ML20205Q171
| ML20205Q171 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 04/02/1987 |
| From: | Jordan E NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| To: | |
| Shared Package | |
| ML20205Q139 | List: |
| References | |
| EA-86-087, EA-86-87, NUDOCS 8704030456 | |
| Download: ML20205Q171 (7) | |
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t UNITED STATES i NUCLEAR REGULATORY COMMISSION In the Matter of COMMONWEALTH EDIS0N COMPANY Docket Nos. 50-454 and 50-455 Byron Nuclear Station Licenses No. NPF-37 and NPF-66 Units 1 and 2 EA 86-87 ORDER IMPOSING CIVIL MONETARY PENALTY I
Commonwealth Edison Company is the holder of Operating Licenses No. NPF-37 and NPF-66 issued by the Nuclear Regulatory Commission on October 3, 1984 ano January 30, 1987. The licenses authorize the licensee to operate the Byron Plant, Units 1 and 2, in accordance with the conditions specifica therein.
4 II A December 3,1984, decision by the Department of Labor (DOL) Area Director found that Transco Products, Inc., had discriminated against an employee engaged
! in protected activities. That decision was upheld by a 00L Aaministrative Law Judge (ALJ) on March 5,1985, and the case was settled prior to a decision by the Secretary. The NRC's review of tnis decision indicated that the licensee 1 had not conducted its activities in full compliance with NRC requirements. A 1
l written Notice of Violation and Proposed Imposition of Civil Penalty was served upon the licensee by letter dated June 25, 1986. The Notice stated the nature of the violation, the provisions of the NRC's requirements that the licensee had violated, and the amount of the civil penalty proposed for the violation.
The licensee responded to the Notice of Violation and Proposed Imposition of i
Civil Penalty by letter dated July 29, 1986.
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l III After consideration of the licensee's respensa and the statements of fact, explanation, and argument for mitigation contained therein, the Director, Office of Inspection and Enforcement, has determined, as set forth in the Appendix to this Oroer, that the violation occurred as stated and that the penalty proposed for the violation designated in the Notice of Violatiori and Proposed Imposition of Civil Penalty should be imposed.
IV In view of the foregoing and pursuant to Section 234 of the Atomic Energy ,
Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:
The licensee pay a civil penalty in the amount of Twenty Five Thousand Dollars ($25,000) within 30 days of the date of this Order, by check, draft, or money order, payable to the Treasurer of the United States .
and mailed to the U.S. Nuclear Regulatory Commission ATTN: Document Control Desk, Washington, D.C. 20555. !
The licensee may request a hearing within 30 days of the date of this Order.
A request for a hearing shall be clearly marked as such and shall be addressed l to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555, with a copy to the Regional Administrator, Region III, and a copy to the NRC Resident Inspector, Byron.
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I If a hearing is requested, the Conunission will issue an Order designating the time and place of the hearing. If the licensee fails to request a hearing within 30 days of the date of this Order, the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Attorney General for collection.
In the event the licensee requests a hearing as provided above, the issues to be considered at such hearing shall be:
(a) whether the licensee was in violation of the Commission's requirements as set forth in the Notice of Violation and Proposed Imposition of Civil Penalty referenced in Section II above and (b) whether, on the basis of such violation, this Order should be sustainea.
FOR THE NUCLEAR REGULATORY COMMISSION Edwdrd L f ordan, Acting Director Office 01 Inspection and Enforcement Deted et Bethesda, Maryland l this f' day of April 1987.
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APPENDIX EVALUATIONS AND CONCLUSIONS On June 25, 1986, a Notice of Violation and Proposed Imposition of Civil Penalty (NOV) was issued for a violation of 10 CFR 50.7 requirements. Commonwealth
{ Edison Company responded to the Notice on July 29, 1986. In its response, the i
licensee did not take issue with the facts of the case, but stated that it j believes that total mitigation of the proposed civil penalty is warranted because
- of its extensive corrective actions and its prior, good enforcement history. !
p The licensee also requested NRC to reconsider classification of the violation i to Severity Level IV. Provided below are (1) restatement of the violation; :
l (2) a summary of the licensee's response in support of this request; (3) the.
i NRC's evaluation of the licensee's response, and (4) the NRC's conclusion.
Restatement of Violation 10 CFR 50.7 prohibits discrimination by a Commission licensee, or a contractor
' or subcontractor of a licensee, against an employee for engaging in certain
- protected activities. Discrimination includes discharge and other actions !
' that relate to compensation, terms, conditions, and privileges of employment. t j The activities protected include but are not limited to providing the NRC l l
information about possible violations of NRC requirements and requests to the j NRC to take action against an employer for enforcement of NRC requirements.
4 i Contrary to the above, Jeffrey Johnson, an employee of Transco Products, Inc.,*
1 a subcontractor of Connonwealth Edison Company and a quality control inspector
! at the Byron Nuclear Power Station, was discharged on November 2,1984, by !
, Transco for engaging in protected activities.which involved reporting to the ;
NRC on October 16, 1984, the employer's inadequate inspection procedures and j
installation of non-radiation-proof seals. ,
! This is a Severity Level III violation (Supplement VII).
! Civil Penalty - $25,000 Sunnary of Licensee's Response 1 The licensee does not dispute the facts or findings of this event, but disagrees I with the NRC's conclusion that the event is properly classified as a Severity ;
Level III violation. The licensee also requests that the NRC further review 1 the positive and extensive corrective actions taken by the licensee.
1 j The licensee states that as soon as it learned of the incident, it began i formulating and implementing the corrective actions which address the general j area of worker protection to prevent a recurrence of similar events. In the
{ area of past performances, the licensee believes that its performance over the past twelve years shows the effectiveness of Edison's commitment to worker j protection as demonstrated by the extremely low number of Department of Labor i
t (DOL) complaints at the LaSalle County, Byron, and Braidwood Stations. The I licensee believes that 100% mitigation of the base civil penalty is appropriate ,
j for the corrective actions taken and for past performance.
In support of the licensee's arguments concerning reduction of the severity I level and civil penalty, the licensee has provided two earlier NRC enforcement Cases for Consideration. In EA 84-93, the NRC reevaluated a Severity Level 11
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Appendix violation at Catewba Nuclear Station and reduced the violation to Severity Level III based on the isolated nature of the incident and the licensee's generally good management of the quality assurance and control program. In EA 85-117, a civil penalty was not proposed for a violation at Vogtle Electric Generating Plant due to the licensee's corrective actions and good enforcement history. The licensee believes that the NRC should consider both of these cases in determining the appropriate sanction for this violation.
NRC Evaluation of Licensee's Response In responding to the licensee's argument that the violation should be reclassified in light of EA 84-93, the violation in that case initially was properly classified as a Severity Level II violation because the incident involved " action by plant management above first-line supervision." That severity level classification was reduced, however, because of the particular facts in that incident and because the incident was a relatively isolated event and the licensee's manage-ment of the quality assurance and control program was generally good. (June 30, 1986 Order Imposing Civil Monetary Penalty. Appendix at 6.) The NRC believes that the violation in EA 86-87 was properly classified as a Severity Level III violation.
Regarding the staff's mitigation of the civil penalty in EA 85-117, the correc-tive action taken was both very extensive and initiated insiediately. A prompt thorough investigation was mode, and the cause of the problem was removed by replacement of the manager charged with the intimidation. EA 85-117 concerned remarks by a manager which were perceived by Quality Control (QC) personnel as intimidating regarding their freedom to perfom their quality assurance functions.
Investigation and subsequent inspections did not disclose that QC inspections were compromised. (November 15, 1985 Notice of Violation at 1.) The QC inspectors continued to perfom their job and adverse action was not taken against them.
In the instant case, adverse action was in fact taken against an employee who came forward and reported a safety concern to the NRC. While the NRC will not tolerate either type of behavior, it finds especially serious those situations where actual discrimination, and not just the threat of discrimination, occurs in retaliation for an employee engaging in a protected activity.
The facts of this event show that action was taken against an employee by first- i line supervision in violation of Section 210 of the Energy Reorganization Act ;
(ERA). This action is properly categorized as a Severity Level III violation in accordance with 10 CFR Part 2, Appendix C, Supplement VII.C.3. Any incident I of discrimination is considered to be serious and not appropriate for reduction below Severity Level III.
The hRC acknowledges that the licensee took corrective actions that were extensive in nature. The NRC also acknowledges the licensee's good enforcement history in this area as well as the apparent isolated nature of the event. For these reasons, partial mitigation of tie base civil penalty was considered appropriate. Use of the same factors to also reduce the severity level classi-fication is not considered appropriate, as the significance of the violation determines the severity level, and previous good performance and subsequent corrective actions are factors that determine escalation / mitigation of the civil penalty.
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L Appendix Total mitigation of the civil penalty was not considered appropriate for several reasons. The NRC enforcement policy allows up to 50% reduction of the base civil penalty for unusually prompt and extensive corrective actions. While the licensee's actions were extensive, the NRC does not believe that the actions were prompt in response to the discriminatory act by one of its contractors.
The initial complaint to DOL was filed on November 16, 1984. In December 1984 and March 1985, D0L officials found in favor of the complainant. A review of corrective actions taken by Commoawealth Edison shows that these actions were only initiated in response to the NRC enforcement conference in April 1986.
In its response, the licensee makes no mention of any corrective actions in response to this event prior to April 1986.
Although the NRC recognizes the licensee's good enforcement history in this area, full mitigation is not considered appropriate. As a result of the enforcement conference and the subsequent corrective actions taken by the licensee, the NRC believes that contractors haa not been fully aware of their obligations in this area. Further, even though an event of this kind had occurred, approxi-mately one and one-half years elapsed before the licensee had a mechanism in place to respond adequately and inform workers that such acts would not be tolera ted. The absence of a program to inform contractors / employees of their responsibilities in this area as well es the failure of the licensee to respond promptly to prevent potential intimidation of others resulting from this case indicates that the licensee's performance was not adequate to warrant full mitigation of the proposed civil penalty.
NRC Conclusion The NRC staff believes that the violation did occur as stated. The NRC has reviewed Commonwealth Edison Coinpany's respor.se to the proposed imposition of civil penalty and believes that the event was properly classified as a Severity Level III violation. The staff continues to believe that while partial miti-gation of the base civil penalty is appropriate, the licensee's actions are not deserving of further mitigation. Consequently, the proposed Civil Penalty in the amount of $25,000 should be imposed.
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7 APR o n 1987 i Cossionwealth Edison Company l
Distribution POR l LPDR
! ACRS l SECY CA JTaylor IE ABDavis, RIII ABeach, IE l GCent, IE EHoller, IE JLieberman, OGC JZerbe,DED/ROGR
, Enforcement Coordinators l
RI, RII, RIII, RIV, RV GJohnson, RM SConnelly OIA -
BHayes. 01 l
JCrooks, AE00 HDenton, NRR EA File ES File EDO Rdg File DCS j,C/ gyjf d a)p h
b IEh F
'/IE:ES p OGC ES:Dh GCant ABDa is JLieberman ABeaN WJT61or 3/p7/87 g/30/87 3/3c/87 3/3l/87 3p/87
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