In the Matter of: Duane Kuhn; Confirmatory Order Modifying License (Effective Immediately), 66153-66156 [E9-29661]

Download as PDF Federal Register / Vol. 74, No. 238 / Monday, December 14, 2009 / Notices receipt of nominations. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office (see ADDRESSES section). Submissions in response to this Federal Register notice are posted without change at http:// www.regulations.gov. Therefore, OSHA cautions interested parties about submitting personal information such as social security numbers and birth dates. Although all submissions are listed in the http://www.regulations.gov index, some documents (e.g., copyrighted material) are not publicly available to read or download through the Web page. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the http:// www.regulations.gov Web page to make submissions and to access the docket and exhibits is available at the Web page’s Help link. Contact the OSHA Docket Office for information about materials not available through the Web page and for assistance in locating submissions and other documents in the docket. Electronic copies of this Federal Register notice are available at http:// www.regulations.gov. This notice, as well as news releases and other relevant information, is available at OSHA’s Web page at http://www.osha.gov. mstockstill on DSKH9S0YB1PROD with NOTICES Charter Renewal Section 7902 of Title 5 of the U.S. Code provides that the President may establish, by executive order, a safety council (FACOSH) composed of representatives of Federal agencies and labor organizations representing Federal employees to serve as an advisory body to the Secretary on issues involving the occupational safety and health of the federal workforce. On September 29, 2009, President Barack Obama signed Executive Order 13511 authorizing the continuance of FACOSH for two another years, until September 30, 2011 (5 U.S.C. 7902). The Federal Advisory Committee Act (FACA) requires that, upon the continuance or renewal of an advisory committee, a new charter be filed (5 U.S.C. App. § 14). Pursuant to FACA and its implementing regulations (41 CFR Part 102–3), on November 6, 2009, the Secretary renewed the FACOSH charter, which expired on September 30, 2009. The new FACOSH charter will expire on September 30, 2011, unless the Secretary terminates it prior to that date. VerDate Nov<24>2008 17:54 Dec 11, 2009 Jkt 220001 Authority and Signature: Jordan Barab, Acting Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by section 19 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 668), 5 U.S.C. 7902, the Federal Advisory Committee Act (5 U.S.C. App), Executive Order 13511, 29 CFR Part 1960 (Basic Program Elements of for Federal Employee Occupational Safety and Health Programs), 41 CFR Part 102– 3, and Secretary of Labor’s Order 5– 2007 (72 FR 31160). Signed at Washington, DC, this 8th day of December 2009. Jordan Barab, Acting Assistant Secretary of Labor for Occupational Safety and Health. [FR Doc. E9–29675 Filed 12–11–09; 8:45 am] BILLING CODE 4510–26–P NATIONAL CREDIT UNION ADMINISTRATION Sunshine Act; Notice of Agency Meeting TIME AND DATE: 10 a.m., Thursday, December 17, 2009. PLACE: Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314–3428. STATUS: Open. MATTERS TO BE CONSIDERED: 1. Proposed Rule—Part 701 of NCUA’s Rules and Regulations, Interpretive Ruling and Policy Statement (IRPS) 09–1, NCUA’s Chartering and Field of Membership Policies. 2. Final Rule—Section 701.21(f) of NCUA’s Rules and Regulations, Exception to the Maturity Limit on Second Mortgages. 3. Insurance Fund Report. RECESS: 11:15 a.m. TIME AND DATE: 11:30 a.m., Thursday, December 17, 2009. PLACE: Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314–3428. STATUS: Closed. MATTERS TO BE CONSIDERED: 1. Cedar Point Federal Credit Union’s Appeal of Denial by Regional Director of its Request to Convert to Community Charter. Closed pursuant to Exemptions (4) and (8). 2. Consideration of Supervisory Activities. Closed pursuant to Exemptions (8), (9)(A)(ii) and 9(B). 3. Personnel. Closed pursuant to Exemption (2). PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 66153 FOR FURTHER INFORMATION CONTACT: Mary Rupp, Secretary of the Board, Telephone: 703–518–6304. Mary Rupp, Secretary of the Board. [FR Doc. E9–29832 Filed 12–10–09; 4:15 pm] BILLING CODE P NUCLEAR REGULATORY COMMISSION [NRC–2009–0545; Docket No.: 55–62191; License No.: OP–11276–1 (Terminated), IA– 09–023] In the Matter of: Duane Kuhn; Confirmatory Order Modifying License (Effective Immediately) I Duane Kuhn (Mr. Kuhn) was previously employed as a Reactor Operator (RO) at Exelon Generation Company, LLC’s (Exelon or licensee) Peach Bottom Atomic Power Station (Peach Bottom or facility) located in Delta, Pennsylvania. Mr. Kuhn was the holder of RO License Number OP– 11276–1, issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 55. The license authorized Mr. Kuhn to manipulate the controls of the facility. At Exelon’s request, the license was terminated on July 31, 2008. This Confirmatory Order (Order) is the result of an agreement reached during an Alternative Dispute Resolution (ADR) mediation session conducted on September 24, 2009. ADR is a process in which a neutral mediator with no decision-making authority assists parties in reaching an agreement on resolving any differences regarding the dispute. II The NRC Office of Investigations (OI) initiated an investigation on May 5, 2008 to determine whether Mr. Kuhn deliberately violated NRC requirements by failing to inform Exelon of information required to be reported. Based on the evidence developed during the OI investigation, which was completed on March 4, 2009, the NRC identified an apparent willful violation. The apparent violation involved Mr. Kuhn’s failure to inform Exelon of an arrest on his first day back at work following the incident, as required by Exelon’s Behavioral Observation Program implementing procedure, the Peach Bottom Physical Security Plan, and 10 CFR 73.20(c). A description of this apparent violation and a factual summary of the results of the E:\FR\FM\14DEN1.SGM 14DEN1 66154 Federal Register / Vol. 74, No. 238 / Monday, December 14, 2009 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES investigation were sent to Mr. Kuhn in an NRC letter dated June 5, 2009. III The June 5, 2009 NRC letter informed Mr. Kuhn that the agency was considering escalated enforcement against him for this apparent violation of NRC requirements and offered him the opportunity to either attend a Predecisional Enforcement Conference or to request use of ADR, to resolve this matter. On June 24, 2009, Mr. Kuhn requested the use of ADR and, on September 24, 2009, the NRC and Mr. Kuhn met in an ADR session mediated by a professional mediator, arranged through Cornell University’s Scheinman Institute on Conflict Resolution. During that ADR session, a settlement agreement was reached. This Confirmatory Order is the result of that agreement, the elements of which consisted of the following: 1. As a result of the ADR discussion, the NRC and Mr. Kuhn agreed to the following facts: (1) Mr. Kuhn was arrested on October 13, 2007, for driving under the influence (DUI) of alcohol; (2) Mr. Kuhn did not report the arrest to the Exelon-Peach Bottom management until April 29, 2008; and, (3) at the time of the arrest, Mr. Kuhn was required to follow all station procedures under the terms and conditions of his individual reactor operator license. 2. As a result of the facts agreed to in Item 1, the NRC has determined that Mr. Kuhn violated NRC requirements while he was employed as an RO at Peach Bottom. Specifically, the NRC concluded that, contrary to his reactor operator license, NRC regulations, and Exelon’s Behavioral Observation Program procedure, Mr. Kuhn willfully failed to report to Exelon-Peach Bottom, for approximately six months, that he had been arrested for driving under the influence of alcohol on October 13, 2007. The NRC considered that this constituted a Severity Level III violation. 3. Mr. Kuhn agreed that he violated Peach Bottom’s Physical Security Plan and Exelon’s Behavioral Observation Program procedure when he failed to report the arrest (an incident involving alcohol, which, by Exelon procedure required reporting) for approximately six months, and, as a result, violated his individual reactor operator license. Mr. Kuhn contends that his actions were not willful because he did not consider the incident to constitute an arrest until reading the Peach Bottom newsletter article that included a definition of an arrest. Mr. Kuhn maintains that, immediately upon reading the article, he self-reported this incident to Exelon- VerDate Nov<24>2008 17:54 Dec 11, 2009 Jkt 220001 Peach Bottom management. However, Mr. Kuhn acknowledged that he should have known that he was required to report this incident, because it involved alcohol. 4. Mr. Kuhn noted that he was required to complete a number of actions as a result of an Accelerated Rehabilitative Disposition program for his DUI arrest. These actions included: a. Relinquishing his driver’s license for a period of 60 days; b. Completing 35 hours of community service; c. Completing 16 hours of educational classes on the hazards of drinking and specifically the hazards of drinking and driving; d. Attending a victim impact panel, at which victims and families of victims of alcohol-related driving incidents, described how their lives have been impacted by such events; and e. Completing 6 weeks of licenseesponsored counseling, which included attending six sessions of Alcoholics Anonymous meetings. 5. During the ADR mediation session, Mr. Kuhn recognized an opportunity for other licensed operators at Peach Bottom, within Exelon, and in the industry to learn from his violation. Therefore, Mr. Kuhn agreed to author an article in which he relates this incident and what he has learned from it. Within that article, Mr. Kuhn will emphasize the importance of adherence to all requirements, including the requirement of informing facility licensees of all reportable incidents defined within the facility’s behavior observation program. Mr. Kuhn also agreed to submit this article to: (1) Exelon for consideration to use in its training program; and (2) the Professional Reactor Operator Society (PROS) and the Institute of Nuclear Power Operations (INPO) requesting their consideration for publication in their respective newsletters. 6. Mr. Kuhn agreed to complete the actions in Item 5 within 90 days after issuance of a NRC Confirmatory Order confirming the commitments agreed to herein; send a letter to the NRC informing the NRC that these actions are complete; and include in the letter to the NRC a copy of the article submitted to Exelon, PROS, and INPO. Mr. Kuhn agreed to send this letter to the NRC within 30 days of completion of the actions stated in Item 5. 7. In light of the actions Mr. Kuhn has committed to take as described in Item 5, the NRC agreed to not take enforcement action against him, other than issuance of a Confirmatory Order confirming the commitments set forth herein. The Confirmatory Order and its transmittal letter will be publicly PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 available in ADAMS, will appear on the NRC ‘‘Significant Enforcement Actions—Individuals’’ Web site for a period of one year, and will also be placed in Mr. Kuhn’s individual license file. On November 17, 2009, Mr. Kuhn consented to issuing this Order with the commitments, as described in Section V below. Mr. Kuhn further agreed that this Order is to be effective upon issuance and that he has waived his right to a hearing. IV Since Mr. Kuhn has agreed to take additional actions to address NRC concerns, as set forth in Section III, the NRC has concluded that its concerns can be resolved through issuance of this Order. I find that Mr. Kuhn’s commitments, as set forth in Section III, are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have also determined that public health and safety require that the Licensee’s commitments be confirmed by this Order. Based on the above and Mr. Kuhn’s consent, this Order is immediately effective upon issuance. V Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission’s regulations in 10 CFR 2.202 and 10 CFR Part 50, it is hereby ordered, effective immediately that Duane Kuhn shall: A. Author an article in which he relates this incident and what he has learned from it, emphasizing the importance of adherence to all requirements, including the requirement of informing facility licensees of all reportable incidents defined within the facility’s behavior observation program. B. Submit this article to: (1) Exelon for consideration to use in its training program; and (2) the Professional Reactor Operator Society (PROS) and the Institute of Nuclear Power Operations (INPO) requesting their consideration for publication in their respective newsletters. C. Complete the above actions within 90 days after issuance of this NRC Confirmatory Order. D. Send a letter to the NRC informing the NRC that these actions are complete; and include in the letter to the NRC a copy of the article submitted to Exelon, PROS, and INPO within 30 days of completion of the above actions. The NRC Region I Regional Administrator may relax or rescind, in E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 74, No. 238 / Monday, December 14, 2009 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES writing, any of the above conditions upon demonstration by Mr. Kuhn of good cause. VI Any person adversely affected by this Confirmatory Order, other than Mr. Kuhn, may request a hearing within 20 days of its publication in the Federal Register. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, and include a statement of good cause for the extension. All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The EFiling 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 NRCissued 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 ESubmittal server are detailed in NRC’s VerDate Nov<24>2008 17:54 Dec 11, 2009 Jkt 220001 ‘‘Guidance for Electronic Submission,’’ which is available on the agency’s public Web site at http://www.nrc.gov/ site-help/e-submittals.html. Participants may attempt to use other software not listed on the Web site, but should note that the NRC’s E-Filing system does not support unlisted software, and the NRC Meta System Help Desk will not be able to offer assistance in using unlisted software. If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC’s online, Web-based submission form. In order to serve documents through EIE, users will be required to install a Web browser plugin 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/esubmittals.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/esubmittals.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 email 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- PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 66155 submittals.html, by e-mail at MSHD.Resource@nrc.gov, or by a tollfree call at (866) 672–7640. The NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays. Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists. Documents submitted in adjudicatory proceedings will appear in NRC’s electronic hearing docket which is available to the public at http:// ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant to an order of the Commission, or the presiding officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings, unless an NRC regulation or other law requires submission of such information. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission. If a person requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f). E:\FR\FM\14DEN1.SGM 14DEN1 66156 Federal Register / Vol. 74, No. 238 / Monday, December 14, 2009 / Notices If the hearing is requested by a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Confirmatory Order should be sustained. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, this Order shall be final 20 days from the date of its publication in the Federal Register without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received. A request for a hearing shall not stay the immediate effectiveness of this order. Dated this the 1st day of December 2009. For the Nuclear Regulatory Commission. Samuel J. Collins, Regional Administrator. [FR Doc. E9–29661 Filed 12–11–09; 8:45 am] BILLING CODE 7590–01–P 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) mstockstill on DSKH9S0YB1PROD with NOTICES 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. VerDate Nov<24>2008 17:54 Dec 11, 2009 Jkt 220001 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 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 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. E:\FR\FM\14DEN1.SGM 14DEN1

Agencies

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


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NUCLEAR REGULATORY COMMISSION

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


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

I

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

II

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

[[Page 66154]]

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

III

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

IV

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

V

    Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182, and 
186 of the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202 and 10 CFR Part 50, it is hereby ordered, 
effective immediately that Duane Kuhn shall:

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

[[Page 66155]]

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

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Kuhn, may request a hearing within 20 days of its publication 
in the Federal Register. Where good cause is shown, consideration will 
be given to extending the time to request a hearing. A request for 
extension of time must be directed to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, and include a 
statement of good cause for the extension.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the participant should 
contact the Office of the Secretary by e-mail at 
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 http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through EIE, users will be required to install a Web 
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document. The 
E-Filing system also distributes an e-mail notice that provides access 
to the document to the NRC Office of the General Counsel and any others 
who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
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 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, or the presiding officer. Participants 
are requested not to include personal privacy information, such as 
social security numbers, home addresses, or home phone numbers in their 
filings, unless an NRC regulation or other law requires submission of 
such information. With respect to copyrighted works, except for limited 
excerpts that serve the purpose of the adjudicatory filings and would 
constitute a Fair Use application, participants are requested not to 
include copyrighted materials in their submission.
    If a person requests a hearing, that person shall set forth with 
particularity the manner in which his interest is adversely affected by 
this Order and shall address the criteria set forth in 10 CFR 2.309(d) 
and (f).

[[Page 66156]]

    If the hearing is requested by a person whose interest is adversely 
affected, the Commission will issue an Order designating the time and 
place of any hearing. If a hearing is held, the issue to be considered 
at such hearing shall be whether this Confirmatory Order should be 
sustained.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, this Order shall be 
final 20 days from the date of its publication in the Federal Register 
without further order or proceedings. If an extension of time for 
requesting a hearing has been approved, the provisions specified in 
Section V shall be final when the extension expires if a hearing 
request has not been received.
    A request for a hearing shall not stay the immediate effectiveness 
of this order.

    Dated this the 1st day of December 2009.

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