ML20207B125

Discusses Investigation Rept 3-98-007 on 981210 & Forwards Notice of Violation & Proposed Imposition of Civil Penalty in Amount of $110,000

ML20207B125
Person / Time
Site:	Perry
Issue date:	05/20/1999
From:	Dyer J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III)
To:	Myers L CENTERIOR ENERGY
Shared Package
ML20207B128	List: ML20207B125 ML20207B129
References
EA-99-012, EA-99-12, NUDOCS 9905280126
Download: ML20207B125 (4)

Text

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. UNITED STATES I

1. km ner\ NUCLEAR REGULATORY COMMISSION

.8 REGION lil

. 801 WARRENVILLE ROAD  !

LISLE, ILLINols 60532-4351 l

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%*._**** i May 20,1999  ;

EA 99-012 Mr. Lew W. Myers Vice President - Nuclear FirstEnergy Nuclear Operating Company i P. O. Box 97, A200 '

Perry, OH 44081

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $110,000 (NRC Office of Investigations Report Number 3-98-007)

Dear Mr. Myers:

This refers to the investigation completed by the NRC Office of Investigations (01) at the Perry Nuclear Power Plant owned by Centerior Energy Corporation (now FirstEnergy Nuclear Operating Company (FENOC)) on December 10,1998. A summary of the Ol report was sent to FENOC on January 26,1999. The investigation was conducted to determine whether a Radiation Protection Supervisor (RPS) at the Perry facility was discriminated against for providing testimony as a witness in a hearing concoming another employee. Based upon the evidence developed, Ol determined that the Perry Radiation Protection Manager (RPM) discriminated against an RPS for engaging in protected activities within the scope of 10 CFR 50.7. The RPS's protected activities pertained to a July 17,1997, deposition that the RPS wac to give in a Department of Labor (DOL) hearing concerning alleged employment discrimination against another individual at the Perry facility. The RPS had previously indicated to Centerior Energy representatives that his testimony would not be favorable to the Centerior Energy Corporation. The discrimination against the RPS consisted of a July 16,1997, verbal counseling and the placement of a July 17,1997, memorandum documenting the verbal counseling in the RPS's section personnel file on July 22,1997. By letter dated January 26, 1999, the NRC invited FENOC to attend a predecisional enforcement conference (PEC).

- FENOC elected to forego a PEC and, instead, responded to the NRC's findings in writing by letter dated March 10,1999. The NRC provided a copy of FENOC's response to the RPS who provided a written assessment of FENOC's response to the NRC by letter dated March 30, 1999.

The NRC has determined that a violation of NRC requirements occurred. The violation is  ;

described in the enclosed Notice of Violation and Proposed imposition of Civil Penalty (Notice) i and involves the failure of FENOC to adhere to the requirements of 10 CFR 50.7, which prohibits discrimination against an employee engaged in protected activities. (

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1 This violation is a very significant regulatory concem because it involved employee discrimination by the RPM, a mid-level facility manager, against an employee for testifying in a i DOL proceeding. Such testimony is a protected activity in the Commission's employee  !

. protection regulations. Furthermore, the sphere of influence of the RPM is broad.  !

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L.- Myers - Discrimination committed at this level has the potential to create a chilling effect throughout the Radiation Protection Department and could influence individuals in other plant departments.

Therefore, in accordance with NUREG-1600, General Statement of Policy and Procedure for

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NRC Enforcement Actions (Enforcement Policy)," this violation has been categorized at Severity Levelll.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $88,000 is considered for this violation. Because the Perry facility has been the subject of escalated enforcement actions within the last two years', the NRC considered whether credit was warranted for /dentification and Corrective Action in accordance with the civil penalty )

assessment process in Section VI.B.2 of the Enforcement Policy. Identification credit was not warranted because the violation was identified by the NRC. Corrective Action credit was not warranted because FENOC has not implemented corrective actions to address the root causes

. of the violation. For example, FENOC's letter stated, in part, that the RPM was unfamiliar with the requirements of 10 CFR 50.7 and that the RPM did not understand what activities were protected under the regulations. The NRC considers this a potential root cause of this violation for which FENOC has not implemented corrective action. It is disturbing to the NRC that a mid-level manager would not be familiar with the Commission's employee protection regulations. In addition, the NRC takes issue with FENOC's assertion in its letter that no employment action rektod to compensation, terms, conditions or privileges of employment was ever taken against the supervisor. " Discrimination" as used in employment protection j regulations encompass any actions that may affect, or have the potential to affect, an j individual's employment. Clearly, verbal counseling and a memorandum documenting such J counseling placed in an employee's personnel file have the potential to affect employment and therefore fall within the scope of " discrimination" as defined by 10 CFR 50.7. Since Identification and Corrective Action credit were not warranted, the civil penalty assessment for the violation was twice the base ($176,000). However, section VI.B.2 of the Enforcement Policy limits the civil penalty to $110,000 per day for any one violation.

Therefore, to emphasize the importance of maintaining a safety conscious work environment including permitting employee participation in DOL proceedings without fear of retaliation, I have been authorized after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Regulatory Effectiveness, to issue the enclosed Notice of Violation and Proposed imposition of Civil Penalty in the amount o: $110,000.

Three Severity Level 111 violations with a $100,000 civil penalty were violations issued on November 18, 1997, for inadequate correct"ee actions, technical specification adherence, and the failure to identify an Unreviewed Safety Question (EAs96-482,96-542,97-047, and 97-430). These violations were identified  !

during inspections coacbeted from December 1996 to August 1997. j i

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1 L. Myers You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. Your response should document the specific actions taken and any additional actions planned to prevent recurrence, and it should explain why the NRC should have confidence that employees at the Perry facility are free to participate in protected activities without fear of retaliation. The NRC will use your response, in part, to determine whether further NRC 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, its enclosure, and your response will be placed in the NRC Public Document Room.

Sincerely,

, . E. Dyer Regional Administrator Docket No. 50-440 License No. NPF-58

Enclosure:

Notice of Violation and I Proposed Imposition of Civil Penalty cc w/ encl: H. Hegrat, ' Manager, Regulatory Affairs R. Schrauder, Director, Nuclear Engineering Department W. Kanda, General Manager Nuclear Power Plant Department N. Bonner, Director, Nuclear Maintenance Department H. Bergendahl, Director Nuclear Services Department State Liaison Officer, State of Ohio R. Owen, Ohio Department of Health C. Glazer, State of Ohio Public Utilities Commission i

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l L. Myers .

DISTRIBUTION ' L)

. PUBLIC W J SECY l CA l WTravers, EDO MKnapp, DEDE DDambly, OGC SCollins, NRR MBanerjee, NRR Enforcement Coordinators Rl, Rll and RIV Resident inspector, Perry JGilliland, OPA HBell, OlG GCaputo, Ol RPaul, OI: Rill OE:ES l OE:EA (2) i RAO: Rill I SLO: Rill PAO: Rill .

OCFO/LFARB w/o encl.

DRP { 4 Docket File )

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