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s., j POLICY ISSUE (NEGATIVE CONSENT)
March 27, 1992 SEC,:,,2-lll 1
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The Commissioners From:
James M.
Taylor Executive Director for Operations i
Subiect:
PROPOSED ENFORCEMENT ACTION AGAINST THE COMMONWEALTH EDISON COMPANY'S BYRON NUCLEAR STATION (EA 92-019)
Purpose:
To consult with the Commission regarding the issuance of a Notice of Violation to the i
Commonwealth Edison Company (Ceco) for a violation identified at the Byron Nuclear Station.
Consultation with the Commission is required in this case because the enforcement action is being proposed more than 18 months after receipt of the initial allegation.
Backcround:
On October 3, 1986, a quality control i
inspector previously employed by the Hatfield Electric Company at the Commonwealth Edison Company's Byron Nuclear Station, filed an employment discrimination complaint with the U.
S.
Department of Labor (DOL).
The former j
inspector claimed that Hatfield Electric improperly terminated his employment on September 12, 1986 following his contacts with the NRC in May and-June 1986, and his August 19, 1986, appearance at a DOL hearing i
Contacts: J.
Lieberman, OE NOTE:
ENFORCEMENT RE'_ATED - LIMITED 504-2741 TO NRC UNLESS THE COMMISSION R. Rosano, OE DETERMINES OTHERWISE 504-3282 i
9408260142 940629 4
PDR COMMS NRCC CORRESPONDENCE PDR wMMMMMMMMM.MMMMMMA
The Commission 2
involving another former employee of Hatfield 1
Electric..
1 The DOL Wage and Hour Division investigated
- the complaint and concluded that theLquality i
control inspector's employment was terminated as a result of his contacting the Nuclear Regulatory Commission with safety concerns 1
and his testimony at a DOL hearing involving another employee who had alleged discrimination by Ceco.
The DOL. Area Director directed Hatfield Electric Company to reinstate the inspector with payment of retroactive compensation and-expenses.
Hatfield Electric Company appealed that decision and, on August 13, 1987, the DOL Administrative Lr.w Judge found in favor of i
the complainant,- issuing a Recommended Decision in which Hatfield Electric Company was ordered to reinstate the inspector to his former position.
On January 22, 1992, the DOL Deputy Secretary' issued a Decision and l
Romand Order affirming the recommended decision of the Administrative Law Judge l
(ALJ) but' remanding it~to the ALJ for further review on the issue of damages.
Discussion:
After reviewing the' DOL record, the staff concluded that Hatfield Electric Company, the licensee's contractor, discriminated again~st the former quality control inspector in violation of the Commission's regulations, 10 CFR 50.7, Employee Protection."
Based on the facts of the case, and in accordance with the provisions of 10 CFR 50.7 regarding licensee contractors, the staff is considering escalated enforcement action against the licensee for the willful violation.
The staff considers the violation to be a Severity Level III violation because it raises a significant regulatory concern involving a first-line supervisor.
However,'
the staff does not intend to propose a civil penalty in this case because the five year statute of limitations for civil monetary
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penalties has lapsed.
In addition, the plant was under construction at the time of the violation, no similar violations have occurred at Byron or the other Part 50 facilities' licensed by CECO, and the Tmv v
The Commission
-3 violation appears to be isolated.
Although an enforcement conference is normally held when escalated enforcement action is considered, pending Commission approval of this proposal, the staff does not intend to hold an-enforcement conference because additional information is not needed from-the f
licensee to reach an enforcement decision.
Normally, a response is required by 10 CFR 2.201 to a Notice of Violation.
- However, given the time that has passed and the lack-of other discrimination violations against CECO since this violation, the staff is not
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seeking a response to the specific-violation-in'this case.
Rather, since the' individuals responsible for the discriminatory act on September 12, 1986, although no longer l
working for Hatfield Electric Company, are l
employed by a different contractor at the l
Byron Nuclear Station, the staff is requesting the licenses to provide written assurance that these individuals now-l appreciate the need for.open communications when an employee raises a safety concern.
The staff recognizes that considerable time has passed since the September 12, 1986, violation occurred.
In accordance with the NRC-DOL Memorandum of Understanding'(MOU),
the staff did not initiate a separate investigation into the matter and the staff proposed the enforcement action immediately upon completion of the DOL review.
- However, the time that has passed does not diminish the severity of the violation, especially since there is an element of willfulness in all violations involving discrimination, and the staff believes that some enforcement action is appropriate in this case.
Issuance of a Notice of Violation in this case formally recognizes that the violation occurred and sends an appropriate message to the industry. Specifically, it emphasizes that, notwithstanding the age of the violation, the NRC considers this type of violation to be a serious regulatory concern that will not be excused whether it represents the actions of a licensee or its contractor.
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The Commission i
i In the future, because of the concern with j
the delays in the DOL process, the staff intends to initiate enforcement action for J
violations involving significant l
j discrimination issues upon receipt of the recommended decision of DOL's Administrative j
i Law Judge.
If this is done, the licensee i
will be allowed to delay their response to i
the enforcement action, and payment of the l
civil penalty if one is proposed, until 30 days after the Secretary of Labor's final decision.
In addition, in the more significant cases, the staff will continue to seek OI investigations notwithstanding the DOL process.
l Coordination:
The Office of the General Counsel has no i
legal objection to this action.
a f
Recommendation:
If the Commission does not direct otherwise within two weeks from the date of this paper, i
the staff intends to issue the enclosed l
enforcement action.
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Note:
Note that this paper and its issues involves predecisional enforcement issues and should j,
not be publicly disclosed.
,/
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esM.haylor ecutive Director for Operations l
Enclosure:
i As stated SECY NOTE:
In the absence of instructions to the contrary, SECY l
will notify the staff on Friday, April 10, 1992, that the Commission, by negative consent, assents to the action proposed in this paper.
4 DISTRIBUTION:
Commissioners OGC OCAA OIG REGION III EDO SECY 4
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Dockets No.
50-454 and 50-455 l
Licenses No.
Construction Permit CPPR-131 EA 92-019 Commonwealth Edison Company ATTN:
Mr. Cordell Reed Senior Vice President Opus West III 1400 Opus Place t
Downers Grove, Illinois 60515 l
Dear Mr. Reed:
SUBJECT:
NOTICE OF VIOLATION (U.S. Department of Labor Case No. 87-ERA-4) l This refers to the results of an investigation and hearing conducted by the U.
S. Department of Labor (DOL) into a complaint filed on October 3, 1986 by a quality control inspector formerly employed by the Hatfield Electric Company at the Byron Nuclear Station.
In his complaint (DOL Case No. 87-ERA-4), the former l
quality control inspector alleged that Hatfield Electric Company l
improperly terminated his employment on September 12, 1986 following his contacts with the NRC in May and June 1986, and his August 19, 1986 appearance at a DOL hearing involving another former employee of Hatfield Electric.
An October 31, 1986 decision by the DOL Area Director instructed the Hatfield Electric Company to reinstate the former quality control inspector.
That decision was appealed by Hatfield Electric Company and was upheld by a DOL Administrative Law Judge on August 13, 1987.
Subsequently, on January 22, 1992, the DOL Deputy Secretary affirmed the Administrative Law Judge's recommended decision.
After reviewing that decision, the NRC finds that a violation of the Commission's regulations has occurred.
An enforcement conference is not being held in this case because additional information is not necessary.
The NRC review of the technical concerns pertaining to the installation and inspection of electrical components by the Hatfield Electric Company at the Byron Nuclear Station was documented in NRC Inspection Report Nos. 50-454/E6031; 50-455/86017, which was mailed to you on December 5, 1986.
The violation described in the enclosed Notice of Violation I
concerns an incident of discrimination in violation of 10 CFR 50.7, " Employee Protection."
Specifically, under 10 CFR 50.7, CERTIFIED MAIL RETURN RECEIPT REOUESTED e
Commonwealth Edison Company 2
discrimination by a Commission licensee, or its contractor, against an employee for engaging in certain protected activities is prohibited.
The activities which are protected include providing the Commission information about possible violations of requirements imposed under either the Atomic Energy Act or the Energy Reorganization Act, requesting the Commission to institute action against his or her employer for the administration or enforcement of these requirements, or testifying in any Commission proceeding.
This has been categorized as a Severity Level III violation because discrimination by first-line supervisors against employees for raising safety concerns or participating in formal proceedings is a significant regulatory concern, whether the actions were taken by the licensee or its contractor.
Such discriminatory acts could create a chilling effect which could lead to individuals not raising safety issues.
Such an environment cannot be tolerated if licensees are to fulfill their responsibility to protect the public health and safety.
It is i
imperative that managers and supervisors of the licensee and its contractors avoid actions that discriminate against individuals for cooperating in proceedings under the Atomic Energy Act or the Energy Reorganization Act or for raising safety concerns.
The actions of the licensee and its contractors must also promote an environment conducive to the reporting of safety issues.
Therefore, to emphasize the importance of maintaining an environment in which employees are free to provide information or safety concerns without fear of retaliation, I am issuing the enclosed Notice of Violation in accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions,"
(Enforcement Policy) 10 CFR Part 2, Appendix C (1986).
Normally, a civil penalty is considered for a Severity Level III violation.
However, af ter consultation with the Commission, I i
l have decided that a civil penalty will not be proposed in this In reaching this decision the staff considered: (1) the case.
time that has passed since this violation occurred; (2) that the plant was under construction at the time of the violation and has since been completed and operating for several years without further violations of this type; (3) that no similar violations have occurred at other CECO NRC-licensed facilities since the occurrence of this September 12, 1986 violation; and (4) the apparent isolated nature of the violation.
l The NRC acknowledges that your July 29, 1986 letter described corrective actions in response to a similar, previous enforcement I
action (EA 86-87).
The corrective actions for this earlier violation included: (1) meeting with senior management of all _}
site contractors to discuss their obligations under 10 CFR 50.7; (2) developing an "early warning" system to determine if a discharge involving worker protection is lawful; and (3) pre-planning reductions-in-force to determine whether a discharge is improperly motivated.
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l Commonwealth Edison Company 3
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While normally a written response to a Notice of Violation is I
i required, we are not requiring a response to the specific l
violation for the above reasons.
However, we note that the individuals involved in the September 12, 1986 discriminatory act j
are employed in the quality assurance organization of the William l
l Pope Company, another contractor at the Byron Nuclear Station.
Therefore, we are requesting that you provide written assurance that the individuals responsible for the September 12, 1986
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discriminatory act now appreciate the need for open i
communications when an employee raises a safety concern.
i In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice,"
a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room.
The response directed by this letter and the enclosed Notice are 1
1 not subject to the clearance procedures of the Office of 1
Management and Budget as required by the Paperwork Reduction Act of 1980, Pub. L. No.96-511.
Sincerely, i
1 A. Bert Davis Regional Administrator f
Enclosure:
Notico of Violation cc/ enclosure: DCD/DCB (RIDS)
M. Wallace, Vice President i
PWR Operations T. Kovach, Nuclear Licensing Manager i
T.
Schuster, Nuclear Licensing l
Administrator i
R.
Pleniewicz, Station Manager
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D.
Brindle, Regulatory Assurance i
Supervisor i
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Commonwealth Edison Company 4
cc/ enclosure: (cont'd)
Resident Inspectors:
- Byron, Braidwood, Zion Richard Hubbard J. W. McCaffrey, Chief j
i Public Utilities Division Diane Chavez, DAARE/ SAFE Licensing Project Manager, NRR J
Robert Newmann, Office of Public Counsel, State of Illinois Center i
Robert M. Thompson, Administrator Wisconsin Division of Emergency Government j
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Commonwealth Edison Company DISTRIBUTION SECY CA HThompson, DEDS JSniezak, DEDR JLieberman, OE LChandler, OGC JGoldberg, OGC TMurley, NRR JPartlow, NRR Enforcement Coordinators RI, RII, RIV, RV Resident Inspector FIngram, GPA/PA DWilliams, OIG j
BHayes, OI l
EJordan, AEOD l
DEFunk, RIII State of Illinois RRosano, OE Day File j
EA File (2)
RAO:RIII SLO:RIII PAO:RIII IMS:RIII l
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Commonwealth Edison Company Dockets No. 50-454 and 50-455 i
Byron Nuclear. Station Licenses No. NPF-37 and NPF-66 Construction Permit CPPR-131 j
EA 92-019 Based on the results of.an investigation and hearing conducted by l
the U. S. Department of Labor (DOL Case 87-ERA-4) and the resulting order of the Deputy Secretary of Labor, dated January 29, 1992, the NRC determined that a violation of its regulations occurred.
In accordance with the " General Statement j
of Policy and Procedure for NRC-Enforcement Actions," 10 CFR Part j
2, Appendix C (1986), the violation is listed below:
10 CFR 50.7 prohibits discrimination by a Commission i
licensee, permittee, an applicant for a Commission license or permit, or a contractor or subcontractor of a Commission i
licensee, permittee, or applicant against an employee for j
engaging in certain protected activities.
Discrimination j
includes discharge or other actions relating to the
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compensation, terms, conditions, and privileges of i
employment.
f.
Contrary to the above, an employee of Hatfield Electric j
Company, a subcontractor of the Commonwealth Edison Company, who was a quality control-inspector at the Byron Nuclear l
Power Station, was discharged on September 12, 1986, by j
Hatfield Electric Company, for engaging in protected activities.
These protected' activities were:
(1) reporting j
to the NRC on May 9,- 1986.t2un Hatfield Electric Company's l
inadequate installation and inspection of electrical components at the Byron Nuclear Power Station, and
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(2) participating as a witness on August 19, 1986 in a hearing conducted by the U.
S.
Department of Labor under
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Section 210 of the Energy Reorganization Act of 1974, as i
amended (Labor Department Case No. 86-ERA-33).
1 This is a Severity Level III violation (Supplement VII).
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A reply is not required because the licensee's letter of July 29, l
1986, described the corrective actions to prevent recurrence and similar violations have not occurred at either the Byron Nuclear l
Station or the other NRC licensed facilities operated by the i
commonwealth Edison Company since this violation occurred on l
September 12, 1986.
l FOR THE NUCLEAR REGULATORY COMMISSION i
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A. Bert Davis Regional Administrator
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j Dated at Glen Ellyn, Illinois the day of March 1992 1
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