In the Matter of: Exelon Generating Company, LLC Peach Bottom Atomic Power Station, Confirmatory Order Modifying License (Effective Immediately), 66156-66159 [E9-29660]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 74, Number 238 (Monday, December 14, 2009)]
[Notices]
[Pages 66156-66159]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29660]


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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0546, Docket Nos.: 50-277/278, License Nos: DPR-44 &, DPR-56, 
EA-09-007 & EA-09-059]


In the Matter of: Exelon Generating Company, LLC Peach Bottom 
Atomic Power Station, Confirmatory Order Modifying License (Effective 
Immediately)

I

    Exelon Generating Company, LLC (Exelon or licensee) is the holder 
of Facility Operating License Nos. DPR-44 and DPR-56 issued by the U.S. 
Nuclear Regulatory Commission (NRC or agency) pursuant to 10 CFR Part 
50. The licenses authorize the operation of Peach Bottom Atomic Power 
Station, Units 2 and 3 (Peach Bottom or facility), in accordance with 
conditions specified therein. The facility is located on the licensee's 
site in Delta, Pennsylvania.
    This Confirmatory Order (Order) is the result of an agreement 
reached during an Alternative Dispute Resolution (ADR) mediation 
session conducted on September 3, 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

    Two investigations were initiated by the NRC Office of 
Investigations (OI) to determine if two former Peach Bottom employees 
deliberately violated NRC requirements by reporting inaccurate 
information in one instance, and failing to inform the licensee of 
information required to be reported in the other. An NRC letter to 
Exelon on June 5, 2009, transmitted factual summaries of the OI 
investigations and informed Exelon that, based on the evidence 
developed during the investigations, OI had substantiated that apparent 
violations of NRC requirements had occurred as the result of deliberate 
actions of the former Peach Bottom employees. The first investigation, 
initiated on February 12, 2008, determined that a former Peach Bottom 
maintenance supervisor deliberately failed to provide complete and 
accurate information when completing a Personal History Questionnaire 
(PHQ) for unescorted access authorization (UAA), and subsequently 
gained access to the site. PHQs are a means by which licensees, 
including Exelon, collect information to make determinations about an 
individual's suitability for unescorted access, as required by 10 CFR 
73.56 and the licensee's Physical Security Plan. Specifically, the 
former maintenance supervisor provided incorrect information regarding 
the character of his military service, his history of misconduct in the 
military, and the nature of his discharge from the military. The second 
investigation, initiated on May 5, 2008, determined that a former Peach 
Bottom licensed Reactor Operator (RO) deliberately failed to report an 
arrest/criminal charges in accordance with the site security program 
procedures for UAA and the Behavioral Observation Program (BOP). 
Specifically, the RO was arrested and charged with driving under the 
influence on October 13, 2007, and did not report the incident to 
Exelon until April 28, 2008.

III

    The June 5, 2009, NRC letter informed Exelon that the agency was 
considering escalated enforcement against it for these apparent 
violations of NRC requirements and offered Exelon the opportunity to 
either attend a Predecisional Enforcement Conference or to request use 
of ADR, to resolve this matter. On June 12, 2009, Exelon requested the 
use of ADR. On September 3, 2009, the NRC and Exelon 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. Exelon did not take issue with the NRC preliminary conclusion 
set forth in the June 5, 2009, letter that two violations occurred and 
that the actions by the former maintenance supervisor and the former RO 
regarding the violations were deliberate. The NRC concluded that both 
violations warranted Severity Level III classification and would 
normally be subject to a civil penalty in accordance with the NRC 
Enforcement Policy, because Exelon did not identify one of the two 
violations. Exelon did not take issue with the NRC conclusion that the 
violation involving the former RO constitutes a Severity Level III 
violation. Exelon, however, asserted that the maintenance supervisor 
applicant was not a fully qualified supervisor when incomplete and 
inaccurate information was provided. Therefore, this instance would not 
constitute a Severity Level III violation. The NRC and Exelon agreed to 
disagree on the severity level of this violation.
    2. The NRC acknowledged that Exelon had taken several corrective 
actions in response to the violations, so as to preclude the occurrence 
of similar violations in the future. These actions include:
    a. Completed Corrective Actions only affecting Peach Bottom:
    i. Conducted training module, emphasizing the impact of deliberate 
misconduct on nuclear safety culture.
    ii. Performed common cause evaluation on deliberate misconduct 
events at PBAPS and implemented resulting corrective actions.
    b. Completed Corrective Actions affecting all Exelon operating 
nuclear facilities:
    i. Revised Exelon fleet-wide PHQ to require applicants to review 
and acknowledge the expectation to provide complete and accurate 
information and the consequences of providing false, incomplete, or 
misleading information.
    ii. Revised fleet-wide procedure/process for validating military 
background investigation element.
    iii. Implemented fleet-wide safety culture training and workshops.
    c. Completed Corrective Actions affecting the nuclear industry:
    i. Incorporated lessons learned regarding validation of military 
background into industry guidance document Nuclear Energy Institute 
(NEI) 03-01 to strengthen industry process.

[[Page 66157]]

    ii. Presented lessons learned on military background falsification 
issue at July 2009 NEI industry Personnel Access Database System (PADS) 
workshop.
    3. Exelon agreed to take additional actions to address the 
violations, to ensure that the corrective actions identified in Item 2 
are effective, and to ensure that lessons learned from these events are 
extended to the Exelon fleet and to the industry. These actions consist 
of:
    a. Planned Corrective Actions only affecting Peach Bottom:
    i. Review special obligations of licensed operators and supervisors 
in Peach Bottom licensed operator training program, including Peach 
Bottom operating experience.
    ii. Develop an assessment to verify the effectiveness of actions 
associated with deliberate misconduct training.
    iii. Perform Peach Bottom Site Employee Issues Advisory Council 
(SEIAC) reviews regarding employee conduct issues/concerns, including 
any apparent trends in these areas; and ensure corporate EIAC 
emphasizes comparison of site data to identify trends or outliers.
    iv. Repeat Peach Bottom training module on deliberate misconduct 
for new employees and current Peach Bottom personnel in 2010, 
emphasizing the impact of deliberate misconduct on nuclear safety 
culture.
    b. Planned Corrective Actions affecting all Exelon operating 
nuclear facilities:
    i. Include deliberate misconduct training in the fleet-wide 
Supervisory Development Program for new supervisors.
    ii. Implement Peach Bottom training module fleet-wide, emphasizing 
the impact of deliberate misconduct on nuclear safety culture. Exelon 
will also review its current contractor training on deliberate 
misconduct and add the training module, if necessary.
    iii. Provide additional information fleet-wide, to educate the 
workforce on BOP, Fitness-for-Duty requirements, and Employee 
Assistance Program services.
    c. Planned Corrective Actions affecting the nuclear industry:
    i. Provide lessons learned-type article to Professional Reactor 
Operators Society (PROS) requesting consideration for inclusion in 
industry newsletter.
    ii. Provide lessons learned-type article to NEI requesting 
consideration for inclusion in its industry newsletter.
    iii. Discuss with the Institute of Nuclear Power Operations (INPO) 
the possibility of incorporating into its supervisor and operations 
development programs, a module regarding the significance and impact of 
deliberate misconduct.
    4. Exelon agreed to complete the actions applicable only to Peach 
Bottom after issuance of an NRC Confirmatory Order, by June 30, 2010, 
and to send the NRC a letter informing the agency that the actions are 
complete, within 30 days of their completion, to facilitate NRC 
confirmatory reviews. Exelon also agreed to complete the remaining 
corrective actions after issuance of the NRC Confirmatory Order, by 
September 30, 2010, and to send the NRC a letter informing the agency 
that the actions are complete, within 30 days of their completion, to 
facilitate NRC confirmatory reviews.
    5. In light of the corrective actions that Exelon took as noted in 
Item 2, as well as the additional actions Exelon committed to as 
described in Item 3, the NRC agreed to not issue a Notice of Violation 
or civil penalty for the two violations that are the subject of this 
ADR.
    6. Exelon agreed to issuance of a Confirmatory Order confirming 
this agreement that describes the two violations and the classification 
of the violation involving the RO at Severity Level III. The NRC agreed 
that, for this violation, the date for the escalated enforcement and 
reactor oversight processes will be retroactive to the date that the 
individual's employment was terminated (August 17, 2008). In accordance 
with NRC practice, the Confirmatory Order and the letter forwarding it 
to Exelon will be publicly available and accompanied by a press 
release.
    On November 19, 2009, Exelon consented to issuing this Order with 
the commitments, which are described in Section V below. The Licensee 
further agreed that this Order is to be effective upon issuance and 
that it has waived its right to a hearing.

IV

    Since Exelon 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 Exelon'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 Exelon'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 Exelon shall:
    A. Complete the following actions by June 30, 2010, and send the 
NRC a letter informing the agency that the actions are complete within 
30 days of their completion:
    a. Review special obligations of licensed operators and supervisors 
in Peach Bottom licensed operator training program, including Peach 
Bottom operating experience.
    b. Develop an assessment to verify the effectiveness of actions 
associated with deliberate misconduct training.
    c. Perform Peach Bottom Site Employee Issues Advisory Council 
(SEIAC) reviews regarding employee conduct issues/concerns, including 
any apparent trends in these areas; and ensure corporate EIAC 
emphasizes comparison of site data to identify trends or outliers.
    d. Repeat Peach Bottom training module on deliberate misconduct for 
new employees and current Peach Bottom personnel in 2010, emphasizing 
the impact of deliberate misconduct on nuclear safety culture.
    B. Complete the following actions by September 30, 2010, and send 
the NRC a letter informing the agency that the actions are complete 
within 30 days of their completion:
    a. Include deliberate misconduct training in the fleet-wide 
Supervisory Development Program for new supervisors.
    b. Implement Peach Bottom training module fleet-wide, emphasizing 
the impact of deliberate misconduct on nuclear safety culture. Exelon 
will also review its current contractor training on deliberate 
misconduct and add the training module, if necessary.
    c. Provide additional information fleet-wide, to educate the 
workforce on BOP, Fitness-for-Duty requirements, and Employee 
Assistance Program services.
    d. Provide lessons learned-type article to Professional Reactor 
Operators Society (PROS) requesting consideration for inclusion in 
industry newsletter.
    e. Provide lessons learned-type article to NEI requesting 
consideration for inclusion in its industry newsletter.
    f. Discuss with INPO the possibility of incorporating into its 
supervisor and operations development programs, a module regarding the 
significance and impact of deliberate misconduct.
    The NRC Region I Regional Administrator may relax or rescind, in

[[Page 66158]]

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

VI

    Any person adversely affected by this Confirmatory Order, other 
than Exelon, 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 
hearing.docket@nrc.gov, 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 https://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 
https://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 https://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 https://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 https://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
MSHD.Resource@nrc.gov, 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 
https://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 66159]]

    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. E9-29660 Filed 12-11-09; 8:45 am]
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