[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Notices]
[Pages 69149-69152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31019]
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NUCLEAR REGULATORY COMMISSION
[NRC-2009-0574; Docket Nos. 50-259; 50-260; 50-296; 50-327; 50-328; 50-
390; 50-391; License Nos. DPR-33; DPR-52; DPR-68; DPR-77; DPR-79; NPF-
90; CPPR-92; EA-09-009; EA-09-203]
In the Matter of U.S. Tennessee Valley Authority, Browns Ferry
Nuclear Plant, Sequoyah Nuclear Plant and Watts Bar Nuclear Plant;
Confirmatory Order Modifying License (Effective Immediately)
I
U.S. Tennessee Valley Authority (TVA or Licensee) is the holder of
Operating License Nos. DPR-33; DPR-52; DPR-68; DPR-77; DPR-79; DPR-90;
and Construction Permit No. CPPR-92 issued by the U.S. Nuclear
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 50.
The licenses authorize the operation of the Browns Ferry Nuclear Plant,
Units 1, 2 and 3 (BFN), Sequoyah Nuclear Plant, Units 1 and 2, and
Watts Bar Nuclear Plant, Unit 1 and construction activities associated
with Watts Bar, Unit 2, in accordance with conditions specified
therein. These facilities are located in Athens, Alabama; Soddy Daisy,
Tennessee; and Spring City, Tennessee, respectively.
This Confirmatory Order is the result of an agreement reached
during an Alternative Dispute Resolution (ADR) mediation session
conducted on December 4, 2009.
II
Two investigations were initiated by the NRC Office of
Investigations (OI) to determine if a former contractor in one instance
and a TVA employee in the other were discriminated against for engaging
in protected activities.
On January 6, 2009, the NRC's Office of Investigations (OI) issued
its investigative report regarding whether a former contracted Senior
Assessor (SA) hired to work in the Nuclear Assurance (NA) organization,
in connection with the BFN Unit 1 Restart Project, was the subject of
employment discrimination in violation of 10 CFR 50.7, ``Employee
protection.'' In OI Report No. 2-2006-025, OI concluded that a SA was
discriminated against for raising concerns regarding the independence
of his manager.
On July 30, 2009, OI issued its investigative report regarding
whether a maintenance mechanic (MM) employed by TVA at BFN was the
subject of employment discrimination in violation of 10 CFR 50.7,
``Employee protection.'' In OI Report No. 2-2009-003, OI concluded that
the MM was discriminated against for raising concerns regarding the
licensee's compliance with its Fitness for Duty program.
By letter dated October 22, 2009, and by teleconference on November
24, 2009, the NRC identified to the Licensee two separate apparent
violations of 10 CFR 50.7, and offered TVA the opportunity to provide a
written response, attend a pre-decisional enforcement conference, or to
request ADR in which a neutral mediator with no decision-making
authority would facilitate discussions between the NRC and TVA and, if
possible, assist the NRC and TVA in reaching an agreement. TVA chose to
participate in ADR.
III
On December 4, 2009, the NRC and TVA met in an ADR session in
Maryland, mediated by a professional mediator, which was arranged
through Cornell University's Institute on Conflict Resolution. This
Confirmatory Order is issued pursuant to the agreement reached during
the ADR process. The elements of the agreement consisted of the
following:
1. The NRC acknowledged that TVA, prior to the ADR session, took
numerous actions that address the issues underlying the apparent
violations. These actions include:
a. Browns Ferry Nuclear Plant (BFN) management conducts regular
``Town Hall'' meetings with TVA and contractor employees, which address
topics of interest to the site, and during which feedback is solicited
from employees. A regular area of focus is ``Safety Culture'' and the
related topic of safety conscious work environment (SCWE).
b. TVA issued ``One Team, One Fleet, One TVA'' pocket-size booklets
which identify focus areas for site and corporate success. These
booklets include a discussion of the need for a free flow of
information where individuals can raise nuclear safety concerns without
fear of retribution and have confidence that their concerns will be
addressed. These booklets are widely used and form a key part of daily
communications.
c. SCWE-oriented brochures (``How Do I Speak Up for Safety'' and
``Voice Your Concerns'') are distributed and are placed throughout the
sites for TVA and contractor employees. These brochures and other
Concerns Resolution Program (CRP) information are also made available
to contractor employees through placement in their individual in-
processing packages.
d. ``Speak Up For Safety'' message pens, which also provide CRP
contact
[[Page 69150]]
telephone numbers, are regularly handed out to TVA and contractor
employees.
e. Additional fleet-wide posters promoting the CRP and encouraging
the raising of concerns have been placed in strategic areas.
f. CRP representatives provide regular SCWE-oriented presentations
to TVA and contractor employees during mid-shift briefings, morning
turnover meetings, and tailgate meetings.
g. CRP representatives regularly attend contractor in-processing
sessions prior to station outages to orient contractors about the
Program's availability for raising concerns.
h. Additional ``Drop Boxes'' have been placed in high-traffic areas
where TVA and contractor employees can identify problems or concerns
and have the option of doing so anonymously if they wish.
i. TVA's procedure for the Corrective Action Program has been
modified to prevent altering problem evaluation report (PER) statements
initiated by TVA or contractor employees. (Certain non-intent changes
are permitted such as removing employee names, SSNs, Safeguards
Information, etc.).
j. CRP staff conduct periodic ``Pulsings'' of individual TVA and
contractor employees (approximately 50 individuals per quarter per
site) in which feedback is sought regarding work environment issues
including willingness to raise concerns.
k. Site electronic bulletin boards regularly communicate SCWE-
related messages which encourage raising/voicing problems and concerns.
l. An online computer-based training course was added which
discusses the components of a nuclear safety culture, what is meant by
a SCWE, and the avenues available to raise concerns. The training is
required annually as a refresher for TVA employees as well as for long-
term contract personnel that re-badge on an annual basis.
m. Representatives from TVA's Office of the General Counsel (OGC)
and the CRP completed training for TVA and contractor managers and
supervisors addressing 10 CFR 50.7 ``Employee Protection'' and
promoting a safety conscious work environment. The training covered
managers and supervisory staff (TVA and contractor) on all shifts.
n. An ``employment flag'' has been placed on the file of the
contractor manager involved in the case discussed in NRC's letter dated
October 22, 2009. The employment flag provides, as a condition of being
hired as an employee, individual TVA contractor, or as an employee of
any TVA contractor, that the individual be required to attend a
personal training session with representatives of the TVA OGC and the
CRP regarding TVA's and NRC's requirements protecting employees who
raise concerns (TVA Communications Practice 5, ``Expressing Concerns
and Differing Views'' and 10 CFR 50.7, ``Employee Protection''), as
well as methods for promoting a safety conscious work environment.
o. The apparent violations have been entered into TVA's Corrective
Action Program.
2. In addition, TVA agreed to take the following actions:
a. By no later than ninety (90) calendar days after the issuance of
this Confirmatory Order, TVA shall implement a process to review
proposed licensee adverse employment actions at TVA's nuclear plant
sites before actions are taken to determine whether the proposed action
comports with employee protection regulations, and whether the proposed
actions could negatively impact the SCWE. Such a process should
consider actions to mitigate a potential chilling effect if the
employment action, despite its legitimacy, could be perceived as
retaliatory by the workforce. By no later than one hundred twenty (120)
calendar days after the issuance of this Confirmatory Order, TVA shall
implement a process to review proposed significant adverse employment
actions by contractors performing services at TVA's nuclear plant sites
before the actions are taken to determine whether the proposed action
comports with employee protection regulations, and whether the proposed
action could negatively impact the SCWE. Such a process will likewise
consider actions to mitigate a potential chilling effect if the
employment action, despite its legitimacy, could be perceived as
retaliatory by the workforce.
b. By no later than seven (7) calendar days after the issuance of
the Confirmatory Order, a member of TVA's executive management
responsible for the licensee's nuclear power plant fleet will, in
writing, communicate TVA's policy, and the expectations of management,
regarding the employees' rights to raise concerns without fear of
retaliation in the context of this Confirmatory Order.
c. By no later than the end of calendar year 2013, TVA shall
perform two (2) independent safety culture assessments comparable to
the independent survey conducted in February 2009. The surveys shall be
administered in approximately two-year intervals. TVA shall assess and
evaluate the results compared with the results of the prior years'
surveys. TVA shall make the results of each survey and the planned
corrective actions available for NRC review within sixty (60) calendar
days after the development of the planned corrective actions.
d. Through the end of calendar year 2013 and on approximately a
quarterly basis, TVA shall continue to analyze SCWE trends and develop
planned actions, as appropriate.
e. By no later than sixty (60) calendar days after the issuance of
the Confirmatory Order, representatives from the TVA's OGC and Human
Resources shall conduct a lessons learned training session with the
manager associated with the apparent violation discussed with TVA on
November 24, 2009. The training shall be documented and made available
to the NRC upon request.
f. Through calendar year 2013, TVA shall conduct ``Town Hall''-type
meetings at least annually at its nuclear power plants and corporate
office with TVA and contractor employees which address topics of
interest, including a discussion on TVA's policy regarding fostering a
SCWE.
g. TVA shall incorporate a discussion of NRC's employee protection
rule in the next revision of the ``One Team, One Fleet, One TVA''
booklet. The next revision will be completed by no later than December
31, 2010.
h. By no later than ninety (90) calendar days after the issuance of
the Confirmatory Order, TVA shall modify its contractor in-processing
program to ensure that a TVA representative provides a presentation
regarding the CRP program and the TVA's SCWE policy during the
contractor in-processing sessions at its nuclear power plants.
i. By no later than ninety (90) calendar days after the issuance of
the Confirmatory Order, TVA shall revise its training program for new
supervisors to incorporate a classroom discussion of the NRC's employee
protection rule and the Company's policy on SCWE.
j. TVA's annual online computer-based training course initiative,
which discusses the components of a nuclear safety culture, what is
meant by a SCWE, and the avenues available to raise concerns, shall be
maintained through calendar year 2013.
On December 16, 2009, TVA consented to issuing this Confirmatory
Order with the commitments, as described in Section V below. TVA
further agreed that this Confirmatory Order is to be effective upon
issuance and it has waived its right to a hearing.
[[Page 69151]]
IV
Since TVA has agreed to take additional actions to address NRC
concerns, as set forth in Item III above, and NRC has concluded that
its concerns can be resolved through issuance of this Confirmatory
Order and thereby has agreed not to issue a Notice of Violation or
civil penalty in this matter.
I find that the Licensee'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 the public health and safety require
that the Licensee's commitments be confirmed by this Confirmatory
Order. Based on the above and the Licensee's consent, this Confirmatory
Order is immediately effective upon issuance.
V
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 50, It is hereby ordered,
effective immediately, that TVA shall:
1. By no later than ninety (90) calendar days after the issuance of
this Confirmatory Order, TVA shall implement a process to review
proposed licensee adverse employment actions at TVA's nuclear plant
sites before actions are taken to determine whether the proposed action
comports with employee protection regulations, and whether the proposed
actions could negatively impact the SCWE. Such a process should
consider actions to mitigate a potential chilling effect if the
employment action, despite its legitimacy, could be perceived as
retaliatory by the workforce. By no later than one hundred twenty (120)
calendar days after the issuance of the confirmatory order, TVA shall
implement a process to review proposed significant adverse employment
actions by contractors performing services at TVA's nuclear plant sites
before the actions are taken to determine whether the proposed action
comports with employee protection regulations, and whether the proposed
action could negatively impact the SCWE. Such a process will likewise
consider actions to mitigate a potential chilling effect if the
employment action, despite its legitimacy, could be perceived as
retaliatory by the workforce.
2. By no later than seven (7) calendar days after the issuance of
this Confirmatory Order, a member of TVA's executive management
responsible for the licensee's nuclear power plant fleet will, in
writing, communicate TVA's policy, and the expectations of management,
regarding the employees' rights to raise concerns without fear of
retaliation in the context of this Confirmatory Order.
3. By no later than the end of calendar year 2013, TVA shall
perform two (2) independent safety culture assessments comparable to
the independent survey conducted in February 2009. The surveys shall be
administered in approximately two-year intervals. TVA shall assess and
evaluate the results compared with the results of the prior years'
surveys. TVA shall make the results of each survey and the planned
corrective actions available for NRC review within sixty (60) calendar
days after the development of the planned corrective actions.
4. Through the end of calendar year 2013 and on approximately a
quarterly basis, TVA shall continue to analyze SCWE trends and develop
planned actions, as appropriate.
5. By no later than sixty (60) calendar days after the issuance of
this Confirmatory Order, representatives from the TVA's OGC and Human
Resources shall conduct a lessons learned training session with the
manager associated with the apparent violation discussed with TVA on
November 24, 2009. The training shall be documented and made available
to the NRC upon request.
6. Through calendar year 2013, TVA shall conduct ``Town Hall''-type
meetings at least annually at its nuclear power plants and corporate
office with TVA and contractor employees which address topics of
interest, including a discussion on TVA's policy regarding fostering a
SCWE.
7. TVA shall incorporate a discussion of NRC's employee protection
rule in the next revision of the ``One Team, One Fleet, One TVA''
booklet. The next revision will be completed by no later than December
31, 2010.
8. By no later than ninety (90) calendar days after the issuance of
this Confirmatory Order, TVA shall modify its contractor in-processing
program to ensure that a TVA representative provides a presentation
regarding the CRP program and the TVA's SCWE policy during the
contractor in-processing sessions.
9. By no later than ninety (90) calendar days after the issuance of
this Confirmatory Order, TVA shall revise its training program for new
supervisors to incorporate a classroom discussion of the NRC's employee
protection rule and the Company's policy on SCWE.
10. TVA's annual online computer-based training course initiative,
which discusses the components of a nuclear safety culture, what is
meant by a SCWE, and the avenues available to raise concerns, shall be
maintained through calendar year 2013.
11. In the event of the transfer of the operating license of a
facility to another entity, if any, the commitments for such facility
shall survive any transfer of ownership.
12. For clarity purposes, TVA's commitments herein are applicable
to the above-captioned nuclear plants unless otherwise stated.
VI
Any person adversely affected by this Confirmatory Order, other
than TVA, 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 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.
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
[[Page 69152]]
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 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.
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 of
this Confirmatory 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.
A request for hearing shall not stay the immediate effectiveness of
this order.
Dated this 22nd day of December 2009.
For the Nuclear Regulatory Commission.
Roy Zimmerman,
Director, Office of Enforcement.
[FR Doc. E9-31019 Filed 12-29-09; 8:45 am]
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