RBG-44925, Responds to NRC Re Violations Noted in Investigation Rept 4-97-059.Corrective Actions: Mgt Expectations for Communicating with NRC Issued to Site Personnel on 980212,by RBS Vice President,Operations
| ML20204F803 | |
| Person / Time | |
|---|---|
| Site: | River Bend  |
| Issue date: | 03/15/1999 |
| From: | Edington R ENTERGY OPERATIONS, INC. |
| To: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| References | |
| EA-98-132, RBF1-99-0061, RBF1-99-61, RBG-44925, NUDOCS 9903250373 | |
| Download: ML20204F803 (22) | |
Text
1
- p ' ,j e g Entergy operations, Inc.
River Bend Stabon 5485 U S. Highway 61
" P O. Box 220 h St Francevule. LA 70775 Tel 225 3814374 Fax 225 3814872 March 15,'1999 Randai Eding n James Lieberman, Director e, Office of Enforcement
' b U. S. Nuclear. Regulatory Commission One White Flint North - 4
. I1555 Rockville Pike l Rockville, MD 20852-2738 ,
l
Subject:
Reply to Notice of Violation in EA 98-132 j River Bend Station-Unit 1 l License No. NPF-47 l Docket No. 50-458 l File Nos.: G9.5, G15.4.1 l RBG-44925 RBF1-99-0061
Dear Mr. Lieberman,
Pursuant to the provisions of 10 CFR 2.201, Entergy Operations, Inc. (EOI) herein responds to I the Notice of Violation (NOV) described in NRC Investigation Report 4-97-059 (EA 98-132) ]
dated January 5,1999. While we disagree with, and seek reconsideration and withdrawal of, the :
NOV and the civil penalty, EOI has submitted payment of the associated $55,000 civil penalty in separate correspondence to the Director, Office of Enforcement, as directed in the enforcement action (reference EOI letter RBF1-99-0060/RBG-44924, March 5,1999). We have reviewed '
EA 98-132 and the Notice of Violation of 10 CFR 50.9, " Inaccurate and Incomplete Information," and the associated IA 98-004. Our response to the Notice of Violation, which is submitted under affirmation, is provided in Enclosure 2.
We are requesting reconsideration and withdrawal of these actions. We believe that the application of the deliberate misconduct rule is inconsistent with the Statements of Consideration ,
for the initial mie and with the NRC's Enforcement Policy in that application of the misconduct rule requires a more significant issue than occurred in this case. In addition, EOI was given no opportunity to correct an oral miscommunication before the issue was given to the Office of Investigations, which appears contrary to the NRC's Enforcement Policy. We also would disagree with the NRC on the issue of the materiality and relevance of the infonnation pmvided to the NRC. We are disappointed with the NRC's decision on the matter, particularly with the individual enforcement action (IA 98-004) citing the Superintendent, Radiation Protection. Our basis for reconsideration and withdrawal of these actions is provided in Enclosure 3. A summary of the facts is provided in Enclosure 4. ,
,_m I 9903250373 990315 -
PDR ADOCK 05000458 G PDR_
Reply to Notice of Violation in EA 98-132 RBG-44925 '
RB'F199-0061 March 15,1999 Page 2 of 3 The commitment contained in this document is identified on the Commitment Identification Form. If you have any questions regarding the information discussed herein, please contact me or Mr. Rick King, Director, Nuclear Safety and Regulatory AfTairs, at 225-336-6225.
Sinc ly, _
Gu Ramdall K. Edington Vice President, Operations cc: Ellis Merschoff Regional Administrator U. S. Nuclear Regulatory Commission Region IV 611 Ryan Plaza Drive, Suite 400 Arlington, Texas 76011 Robert Fretz Project Manager U. S. Nuclear Regulatory Commission M/S 13-H-3 Washington,DC 20555 Document Control Desk U. S. Nuclear Regulatory Commission
- M/S OPI-37 Washington, DC 20555 NRC Sr. Resident Inspector P.O. ' Box 1050 St. Francisville, LA 70775
I: ,
Commitment Identification Form Reply to Notice of Violation in EA 98-132 ,
RBF1-99-0061 l RBG-44925 i March 15,1999 !
Page 3 of 3 I
(,
COMMITMENT ONE-TIME CONTINUING ACTION
- COMPLIANCE * ,
The RP department has reviewed the Radiation Work Permit X !
assessment results and developed an action plan to complete implementation of the recommendations.
- Check one only l
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l Enclosure 1 l BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION l
l LICENSE NO. NPF-47 l
l DOCKET NO. 50-458 IN THE MATTER OF ENTERGY GULF STATES, INC. j
. ENTERGY OPERATIONS, INC.
i l AFFIRMATION i I, Randall K. Edington, state that I am the Vice President, Operations, at the River Bend Station; that I am authorized by Entergy Operations, Inc., to sign and file with the Nuclear Regulatory Commission, this reply to a Notice of Violation EA 98-132; and that matters set forth herein are
^ rue acci conect to the best of my knowledge, information, and belief.
Ab
/ Randall K. Elingtp STATE OF LOUISIANA PARISII OF WEST FELICIANA SUBSCRIBED AND SWORN TO before me, a Notary Public, commission in the Parish above
- named, this /SA day of ha,1999.
l
, (SEAL) hbaulAsS Claudia F. Hurst W_
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~-
Notary Public L_
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Erciosure 2 Reply to a Notice of Violation EA 98-132 Page 1 of 5 Notice of Violation 10 CFR 50.9 requires that information provided to the Commission by a licensee shall be complete and accurate in all material respects Contrary to the above, on October 15, 1997, the Superintendent of Radiation Control, a licensee official, provided information to an NRC senior resident inspector that was not complete and accurate in all material respects. Specifically, in discussing a potential violation of RWP 97-0002 that was observed on October 10,1997, the superintendent provided the NRC inspector with a revised version of RWP 97-0002, which no longer reflected the protective clothing requirements that had been in place, and did not inform the NRC senior resident inspector that the copy of the RWP he presented had been revised and was not in effect on October 10,1997. Based on this inaccurate and incomplete information, the Superintendent asserted that the NRC's preliminary regulatory position regarding a violation was erroneous. (01013)
! This is a Severity Level III violation (Supplement VII).
Civil Penalty - $55,000.
REPLY (1) Admission or Denial of the Alleged Violation Though EOl disagrees with the NRC's conclusion on deliberate misconduct, based on l our interpretation of the facts, we do not choose to deny the 10 CFR 50.9 Notice of Violation.' However, reconsideration of the violation and the individual action on which EA 98-132 was based is requested. Our supporting basis is provided in Enclosure 3.
(2) The Reasons for the Violation The facts uncovered by our investigation of the matter were presented in John McGaha's letter to Ellis Merschoff dated June 25,1998, and further discussed during the June 26, ,
1998, predecisional enforcement conference. We have also provided a summaiy of facts in Enclosure 4.
The NRC's violation is based on the presentation of a revised Radiation Work Permit (RWP) 97-0002 at the meeting on October 15,1997, and that the Superintendent asserted that the RWP had not been violated. As stated in EOl's letter, we believe that the Superintendent, who was relatively new in his position at the time, simply did not j remember the revision to RWP 97-0002, or associate it with any previous discussions on j I
Ercirstre 2 '
Reply to a Notice of Violation EA 98-132 Page 2 of 5 ,
the RWP infraction. We concluded that he did not intend to mislead the NRC. However, as discussed in the June 1998 predecisional enforcement conference, the Superintendent's actions did result in a miscommunication. Also, his actions did not meet EOl 4 Management's expectations for the level of preparation necessary to adequately discuss an issue with the NRC. These points are discussed further below.
A cause determination identified several reasons that the miscommunication occurred:
(1) communications, (2) personnel performance, and (3) work control. Each is briefly summarized below.
Communications:
On October 10 or 11,1997, the Superintendent, Radiation Protection, interfaced with a Regional inspector who observed a Radiation Protection Technician (RPT) reaching across a rope barrier and performing a contamination survey without meeting the anti-contamination clothing requirements of the associated Radiation Work Permit (RWP) for the area. The verbal communication did not clearly establish which RWP was used to cover the work being performed by the RPT. Additionally, the event, which was a minor infraction, was apparently interpreted by the Superintendent as a " coaching" opportunity.
This interpretation may have created an impression that he carried to the October 15, 1997, meeting with the Senior Resident Inspector (SRI).
During the October 15,1997, meeting between the Superintendent, RBS Licensing, and the SRI, the Superintendent may have incorrectly represented the anti-contamination clothing requirements of RWP 97-0002, Revision 2, to be the anti-contamination clothing requirements applicable at the time the potential RWP violation was observed on October 10, 1997. The incorrect representation of the anti-contamination clothing requirements was most probably caused by confusion over exactly which RWP (97-0002 or 97-9002) was being considered for a potential violation, as the Regional inspector was unavailable for the meeting. (Reference EOI's response to NRC Inspection Report 50- l 458/97-020 dated February 23,1998, for details on the violation of the RWP). I PersonnelPerformance:
Policy not followed: Site Policy No. R-PL-001, "NRC Interface," was not followed by the Superintendent in that the information pmvided to the NRC SRI was confusing.
Some information may have been incorrectly represented because of the Superintendent's lack of preparation. The Superintendent also failed to check the RWP information, taken to the meeting with the SRI, to ensure that it reflected the official record for the purpose of discussing the potential violation (i.e., that the RWPs were the same revision as on the day the observed incident occurred).
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s Ezclisxre 2 Reply to a Notice of Violation EA 98-132 Page 3 of 5 Work Schedule: The miscommunications with the NRC occurred near the end of Refueling Outage (RF)-7. The Superintendent was involved in a number of activities in preparation for completing the outage. These activities competed for his attention, along with the planned meeting with the SRI. Such a s::hedule did not allow him to place as high a priority on his preparations for the meeting, and this may have contributed to the failure to follow the policy regarding NRC interface.
Work Control:
Work Organization / Plannir,g: As mentioned, the Superintendent was not adequately prepared for the October 15,1997, meeting with the SRI. The copies of several RWPs taken by the Superintendent to the meeting were computer copies and not copies of the original RWPs containing the approval signatures and dates. The Superintendent did not take adequate time to review the RWPs to assure that the information was consistent with his understanding of the issues in question (i.e., the potential violation). The Superintendent, who was relatively new in his position, was not familiar enough with the specific RWPs to recognize opportunities to clarify the issues of the potential violation and communicate the clarifying information to the SRI. Also, the Superintendent did not know which specific RWP the Regional inspector considered applicable to the observed incident. (The Superintendent had asked his staff to pmvide a copy of all of the RWPs for entry by the observed radiation worker over a range of days when the NRC Regional inspector had been on site.) The Superintendent could have taken other staff support, responsible for the RWP process, to assist in communications with the NRC. Outage activity pressure and previous and frequent successful interactions with the SRI may have contributed to informal treatment on the part of the Superintendent. These conditions contributed to the lack of preparation prior to the meeting with the SRI.
Contributing Causes:
Communications: The NRC Regional inspector, who originally observed a poor work practice, had left the site by October 15,1997, when the Superintendent became aware that the inspector was considering the issue for possible enforcement action. This exacerbated the communications problems because the information left by the Inspector with the SRI was not complete in that it did not contain a copy of the RWP that the Regional inspector believed was applicable to the job. Therefore, during the October 15, l 1997, meeting, no one in attendance was sure of which RWP was considered, by the j Regional inspector, to be applicable to the incident. This contributed to further confusion i over the matter, and resulted in the SRI requesting the unofficial information that the Superintendent had taken to the meeting. The meeting was prior to the SRI inspection exit meeting.
E::cirsure 2 l Reply to a Notice of Violation EA 98-132 Page 4 of 5 The Superintendent's informal treatment of the interface during the meeting with the SRI may have contributed to the verbal miscommunication and the providing of the informal, unofficial documents (l.c., computer printed RWPs with no approval signatures) when asked for them by the SRI at the end of the meeting. However, both the Superintendent and the RBS Licensing Engineer, who accompanied him to the meeting, later indicated that they believed they were in the early stages of fact fiading and expected to communicate further on the matter to a point of resolution.
RWP Process inadequacies: If the Controlled Access Area (CAA) entry process had alerted individuals when a RWP was revised, the Superintendent would have been alerted that RWP 97-0002 had been revised when he entered the CAA on October 13, 1997.
The RWP process allowed workers to remain on general RWPs while performing work on specific jobs. This contributed to the confusion over which RWP was applicable.
The Regional inspector's observation dealt with an individual worker who was logged into the controlled area on a RWP for the drywell area, but who was working in the fuel handling area at the time of the observed infraction. This created confusion during the discussion of October 15, 1997, because neither the SRI nor the Superintendent was actually sure which RWP the Regional inspector had used to conclude that there was a potential violation.
The clothing requirements specified by the RWPs were also a contributing factor because of the flexibility allowed for fully-qualified RP technicians versus contractor senior RP technicians. This is not clear, but it appean to have caused confusion among those j involved in answering the NRC's questions during the October 15, 1997, meeting i regarding whether there was a violation of an RWP.
(3) The Corrective Steps That Have Been Taken and the Results Achieved l
The NRC notes in its letter that EOl's corrective actions were appropriate to address the concerns of the miscommunication. Credit for corrective actions was given in considering the amount of the civil penalty. These corrective actions are discussed below.
Communicationsissues:
. Management's expectations for communicating with the NRC were issued to site personnel on Febmary 12,1998, by the RBS Vice President, Operations.
- The Superintendent briefed supervisors and above on the incident in February 1998.
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Excl:sure 2 Reply to a Notice of Violation EA 98-132
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Page 5 of 5 l
l e Management's expectations for communicating with the NRC were further '
emphasized in site Leadership Workshop Training (February and March 1998).
. " Regulatory Sensitivity" training was provided to Lead Engineers and the RBS Management team (i.e., supervisors and above) during May 1998.
1 Personnel Performance Problem ami Work ControlIssues:
. The Superintendent was counseled concerning the personnel performance problems and work control issue. Additionally, the Superintendent was disciplined on the issue ;
ofincorrectly representing information to the NRC (i.e., communicating an opinion !
or preliminary, informal information to the NRC without indicating that the information had not been verified).
- The Plant Access Training Program was reviewed and confirmed to provide guidance on the requirement to communicate complete and accurate information to the NRC. 1
- The General Manager, Plant Operations (GMPO), initiated additional oversight of the Superintendent to monitor his performance over an appropriate period of time, as determined by the GMPO.
- An assessment of the RWP piucess was conducted and long-term improvements were identified to address weaknesses identified as part of the assessment.
i e RBS Licensing provided a briefing document to the other EOI facilities on " lessons !
learned" from the results of the incident.
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I (4) The Corrective Steps That Will be Taken to Avoid Further Violations The RP department has reviewed the assessment results and developed an action plan to complete implementation of the recommendations.
(,5) The Date When Full Compliance Will be Achieved We are currently in compliance with the regulations in 10 CFR 50.9.
Eccl:sure 3 Factors That Support Reconsideration of the Violations EA 98-132 Page 1 of 9 4
Introduction The deliberate misconduct rule must be very carefully applied. The industry commented ,
on the original proposed rule because of the disincentive for employees that the rule could create. The NRC, in response to industry comments, revised the final mie to raise the threshold to only those significant and egregious actions taken with a knowing, willful, and deliberate intent to mislead the NRC. We do not believe that the action involved in this matter rises to the threshold for application. ,
I The NRC's Enforcement Manual states that absent at least careless disregard, an incomplete or inaccurate unswom oral statement normally will not be subject to enforcement action unless it involved significant information provided by a licensee official. The individual's actions in this case were simply negligent, and the information provided was not significant. Additionally, the NRC gave the individual no chance to correct the information provided, as would have been expected, based on the nature of the discussion that occurred.
As to the materiality of the information provided to the NRC, the discussion took place prior to achieving a common understanding of the facts surrounding a minor infraction of a Radiation Work Permit. The discussion was essentially irrelevant to the issue because the Regional inspector already had a copy of the official information upon which was later cited a Severity Level IV Notice of Violation. Therefore, we believe that the i information was neither material nor relevant to the final NRC decision in the matter.
Discussion EOI recognizes its absolute obligation to be candid and tmthful with the NRC at all times, assuring that information provided ta the NRC is complete and accurate in all material respects. This expectation is made clear to EOI employees. In addition, it is important to have a working envimnment with the NRC that fosters the free and voluntary exchange of information. We want our employees to be open'with NRC i inspectors in pmviding information the NRC needs to do its job. Such an environment promotes a more complete understanding of issues between EOI and the NRC and ultimately enhances public heahh and safety.
We are concemed that the enforcement action against the Superintendent, Radiation Protection, and this related enforcement action, could have a detrimental effect on the free and voluntary flow ofinformation from RBS employees to the NRC. In our view, these enforcement actions have failed to strike a proper balance between the events in question and the practical and policy implications on the EOI workforce. Knowing the safety ethic and employment history of the Superintendent, and based upon our inquiry
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- Encitsure 3 Factors That Support Reconsideration of the Violations EA 98-132 Page 2 of 9 into the facts surmunding the matter, EOl is of the view that he did not adequately prepare for the meeting with the NRC during which the information in question was exchanged. However, we do not believe that he ever intended to mislead the NRC, and do not believe the record suppons that conclusion. As discussed during the June 26, 1998, predecisional enforcement conference and in EOrs letter of July 8,1998, we also determined that the practices for using RWPs at RBS contributed to the misunderstanding.
Beyond this, the Superintendent would have known that any information he provided to the SRI would be given to the Regional inspector. He could not have intended to mislead the NRC, knowing that the infonnation would be cbecked by the Regional inspector.
Finally, there was simply no benefit to be gained by the Superintendent in misleading the NRC. We fail to see how the NRC could conclude that the Superintendent would place his career on the line to avoid a minor violation. Based on the character of the individual and his past performance, it is difficult to understand how the NRC could constme the facts in such a way to prove deliberate misconduct. In fact, the Superintendent and the Licensing representative expected further communications to check and confirm the initial discussion.
The NRC's conclusion was not the outcome we had expected, based on our internal investigation and evaluation of the facts in this ma tter. We realize that the NRC requires a high standard of compliance and accountability fmm licensees, and that information provided to the NRC, both oral and written, must be complete and accurate in all material aspects. However, we disagree with the NRC's appl.* cation of 10 CFR 50.5 in this case as a matter of policy. The discussion that follows provides our view of the policy implications.
Originalintent ofthe " Deliberate Misconduct" Rule in the Supplementary Information issued with the Statements of Consideration for the Final Rule on deliberate misconduct (56 Fed. Reg. 40664, Aug.15,1991), the NRC addressed a number of public comments on the proposed mle. The NRC discussed deliberate misconduct by unlicensed persons, as follows:
This final mie addresses only deliberate misconduct that causes or, but for detection, would cause, a licensee to be in violation of a Commission requirement, and deliberate submission of materially incomplete or inaccurate information. The Commission is focusing on those acts that are the most seriom, and in which there is a greater and more obvious need for regulatory action in order to protect the health and safety of the public.
This will reduce the number ofinstances in which these sanctions should
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Encl:sure 3 Factors That Support Reconsideration of the Violations EA 98-132 Page 3 of 9 I
be applied and will eliminate, for purposes of the rule, cases in which the conduct, e.g., negligence or careless disregard, is difficult to characterize and thus more often a matter of dispute.
Conceming the second change from the proposed rule, misconduct that is within NRC jurisdiction but does not cause a violation of requirements, in view of the comments [on the proposed rule) expressing concern in this
. area and the fact that the NRC has in the past been presented with infrequent instances of such activity, that portion of the proposed rule has i been deleted. Instead, the final rule contains a prohibition on deliberate
{
misconduct by licensees, licensee employees, and others who knowingly '
l provide goods or services that relate to a licensee's activities subject to i
NRC regulation, when that misconduct would have caused a violation, except for detection. This more limited provision reaches those individuals who deliberately set in motion events that would cause a violation if not otherwise checked. An individual acting in this manner has the requisite intent to act in a wrongful manner such that application of enforcement sanctions may be warranted. In addition, the final rule '
l prohibits deliberate submission ofinformation that the person knows to be incomplete or inaccurate in some respect matetial to the NRC.
Examples of application of the "but for detection" provision include: A disgruntled operator deliberately opens a valve that causes a release, but the supervisor detects it before a violation actually occurs; a radiogral her, in a hurry and believing that no one is in the vicinity, sets up for a shot without surveying or posting the radiation area, but just before exposing the source a fellow employee arrives and corrects the situation; a worker falsifies an inspection record concerning manufacture of a component, but the falsification is caught by a QC inspector.
The focus on deliberate misconduct in the final rule should not be construed to condone other unacceptable conduct by a person that causes a violation. In cases involving non-deliberate conduct, action against the individual may be more appropriately handled within the licensce's remedial program, in those cases, the Commission will continue to take ;
action if appropriate against the licensee. Cases addressed in this l rulemaking are significant matters in which the NRC believes that i deliberate misconduct has occurred. . .
It would be an erroneous reading of the final rule on deliberate misconduct to conclude that conscientious people may be subject to
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Eiclosrre 3 l Factors That Support Reconsideration of the Violations
! EA 98-132 Page 4 of 9 personal liability for mistake 3. The Commission realizes that people may l make mistakes while acting in good faith. Enforcement actions directly l
- against individuals are not to be used for activities caused by merely
- negligent corduct. These persons should have no fear of individual liability under this regulation, as the rule requires that there be deliberate misconduct before the rule's sanctions may be imposed. The Commission recognizes . . . that enforcement actions involving individuals are l significant actions that need to be closely controlled and judiciously applied.
In further responding to comments on the proposed rule, the NRC stated the following regarding the effect of the rule on employment relationships:
Comment: The rule on willful misconduct will be a disincentive to employment in nuclear industries by creating additional stress on workers and undermining morale.
Response: The Commission is concerned with the potential for the perception that the comments raise. However, workers are presumed to desire to do their job properly. While enforcement action is, and will continue to be, taken against the licensee for violations of regulatory requirements, the rule does not apply in cases of negligence, honest mistake, or ignorance. As discussed above, the Commission expects to !
apply individual sanctions only in a very few significant or egregious cases. As the rule was originally proposed, it would be utilized only in those cases involving willfulness, defined by Commission policy as including deliberate actions and those violations resulting from careless disregard. In light of the comments received and further consideration of the desirable scope of the rule, the Commission has modified the rule to apply only to any person who engages in deliberate misconduct, or deliberately submits incomplete or inaccurate information, as provided in the rule. Under this narrower rule, the range of actions that would subject an individual to action by the Commission does not differ significantly from the range of actions that might subject the individual to criminal prosecution. Thus, there should be no disincentive to properly conscientious woiters. If it does deter those who would intentionally cause a licensee to be in violation of regulatory requirements, then the rule
- achieves its purpose.
l Canment: The proposed ruk on willful misconduct would interfere with employer / employee relationship by underminirig the authority of
Erciosure 3 Factors That Support Reconsideration of the Violations EA 98-132 Page 5 of 9 management and allowing the NRC to dictate employment relations. ;
Discipline should be left to management.. 2 Response: The current Enforcement Policy . . . points'out the close control over and limitations on when enforcement action will be taken against individuals. The Commission has no desire to infringe on employer / employee relationships and believes that the actions that it might take under the mle do not, in fact, interfere with those relationships
. . For the vast majority of matters, discipline is left to management. The
.NRC will take action in only those relatively rare instances where the deliberate misconduct, sr deliberate submission of incomplete or inaccurate information, raises concerns about the public health and safety.
We believe that the circumstances surrounding this matter do not reach the level of significance that the NRC stated would be required prior to imposing sanctions under the mle. Discussions related to NRC Inspector concerns occur routinely. In this case, the Superintendent believed that he had already satisfied the Regional inspector's concerns regarding the underlying issue (i.e., use of cotton glove liners in lieu of mbber gloves in an area where the technician was familiar with the contamination levels). He had ;
directed that RWPs be revised, as the Regional inspecter and he had discussed, to provide additional flexibility to the RP technicians. He was not previously aware that the issue was being classified as a violation. When he was informed on October 15,1997, that a violation might be considered, he believed (based on past interactions with NRC Inspectors) that it was appropriate to discuss the issue with the NRC to ensure that there was a common understanding of the facts.
He has stated that in the discussions with the Regional inspector, the specifics of the RWP were not discussed. His only purpose in participating in further discussions with the NRC Senior Resident inspector was to ensure that he understood the basis for the NRC's potential violation. His failure to adequately prepare for the discussion, while negligent in his management duties, should not be constmed to demonstrate an intent to mislead the NRC. Rather, the informal nature of his actions in preparing poorly for the meeting tends to imply no intent to mislead. Beyond that, where the NRC considers the questions ofintent to mislead and deliberate misconduct to be close (which would gpear
. to be the case here), then the intent and spirit of the mle would have that doubt resolved l in favor of the individual. Particularly given the obvious insignificance of the underlying issue in this case, we believe a reasonable person would not consider this conduct on the Superintendent's part to be actionable under the rule on deliberate misconduct. ("The NRC will take action in only those relatively rare instances where the deliberate misconduct, or deliberate submission of incomplete or inaccurate information, raises concerns about public health and safety." 56 Fed. Reg. 40664). !
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Excl:sure 3 Factors That Support Re onsideration of the Violations EA 98-132 Page 6 of 9 i
l NRC's Enforcement Policy Considerations In the NRC's Enforcement Policy (NAEG-1600), actions against individuals are discussed.Section VIII of the policy states that enforcement actions involving individuals are "significant personnel actions, which will be closely controlled and judiciously applied.- An enforcement action involving an individual will nonnally be ]
taken only when the NRC is satisfied that the individual fully understood, or should have understood, his or her responsibility; knew, or should have known, the required actions; and knowingly, or with careless disregard (l.c., with more than mere negligence) failed to take required actions which have actual or potential safety significance. Most transgressions of individuals at the level of severity Level III or IV vici.aions will be handled by citing only taa facility licensee."
The quoted guidance in the policy is inconsistent with the changes to the deliberate ;
misconduct mle. In promulgating the final rule (10 CFR 50.5), the NRC changed the threshold to exclude those actions that rise to the level of" careless disregard" and limited ;
the mie to those actions that 'are " willful." Because we believe that the Superintendent's actions were simply negligent, they do not rise to the level of significance for application of the rule. Additionally, because EOI is being cited, it is inconsistent to also cite the J individualin this matter.
In the NRC's letter, it notes that the significance of the underlying issue (i.e., use of cotton glove liners in lieu of rubber gloves in an area where the technician was familiar with the contamination levels) was relatively low. Even considering ;he individual's position in the company, his lack of preparation for the meeting with the NRC Senior Resident inspector, his assumptions as.to _ de content of the information he briefly ,
reviewed just prior to the meeting, and his belief that he had resolved the issue with the Regional inspector prior to the Inspector's return to Region 8V the previous day, his actions were actions of negligence. These actions and the resulting consequences are issues best handled by EOl management and do not warrant NRC enforcement action.
His misjudgment in proceeding to discuss the issue with the NRC when he did not fully understand the content of the unofficial information informally requested by the NRC Senior Resident inspector clearly does not meet EOI management's expectations for his performance. Yet, contrary to the NRC's conclusions, we see nothing in his actions that indicates the requisite knowledge on intent to act in a wrongful mannn. We believe that the NRC has misconstrued the facts and that its inference of willfumess is unfounded.
We believe'that the facts equally support a finding that the individual was simply negligent in his communications with the NRC. Accordingly, we believe that the presumption of willfulness is inappropriate.
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' Factors That Support Reconsideration of the Violations EA 98-132 Page 7 of 9 As to the individual action, we believe that the NRC has gone beyond what it originally l imposed on application of the rule. The individual's actions were neither significant nor egregious, nor did he have any incentive to put his livelihood on the line through an attempt to mislead the NRC, there being no pressure by his management to avoid violations. Further, his actions clearly do not rise to the level that might subject him to
" criminal prosecution." We also believe that the NRC acted prematurely by involving the Office of Investigations before offering EOI or the individual an opportunity to review the information the Regional inspector had obtained during his onsite inspector l interface. It was not until the 01 interview, weeks later, that the individual was first shown the information. EOI also had no indication fmm the NRC that there were concerns regarding the initial communication. We believe that the issue could have been resolved very quickly had the exchange ofinformation between RBS and the NRC been
- allowed to proceed as normal communications during the discovery period of the facts. ;
l The normal communication exchanges and checks (e.g., exit meeting dialogue) were not allowed to occur. .
" Materiality"oftheInformation 1
i As to the exchange of information, the NRC's letter states that it did not view the ;
l discussions that took place on October 15, 1997, as " initial discussions" between the L Senior Resident Inspector and the Superintendent because there had been two discussions between the Regional inspector who observed the potential RWP violation and the l Superintendent, and between the Superintendent and his staff. However, our l investigation into the matter indicated that the classification of a violation on the >
l observed infraction was not communicated between the Regional inspector and the l Superintendent. In EOI's letter of June 25, 1998, we presented an Affidavit by the Licensing Engineer that stated the circumstances of the notification to EOl that the issue was being considered a potential violation. His Affidavit supports the Superintendent's assertions that the Regional inspector had not discussed the issue in tenns of a violation.
l Therefore, the Superintendent's first opportunity to discuss potential enforcement actions
, was on October 15,1997.
l In our understanding of the normal exchange ofinformation with the NRC, we would l consider that the ensuing discussion was well within the initial stages of communication l and before the issue became " material." As discussed in the June 1998 predecisional l
enforcement conference, we would consider that discussions occurring before both the NRC and EOI have a common understanding of the facts are not yet " material" to the underlying issue. ' Preliminary or final NRC decisions had not been determined (e.g.,
NRC exit meetmg or Region IV management review). No one in the October 15,1997, meeting had the information that the Regional inspector was relying upon to consider the
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Factors That Support Reconsideration of the Violations EA 98-132 ,
Page 8 of 9 issue a violation. If either the Superintendent or the Licensing Engineer had been presented with a copy of the RWP that the Regional inspector had taken with him when he left the site on October 14,1997, it would have been clear which RWP was at issue, and which revision was appropriate for the time of the infraction. At that point, both EOI and the NRC would have had a common understanding of the facts. As it was, the unofficial RWP copies were provided, as requested on the spot by the NRC SRI, with the intent that a common understanding would eventually be achieved through further i communication. The unofficial infomtation (i.e., the computer printed RWPs and the
, presentation of the content of these) provided to the SRI was not formally submitted to the NRC as written information with cortrols required by our process for verifiying material statement.4. The unoflicial information was requested on the spot with no opportunity for the Superintendent to deliberate or form any intent in supplying the data to the NRC. Once the issue was referred to the Office of Investigations, EOI was not afforded an opportunity to correct the misunderstanding, as the NRC policy would provide.
Section IX of the NRC's Enforcement Manual states that, absent careless disregard, an incomplue or inaccurate unswom oral statement normally will not be subject to enforcement action unless in involves significant information provided by a licensee official. The NRC agrees that the information provided by the Superintendent we.s not significant, and in fact, the NRC did not rely on it in deciding whether to cite a violation l of a failure to follow a RWP. The Regional inspector had already obtained a copy of the I official RWP upon which the Severity Level IV violation was later cited. Therefore, the i unofficial information was effectively irrelevant to the issue.
The policy further discusses e.nforcement action once dommentation (e.g., meeting minutes) of an incorrect oral statement is provi!ed to a licensee. If a licensee fails to correct the information upon being provided the documentation, then the NRC may take enforcement action. EOI was given no opportunity to correct an oral miscommunication before the issue was given to OI for investigation. This appears contrary to the enforcement policy guidance.
Accordingly, the enforcement actions involving the information provided to the NRC are inappropriate and are inconsistent with the NRC's Enforcement Policy.
Conclusions Citing a violation against the Superintendent, and citing a Snrity Lcvel 111 against EOI, for the miscommunication is inconsistent with the NRC's stated purpose for the deliberate misconduct rule. The issue does not rise to the level that the NRC said would be required before application of the rule. The action is contrary to the NRC's
l g E:closcre 3 Factors That Support Reconsideration of the Violations EA 98-132 Page 9 9 enforcement policy for actions against in ividuals. The information provided was not ,
material to the issue. Finally, E01 should have been given an opportunity to clear up the misunderstanding before OI became invo' ved. Based on these considerations, we believe that both actions should be withdrawn.
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Eccl:sure 4 Summary of Facts EA 98-132 Page 1 of 4 The following information was provided to the NRC in EOl's letters of June 25, 1998, and July 1,1998.
On or about 10/8/97, the Regional inspector arrived on site to assist the Senior Resident Inspector (SRI) with inspection activities related to plant startup from refueling outage l RF-7. On 10/10/97, the Regional inspector observed a contractor Radiation Protection l- (RP) technician in the fuel building reach across a contamination boundary and handle l scaffolding without rubber gloves. Apparently, at some later time that day, the Regional inspector concluded that Radiation Work Permit (RWP) 97-0002 was a general RWP for RP technicians working in the fuel building, the area where the infraction was observed.
The Regional inspector apparently believed that the worker was on RWP 97-0002, which, at that time, listed minimum anti-contamination clothing requirements as " booties
, _ and gloves." The contractor RP technician was actually entered on RWP 97-9002. We i noted this discrepancy in our response to violation 50-458/97020-01 dated 2/23/98.
The RWP practice at River Bend Station allows RP technicians to remain signed in on a more restrictive RWP and perform tasks in other areas of the plant with lesser radiological hazards. In this case, the RP technician was working in the fuel building under the requirements of RWP 97-9002 written for the drywell. RW~P 97-9002 gave worker instructions that any exposure received on that RWP in support of a specific job should be transferred to the appropriate RWP number. The specific location in the fuel i building was essentially a "no dose" area at the time of the observation and a lesser !
radiological hazard than the drywell.
RWP 97-9002, as it was in effect at the time of the Regional inspector's observation, stated anti-contamination clothing requirements as "PC [ protective clothing] changes as approved by FQRPT [ fully-qualified radiation protection technician]" and "All Singles."
The Regional inspector discussed the incident with the Radiation Protection Superintendent on 10/10/97 or 10/11/97. The Superintendent recalls the discussion as one regarding " work practices," and does not recall discussing a potential violation.
During this discussion, the Regional inspector also pointed out that the requirement of l
" minimum booties and gloves" found in some River Bend RWPs might be overly restrictive, because there would be instances, such as reaching across a boundary, when both booties and gloves would not be necessary. The Superintendent agreed with the Regional inspector that the River Bend Station RWPs were " overly restrictive." ,
I To be responsive to the Regional inspecton, on 10/11, the Superintendent directed the Radiation Protection Planner to change the River Bend Station RWPs to be consistent with the inspector's recommendation and to "get back with the Regional inspector" to j show him the changes. On 10/12, the Planner developed proposed language for the l
m Erclis re 4 Summary of Facts EA 98-132 Page 2 of 4 I protective clothing requirements. The Superintendent agreed with the language in a I
- qtsck hallway discussion with the Planner that same day. According to the planner, this l was the only time that he discussed the specific wording of the proposed change with the Superintendent. (Affidavit). On 10/12, the Planner revised RWP 97-0001 and RWP 97-0002 to specify " Dress requirements to be set by RP." Subsequently, the Planner attempted to locate the Regional inspector to show him the changes, but was unable to locate him. (Transcript).
On or about 10/12/97, the Superintendent recalls discussing the overall RP program with the Regional inspector who then reiterated his concems regarding the incident and indicated that he would leave his description of the event with the SRI. The Superintendent recalls no discussion about the incident being treated as a viciation. Later that day, the Superintendent discussed the issue with the RP technician involved in the incident. The Superintendent recalls that both of these discussions focused on work practices and that no specific RWP was discussed.
1 On 10/13, the Planner discussed changing the remaining RWPs with the RP supervisors j and other RP technicians, but had no further discussion with the Superintendent. On {
10/14, the RBS Licensing Engineer met with the SRI and the Regional inspector for a debriefing on the inspection efforts. The Regional inspector indicated that he had l
, observed three potential violations relating to (1) radiological postings, (2) locked-high radiation area problems, and (3) the work-practice of the technician who resched across the boundary. The Licensing Engineer asked the inspector about whether the RP Superintendent was aware that the work-practice issue was being considered for a l potential violation. According to the Licensing Engineer, he was told that the Regional inspector noted that he had not discussed possible enforcement action with the Superintendent because the inspection process does not require discussion of potential enforcement actions until the NRC exit meeting with a licensee. (Afridavit).
According to the Planner, he edited approximately 50 to 60 RWPs to specify " Dress requirements to be set by RP." He completed the edits on 10/15/97.
On 10/15, the Licensing Engineer informed plant management (including the Superintendent) that the incident was being considered as a potential violation, as indicated on the "NRC lssues List" for that week. He and the Superintendent set up a meeting with the SRI later that day; however, at this time, the Regional inspector had ;
already left the site. The Superintendent asked a Senior Health Physicist to prepare a
, listing of RCA entries made by the IP technician since (or "around") 10/10 and to i provide a copy of each of the listed RWPs. At about 1:30 p.m., the Senior Health Physicist printed the unofficial RWPs from the computer rather than from the "hard copy" file, thus no signatures or revision dates were marked on the copy. The access i
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J l Ecci:sure 4 Summary of Facts EA 98-132 Page 3 of 4 records listing the RP technician's entries and RWP number covered the period from October 10 - 15. The version of RWP 97-0002 (revised 10/12) which was printed out and given to the Superintendent for his meeting was included in these documents because the technician had entered on that RWP on 10/14/97.
That same aftemoon on 10/15, the Superintendent and the Licensing Engineer met with the SRL The material the Superintendent took to the meeting included both RWP 97-0002, used on 10/14, and RWP 97-9002, used on 10/10. During the discussions, it became clear that the minimum clothing requirements stated on the copy of Revision 2 of RWP 97-0002 (l.c., " Dress requirements to be set by RP") would have allowed the RP to determine the clothing requirements. There was some discussion on whether there really was a violation or not, because if the RWP allowed the RP technician to set his protective clothing requirements, the issue would be open to interpretation as to whether those requirements should have included gloves. Had the Regional inspector left a copy of RWP 97-0002, Revision 1, which he apparently obtained the day of his observation, with the SRI, a comparison of the two revisions would have clearly indicated that the RWP l had been revised in the intervening time period. The revision number is printed in the ;
upper right-hand comer of the RWP just below the RWP number. j i
, The SRI asked if he could keep the copies. The Superintendent gave him the entire package of unofficial information, which included the listing of entries for the RP ;
technician and copies of the listed RWPs. The package of infomtation (computer printouts, not copies of signed versions) clearly did not contain official records. The Superintendent later stated that he had not intended to give the package to the NRC, but only use it to assist in establishing the facts surrounding the issue. He has noted that he provided the material to accommodate the SRI's request. Following the meeting, the Licensing Engineer revised the NRC Issues List to indicate that no action was required "while the issue is being considered."
On or about 10/17, the Superintendent recalls asking the SRI if there was any feedback on the issue and was told that the Region is handling it. On or about 10/21, the Licensing Engineer talked with the SRI about resident issues and (for this issue) was told that the Region was handling it. (Transcript)
On 10/29, an investigator from the Office of Investigation (OI) and a court reporter interviewed the Superintendent, the Licensing Engineer, and the Planner. Later that day, the Superintendent requested the RP Supervisor to iaitiate a condition report on the violation of the RWP by the RP Technician. CR 97-1936 was initiated at 3:35 p.m. that afternoon. According to the Licensing Engineer, when he later asked the SRI if he needed any more information on the issue or the condition report, the SRI infonned him
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settled. (AfUdavit). We suspended further communication on the matter at that time.
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