ML20217H076
| ML20217H076 | |
| Person / Time | |
|---|---|
| Site: | Nine Mile Point  |
| Issue date: | 04/28/1998 |
| From: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| To: | AFFILIATION NOT ASSIGNED |
| Shared Package | |
| ML20217H059 | List: |
| References | |
| NUDOCS 9804290269 | |
| Download: ML20217H076 (8) | |
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l ENCLOSURE UNITED STATES NUCLEAR REGULATORY COMMISSION in the Matter of IA 98-002 MR. THOMAS C. JOHNSON ORDER PROHIBITING INVOLVEMENT IN NRC-LICENSED ACTIVITIES (EFFECTIVE IMMEDIATELY) l Mr. Thomas C. Johnson (Mr. Johnson) was formerly employed as a contractor employee at the Niagara Mohawk Power Corporation (NMPC), Nine Mile Point nuclear facility as a computer programmer. NMPC holds Facility License Nos. DPR-63 and NPF-69 issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 50. These licenses authorize NMPC to operate the Nine Mile Point facilities, Units 1 and 2, in accordance with the conditions specified therein.
Il in May 1996, NMPC initiated an investigation into whether Mr. Johnson and others were involved in the alteration of a computer code used to select individuals for random drug and alcohol testing. Based on the evidence developed during the NMPC investigation, as well as a subsequent review by the NRC Office of Investigations (01), Ol concluded that Mr. Johnson and j
another contractor computer programmer intentionally altered the fitness-for-duty (FFD)
I computer program to ensure that certain individuals (including themselves) would be excluded from random FFD screening. Specifically, a patch had been inserted into the computer program 9804290269 980428 PDR ADOCK 05000220 P
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i to ensure certain individuals would not be selected. Moreover, the two individuals planned and executed a scheme (and a number of precautions) to elude detection and prevent tracing.
These actions caused NMPC to violate 10 CFR 26.24, which requires that individuals be tested in a statistically random and unpredictable manner. As a result of this violation, Mr. Johnson, the other contractor, and others, were prevented from being selected for random FFD testing.
Although Mr. Johnson, in an interview with NMPC investigators on May 15,1996, denied
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knowledge of this matter, during a subsequent interview by NMPC investigators on May 22, 1996, Mr. Johnson admitted that he was involved in a joint effort with another individual in altering the computer program for FFD testing selection. Mr. Johnson was offered an opportunity for an enforcement conference with the NRC, but declined.
lll Based on the above, the NRC has concluded that Mr. Johnson engaged in deliberate misconduct. Mr. Johnson's actions constitute a violation of 10 CFR 50.5(a)(1), which prohibits i
an individual from engaging in deliberate misconduct that causes or, but for detection, would have caused, a licensee to be in violation of any rule, regulation, or order, or any term, condition, or limitation of any license, issued by the Commission. In this case, Mr. Johnson caused the l
Licensee to be in violation of 10 CFR 26.24. Specifically, 10 CFR Part 26.24, requires, in part, that as a means to deter and detect substance abuse, the licensee shall implement a testing program that includes unannounced drug and alcohol testing that is to be imposed in a statistically random and unpredictable l
Enclosure 3
manner so that all persons in the population subject to the testing shall have an equal probability of being selected and tested.
Contrary to the above, at some time prior to May 1996, Mr. Johnson and another 2
contractor computer programmer altered the FFD computer program used to ensure that l
individuals were tested for drugs and alcohol in a statistically random and unpredictable manner, resulting in certain individuals being excluded from random FFD screening. As a result, for a indeterminate period prior to May 1996, individuals were selected for testing in a manner that was not statistically random and unpredictable.
The NRC must be able to rely on the Licensee, its contractors, and the Licensee and contractor employees to comply with NRC requirements. Mr. Johnson's action in altering the FFD program, and his collusion with another individual to hide that alternation, constitute deliberate violations of Commission regulations, and by doing so, raises serious doubt as to whether he can be relied upon to comply with NRC requirements and to provide complete and accurate information to NRC Licensees and their contractors in the future, and raises doubt about his trustworthiness and reliability.
Consequently, I lack the requisite reasonable assurance that licensed actiuties can be conducted in compliance with the Commission's requirements and that the health and safety of the public would be protected if Mr. Johnson were permitted at this time to be involved in NRC-l licensed activities. Therefore, the public health, safety and interest require that Mr. Johnson be prohibited from any involvement in NRC-licensed activities for a period of five years from the i
date of this Order. Additionally, for a period of three years after the five year period of prohibition i
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has expired, Mr. Johnson is required to notify the NRC of his acceptance of each employment offer involving NRC-licensed activities. Furthermore, pursuant to 10 CFR 2.202, I find that the significance of Mr. Johnson's conduct described above is such that the public health, safety and interest require that this Order be immediately effective.
IV Accordingly, pursuant to sections 103,161b,'1611, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202,10 CFR 50.5, and 10 CFR 150.20, IT IS HEREBY ORDERED, EFFECTIVE IMMEDIATELY, THAT:
A.
Thomas C. Johnson is prohibited from engaging in activities licensed by the NRC for five years from the date of this Order. NRC-licensed activities are those activities that are conducted pursuant to a specific or general license issued by the NRC. including, but not
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limited to, those activities of Agreement State licensees conducted pursuant to the authority granted by 10 CFR 150.20.
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B.
. For a period of three years after the five year period of prohibition has expired, Mr. Johnson shall, within 20 days of his acceptance of each employment offer involving NRC-licensed activities or his becoming involved in NRC-licensed activities, as defined in Paragraph IV.A above, provide notice to the Director, Office of Enforcement, U. S.
Nuclear Regulatory Commission, Washington, D.C. 20555, of the name, address, and telephone number of the employer or the entity where he is, or will be, involved in the NRC-licensed activities. In the first notification, Mr. Johnson shall include a statement of
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his commitment to compliance with regulatory requirements and the basis why the Commission should have confidence that he will comply with applicable NRC requirements.
The Director, OE, may, in writing, relax or rescind any of the above conditions upon demonstration by Mr. Johnson of good cause.
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In accordance with 10 CFR 2.202, Mr. Johnson must, and any other person adversely affected by this Order may, submit an answer to this Order, and may request a hearing on this Order, within 20 days of the data of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission Washington, D.C. 20555, and include a statement of good cause for the extension. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall, in writing and under oath or affirmation, specifically admit or deny each allegation or charge made in this Order and shall set forth the matters of fact and law on which Mr. Johnson or other person adversely affected relies and the reasons as to why the Order should not have been issued.
Any answer or request for a hearing shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, Attn: Chief, Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Hearings and Enforcement at the same address, to the Regional Administrator, NRC Region I, U.S.
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Nuclear Regulatory,475 Allendale Road, King of Prussia, Pennsylvania 19406, and to -
Mr. Johnson if the answer or hearing request is by a person other than Mr. Johnson. If a person other than Mr. Johnson requests a heraring, that person shall set forth with particularity the manner in which that person's interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.714(d).
l if a hearing is requested by Mr. Johnson or a person whose interest is adversely affected, the l
Commission willissue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Johnson may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error, in the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 20 days from the date of this Order without further order or proceedings. If an extension of time for requesting a
- hearing has been approved, the provisions specified in Section IV shall be final when the
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l extension expires if a hearing request has not been received. AN ANSWER OR A REQUEST FOR HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.
FOR THE NUCLEAR REGULATORY COMMISSION y k'. l.
James Lieberman, Director Office of enforcement Dated at Rockville, Maryland thigh %ay of April 1998 i
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a DISTRIBUTION:
PUBLIC SECY CA LCallan, EDO AThadani, DEDE JLieberman, OE HMiller, RI FDavis, OGC SCollins, NRR RZimmerman, NRR Enforcement Coordinators Rl, Ril, Rlli, RIV BBeecher, GPA/PA GCaputo, Ol DBangart, OSP i
HBell, OlG TMartin, AEOD OE:Chron OE:EA DCS NUDOCS DScrencl, PAO-Ri NSheehan, PAO-RI Nuclear Safety Information Center (NSIC)
NRC Resident inspector-Nine Mile l
To receive a copy of this document, indicate in the box: "C" = Copy without i
attachment / enclosure "E" = Copy with attachment / enclosure "N" = No copy
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NAME TReihM:
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NUCLEAR REGUI.ATORY COMMISSION 5
REGloN I 475 ALLENDALE ROAD KING oF PRUsslA, PENNSYLVANIA 19405-1416 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
SUBJECT:
EXERCISE OF DISCRETION (NRC Office of investigation Report No. 1 96-016)
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 et 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 01 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 predecialonal enforcement conference in order to enable the NRC to make an enforcement decision. Therefore, we provided you an opportunity to
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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 consin 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 re9ulatory concern and constitutes a Severity Level ill violation in accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1800.
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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 ls 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 /dont/fication and Compet&e Action in accordance with the civil penalty 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.
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 violation, 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 (PDR).
Sincerely, l'
H rt J. Miller Regional Administrator I
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Niagara Mohawk Power Corporation 3
Docket Nos. 50-220;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. Wolniek, Manager, Licensing G. Wilson, Senior Attorney 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 i
TOTAL P.04