[Federal Register Volume 71, Number 10 (Tuesday, January 17, 2006)]
[Notices]
[Pages 2579-2581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-438]
[[Page 2579]]
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NUCLEAR REGULATORY COMMISSION
[IA-05-053]
Dale Miller; Order Prohibiting Involvement in NRC-Licensed
Activities (Effective Immediately)
I
Mr. Dale Miller was previously employed, at times relevant to this
Order, as a Compliance Supervisor at the Davis-Besse Nuclear Power
Station (Davis-Besse) operated by FirstEnergy Nuclear Operating Company
(FENOC or licensee). The licensee holds License No. NPF-3 which was
issued by the Nuclear Regulatory Commission (NRC or Commission)
pursuant to 10 CFR Part 50 on April 22, 1977. The license authorizes
the operation of Davis-Besse in accordance with the conditions
specified therein. The facility is located on the licensee's site near
Oak Harbor, Ohio.
II
On August 3, 2001, the NRC issued Bulletin 2001-001,
``Circumferential Cracking of Reactor Pressure Vessel Head Penetration
Nozzles,'' (Bulletin). In the Bulletin, the NRC requested that all
holders of operating licenses for pressurized water nuclear power
reactors (PWR), including FENOC for the Davis-Besse facility, provide
information to the NRC relating to the structural integrity of the
reactor pressure vessel (RPV) head penetration nozzles at their
respective facilities. The information requested from the licensees
included the extent of RPV head penetration nozzle leakage and cracking
that had been found to date, a description of the inspections and
repairs undertaken to satisfy applicable regulatory requirements, and
the basis for concluding that a licensee's plans for future inspections
would ensure compliance with applicable regulatory requirements. The
NRC also required that all the Bulletin addressees, including FENOC,
submit a written response to the NRC in accordance with the provisions
of 10 CFR 50.54(f). That regulation provides, in part, that upon
request of the NRC, an NRC-licensee must submit written statements,
signed under oath or affirmation, to enable the NRC to determine
whether the license should be modified, suspended, or revoked.
On September 4, October 17, and October 30, 2001, the licensee
provided written responses to the Bulletin. Additionally, the licensee
met with the NRC staff on numerous occasions during October and
November of 2001 to provide clarifying information. Based, in part, on
the information provided by FENOC in the written responses to the
Bulletin and during meetings with the NRC staff, the NRC staff allowed
the licensee to continue operation of the Davis-Besse facility until
February 2002, rather than requiring FENOC to shut the unit down to
perform inspections by December 31, 2001, as provided in the Bulletin.
On February 16, 2002, FENOC shut down Davis-Besse for refueling and
inspection of control rod drive mechanism (CRDM) RPV head penetration
nozzles. Using ultrasonic testing, the licensee found cracks in three
CRDM RPV head penetration nozzles and on March 6, 2002, the licensee
discovered a cavity in the RPV head in the vicinity of CRDM Penetration
Nozzle No. 3. The cavity measured approximately 5 to 7 inches long, 4
to 5 inches wide, and penetrated through the 6.63 inch-thick low-alloy
steel portion of the RPV head, leaving the stainless steel cladding
material (measuring 0.202 to 0.314 inches-thick) as the sole reactor
coolant system (RCS) pressure boundary. A smaller cavity was also found
near CRDM Penetration Nozzle No. 2.
The licensee conducted a root cause evaluation and determined that,
contrary to the earlier information provided to the NRC, the cavities
were caused by boric acid from the RCS released through cracks in the
CRDM RPV head penetration nozzles. The root cause evaluation found that
the licensee conducted limited cleaning and inspections of the RPV head
during the Twelfth Refueling Outage (12RFO) that ended on May 18, 2000.
However, neither the limited RPV head cleaning nor the resultant
inspections during 12RFO were sufficient to ensure that the significant
boric acid deposits on the RPV head were only a result of CRDM flange
leakage, as supposed, and were not a result of RCS pressure boundary
leakage.
On March 6 and March 10, 2002, the licensee provided information to
the NRC concerning the identification of a large cavity in the RPV head
adjacent to CRDM Penetration Nozzle No. 3. The NRC conducted an
Augmented Inspection Team (AIT) inspection at Davis-Besse from March 12
to April 5, 2002, to determine the facts and circumstances related to
the significant degradation of the RPV head. The results of the AIT
inspection were documented in NRC Inspection Report No. 50-346/2002-03,
issued on May 3, 2002. A follow-up Special Inspection was conducted
from May 15 to August 9, 2002, and on October 2, 2002, the NRC issued
the AIT Follow-up Special Inspection Report No. 50-346/2002-08
documenting ten apparent violations associated with the RPV head
degradation.
On April 22, 2002, the NRC Office of Investigations (OI) initiated
an investigation at Davis-Besse to determine, among other matters,
whether FENOC and individual employees at the Davis-Besse facility
failed to provide complete and accurate information to the NRC in its
September 4, October 17, and October 30, 2001, responses to the
Bulletin and during numerous conference calls and meetings in violation
of 10 CFR 50.9 and 10 CFR 50.5(a)(2). The OI report (No. 3-2002-006)
was issued on August 22, 2003. A copy of the OI report was provided to
the U.S. Department of Justice (DOJ), Office of the United States
Attorney, Northern District of Ohio for review. The matter remains
under continued Federal investigation. Mr. Miller, through the
performance of his duties as a supervisor in the licensee's regulatory
affairs organization, and through oral and written communications with
other FENOC employees was aware of the results of previous RPV head
inspections. For example:
Mr. Miller received several E-mails during August 2001,
while FENOC was preparing the September 4, 2001, response to the NRC.
These E-mails, in part, made Mr. Miller aware that the boric acid
deposits on the RPV head and the RPV head service structure weepholes
were an impediment to viewing all RPV head nozzle penetrations.
Mr. Miller received a copy of an E-mail, dated August 28,
2001, that questioned whether a discussion in the licensee's draft
response to the Bulletin relative to a subsequent review of 1998 and
2000 inspection videotaped results should be reworded. The August 28,
2001, E-mail received by Mr. Miller stated, in part:
``the discussion gives an impression to the reader that we were able
to look at all the CRDMs. It is very difficult to look at the CRDMs
when there is boric acid around it.''
Mr. Miller also received a copy of an E-mail, dated August
30, 2001, in which the author stated, in part:
``I have not seen any EWR [engineering work request] to cut
openings in the service structure in the 13th RFO. If we need these
it should be funded and P.O. [Purchase Order] issued to Framatone
immediately. We do not say anywhere in our response to the Bulletin
that inspection thru the mouse holes creates an impediment for 100%
visual inspection examination. (Management need[s] to know this).''
[[Page 2580]]
During a sworn, transcribed interview with OI, Mr. Miller
stated that if the author of the E-mail was concerned about addressing
the impediments [discussed in the E-mails listed above] before the
licensee issued its response to the Bulletin the individual should have
brought it to the attention of his supervisor and his management chain
in the Engineering Department.
Mr. Miller also told OI that he looked-up the word
``impediment'' in the dictionary upon being informed of the size of the
RPV head service structure weepholes, the two inch gap between the RPV
head and the insulation at the top of the RPV head, the RPV head
curvature, and the inspection limitations resulting from the presence
of boron deposits. Specifically, Mr. Miller stated:
``I even went to the point of looking up the word ``impede'' in
the dictionary, you know. It says obstruct or hinder. Obstruct. Does
the mouse hole obstruct? No. Does the curvature of the head
obstruct? No. Does the two inch gap obstruct? No. Does it hinder? It
may hinder it, but again, I think the collective thought was that it
could be done.''
Mr. Miller concluded that impediment meant something that obstructed or
hindered. Using the dictionary definition, Mr. Miller concluded that
none of these issues obstructed an inspection, though these issues may
hinder it.
Mr. Miller also stated in his interview with OI that at
the time the September 4, 2001, response was being issued to the NRC:
``From what I knew, at that time they were able to look at them
to a degree, but because there was boron, you know, on the head in
some areas, it couldn't be credited as a qualified visual
inspection. It's very difficult to look at CRDMs when there is boric
acid around it.
And in a sense, we were looking--we were--and my understanding
at that time was that we were looking, you know, can we inspect to
see that there's, you know, popcorn boron, or whatever, and it's
very difficult to look at the CRDMs when there's boric acid around
it.
In other words, to me, it doesn't really say, it doesn't talk
about, you know, and I'm speaking now, you know, somewhat what I
know now, too. And this is where it's very difficult.
You look back at this stuff and you could say, oh, for sure, you
know, oh, it was obvious to the casual observer. Well, not to me it
wasn't, because, you know, I'm this licensing guy taking input from
engineering. It is very difficult to look at CRDMs when there's
boric acid around it.''
The above information demonstrates that Mr. Miller had sufficient
knowledge of the results of previous inspections of the RPV head and
that he knew that the licensee's written response to NRC Bulletin 2001-
001 was incomplete and inaccurate.
Several FENOC employees, including Mr. Dale Miller, were
responsible for the information provided to the NRC by FENOC in
response to the Bulletin.
III
Dale Miller was employed by FENOC as a Compliance Supervisor in the
Regulatory Affairs organization at Davis-Besse at the time the
responses to the Bulletin were developed and transmitted to the NRC.
Additionally, Mr. Miller was the supervisor of the individual assigned
the responsibility to prepare the September 4, 2001, response to the
Bulletin. On August 30, 2001, Mr. Miller concurred as the ``Supervisor,
DB Compliance'' in the issuance of the licensee's September 4, 2001,
response to the Bulletin.
Item 1.d of the Bulletin requested each PWR licensee, including
FENOC for Davis-Besse, provide a description of the RPV head
penetration nozzles and RPV head inspection (including type, scope,
qualification requirements, and acceptance criteria) that were
performed at PWRs in the 4 years preceding the date of the Bulletin,
and the findings resulting from the inspections. The licensee's were
requested to include a description of any limitations (insulation or
other impediments) to accessibility of the bare metal of the RPV head
for visual examinations.
On September 4, 2001, FENOC submitted its written response to the
Bulletin for Davis-Besse. Item 1.d of the licensee's September 4, 2001,
response to the Bulletin stated, in part,
``a gap exits between the RPV head and the insulation, the minimum
gap being at the dome center of the RPV head where it is
approximately 2 inches, and does not impede visual inspection.''
The licensee included a description of the Eleventh Refueling
Outage (11RFO) (April 1998) inspection of RPV head penetration nozzles
and RPV head at Davis-Besse in its September 4, 2001, letter to the
NRC, and stated, in part,
``The head was cleaned by use of a manual scrubber and vacuum
through the weepholes.''
The licensee's September 4, 2001, response also described the
results of the inspections conducted during 12RFO (April 2000) and
included a statement that:
``Inspection of the RPV head/nozzles area indicated some
accumulation of boric acid deposits. The boric acid deposits were
located beneath the leaking flanges with clear evidence of downward
flow. No visible evidence of nozzle leakage was detected.''
The licensee's September 4, 2001, response was materially
incomplete and inaccurate in that the response did not describe
impediments to accessing the RPV head bare metal during the 11RFO
(1998) and 12RFO (2000). Access to the RPV head bare metal was limited
due to significant accumulations of boric acid deposits and the size of
the service structure access holes.
Based on the above information, the NRC concludes that Mr. Miller
had sufficient knowledge of the condition of the RPV head and the
limitations experienced during RPV head inspections, and he
deliberately provided materially incomplete and inaccurate information
when, on August 30, 2001, Mr. Miller concurred on the licensee's
September 4, 2001, response to the NRC.
The information provided by the licensee under oath in the Bulletin
response, based, in part, on the concurrence of Mr. Miller, was
material to the NRC because the NRC used the information, in part, to
allow FENOC to operate Davis-Besse until February 2002 rather than
requiring the plant to shut down by December 31, 2001, to conduct
inspections of the head as discussed in Item 3.v.1. of the Bulletin.
Based on the above information, Mr. Dale Miller, while employed by
the licensee, engaged in deliberate misconduct by deliberately
providing FENOC and the NRC information that he knew was not complete
or accurate in all material respects to the NRC, a violation of 10 CFR
50.5(a)(2). Mr. Miller's actions also placed FENOC in violation of 10
CFR 50.9. The NRC determined that these violations were of very high
safety and regulatory significance because they demonstrated a pattern
of deliberate inaccurate or incomplete documentation of information
that was required to be submitted to the NRC pursuant to 10 CFR
50.54(f). Had the NRC been aware of this incomplete and inaccurate
information, the NRC would likely have taken immediate regulatory
action to shut down the plant and require the licensee to implement
appropriate corrective actions.
IV
The NRC must be able to rely on the licensee and its employees to
comply with NRC requirements, including the requirement to provide
information and maintain records that are complete and accurate in all
material respects. Mr. Miller's deliberate actions raised serious doubt
as to whether he can be relied upon to comply with NRC requirements
[[Page 2581]]
and to provide complete and accurate information to the NRC.
Consequently, I lack the requisite reasonable assurance that
licensed activities can be conducted in compliance with the
Commission's requirements and that the health and safety of the public
will be protected if Mr. Miller is permitted to be involved in NRC-
licensed activities. Therefore, the public health, safety and interest
require that Mr. Miller be prohibited from any involvement in NRC-
licensed activities for a period of five years effective immediately.
Additionally, Mr. Miller is required to notify the NRC of his first
employment in NRC-licensed activities for a period of five years
following the prohibition period.
V
Accordingly, pursuant to sections 103, 104, 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, 10 CFR 50.5, and 10 CFR
150.20, It is hereby ordered that effective immediately:
1. Mr. Dale Miller is prohibited for five years from the date of
this Order from engaging in NRC-licensed activities. The NRC considers
NRC-licensed activities to be those activities that are conducted
pursuant to a specific or general license issued by the NRC, including
those activities of Agreement State licensees conducted pursuant to the
authority granted by 10 CFR 150.20.
2. If Mr. Miller is currently involved with another licensee in
NRC-licensed activities, he must immediately cease those activities,
and inform the NRC of the name, address and telephone number of the
employer, and provide a copy of this Order to the employer.
3. For a period of five years after the five-year period of
prohibition has expired, Mr. Miller shall, within 20 days of acceptance
of his first employment offer involving NRC-licensed activities or his
becoming involved in NRC-licensed activities, as defined in Paragraph
IV.1 above, provide notice to the Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, of the name,
address, and telephone number of the employer or the entity where he
is, or will be, involved in NRC-licensed activities. In the
notification, Mr. Miller shall include a statement of his commitment to
compliance with regulatory requirements and the basis why the
Commission should have confidence that he will now comply with
applicable NRC requirements.
The Director, Office of Enforcement, may, in writing, relax or
rescind any of the above conditions upon demonstration by Mr. Miller of
good cause.
VI
In accordance with 10 CFR 2.202, Dale Miller must, and any other
person adversely affected by this Order may, submit an answer to this
Order, and may request a hearing on this Order within 20 days of the
date of this Order, consideration may be given to extending the
response time for submitting an answer as well as the time for
requesting a hearing, for good cause shown. 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. The answer may consent to
this Order. Unless the answer consents to this Order, the answer shall,
in writing and under oath or affirmation, specifically admit or deny
each allegation or charge made in this Order and shall set forth the
matters of fact and law on which Mr. Miller or other person adversely
affected relies and the reasons as to why the Order should not have
been issued. Any answer or 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, Lisle,
IL 60532-4352, and to Mr. Miller if the answer or hearing request is by
a person other than Mr. Miller. Because of continuing disruptions in
delivery of mail to United States Government offices, it is requested
that answers and 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 other than
the Mr. Miller 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.
If a hearing is requested by Mr. Miller or 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 Order should be
sustained.
Pursuant to 10 CFR 2.202(c)(2)(I), Mr. Miller, may, in addition to
demanding a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, the provisions
specified in Section V above shall be effective immediately and final
20 days from the date of this Order without further order or
proceedings. If an extension of time for requesting a hearing has been
approved, the provisions specified in Section V shall be final when the
extension expires if a hearing request has not been received.
Dated this 4th day of January 2006.
For the Nuclear Regulatory Commission.
Martin J. Virgilio,
Deputy Executive Director for Materials, Research, State, and
Compliance Programs, Office of the Executive Director for Operations.
[FR Doc. E6-438 Filed 1-13-06; 8:45 am]
BILLING CODE 7590-01-P