ML20217G945

Discusses NRC Investigation Conducted by OI Re Rept in 1996 That FFD Computer Code at Facility Had Been Altered to Exclude Certain Individuals from Random Testing

ML20217G945
Person / Time
Site:	Nine Mile Point
Issue date:	04/28/1998
From:	Miller H NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I)
To:	Mueller J NIAGARA MOHAWK POWER CORP.
Shared Package
ML20217G802	List: ML20217G797 ML20217G827 ML20217G945
References
EA-97-185, NUDOCS 9804290243
Download: ML20217G945 (3)

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• hq UNITED STATES 8 NUCLEAR REGULATORY COMMISSION

$ REGloN I 475 ALLENDALE ROAD KING oF PRUsslA, PENNSYLVANIA 1980s 1415 April 28,1998 EA 97-185 Mr. John H. Mueller Senior Vice President Niagara Mohawk Power Corporation Operations Building 2nd Floor Post Office Box 63 Lycoming, New York 13093 1

SUBJECT:

EXERCISE OF DISCRETION (NRC Office of Investigation Report No. 1-96-015)

Dear Mr. Mueller:

This letter refers to the NRC investigation conducted by the NRC Office of investigations (01) after you had identified and investigated in 1996 that your fitness-for-duty (FFD) computer code at Nine Mile Point had been altered to exclude certain individuals from the random testing program at the facility. You reported your findings to the NRC in May 1996, after which 01 reviewed your investigation. Based on the investigations conducted by your staff, and then reviewed by 01, the NRC concluded that two contractors intentionally altered the NMPC Fitness for Duty (FFD) computer code to ensure that certain individuals, including themselves, would be excluded from random FFD screening. In a letter dated December 12,1997, transmitting the synopsis of the Ol investigation, the NRC informed you that this was an apparent violation of 10 CFR Part 26.24, which requires that individuals be tested in a statistically random and unpredictable manner. Given the extensiveness of your investigations and your corrective actions, the NRC also informed you, in the December 12,1997 letter, that it may not be necessary to conduct a predecisional enforcement conference in order to enable f the NRC to make en enforcement decision. Therefore, we provided you an opportunity to either (1) respond to the apparent violation within 30 days of the date of the letter or (2) request a predecisional enforcement conference. You responded to the violation in a letter dated January 27,1998.

Based on the information developed during the investigations, and the information provided in your January 27,1998 response, one violation of NRC requirements was identified. The violation involves a failure to comply with 10 CFR 26.24 in that individuals were not tested in a statistically random and unpredictable manner because of the computer code alteration.

Specifically, a patch had been inserted into the computer program to ensure certain individuals would not be selected, and the two contractors planned and executed a scheme, (and a number of precautions) to elude detection and prevent tracing. Given the deliberate actions of the two contractors to circumvent the FFD process and elude detection, this violation represents a significant regulatory concern and constitutes a Severity Level 111 violation in accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1800.

i 9804290243 980428 PDR ADOCK 05000220 P PDR

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Niagara Mohawk Power Corporation 2 in accordance with the Enforcement Policy in effect at the time these violations occurred, a base civil penalty in the amount of $50,000 is considered for a Severity Level ill violation.

Since escalated enforcement action has been issued to Niagara Mohawk Power Corporation in the past two years, the NRC considered whether credit was warranted for / dent /f/catAon and Conect/ve Action in accordance with the civil penetty assessment process in Section VI.B.2 of the Enforcement Policy. Credit is warranted for identification since the violation was identified by your staff after you conducted an extensive investigation. Credit is also warranted for your corrective actions which were considered prompt and comprehensive.

Those corrective actions included: (1) disciplinary action (termination) against responsible contractor individuals; (2) termination of all contracts with the programmers' companies; (3) creation of a project management position in 1997 with the responsibility for software configuration control, software quality assurance, and computer system security; (4) providing additional software controls, as well as implementation of a configuration management procedure; (5) meeting with computer staff to explain the significance of this event and program expectations; and (6) conduct of an independent review of the corrective actions by an outside consultant.

l Therefore, in accordance with the policy, to emphasize the importance of prompt identification and correction of problems at the facility, I have been authorized, after consultation with the Director, Office of Enforcement, not to issue a civil penalty in this case. Furthermore, the NRC commends the inquisitiveness of your staff who initially identified the discrepancy, as well as the extensiveness of your investigation that led to this condition being identified. The NRC acknowledges that corruption in the computer code was not easy to identify once it occurred and that there were no prior opportunities for your staff to have identified the concern. Consequently, the NRC has also decided, pursuant to Section Vll.B.6 of the enforcement policy, to exercise discretion and not issue a Notice of Violation for this matter.

However, you should remind your staff of the significance of this vioistion, and also inform them that engaging in such wrongdoing may subject individuals to civil and/or criminal enforcement action.

No response to this letter is required.

In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice," a copy of this letter, and any response, if you chose to provide one, will be placed in the NRC Public Document Room 1 (PDR).

Sincerely, l

H rt J. Miller Regional Administrator

-o e Niagara Mohawk Power Corporation 3 Docket Nos. 5D-220; 50-410 License Nos. DPR-63; NPF-69 cc:

B. Ralph Sylvia, Executive Vice President R. Abbott, Vice President & General Manager - Nuclear C. Terry, Vice President- Safety Assessment and Support J. Conway, Vice President - Nuclear Engineering K. Dahlberg, Vice President - Nuclear Operations D. Wolnisk, Manager, Licensing G. Wilson, Senior Attorney l M. Wetterhahn, Winston and Strawn J. Rettberg, New York State Electric and Gas Corporation P. Eddy, Electric Division, Department of Public Service, State of New York C. Donaldson, Esquire, Assistant Attorney General, New York Department of Law J. Vinquist, MATS, Inc.

F. Valentino, President, New York State Energy Research and Development Authority J. Spath, Program Director, New York State Energy Research and Development Authority l

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l TOTAL P.04