[Federal Register Volume 74, Number 238 (Monday, December 14, 2009)]
[Notices]
[Pages 66153-66156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29661]


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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0545; Docket No.: 55-62191; License No.: OP-11276-1 
(Terminated), IA-09-023]


In the Matter of: Duane Kuhn; Confirmatory Order Modifying 
License (Effective Immediately)

I

    Duane Kuhn (Mr. Kuhn) was previously employed as a Reactor Operator 
(RO) at Exelon Generation Company, LLC's (Exelon or licensee) Peach 
Bottom Atomic Power Station (Peach Bottom or facility) located in 
Delta, Pennsylvania. Mr. Kuhn was the holder of RO License Number OP-
11276-1, issued by the Nuclear Regulatory Commission (NRC or 
Commission) pursuant to 10 CFR Part 55. The license authorized Mr. Kuhn 
to manipulate the controls of the facility. At Exelon's request, the 
license was terminated on July 31, 2008.
    This Confirmatory Order (Order) is the result of an agreement 
reached during an Alternative Dispute Resolution (ADR) mediation 
session conducted on September 24, 2009. ADR is a process in which a 
neutral mediator with no decision-making authority assists parties in 
reaching an agreement on resolving any differences regarding the 
dispute.

II

    The NRC Office of Investigations (OI) initiated an investigation on 
May 5, 2008 to determine whether Mr. Kuhn deliberately violated NRC 
requirements by failing to inform Exelon of information required to be 
reported. Based on the evidence developed during the OI investigation, 
which was completed on March 4, 2009, the NRC identified an apparent 
willful violation. The apparent violation involved Mr. Kuhn's failure 
to inform Exelon of an arrest on his first day back at work following 
the incident, as required by Exelon's Behavioral Observation Program 
implementing procedure, the Peach Bottom Physical Security Plan, and 10 
CFR 73.20(c). A description of this apparent violation and a factual 
summary of the results of the

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investigation were sent to Mr. Kuhn in an NRC letter dated June 5, 
2009.

III

    The June 5, 2009 NRC letter informed Mr. Kuhn that the agency was 
considering escalated enforcement against him for this apparent 
violation of NRC requirements and offered him the opportunity to either 
attend a Predecisional Enforcement Conference or to request use of ADR, 
to resolve this matter. On June 24, 2009, Mr. Kuhn requested the use of 
ADR and, on September 24, 2009, the NRC and Mr. Kuhn met in an ADR 
session mediated by a professional mediator, arranged through Cornell 
University's Scheinman Institute on Conflict Resolution. During that 
ADR session, a settlement agreement was reached. This Confirmatory 
Order is the result of that agreement, the elements of which consisted 
of the following:
    1. As a result of the ADR discussion, the NRC and Mr. Kuhn agreed 
to the following facts: (1) Mr. Kuhn was arrested on October 13, 2007, 
for driving under the influence (DUI) of alcohol; (2) Mr. Kuhn did not 
report the arrest to the Exelon-Peach Bottom management until April 29, 
2008; and, (3) at the time of the arrest, Mr. Kuhn was required to 
follow all station procedures under the terms and conditions of his 
individual reactor operator license.
    2. As a result of the facts agreed to in Item 1, the NRC has 
determined that Mr. Kuhn violated NRC requirements while he was 
employed as an RO at Peach Bottom. Specifically, the NRC concluded 
that, contrary to his reactor operator license, NRC regulations, and 
Exelon's Behavioral Observation Program procedure, Mr. Kuhn willfully 
failed to report to Exelon-Peach Bottom, for approximately six months, 
that he had been arrested for driving under the influence of alcohol on 
October 13, 2007. The NRC considered that this constituted a Severity 
Level III violation.
    3. Mr. Kuhn agreed that he violated Peach Bottom's Physical 
Security Plan and Exelon's Behavioral Observation Program procedure 
when he failed to report the arrest (an incident involving alcohol, 
which, by Exelon procedure required reporting) for approximately six 
months, and, as a result, violated his individual reactor operator 
license. Mr. Kuhn contends that his actions were not willful because he 
did not consider the incident to constitute an arrest until reading the 
Peach Bottom newsletter article that included a definition of an 
arrest. Mr. Kuhn maintains that, immediately upon reading the article, 
he self-reported this incident to Exelon-Peach Bottom management. 
However, Mr. Kuhn acknowledged that he should have known that he was 
required to report this incident, because it involved alcohol.
    4. Mr. Kuhn noted that he was required to complete a number of 
actions as a result of an Accelerated Rehabilitative Disposition 
program for his DUI arrest. These actions included:
    a. Relinquishing his driver's license for a period of 60 days;
    b. Completing 35 hours of community service;
    c. Completing 16 hours of educational classes on the hazards of 
drinking and specifically the hazards of drinking and driving;
    d. Attending a victim impact panel, at which victims and families 
of victims of alcohol-related driving incidents, described how their 
lives have been impacted by such events; and
    e. Completing 6 weeks of licensee-sponsored counseling, which 
included attending six sessions of Alcoholics Anonymous meetings.
    5. During the ADR mediation session, Mr. Kuhn recognized an 
opportunity for other licensed operators at Peach Bottom, within 
Exelon, and in the industry to learn from his violation. Therefore, Mr. 
Kuhn agreed to author an article in which he relates this incident and 
what he has learned from it. Within that article, Mr. Kuhn will 
emphasize the importance of adherence to all requirements, including 
the requirement of informing facility licensees of all reportable 
incidents defined within the facility's behavior observation program. 
Mr. Kuhn also agreed to submit this article to: (1) Exelon for 
consideration to use in its training program; and (2) the Professional 
Reactor Operator Society (PROS) and the Institute of Nuclear Power 
Operations (INPO) requesting their consideration for publication in 
their respective newsletters.
    6. Mr. Kuhn agreed to complete the actions in Item 5 within 90 days 
after issuance of a NRC Confirmatory Order confirming the commitments 
agreed to herein; send a letter to the NRC informing the NRC that these 
actions are complete; and include in the letter to the NRC a copy of 
the article submitted to Exelon, PROS, and INPO. Mr. Kuhn agreed to 
send this letter to the NRC within 30 days of completion of the actions 
stated in Item 5.
    7. In light of the actions Mr. Kuhn has committed to take as 
described in Item 5, the NRC agreed to not take enforcement action 
against him, other than issuance of a Confirmatory Order confirming the 
commitments set forth herein. The Confirmatory Order and its 
transmittal letter will be publicly available in ADAMS, will appear on 
the NRC ``Significant Enforcement Actions--Individuals'' Web site for a 
period of one year, and will also be placed in Mr. Kuhn's individual 
license file.
    On November 17, 2009, Mr. Kuhn consented to issuing this Order with 
the commitments, as described in Section V below. Mr. Kuhn further 
agreed that this Order is to be effective upon issuance and that he has 
waived his right to a hearing.

IV

    Since Mr. Kuhn has agreed to take additional actions to address NRC 
concerns, as set forth in Section III, the NRC has concluded that its 
concerns can be resolved through issuance of this Order.
    I find that Mr. Kuhn's commitments, as set forth in Section III, 
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 also determined that public health and safety require 
that the Licensee's commitments be confirmed by this Order. Based on 
the above and Mr. Kuhn's consent, this Order is immediately effective 
upon issuance.

V

    Accordingly, pursuant to Sections 81, 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 50, it is hereby ordered, 
effective immediately that Duane Kuhn shall:

    A. Author an article in which he relates this incident and what he 
has learned from it, emphasizing the importance of adherence to all 
requirements, including the requirement of informing facility licensees 
of all reportable incidents defined within the facility's behavior 
observation program.
    B. Submit this article to: (1) Exelon for consideration to use in 
its training program; and (2) the Professional Reactor Operator Society 
(PROS) and the Institute of Nuclear Power Operations (INPO) requesting 
their consideration for publication in their respective newsletters.
    C. Complete the above actions within 90 days after issuance of this 
NRC Confirmatory Order.
    D. Send a letter to the NRC informing the NRC that these actions 
are complete; and include in the letter to the NRC a copy of the 
article submitted to Exelon, PROS, and INPO within 30 days of 
completion of the above actions.
    The NRC Region I Regional Administrator may relax or rescind, in

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writing, any of the above conditions upon demonstration by Mr. Kuhn of 
good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Kuhn, may request a hearing within 20 days of its publication 
in the Federal Register. 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 directed to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, and include a 
statement of good cause for the extension.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the participant should 
contact the Office of the Secretary by e-mail at 
[email protected], or by telephone at (301) 415-1677, to request 
(1) a digital ID certificate, which allows the participant (or its 
counsel or representative) to digitally sign documents and access the 
E-Submittal server for any proceeding in which it is participating; and 
(2) advise the Secretary that the participant will be submitting a 
request or petition for hearing (even in instances in which the 
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the 
Secretary will establish an electronic docket for the hearing in this 
proceeding if the Secretary has not already established an electronic 
docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through EIE, users will be required to install a Web 
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document. The 
E-Filing system also distributes an e-mail notice that provides access 
to the document to the NRC Office of the General Counsel and any others 
who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
[email protected], or by a toll-free call at (866) 672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 
20852, Attention: Rulemaking and Adjudications Staff. Participants 
filing a document in this manner are responsible for serving the 
document on all other participants. Filing is considered complete by 
first-class mail as of the time of deposit in the mail, or by courier, 
express mail, or expedited delivery service upon depositing the 
document with the provider of the service. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, or the presiding officer. Participants 
are requested not to include personal privacy information, such as 
social security numbers, home addresses, or home phone numbers in their 
filings, unless an NRC regulation or other law requires submission of 
such information. With respect to copyrighted works, except for limited 
excerpts that serve the purpose of the adjudicatory filings and would 
constitute a Fair Use application, participants are requested not to 
include copyrighted materials in their submission.
    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).

[[Page 66156]]

    If the 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 
sustained.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, this Order shall be 
final 20 days from the date of its publication in the Federal Register 
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.
    A request for a hearing shall not stay the immediate effectiveness 
of this order.

    Dated this the 1st day of December 2009.

    For the Nuclear Regulatory Commission.
Samuel J. Collins,
Regional Administrator.
[FR Doc. E9-29661 Filed 12-11-09; 8:45 am]
BILLING CODE 7590-01-P