ML20205B152

Board Notification 85-079:discusses Issuance of Notice of Violation & Proposed Imposition of Civil Penalty in Amount of $64,000 Re Discrimination by Util,Per Director'S Decision DD-85-9

ML20205B152
Person / Time
Site:	Catawba
Issue date:	08/26/1985
From:	Thompson H Office of Nuclear Reactor Regulation
To:	Asselstine, Palladino, Roberts NRC COMMISSION (OCM)
References
CON-#485-346, TASK-AS, TASK-BN85-079, TASK-BN85-79 BN-85-079, BN-85-79, DD-85-09, DD-85-9, OL, NUDOCS 8508270045
Download: ML20205B152 (4)

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/ August 26, 1985 Docket Nos: 50-413 and 50-414 MEMORANDUM FOR: Chairman Palladino Comissioner Roberts Commissioner Asselstine Comissioner Bernthal Comissioner Zech FROM: Hugh t.. Thompson, Jr. , Director Division of I.icensing Office of Nuclear Reactor Regulation

SUBJECT:

BOARD NOTIFICATION REGARDING ISSUANCE OF NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY RELATED TO DISCRIMINATION BY DUKE POWER COMPANY AT CATAWBA NUCt. EAR STATION (BN 85-079)

This Notification is cruided directly to the Comission in accordance with NRC procedures regarding Board Notifications. The information relates to the Catawba Nuclear Station and is material and relevant to safety issues in the Catawba 01. proceeding. The app'ropriate Boards and parties are being informed by copy of this memorandum.

Pursuant to Director's Decision DD 85-9 issued June 4,1985, which the Commis-sion recently declined to review, the staff, by letter dated August 13, 1985 (Enclosed), issued to Duke Power Company (Duke) a Notice of Violation and t

Proposed imposition of Civil Penalty.

The staff found that Duke violated 10 CFR 50.7 by discriminating against an employee for engaging in a protected activity. This violation is based on findings made by the Atomic Safety and I.icensing Board in a June 22, 1984, Partial Initial Decision. The violation was categorized at a Severity t.evel II, and the proposed civil penalty was in the amount of Sixty-four Thousand Dollars.

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The staff's evaluation is discussed in the August 13. 1985, letter and its Enclosure, addressed to Duke Power _ Company.

f M Hu t. Thompso , Jr. trector 01 ision of licensing Office of Nuclear Reactor Regulation

Enclosure:

As stated cc: SECY (2) i OPE OGC-EDO ASI.AB (A. Rosenthal)

ASLAB (T. Moore)

ASLAB (H. Wilbur)

'ASLB-(J.-Kelley)

ASt.B (P. Purdom)

ASLB (R. Foster)

A$lB (M. Margulies)

ASLB(R.Lazo)

ASLB-(F. Hooper) -

ASLB Panel (P. Cotter)

Parties to the Proceeding See next page ACRS (10) i i

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Catawba Unit I Docket No. 50-413/414 John Clewett, Esq.

Dr. Richard F. Foster

Robert Guild, Esq.

! Dr. Frank F. Hooper James L. Kelley, Esq.

Dr.. Robert M. Lazo j- Karen E. Long, Esq.

j Morton B. Margulies, Esq.

J. Michael McGarry,III,Esq.

Palmetto Allia1ce Spence Perry, Esq.

William L. Porter, Esq.

j Dr. Paul W. Purdom

Mr. Jesse L. Riley i Mr. Donald R. Willard Richard P. Wilson, Esq.

4

. Atomic Safety and Licensing i Board Panel Atomic Safety and Licensing Appeal Panel Docketing and Service Section

Document Management Branch - .

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a CATAWBA BN ADDRESSES Mr. H. B. Tucker, Vice President Nuclear Production Department Duke Power Company 422 South Church Street Charlotte, North Carolina 28242 North Carolina MPA-1 P.O. Box 95162 Raleigh, North Carolina 27625 Mr. F. J. Twogood Power Systems Division l Westinghouse Electric Corp.

P. O. Box 355 Pittsburgh, Pennsylvania 15230 Mr. J. C. Plunkett, Jr.

NUS Corporation 2536 Countryside Boulevard Clearwater, Florida 33515 Mr. Pierce H. Skinner Route 2, Box 179N York, South Carolina 29745 North Carolina Electric Membership Corp.

3333 North Boulevard P.O. Box 27306 Raleigh, North Carolina 27611 Saluda River Electric Cooperative, Inc.

707 Sherwood Drive Laurens, South Carolina 29360 Mr. Peter K. Van 900rn Route 2, Box 179N York, South Carolina 29745 Regional Administrator, Region II

U.S. Nuclear Regulatory Commission 101 Marietta Street, Suite 2900 Atlanta, Georgia 30323 4

Spence Perry,' Esquire Associate General Counsel Federal Emergency Management Agency 500 C Street, S.W. - Room 840 Washington, D.C. 20472 Mark S. Calvert, Esq.

Bishop Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.

Washington, D.C. 20036 4

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AUG 13 B65 Docket Nos. 50-413 50-414 License Nos. CPPR-116 SPPR-117 EA 84-93 Duke Power Company ATTN: Mr. Warren H. Owen, Executive Vice President Engineering, Construction, and Production Group 422 South Church Street Charlotte, NC 28242 Gentlemen:

Subject:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY This refers to the findings of the Atomic Safety and Licensing Board (ASLB) on June 22, 1984 in its Partial Initial Decision in the operating ifcense proceeding for the Catawba Nuclear Station Clover South Carolina, LBP-84-24, 19 NRC 1418.

The ASLB . identified incidents involving discrimination against an employee for raising safety concerns. In the staff's view, a violation of NRC requirements has occurred as described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This action was also the subject of a request under 10 CFR 2.206 by the Palmetto Alliance and a letter from Ms. Billie P. Garde to Mr. R. C. DeYoung and Ms. J. A. Axelrad. These coninunications were addressed in a Director's Decision under 10 CFR 2.206 (OD 85-9) issued June 4 1985. The Commission has declined to take review of that decision under 10 CFR 2.206(c).

The violation in the enclosed Notice concerns discrimination against an employee for engaging in a protected activity. Under 10 CFR 50.7. discrimination by a Cocraission licensee against an employee for engaging in certain protected activities is prohibited. The ASLB concluded that a QC welding inspector foreman, Gary E. " Beau" Ross, had been poorly rated in his 1981-82 November 1982 interim, and 1982-83 performance appraisals, because of his and his crew's expression of nuclear safety concerns to management. Although the scope of the protection afforded under 10 CFR 50.7 was not a matter before the board for its determination, the ASLB expressed in its decision the view that the discriminatory actions against Mr. Ross violated the spirit of 10 CFR 50.7 but not its letter because Ross was not engaged in protected activities; i.e..

the reporting of safety concerns to the NRC. For the reasons described in the aforementioned Of rector's Decistoii the staff believes that the protected activities include reporting of quality assurance discrepancies and nuclear safety problems by an employee to his employer. The November 1982 interim and the 1982-83 perfonnance appraisals of Mr. Ross occurred after the promulgation of 10 CFR 50.7.

CERTIFIED MAIL RETURN RECEIPT REQUESTED m M6LO V LDo -

Duke Power Company 2 4

To emphasize that acts of discrimination against an employee engaged in a protected activity will not be tolerated, I am issuing the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the amount of Sixty-four Thousand Dollars

($64,000) for the violation described in the enclosed Notice. The violation is serious managementin that it involved discrimination by personnel in senior supervisory or positions.

Procedure for NRC Enforcement Actions" in effect when this violation (see 10 CFR Part 2. Appendix C, 47 FR 9989 March 9,1982), the violation described in the enclosed Notice has been categorized at a Severity Level II.

The base policy value is being of a civil penalty for a Severity Level II violation under that proposed.

As discussed in the Director's Decision, the escalation has been deemed appropriate.or mitigation factors in the Enforcement Policy wer You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you planshould document to prevent the specific actions taken and any additional actions you recurrence.

including your proposed corrective actionsAfter reviewing your response to this Notice, the NRC will detennine whether further NRC regulatory enforcement action is necessary, to ensure compliance with NRC requirements.

In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice " Part 2 Title 10. Code of Federal Regulations, a copy of this letter and its enclosure will be placed in the NRC Public Document Room.

The responses directed by this letter and the enclosed Notice are not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980. PL 96-511.

Sincerely.

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J mes M. Tay1

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Director ffice of-Ins ection and Enforcement

Enclosure:

Notice of Violation and Proposed Imposition of Civil Penalty See next page for cc's.

Duke Power Company 3

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' R. L. Dick, Vice President - Construction J. W. Hampton, Station Manager i

James L. Kelley, Chaiman Atomic Safety and Licensing Board Dr. Paul W. Purdom Administrative Judge Dr. Richard F. Foster Administrative Judge Robert Guild, Esq.

1 Palmetto Alliance Jesse L. Riley Carolina Environmental Study Group Billie Garde GAP ASLP8 (O copies) i i

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. -e NOTICE OF VIOLATION AND PROPOSE 0 IMPOSITIF0F CIVIL PENALTY

! Ouke Power Company Docket Nos. 50-413 and 50-414 Catawba Units 1 and 2 License Nos. CPPR-116 and CPPR-117 EA 84-93 i Based on the findings made by the Atomic Safety and Licensing Board (ASL8) in a 4

June 22. 1984 Partial Initial Decision in the operating Itcense proceeding for the Catawba Nuclear Station. LBP-84-24.19 NRC 1418. the NRC has identified a violation of its requirements. In accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions." 10 CFR Part 2. Appendix C. in effect at the time of the violations (47 FR 9989. March 9,1982), the Nuclear Regulatory Commission proposes to impose a civil penalty pursuant to Section 234 .

of the Atomic Energy Act of 1954, as amended. ("Act") 42 U.S.C. 2282. PL 96-295, i L

and 10 CFR 2.205. The particular violation and associated civil penalty are set j forth below.

Violation 1

! 10 CFR 50.7 prohibits discrimination by a Comission licensee against an employee a

for engaging in certain protected activities. Discrimination includes discharge and other. actions that relate to compensation, terms, conditions, and privileges

]' of employment. The activities protected include reporting of quality assurance 1

discrepancies and nuclear safety problems by an employee to his employer.

Contrary to the above. Duke Power Company discriminated against Gary E. " Beau" Ross, who was engaging in a protected activity as a licensee quality control i

inspector. Mr. Ross had been given low November 1982 interim, and 1982-83 perforwance ratings because of his efforts to bring safety concerns to the attention of Duke Power Coepany's management.

• This is a Severity Level !! violation (Supplement VII).

(Civil Penalty - 564,000) 4

Pursuant to the provisions of '10 CFR 2.201. Duke Power Company is hereby required to submit to the Director. Office of Inspection and Enforcement. U.S. Nuclear j Regulatory Comission. Washington, D.C. 20555 with a copy to the Regional Administrator. U.S. Nuclear Regulatory Comission. Region !! within 30 days of 1 the date of this Notice a written statement or explanation, including for the i alleged violation

(1) admission or dental of the alleged violation. (2) the l reasons for the violation if admitted. (3) the corrective steps that have been i

taken and the results achieved. (4) the corrective steps which will be taken to 1

avoid further violations, and (5) the date when full compliance will be achieved.

If an adequate reply is not received within the time specified in this Notice, the Director. Office of Inspection and Enforcernent may issue an order to show cause why the Itcense should not be modified, suspended, or revoked or why such j other action as may be proper should not be taken. Consideration may be given i to extending the response time for good cause .shown. Under the authority of j Section 182.of the Act. 42 U.S.C. 2232, this response shall be submitted under j oath or affirmation.

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Notice of Violation 2 Within the same time as provided for the response required above under 10 CFR 2.201, Duke Power Company may pay the civil penalty by letter addressed to the Director, Office of Inspection and Enforcement, with a check, draft, or money order payable to the Treasurer of the United States in the cumulative amount of Sixty Four Thousand Dollars ($64,000) or may protest imposition of the civil penalty in whole or in part by a written answer addressed to the Director. Office of Inspection and Enforcernent. Should Duke Power Company fail to answer within the time specified, the Ofrector, Office of Inspection and Enforcement, will issue an order imposing the civil penalty in the amount proposed above. Should Duke Power Company elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, such answer may: (1) deny the violation listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances.

(3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty, in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the five factors addressed in Section V.B of 10 CFR Part 2. Appendix C (1985) should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the staterient or explanation in reply pursuant to 10 CFR 2.201, but may incorporate statements or explanations by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. Duke Power Company's attention is directed to the other provisions of 10 CFR 2.205, regarding the procedures for imposing'a civil renalty. ,

Upon failure to pay any civil penalty due, which has been subsequently detemined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the civil penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act 42 U.S.C. 2282.

FOR THE HUCLEAR REGULATORY COPNISSION

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w r,7 s f ames H. Tay1 , Director Office of Infpection and Enforcement Dated at Bethesda, Maryland this /jtiday of August 1985 t

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" SECOND DISTRIBUTION "

This is to advise that Board Notification 85-079 was previously distributed under the incorrect accession of 8508270049. The Correct accession should be 8508270045. Please change all records i accordingly.

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