[Federal Register Volume 70, Number 142 (Tuesday, July 26, 2005)]
[Pages 43199-43200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-3968]



[Docket No. 50-346, License No. NPF-3, EA-04-224]

In the Matter of FirstEnergy Nuclear Operating Company, Davis-
Besse Nuclear Power Station, 5501 North State Route 2, Oak Harbor, OH 
43449-9760; Confirmatory Order Modifying License (Effective 


    FirstEnergy Nuclear Operating Company (FENOC or Licensee) is the 
holder of Facility Operating License No. NPF-3 issued by the U.S. 
Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR 
part 50 on April 22, 1977. The license authorizes the operation of 
Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse), in accordance 
with conditions specified therein. The facility is located on the 
Licensee's site in Ottawa County, Ohio.


    On February 9, 2004, and July 8, 2004, the NRC's Office of 
Investigations (OI) began investigations to determine if former AVI 
Food Systems, Inc. (AVI) employees at Davis-Besse were the subject of 
employment discrimination in violation of 10 CFR 50.7. In OI Report 
Nos. 3-2004-006 and 3-2004-018, OI concluded that AVI employees were 
the subject of discrimination. By letter dated February 25, 2005, the 
NRC identified to the Licensee the NRC's concern and offered FENOC the 
opportunity to attend a predecisional enforcement conference or to 
request alternative dispute resolution (ADR) in which a neutral 
mediator with no decision-making authority would facilitate discussions 
between the NRC and FENOC and, if possible, assist the NRC and FENOC in 
reaching an agreement on resolving the concern. FENOC chose to 
participate in ADR. On May 11, 2005, the NRC and FENOC met at the 
Davis-Besse facility in Oak Harbor, Ohio in an ADR session mediated by 
a professional mediator, arranged through Cornell University's 
Institute on Conflict Resolution. As part of the ADR session, based 
upon the facts discussed during the mediation session and the 
commitments noted in Section IV below, the NRC will not issue a notice 
of violation for this issue and will not count this matter as previous 
enforcement for the purposes of assessing potential future enforcement 
action civil penalty assessments in accordance with Section VI.C of the 
Enforcement Policy.

[[Page 43200]]


    By letter dated June 15, 2005, the Licensee stated that in addition 
to the actions already taken by FENOC to promote a safety conscious 
work environment (SCWE) at the FENOC nuclear facilities, the Licensee 
agreed to take certain additional corrective measures to emphasize the 
importance of a SCWE. The agreed-upon additional actions noted in 
Section IV of this Confirmatory Order focus on SCWE training for 
contractor personnel who are granted unescorted access to Davis-Besse 
and the other FENOC nuclear facilities.
    On July 6, 2005, FENOC consented to the NRC issuing this 
Confirmatory Order with the commitments, as described in Section IV 
below. The Licensee further agreed in its July 6, 2005, letter that 
this Order is to be effective upon issuance and that it has waived its 
right to a hearing. The NRC has concluded that its concerns can be 
resolved through NRC's confirmation of the Licensee's commitments as 
outlined in this Order.
    I find that the Licensee's commitments as set forth in Section IV 
are acceptable and necessary and conclude that with these commitments 
the public health and safety are reasonably assured. In view of the 
foregoing, I have determined that the public health and safety require 
that the Licensee's commitments be confirmed by this Order. Based on 
the above and the Licensee's consent, this Order is immediately 
effective upon issuance. FENOC is required to provide the NRC with a 
letter summarizing its actions when all of the Section IV requirements 
have been completed.


    Accordingly, pursuant to Sections 103, 161b, 161i, 161o, 182, and 
186 of the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202 and 10 CFR Part 30, It is hereby ordered, 
effective immediately, that License No. NPF-3 is modified as follows:
    1. By no later than August 31, 2005, FENOC will provide contractors 
who are granted unescorted access to FENOC nuclear facilities with SCWE 
training that is equivalent to the SCWE training provided to FENOC 
employees as part of Plant Access Training.
    2. By no later than August 31, 2005, FENOC will review the SCWE 
training module included in Plant Access Training and make any changes 
necessary to ensure that the module clearly reinforces that FENOC SCWE 
policies and NRC employee protection requirements (10 CFR 50.7) apply 
to all personnel working on behalf of FENOC, specifically including 
contractor employees, supervision, and management.
    3. By no later than August 31, 2005, FENOC will provide specific 
training to the Davis-Besse food services contractor management and 
supervision involved in the provision of services to FENOC on SCWE 
principles, FENOC SCWE policies, and NRC employee protection 
requirements (10 CFR 50.7). This training will be comparable to the 
SCWE training that has been provided to FENOC management and 
    4. By no later than August 31, 2005, FENOC will include surveys of 
contractor personnel as part of the quarterly FENOC performance 
monitoring of SCWE at its nuclear facilities. These surveys are 
performed annually. Other data relied upon in the quarterly performance 
monitoring already includes the activities of contractor personnel in 
the calculation of the applicable performance measures.
    The Director, Office of Enforcement, may relax or rescind, in 
writing, any of the above conditions upon a showing by the Licensee of 
good cause.


    Any person adversely affected by this Confirmatory Order, other 
than the Licensee, may request a hearing within 20 days of its 
issuance. 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. Any request for a hearing 
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, to the Regional Administrator, NRC 
Region III, 2443 Warrenville Road, Suite 210, Lisle, IL 60532-4352, and 
to the Licensee. Because of continuing disruptions in delivery of mail 
to United States Government offices, it is requested that requests for 
hearing be transmitted to the Secretary of the Commission either by 
means of facsimile transmission to (301) 415-1101 or by e-mail to 
[email protected] and also to the Office of the General Counsel 
either by means of facsimile transmission to (301) 415-3725 or by e-
mail to [email protected]. If a person requests a hearing, that 
person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d) and (f).
    If a hearing is requested by a person whose interest is adversely 
affected, the Commission will issue an Order designating the time and 
place of any hearing. If a hearing is held, the issue to be considered 
at such hearing shall be whether this Confirmatory Order should be 
    A request for hearing shall not stay the immediate effectiveness of 
this order.

    For the Nuclear Regulatory Commission.

    Dated this 15th day of July, 2005.
Michael R. Johnson,
Director, Office of Enforcement.
[FR Doc. E5-3968 Filed 7-25-05; 8:45 am]