plant.

isidered a deliberate violation and after consultation with the Director, the NRC has decided not to take enforcement action against you in this g this decision, the NRC determined that your actions caused NMC to be PROPO E[CEMENTAR NOT F R RELEASEWIT OUT TI' PPROVAL OF-THE'D1RECTOR, OFFIC FENF M NT

in violation of the NRC approved FFD program at the Kewaunee Nuclear Plant. Enclosed is a copy of the Notice of Violation Issued to NMC.

As described in our letter of June 10, 2003, a potential violation of 10 CFR 50.9, "Completeness and Accuracy of Information," associated with the FFD Issue, was originally considered for enforcement action. Subsequent to that letter, NMC interviewed several witnesses and presented the results of the interviews at the PEC with NMC on July 16, 2003. Folowing, that PEC, NMC conducted additional interviews and submitted the results to the NR August 20, 2003. The results ofto these Interviews indicated that several witnesses is 'significantly different information NMC than that provided in their eariiintervi*jth*Ol. As a result, the facts of the matter could not be conclusively determin e6-caus bth'-ihanged information, and the NRC staff has decided not to pursudlrfforcemenr 0 -1614Jhis matter..

Please feel free to contact James R. Creed, Security' Le you have any questions. Mr. Creed can be reached a number You are not required to respond to this letter. However, se to provide a response, please mark It as "Response to IA-03-024" and providi al Administrator, with a Co egon III, copy to the Enforcement Officer, U. S. Nuclear Reguftc ry ys 801 Warrenville Road, Lisle, IL 60532-4351 withl sof theIs letter. Ifyou choose to respond, your response should not rrsOna ,proprietary, or safeguards information. If personal privac rmati necessary to provide an acceptable response, then please pro a bra ,r response that identifies the information that should be protecte d a re ur response that deletes such Information. If you request wit ing of .ma U must specifically identify the portions of your response that yooL to ha ithhelc d provide in detail the bases for your claim of withholding (e.g., e why disclos of Information will create an unwarranted Invasion of perso rivacy vide formation required by 10 CFR 2.7 (b) to suppo estfor WX a idential commercial or financial informatiX Normally .- compi cement purposes are placed in the NRC Public Electronic R link .nrc.gov/reading.rm/ADAMS.html. Since the NRC is not taking enfo ion ag u In this case, a copy of this letter, or a copy of your response if! ly, wi t be placed In the electronic reading link. However, all final NRoI]ments, he final NRC report, are official agency records and may be made 1able to the p r the Freedom of Information Act (FOIA), subject to a red n of information rdance with the FOIA.

- Sincerely, Cynthia D. Pederson, Director Division of Reactor Safety PROPOSED E RCEM T ACTION,NO REL SE WITHOUýT THE AP VAL OF THE FFICE OF E

'8 ,

Docket No. 50-305 License No. DPR-43

Enclosure:

Letter to NMC with Notice of Violation and Proposed Imposition of Civil Penalty - $60,000 PROPOSE NFORC MENT NoNOT F R RELEASE UT THE ROVAL OF RECTOR, OFFICE ORCEMENT

Distribution: NOT FOR RELEASE WITHOUT APPROVAL OF THE DIRECTOR, OE WTravers, EDO SCollins, DEDR FCongel, OE JDyer, NRR RZimmerman, NSIR DDambly, OGC HBell, OIG GCaputo, 01 GGrant, Rill SReynolds, Rill JCreed, Rill CWeil, Rill JDixon-Herrity, OE GLongo, OGC RFranovich, NRR PROPOý EN RCE ACTION, OT FORR ELEE WITHOUT T7 OPROVAL OTHE DIRECTOR, O e-F ENFO CEMENT