Dale Miller; Order Prohibiting Involvement in NRC-Licensed Activities (Effective Immediately), 2579-2581 [E6-438]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 71, Number 10 (Tuesday, January 17, 2006)]
[Notices]
[Pages 2579-2581]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-438]



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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 hearingdocket@nrc.gov and also to the Office of 
the General Counsel either by means of facsimile transmission to 301-
415-3725 or by e-mail to OGCMailCenter@nrc.gov. 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]
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