[Federal Register Volume 67, Number 101 (Friday, May 24, 2002)]
[Notices]
[Pages 36649-36650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13081]


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NUCLEAR REGULATORY COMMISSION

[License No. 50-483, Docket No. NPF-30, EA-01-005]


In the Matter of AmerenUE, Callaway Nuclear Plant; Order Imposing 
Civil Monetary Penalty

I

    AmerenUE (Licensee) is the holder of License No. NPF-30 issued by 
the Nuclear Regulatory Commission (NRC or Commission) on October 18, 
1984. The license authorizes the Licensee to operate the Callaway 
Nuclear Plant in accordance with the conditions specified therein.

II

    An investigation of the Licensee's activities was completed in 
November 2000. The results of the investigation indicated that the 
Licensee had not conducted its activities in full compliance with NRC 
requirements. A written Notice of Violation and Proposed Imposition of 
Civil Penalty (Notice) was served upon the Licensee by letter dated May 
14, 2001. The Notice stated the nature of the violation, the provisions 
of the NRC's requirements that the Licensee had violated, and the 
amount of the civil penalty proposed for the violation.
    The Licensee responded to the Notice in a letter dated January 22, 
2002. In its response, the Licensee denied the violation, requesting 
withdrawal of the violation and remission of the proposed civil 
penalty.

III

    After consideration of the Licensee's response and the statements 
of fact, explanation, and argument for mitigation contained therein, 
the NRC staff has determined that the violation occurred as stated in 
the May 14, 2001 Notice of Violation and Proposed Imposition of Civil 
Penalty. Therefore, the NRC has determined that the civil penalty 
proposed for this violation 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 $55,000 within 30 
days of the date of this Order, in accordance with NUREG/BR-0254. In 
addition, at the time of making the payment, the licensee shall submit 
a statement indicating when and by what method payment is made, to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

    The Licensee may request a hearing within 30 days of the date of 
this Order. Where good cause is shown, consideration will be given to 
extending the time to request a hearing. A request for extension of 
time must be made in writing to the Director, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a 
statement of good cause for the extension. A request for a hearing 
should be clearly marked as a ``Request for an Enforcement Hearing'' 
and shall be submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 
20555. Copies also shall be sent to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
to the Assistant General Counsel for Materials Litigation and 
Enforcement at the same address, and to the Regional Administrator, NRC 
Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.
    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 (or if 
written approval of an extension of time in which to request a hearing 
has not been granted), 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 Licensee 
was in violation of the Commission's requirements as set forth in the 
Notice of Violation referenced in Section II, and whether on the basis 
of such violation, this Order should be sustained.

    Dated this 16th day of May, 2002.

    For the Nuclear Regulatory Commission.
William F. Kane,
Deputy Executive Director for Reactor Programs.

Appendix to Order Imposing Civil Penalty; NRC Evaluation and Conclusion 
of Licensee's Requests

    On May 14, 2001, a Notice of Violation and Proposed Imposition of 
Civil Penalty (Notice) was issued for a violation of 10 CFR 50.7 
identified during an NRC investigation. The Licensee responded to the 
Notice in a letter dated January 22, 2002. In its response, the 
Licensee denied the violation, requesting withdrawal of the violation 
and remission of the proposed civil penalty. The NRC's evaluation and 
conclusion regarding the licensee's response are as follows:

Restatement of Violation

    10 CFR 50.7(a) prohibits discrimination by a Commission licensee 
against an employee for engaging in certain protected activities. 
Discrimination includes discharge or other actions relating to the 
compensation, terms, conditions, and privileges of employment. Under 10 
CFR 50.7(a)(1)(i), the activities that are protected include, but are 
not limited to, the reporting by an employee to his employer 
information about alleged regulatory violations.
    Contrary to the above, The Wackenhut Corporation (TWC), a 
contractor of Union Electric, a 10 CFR part 50 licensee, and Union 
Electric discriminated against a security officer and a training 
instructor for having engaged in protected activity. Specifically, on 
October 27, 1999, the security officer and the training instructor 
identified to TWC a violation of NRC requirements at the Callaway 
Nuclear Plant, namely that TWC had hired and assigned an individual to 
the security organization when that individual did not have a high 
school diploma or equivalent. The hiring of this individual was in 
violation of 10 CFR part 73, Appendix B, Section I.A.1.a, which 
provides that prior to employment or assignment to a security 
organization, an individual must possess a high school diploma or pass 
an equivalent performance examination. Based at least, in part, on this 
protected activity, TWC unfavorably terminated the security officer's 
employment for lack of trustworthiness and gave a written reprimand to 
the training instructor on November 19, 1999, and Union Electric 
revoked the security officer's unescorted access authorization for lack 
of trustworthiness.

[[Page 36650]]

    This is a Severity Level III violation (Supplement VII). Civil 
Penalty--$55,000

Summary of Licensee's Response to Violation

    The Licensee denied the violation, asserting that there is no 
evidence that decisions made by AmerenUE's Access Control Supervisor 
were motivated by an intent to retaliate against the security officer. 
AmerenUE stated that based on the information known to the Access 
Control Supervisor at the time these decisions were made, the Access 
Control Supervisor acted reasonably and in good faith. The Licensee's 
specific arguments were:
    (1) AmerenUE did not knowingly rely on a biased investigation and 
report by TWC to revoke the security officer's Access Authorization 
because the Access Control Supervisor had no reason to suspect that the 
TWC Investigation was biased. The Access Control Supervisor spoke to 
the TWC Project Manager on November 20, 1999, to inquire about the 
security officer's termination. The TWC Project Manager informed her 
that TWC discovered during the course of an investigation that the 
security officer misrepresented herself as a representative of Callaway 
when the security officer called the high school principal. The Access 
Control Supervisor was informed that the investigation was independent 
and was conducted by an off-site auditor. The Access Control Supervisor 
reasoned that an individual whose employment was terminated due to her 
lack of trustworthiness should not maintain her unescorted access 
authorization, and therefore the security officer's unescorted access 
authorization was revoked. The Access Control Supervisor did not see 
the TWC report until after the security officer's access was revoked 
and did not have cause to suspect the TWC investigation was biased. 
Accordingly, she could not have knowingly relied on a biased 
investigation report. AmerenUE could not have violated 10 CFR 50.7 
unless the preponderance of the evidence shows that the Access Control 
Supervisor revoked the security officer's access authorization with the 
intention of retaliating against the security officer for her protected 
activity.
    (2) The Access Control supervisor made a good faith effort to 
determine whether a temporary watchman knowingly misrepresented his 
educational qualifications by interviewing the high school principal on 
December 2, 1999. The principal stated his belief that the temporary 
watchman likely did not know he had not graduated, and ``cited 
circumstances from the high school program to support this view.'' When 
AmerenUE subsequently became aware of information suggesting that the 
temporary watchman likely knew he had not graduated from high school, 
his access was revoked. The Access Control Supervisor's failure to 
discover particular information in her initial investigation does not 
amount to bad faith. The Access Control Supervisor had no motive to 
treat the temporary watchman more favorably than she treated the 
security officer.

NRC Evaluation of Licensee's Response to Violation

    AmerenUE's principal argument is that AmerenUE, and the Access 
Control Supervisor in particular, were not motivated by an intent to 
retaliate against the security officer. AmerenUE then argues that there 
can be no violation of 10 CFR 50.7 on the part of AmerenUE without 
showing such intent. AmerenUE provides many facts in support of its 
arguments. The central issues are whether a violation of 10 CFR 50.7 
occurred, and whether AmerenUE is responsible for that violation.
    AmerenUE has provided no new information regarding whether a 
violation of 10 CFR 50.7 occurred, and did not address whether its 
contractor, TWC, engaged in discriminatory action. The NRC has reviewed 
the information in AmerenUE's January 22, 2002 response, as well as the 
information TWC provided in response to this violation in a January 23, 
2002 letter, and concludes that a violation of 10 CFR 50.7 occurred. As 
stated in the Notice of Violation, the security officer and the 
training instructor engaged in protected activity, each was subjected 
to adverse action, and the adverse action occurred, at least in part, 
because of the protected activity.
    AmerenUE's argument that the NRC must show retaliatory intent on 
the part of AmerenUE personnel is mistaken. Discriminatory intent on 
the part of its Access Control Supervisor is not necessary for AmerenUE 
to have violated 10 CFR 50.7. A violation of 10 CFR 50.7 by a 
licensee's contractor may be grounds for imposition of a civil penalty 
upon the licensee. 10 CFR 50.7(c)(2). See Atlantic Research 
Corporation, CLI-80-7, 11 NRC 413, 419-424 (1980). The fact that 
AmerenUE delegated a portion of its responsibilities to a contractor, 
i.e., The Wackenhut Corporation (TWC), does not relieve AmerenUE of its 
responsibility to maintain compliance with NRC requirements at 
Callaway. AmerenUE participated in this matter by revoking the security 
officer's access to the facility, an adverse action, and in doing so 
AmerenUE relied upon biased information provided by its contractor, who 
thereby participated in taking this action. AmerenUE could have, and 
should have, exercised more care in implementing adverse action against 
an individual who was known to have raised a concern about compliance 
with security requirements at Callaway.

NRC Conclusion

    The NRC has concluded that this violation occurred as stated, and 
that AmerenUE has not provided a basis for withdrawal of the Notice of 
Violation or the civil penalty. Consequently, the proposed civil 
penalty in the amount of $55,000 should be imposed.

[FR Doc. 02-13081 Filed 5-23-02; 8:45 am]
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