[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X94-30815]


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[Federal Register: August 15, 1994]


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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-352 License No. NPF-39 EA 92-164]

 

PECO Energy Company, Limerick Generating Station Limerick, PA; 
Order Imposing a Civil Monetary Penalty

I

    PECO Energy Company (Licensee) is the holder of Operating License 
No. NPF-39 (License), issued by the U.S. Nuclear Regulatory Commission 
(NRC or Commission). The License authorizes the Licensee to operate the 
Limerick Generating Station, Unit 1, in accordance with the conditions 
specified therein.

II

    An administrative proceeding was conducted by the U.S. Department 
of Labor (DOL), consisting of an investigation and hearing, regarding a 
complaint filed January 30, 1992, by an employee of Protection 
Technology Inc. (PTI), a contractor for the PECO Energy Company at the 
Limerick Generating Station Limerick, Pennsylvania. As a result of this 
proceeding, a DOL Administrative Law Judge (ALJ) issued a Recommended 
Decision and Order finding that PTI discriminated against the employee 
in violation of Section 210 of the Energy Reorganization Act 
(subsequently changed to Section 211 by the Energy Policy Act of 1992) 
because he engaged in protected activity. Based on the ALJ's decision, 
the NRC concluded that a violation of the Commission's regulations set 
forth in 10 CFR 50.7 occurred. A written Notice of Violation and 
Proposed Imposition of Civil Penalty (Notice) was served upon the 
Licensee by letter dated December 10, 1992. The Notice states the 
nature of the violation, the provision of the NRC's requirements that 
the Licensee had violated, and the amount of the civil penalty proposed 
for the violation. The Licensee was allowed to defer payment or protest 
of the penalty until 30 days after the Secretary of Labor's review was 
completed. The Secretary of Labor issued a final decision on May 11, 
1994, approving a settlement reached between the parties. Subsequently, 
the Licensee responded to the Notice on June 10, 1994. In its response, 
the Licensee denied the violation and requested full remission or 
mitigation of the penalty of $25,000.

III

    After consideration of the Licensee's response and the statements 
of fact explanation, and argument for full remission or mitigation 
contained therein, the NRC staff has determined, as set forth in 
Appendix to this Order, that the violation occurred as stated, and that 
the penalty proposed for the violation designated in the Notice should 
be imposed.

IV

    In view of the foregoing and pursuant to Section 234 of the Atomic 
Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, 
it is hereby ordered that:
    The Licensee pay a civil penalty in the amount of $25,000 within 30 
days of the date of this Order, by check, draft, money order, or 
electronic transfer, payable to the Treasurer of the United States and 
mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, ATTN: Document Control Desk, Washington, DC 20555.

V

    The Licensee may request a hearing within 30 days of the date of 
this Order. A request for a hearing should be clearly marked as a 
``Request for an Enforcement Hearing'' and shall be addressed to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, with a copy to the Commission's Document Control 
Desk, Washington, DC 20555. Copies also shall be sent to the Assistant 
General Counsel for Hearings and Enforcement at the same address and to 
the Regional Administrator, NRC Region I, 475 Allendale Road, King of 
Prussia, Pennsylvania 19406.
    If a hearing is requested, the Commission will issue an Order 
designating the time and place of the hearing. If the Licensee fails to 
request a hearing within 30 days of the date of this Order, the 
provisions of this Order shall be effective without further 
proceedings. If payment has not been made by that time, the matter may 
be referred to the Attorney General for collection.
    In the event the Licensee requests a hearing as provided above, the 
issues to be considered at such hearing shall be whether the violation 
occurred as stated, and whether, on the basis of such violation, this 
Order should be sustained.

    For the Nuclear Regulatory Commission.
James L. Milhoan,
Deputy Executive Director for Nuclear Reactor Regulation, Regional 
Operations and Research.
    Dated at Rockville, Maryland this 8th day of August 1994.

Appendix--Evaluation and Conclusion

    On December 8, 1992, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) in the amount of $25,000 was 
issued to PECO Energy Company (Licensee) for a violation based on 
the findings of a Department of Labor (DOL) Administrative Law Judge 
(ALJ) that a contractor security employee was unlawfully 
discriminated against. The Licensee responded to the Notice on June 
10, 1994. The Licensee denied the violation, and requested full 
remission or mitigation of the penalty. The NRC's evaluation and 
conclusion regarding the Licensee's requests are as follows:

1. Restatement of the Violation

    10 CFR 50.7 prohibits discrimination by a Commission licensee, 
permittee, an applicant for a Commission license or permit, or a 
contractor or subcontractor of a Commission licensee, permittee, or 
applicant against an employee for engaging in certain protected 
activities. Discrimination includes discharge and other actions that 
relate to compensation, terms, conditions, and privileges of 
employment. The activities which are protected include, but are not 
limited to, reporting of quality discrepancies and safety and 
safeguards concerns by an employee to his employer or the NRC.
    Contrary to the above, an employee of Protection Technology, 
Inc. (PTI), a security subcontractor of PECO Energy Company, who was 
a security guard at the Limerick Nuclear Generating Station, was 
unlawfully discriminated against as described in the DOL ALJ 
Recommended Decision and Order issued June 22, 1992 (DOL Case 92-
ERA-27). Specifically, the employee was required to undergo a 
psychological evaluation and was subsequently discharged on January 
7, 1992, by PTI in retaliation for engaging in protected activities. 
The protected activities included raising safeguards concerns to 
licensee management regarding security operations while performing 
his duties at the Limerick Nuclear Generating Station.
    This is a Severity Level III violation (Supplement VIII).
    Civil Penalty--$25,000.

2. Summary of Licensee Response Denying the Violation

    The Licensee, in its response, denied the violation and 
maintained that the contractor employee was requested to undergo a 
psychological evaluation as a non-discriminatory mechanism for 
determining if the employee's behavior, both during and before the 
January 1, 1992 incident, was representative of a true fitness-for-
duty concern. The Licensee stated that this behavior was observed by 
both the contractor and Licensee supervision during the January 1, 
1992 incident and other prior incidents (for which the Licensee 
submitted statements from contractor supervisors), and that the 
concerns had to be dealt with to fulfill the requirements set forth 
in 10 CFR Parts 26 and 73. The Licensee maintains that the 
employment action by the security contractor against its employee 
was based on the results of the psychological evaluation which 
indicated that the employee was not recommended for unescorted 
access to Limerick Generating Station. Therefore, the Licensee 
contends that the employment action was based entirely on a 
legitimate fitness-for-duty concern, and was not associated with any 
protected activity in which the contractor employee may have been 
involved.
    The Licensee also indicated that in accordance with the 
established policy, the contractor employee was granted a 
psychological reevaluation a year after his disqualification and his 
access to Limerick Generating Station was restored based on his 
successful reevaluation.

3. NRC Evaluation of Licensee Response

    The NRC has evaluated the Licensee's response and has determined 
that the Licensee has not provided an adequate basis for withdrawal 
of the violation. The information submitted by the Licensee in its 
response, dated June 10, 1994, and the correspondence referred to 
therein, had already been considered by the DOL ALJ in arriving at 
the conclusion that the Licensee contractor's action in discharging 
the employee was a violation of Section 210 of the Energy 
Reorganization Act of 1974 (Act), since recodified as Section 211. 
The NRC continues to rely on the ALJ Recommended Decision which 
concluded that the weight of evidence indicates that the action 
taken against the individual was based on his raising of safety and 
safeguards concerns, rather than concerns with the individual's 
fitness for duty.
    According to the ALJ decision, the evidence showed that the 
primary motivating factor in PTI's decision to discharge the 
individual was his reporting of a security issue during and 
following the incident of January 1, 1992 because: he was suspended 
the next day without explanation and without displaying any aberrant 
behavior on that night; from January 2-5, 1992, PTI supervisors 
tried to gather all the evidence they could against the individual 
into a standard termination package; and PTI used a psychologist's 
conclusion of ``not recommended for unescorted site access'' as the 
reason to discharge the individual, despite the fact that PTI's own 
Employee Assistance Program stated that it is company policy to 
assist employees in seeking help to overcome mental health and other 
problems. The ALJ further stated that the fact that PTI chose to 
take action to discharge the individual rather than address any 
mental health problems suggested by the psychologist's evaluation 
implies that the PTI motive was to discharge the individual rather 
than to identify concerns about his mental health. The ALJ further 
stated that PTI would not have reached the same decision to 
discharge the individual in the absence of the protected activity in 
this case.
    Based on the above, the violation remains as stated in the 
Notice.

4. Summary of Licensee's Response Requesting Mitigation of the 
Civil Penalty

    The Licensee requested full remission or mitigation of the civil 
penalty even if, after consideration of the Licensee's response to 
the Notice of Violation, the NRC concludes that a violation of 
Commission regulations has occurred. The Licensee contends that in 
addition to 100% mitigation on the past performance factor, full 
mitigation on the corrective actions factor is warranted because the 
corrective actions described in the response were sufficient to 
ensure that the Licensee and its contractor employees are encouraged 
to identify perceived safety concerns without fear of discriminatory 
actions. Additionally, the Licensee stated that in April 1993, an 
independent review of its security contractor indicated that there 
was no fear of discriminatory actions for raising safety concerns by 
the contractor employees.

5. NRC Evaluation of Licensee Response

    The NRC recognizes the corrective actions taken by the Licensee, 
as noted in the Licensee's letters dated May 8, 1992 (in response to 
a chilling effect letter issued by the NRC on April 9, 1992), and in 
Licensee responses, dated January 7, 1993, and June 10, 1994 (in 
response to the Notice of Violation and Proposed Imposition of Civil 
Penalty issued on December 8, 1992). Nonetheless, as explained in 
the NRC's December 8, 1992 letter transmitting the civil penalty, 
50% escalation of the base civil penalty on the corrective action 
factor was considered appropriate because the Licensee's corrective 
actions, subsequent to the identification of the violation, were not 
comprehensive in that the Licensee's assessment of the event failed 
to include an independent review of the case to determine if the 
actions taken by the contractor in this matter were proper.
    While the three referenced Licensee responses did refer to an 
independent review of the security organization conducted between 
April 27 and May 1, 1992, the review did not include an independent 
review of this case to assess the actions taken by the contractor, 
and, in any event, the review was not promptly initiated subsequent 
to the January 1992 event. In fact, the review occurred after the 
NRC issued a chilling effect letter on April 9, 1992, and after the 
DOL Wage and Hour Division District Director had found, in a letter 
dated February 28, 1992, that discrimination was a factor in the 
actions which comprised the individual's complaint. On this basis, 
the NRC concluded that full 50% escalation on the corrective actions 
factor was appropriate.
    Since the Licensee's June 10, 1994 response does not contain any 
new information on the Licensee's corrective action that has not 
been considered by the NRC in arriving at the proposed enforcement 
action, a revision of the penalty on this factor is not warranted.

6. NRC Conclusion

    The NRC concludes that the Licensee has not provided an adequate 
basis for withdrawing the violation, or mitigating the civil penalty 
based on the corrective action adjustment factor. Accordingly, the 
NRC has determined that a monetary civil penalty in the amount of 
$25,000 should be imposed.