EA-96-059 - Millstone 1, 2, 3 (Northeast Nuclear Energy Company)

June 4, 1996

EA 96-059

Mr. Ted C. Feigenbaum
Executive Vice President - Nuclear
Northeast Nuclear Energy Company
c/o Mr. Terry L. Harpster
Post Office Box 128
Waterford, Connecticut 06385

SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $100,000 (Administrative Law Judge's Recommended Decision and Order - 95-ERA-18 and 95-ERA-47)

Dear Mr. Feigenbaum:

This letter refers to the Department of Labor (DOL) Administrative Law Judge's (ALJ) Recommended Decision and Order, dated December 12, 1995, which found that a former employee of Bartlett Nuclear, Inc. (Bartlett), a contractor at your Millstone facility, was discriminated against by Northeast Nuclear Energy Company (NNECO) and Bartlett for raising safety concerns at the facility. Based on the NRC review of the ALJ Recommended Decision, the NRC finds that a violation of the Commission's regulations set forth in 10 CFR 50.7, "Employee Protection," has occurred. Under 10 CFR 50.7, discrimination by a Commission licensee against an employee or contractor employee for engaging in protected activities is prohibited. Although both you and Bartlett were offered the opportunity for an enforcement conference, you both declined such a conference, and instead, submitted written responses to the apparent violations.

Although you denied, in your March 20, 1996 letter, that you discriminated against the individual and have filed a motion for reconsideration of the DOL ALJ Decision and Order, the NRC adopts the findings of the DOL ALJ and concludes that a violation of NRC requirements occurred in cases 95-ERA-18 and 47. The violation is described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice).

Protected activities include providing the Commission information about possible violations of requirements imposed under either the Atomic Energy Act or the Energy Reorganization Act, requesting the Commission to institute enforcement action against his or her employer for the administration or enforcement of these requirements, or testifying in any Commission proceeding. The actions taken against the former contractor employee (who was a Senior Health Physics Technician) after he raised concerns to line management and the NRC, constitute a violation of 10 CFR 50.7. The violation is categorized at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), (60 FR 34381, June 30, 1995). Such violations are significant because they could have a chilling effect on other licensee or contractor personnel and deter them from identifying and/or raising safety concerns. The violation takes on even more significance because the NRC has issued two civil penalties to you since May 1993 for violations involving discrimination against employees who raised safety concerns.

Under the Enforcement Policy, a base civil penalty in the amount of $50,000 is considered for a Severity Level III violation. Millstone Nuclear Station has been the subject of several escalated enforcement actions within the last two years involving all three units (for example, a Severity Level III violation with a $50,000 civil penalty was issued on May 25, 1995, for a violation involving the failure to identify and correct a potential degradation of certain motor-operated-valves at Unit 2). Therefore, the NRC considered whether credit was warranted for identification and corrective action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy.

Credit was not given for Identification because you did not identify the violation. Credit was considered for Corrective Action, which you described in your letter, dated March 20, 1996. Those actions included: (1) designation of a single officer, reportable to the Chief Nuclear Officer, responsible for the overall implementation of the program for handling employee concerns; (2) plans to develop a set of actions to address, among other things, Nuclear Safety Concerns Program enhancements, as well as the contractor programs; and (3) plans to revise certain group policies, and related training. However, credit was not given for your corrective actions because many of these actions are still in the planning phase even though the DOL had concluded, as early as the District Director's Decision on July 27, 1995, that discrimination occurred.

Therefore, to emphasize the importance of maintaining a work environment in which employees are free to engage in protected activities without fear of retaliation, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the cumulative amount of $100,000, consistent with the Enforcement Policy because credit was not provided for identification or corrective action.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. Since the NRC enforcement action in this case is based on the Recommended Decision and Order of the DOL ALJ, which is still being reviewed by the Secretary of Labor, you may delay payment of the civil penalty and submission of certain portions of the response as described in the enclosed Notice until 30 days after the final decision of the Secretary of Labor. Notwithstanding your past corrective actions, as most recently documented in your response of March 20, 1996, in that portion of your response which describes corrective steps you have taken, you are required to describe any additional actions that you plan to take to minimize any potential chilling effect arising not only from this incident but other instances of discrimination that have occurred at your facility for which civil penalties have been issued in the past. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC 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 (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

The response 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, Public Law No. 96-511.

Sincerely, Thomas T. Martin Regional Administrator Enclosure: Notice of Violation
and Proposed Imposition of Civil Penalty

Docket Nos.50-245; 50-336; 50-423
License Nos. DPR-21; DPR-65; NPF-49

cc w/encl: D. B. Miller, Senior Vice President, Nuclear Safety and Oversight
S. E. Scace, Vice President, Reengineering
E. A. DeBarba, Vice President, Nuclear Technical Services
F. C. Rothen, Vice President, Maintenance Services
W. J. Riffer, Nuclear Unit 1 Director
P. M. Richardson, Nuclear Unit 2 Director
M. H. Brothers, Nuclear Unit 3 Director
L. M. Cuoco, Esquire
W. D. Meinert, Nuclear Engineer
V. Juliano, Waterford Library
State of Connecticut SLO Designee
We the People

---

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Northeast Nuclear Energy Company Docket Nos. 50-245; 50-336; 50-423 Millstone Nuclear Power Plant License Nos. DPR-21; DPR-65; NPF-49 EA 96-059

Based on the Recommended Decision and Order by a DOL Administrative Law Judge, dated December 12, 1995, (Reference: DOL cases Nos. 95-ERA-18 and 95-ERA-47), a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, 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, and 10 CFR 2.205. The particular violation and associated civil penalty is set forth below:

10 CFR 50.7(a), in part, prohibits discrimination by a Commission licensee against an employee or contractor employee for engaging in certain protected activities. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment. The protected activities are established in Section 211 of the Energy Reorganization Act (ERA) of 1974, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act (AEA) or the Energy Reorganization Act. The protected activities include but are not limited to providing the Commission information about alleged violations of the ERA or the AEA or possible violations of requirements imposed under either of these statutes.

Contrary to the above, as determined in the DOL Administrative Law Judge's Recommended Decision and Order in case 95-ERA-18 and 47, dated December 12, 1995, Northeast Nuclear Energy Company (NNECO) discriminated against Adam McNiece, a senior health physics technician for engaging in protected activities. (01013)

This is a Severity Level III violation (Supplement VII).
Civil Penalty - $100,000

Pursuant to the provisions of 10 CFR 2.201, Northeast Nuclear Energy Company (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of the final decision of the Secretary of Labor. This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, and (2) the reasons for the violation if admitted, and if denied, the reasons why. In addition, also pursuant to the provisions of 10 CFR 2.201, the Licensee is required to submit a written statement or explanation within 30 days of the date of this Notice of Violation and should include for each alleged violation: (1) the corrective steps that have been taken and the results achieved, (2) the corrective steps that will be taken to avoid further violations, and (3) the date when full compliance will be achieved. Your response may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued as to why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within 30 days of the final decision of the Secretary of Labor in this case, the Licensee may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and 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 factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

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

The response noted above (Reply to Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: James Lieberman, Director, Office of Enforcement, U. S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region I, and the NRC Resident Inspector at the facility that is the subject of this Notice.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated at King of Prussia, Pennsylvania
this 4th day of June 1996