[Federal Register Volume 75, Number 112 (Friday, June 11, 2010)]
[Notices]
[Pages 33358-33361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14059]


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NUCLEAR REGULATORY COMMISSION

[Docket No.: 50-369 and 50-370; License No.: NPF-9, NPF-17; EA-09-252; 
NRC-2010-0196]


Duke Energy Carolinas, LLC; McGuire Nuclear Station; Confirmatory 
Order (Effective Immediately)

I

    Duke Energy Carolinas, LLC's (Duke Energy or Licensee) is the 
holder of License Nos. NPF-9 and NPF-17, issued by the Nuclear 
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 50, 
on June 12, 1981, and March 3, 1983, respectively. The license 
authorizes the operation of the McGuire Nuclear Station (MNS or 
facility) in accordance with the conditions specified therein. The 
facility is located at the Licensee's site in Huntersville, North 
Carolina.
    This Confirmatory Order is the result of an agreement reached 
during an alternative dispute resolution (ADR) mediation session 
conducted on March 29, 2010.

II

    On November 26, 2008, the NRC's Office of Investigations (OI) 
initiated an investigation (OI Case No. 2-2009-009) regarding 
activities at the MNS located in Huntersville, NC. Based on the 
evidence developed during the investigation, the NRC staff 
preliminarily concluded that on approximately October 20, 2008, a 
contract employee introduced and used marijuana inside the Protected 
Area at MNS, and a second contract employee was aware of the potential 
use of the illegal drug but failed to report this to the appropriate 
site personnel as required by site procedure. The NRC's letter to Duke 
Energy of January 27, 2010, documented the NRC's conclusions and the 
following two apparent violations:
    1. 10 CFR 26.10, states in part, that a licensee's Fitness For Duty 
(FFD) program must provide reasonable measures for the early detection 
of individuals who are not fit to perform activities within the scope 
of 10 CFR Part 26. Section 26.20 states, in relevant part, that each 
licensee subject to this part shall establish and implement written 
policies and procedures designed to meet the general performance 
objectives and specific requirements of this part. Section 26.23(a) 
states, in part, that contractor personnel performing activities within 
the scope of this part for a licensee must be subject to the licensee's 
program relating to fitness-for-duty. The Duke Energy Nuclear Policy 
Manual, NSD 218.10.1, Revision 9, states in relevant part, that where 
unusual behavior, lack of trustworthiness and reliability, or evidence 
that an individual is not fit for duty is observed, it shall be 
reported to the manager of Access Services. On approximately October 
20, 2008, a contract employee observed the use of marijuana inside of 
the Protected Area but failed to immediately report the event as 
required by MNS's continuing behavior observation program.
    2. 10 CFR 26.10(c), states in part, that a licensee's FFD program 
must have a goal of achieving a drug-free workplace and a workplace 
free of the effects of such substances. 10 CFR 26.20 states, in 
relevant part, that each licensee subject to this part shall establish 
and implement written policies and procedures designed to meet the 
general performance objectives and specific requirements of this part. 
Section 26.23(a) states, in part, that contractor personnel performing 
activities within the scope of this part for a licensee must be subject 
to the licensee's program relating to fitness-for-duty. The Duke Energy 
Nuclear Policy Manual, NSD 217.8, Revision 14, states, in relevant 
part, that illegal drugs are prohibited by company or departmental 
policy from actual or attempted introduction into the site Protected 
Area. On approximately October 20, 2008, a contract employee introduced 
and used marijuana inside of the Protected Area at the MNS.

III

    On March 29, 2010, the NRC and Duke Energy met in an ADR session 
mediated by a professional mediator, which was arranged through Cornell 
University's Institute on Conflict Resolution. ADR is a process in 
which a neutral mediator with no decision-making authority assists the 
parties in reaching an agreement or resolving any differences regarding 
their dispute. This confirmatory order is issued pursuant to the 
agreement reached during the ADR process. The elements of the agreement 
consist of the following:
    1. Regarding the apparent violation discussed in Section II.1 
above, Duke Energy's internal investigation could not substantiate the 
observed use of marijuana inside of the Protected Area. Regarding the 
second apparent violation discussed in Section II.2 above, Duke 
Energy's internal investigation could not substantiate the introduction 
and use of marijuana inside the Protected Area at the McGuire Nuclear 
Station. Nonetheless, in the context of the ADR mediation, Duke Energy 
agrees not to

[[Page 33359]]

contest the NRC's characterization of the first or second apparent 
violation. The NRC concluded that both violations were due to 
deliberate misconduct.
    2. The NRC acknowledged that Duke Energy, prior to the ADR session, 
already took certain actions that address the issues underlying the 
apparent violations. These actions included:
    a. Revision of the Duke Energy FFD Policy to more clearly 
communicate the obligation to report suspicious behavior;
    b. Performance of an independent investigation through its Employee 
Concerns Program to assess the response and actions arising out of the 
facts and circumstances surrounding the apparent violation.
    c. Reviewed access determinations for involved individuals, 
implemented targeted searches of individuals and certain areas within 
the McGuire Protected Area, and denied unescorted access for the 
individuals involved. Duke Energy also reviewed the work activities 
performed by the contractor individual at the McGuire site. No issues 
were identified.
    d. Coaching and mentoring session with nuclear site Human Resources 
directors and General Office staff Human Resources consultants to 
emphasize the importance of prompt reporting of FFD/BOP concerns.
    3. In addition to the actions completed by Duke Energy as discussed 
above, Duke Energy agreed to additional corrective actions and 
enhancements, as fully delineated below in Section V of this 
Confirmatory Order.
    4. The NRC and Duke Energy agree that the above elements will be 
incorporated into a Confirmatory Order. The resulting Confirmatory 
Order will be considered by the NRC for any assessment of Duke Energy, 
as appropriate.
    5. The NRC normally considers characterization of the significance 
of the apparent violations discussed above at Severity Level III. 
However, in consideration of the commitments delineated in Paragraphs 4 
and 5 above, the NRC and Duke Energy agree that the above non-
compliances will be characterized as one violation of 10 CFR Part 26, 
with a significance of Severity Level IV. The violation will be cited 
as an attachment to the Confirmatory Order, with no response to the 
violation required from Duke Energy. This completes the Agency's 
enforcement action with respect to Duke Energy regarding all matters 
discussed in the NRC's letter to Duke Energy of January 27, 2010 (EA-
09-252).
    6. This agreement is binding upon successors and assigns of Duke 
Energy.
    On May 24, 2010, Duke Energy consented to issuance of this 
Confirmatory Order with the commitments, as described in Section V 
below. Duke Energy further agrees that this Confirmatory Order is to be 
effective upon issuance and that it has waived its right to a hearing.

IV

    Since Duke Energy has completed the actions as delineated in 
Section III.2, and agreed to take the actions as set forth in Section 
V, the NRC has concluded that its concerns can be resolved through 
issuance of this Confirmatory Order.
    I find that Duke Energy's commitments as set forth in Section V 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 public health and safety require that 
Duke Energy's commitments be confirmed by this Confirmatory Order. 
Based on the above and Duke Energy's consent, this Confirmatory Order 
is immediately effective upon issuance.

V

    Accordingly, pursuant to Sections 51, 53, 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 70, it is hereby ordered, 
effective immediately, that license no. NPF-9 and NPF-17 be modified as 
follows:
    a. Within ninety (90) days of the effective date of this 
Confirmatory Order, Duke Energy will develop a summary of lessons 
learned from the facts and circumstances surrounding the apparent 
violations and communicate this summary:
    i. To Duke Energy nuclear generation employees;
    ii. In the Duke Energy-specific Plant Access Training for a period 
of one (1) year following the communication set forth in 5.a.i. above;
    iii. To Nuclear Human Resources personnel; and
    iv. To Duke Energy's approved screening contractor organizations.
    b. Within one hundred and eighty (180) days of the effective date 
of this Confirmatory Order, perform a self-assessment of the adequacy 
of the programs and processes in place to detect and deter the 
introduction of illegal drugs and alcohol into the Protected Area of 
Duke Energy's nuclear stations and implement appropriate enhancements 
in accordance with Duke Energy's corrective action program. Such 
assessment will include benchmarking with at least three nuclear fleets 
to identify best practices; evaluation of processes and procedures 
utilized to guide responses to identification of potential introduction 
of illegal drugs or alcohol into the Protected Area of a nuclear 
station; and associated oversight of contractor workforce.
    c. Prior to December 31, 2011, perform an effectiveness review of 
the corrective actions identified in V.a. and V.b. above.
    The Regional Administrator, NRC Region II, may relax or rescind, in 
writing, any of the above conditions upon a showing by Duke Energy of 
good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than the Licensee, may request a hearing within 20 days of the date 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, Washington, 
DC 20555-0001, 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

[[Page 33360]]

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 the Electronic Information Exchange (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 other 
than the Licensee requests a hearing, that person shall set forth with 
particularity the manner in which his interest is adversely affected by 
this Confirmatory Order and shall address the criteria set forth in 10 
CFR 2.309(d) and (f).
    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.

VII

    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 final 20 days from the date this 
Confirmatory Order is published 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 hearing shall not stay the immediate effectiveness of 
this confirmatory order.

    Dated this 2nd day of June 2010.

    For the Nuclear Regulatory Commission.
Luis A. Reyes,
Regional Administrator.

Notice of Violation

Duke Energy Carolinas, LLC,
McGuire Nuclear Station,
Units 1 and 2.

Docket No. 50-369 and 50-370.

License No.: NPF-9, NPF-17.

EA-09-252.

    During an investigation completed by the NRC on September 3, 2009, 
a violation of NRC requirements was identified. In accordance with the 
NRC Enforcement Policy, the violation is listed below:
    10 CFR 26.10 states, in part, that a licensee's FFD program must 
provide reasonable measures for the early detection of individuals who 
are not fit to perform activities within the scope of 10 CFR Part 26. 
Section 26.20 states, in

[[Page 33361]]

relevant part, that each licensee subject to this part shall establish 
and implement written policies and procedures designed to meet the 
general performance objectives and specific requirements of this part. 
Section 26.23(a) states, in part, that contractor personnel performing 
activities within the scope of this part for a licensee must be subject 
to the licensee's program relating to fitness-for-duty.
    10 CFR 26.10(c), states in part, that a licensee's FFD program must 
have a goal of achieving a drug-free workplace and a workplace free of 
the effects of such substances. 10 CFR 26.20 states, in relevant part, 
that each licensee subject to this part shall establish and implement 
written policies and procedures designed to meet the general 
performance objectives and specific requirements of this part. Section 
26.23(a) states, in part, that contractor personnel performing 
activities within the scope of this part for a licensee must be subject 
to the licensee's program relating to fitness-for-duty.
    The Duke Energy Nuclear Policy Manual, NSD 217.8, Revision 14, 
states, in relevant part, that illegal drugs are prohibited by company 
or departmental policy from actual or attempted introduction into the 
site Protected Area.
    The Duke Energy Nuclear Policy Manual, NSD 218.10.1, Revision 9, 
states in relevant part, that where unusual behavior, lack of 
trustworthiness and reliability, or evidence that an individual is not 
fit for duty is observed, it shall be reported to the manager of Access 
Services.
    Contrary to the above, on approximately October 20, 2008, a 
contract employee introduced and used marijuana inside of the Protected 
Area at the McGuire Nuclear Station. In addition, a second contract 
employee became aware of the potential use of marijuana inside of the 
Protected Area but failed to immediately report the event as required 
by McGuire Nuclear Station's continuing behavior observation program.
    This is a Severity Level IV violation (Supplement III).
    The NRC has concluded that information regarding the reason for the 
violation, the corrective actions taken and planned to correct the 
violation and prevent recurrence and the date when full compliance will 
be achieved is already adequately addressed on the docket in the 
enclosed Confirmatory Order. Therefore, you are not required to respond 
to this letter unless the description therein does not accurately 
reflect your corrective actions or your position. However, you are 
required to submit a written statement or explanation pursuant to 10 
CFR 2.201 if the description therein does not accurately reflect your 
corrective actions or your position. In that case, or if you choose to 
respond, clearly mark your response as a ``Reply to a Notice of 
Violation, EA-09-252,'' and send it to the U.S. Nuclear Regulatory 
Commission, ATTN: Document Control Desk, Washington, DC 20555-0001 with 
a copy to the Regional Administrator, Region II, and a copy to the NRC 
Resident Inspector at the facility that is the subject of this Notice, 
within 30 days of the date of the letter transmitting this Notice of 
Violation (Notice).
    If you choose to respond, your response will be made available 
electronically for public inspection in the NRC Public Document Room or 
from the NRC's document system (ADAMS), accessible from the NRC Web 
site at http://www.nrc.gov/reading-rm/adams.html. Therefore, to the 
extent possible, the response should not include any personal privacy, 
proprietary, or safeguards information so that it can be made available 
to the Public without redaction. If personal privacy or proprietary 
information is necessary to provide an acceptable response, then please 
provide a bracketed copy of your response that identifies the 
information that should be protected and a redacted copy of your 
response that deletes such information. If you request withholding of 
such material, you must specifically identify the portions of your 
response that you seek to have withheld and provide in detail the bases 
for your claim of withholding (e.g., explain why the disclosure of 
information will create an unwarranted invasion of personal privacy or 
provide the information required by 10 CFR 2.390(b) to support a 
request for withholding confidential commercial or financial 
information). If safeguards information is necessary to provide an 
acceptable response, please provide the level of protection described 
in 10 CFR 73.21.
    In accordance with 10 CFR 19.11, you may be required to post this 
Notice within 2 working days of receipt.

    Dated this 2nd day of June 2010.

[FR Doc. 2010-14059 Filed 6-10-10; 8:45 am]
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