July 14, 2005

EA-05-039 

Mr. Michael Balduzzi

Site Vice President

Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station

600 Rocky Hill Road

Plymouth, Massachusetts 02360

SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL

PENALTY - $60,000 (NRC Office of Investigations Report No. 1-2004-040)

Pilgrim Nuclear Power Station

Dear Mr. Balduzzi:

This letter refers to an investigation initiated by the NRC Office of Investigations (OI), Region I,

on August 27, 2004, at Entergy Nuclear Operation’s Pilgrim Nuclear Power Station (Pilgrim). 

This investigation was initiated to determine if a Control Room Supervisor (CRS) at Pilgrim was

sleeping/inattentive to duty on June 29, 2004, and whether others were aware that the CRS

was inattentive and failed to correct the condition. As described in our letter to you dated

March 23, 2005, the NRC concluded, based on the results of the OI investigation, that (1) the

CRS was sleeping and inattentive to duty; (2) a Reactor Operator (RO) observed the CRS

sleeping but deliberately failed to take immediate action to awaken the CRS, notify the Shift

Manager (SM), and/or write a condition report (CR); and (3) a SM subsequently observed that

the CRS was inattentive and failed to fully follow procedures in careless disregard of

requirements. 

In our March 23, 2005, letter, we also informed you that the failure of the CRS, RO and SM to

follow procedures caused you to violate Technical Specification 5.4.1 and 10 CFR 26.20. 

Specifically, (1) the CRS was asleep for approximately four minutes on June 29, 2004, and

was, therefore, neither alert nor attentive to his duties in violation of the “Conduct of Operations”

procedure, and the CRS did not ask the SM for relief before or after he was awakened by the

SM; (2) the RO observed the CRS asleep, but deliberately failed to take immediate actions to

awaken the CRS, failed to inform appropriate site personnel, and failed to initiate a CR in

violation of the “Corrective Action Process” procedure; and (3) after observing the inattentive

CRS and taking some immediate actions to correct the situation, the SM, in careless disregard

of requirements, failed to immediately relieve the CRS of his duties, did not have the CRS forcause fitness for duty (FFD) tested, did not inform appropriate site personnel, and did not

initiate a CR in violation of the “Fitness For Duty Program” and the “Corrective Action Process”

procedures. 

The NRC considered the RO’s actions to be deliberate because he knew that procedures

required him to take action, yet he did not awaken the CRS, or notify management, or write a

CR when he observed that the CRS was sleeping. In addition, the NRC considered the SM’s

actions to be in careless disregard of requirements because, even though he took immediate
Mr. Michael Balduzzi 2

actions to end the CRS's inattentive behavior by slamming a desk, the SM should have known

of the requirement to relieve the CRS of duty and have him for-cause FFD tested. He also

should have been aware of the requirement to inform appropriate site personnel and write a

CR, given his position as the senior person on duty at the time, as well as his prior knowledge

of a previous similar event. It is important to note that the SM was aware of a sleeping incident

in a break room two months earlier that led to all SMs being required to discuss the event with

their crews to emphasize peer checking, alertness, attentiveness, and FFD-related matters. In

addition, the SM had an opportunity to inform appropriate site personnel of his observation

because he met with operations management approximately two hours after he had observed

the inattentive CRS, yet he did not inform them of his observation. These conclusions were

noted in a factual summary of the OI report that was sent to you in our March 23, 2005, letter. 

Our March 23, 2005, letter scheduled a predecisional enforcement conference and also offered

you the opportunity to request alternative dispute resolution (ADR) instead. At your request, a

predecisional enforcement conference was conducted on April 8, 2005, with members of your

staff in the Region I Office in King of Prussia, PA. During the conference, you discussed the

apparent violations, their significance, their root causes, and your corrective actions. You also

disagreed with some of the NRC conclusions discussed in the March 23, 2005, letter. 

With respect to the CRS, although you agreed that he was inattentive to duty, you stated that

the CRS had not felt unfit before or after the event, and therefore, would not have been

expected to ask for relief. This was consistent with the testimony provided by the CRS. After

further consideration of this matter, the NRC has concluded that you were not in violation

regarding this aspect of the event. 

With respect to the SM, you agreed that he should have informed management of his

observation that the CRS was inattentive to duty. You also agreed that the SM’s failure to notify

management was in violation of your procedures. However, you maintained that the SM’s

failure to inform management was a mistake in judgement rather than careless disregard of

requirements. In addition, you disagreed that the SM needed to immediately relieve the CRS

from duty, have him for-cause FFD tested and write a CR. You noted that since the SM

observed the CRS “head-bobbing” rather than sleeping as the RO had observed, and since the

SM did not believe (based on a counseling session with the CRS shortly after the incident) that

drugs or alcohol were involved, immediate relief and for-cause FFD testing were not required. 

You also noted that since the SM had observed the CRS “head-bobbing” rather than sleeping,

and took prompt action to correct the inattentive condition by counseling the CRS, preparation

of a CR was not required. 

After further consideration of this matter, the NRC has concluded that the SM observed the

CRS (who was responsible for supervising the manipulation of the controls of a nuclear facility)

to be inattentive to his duties, and that this observation constituted an adverse condition that

should have been communicated to management and warranted initiation of a CR per your

procedure. Furthermore, the NRC maintains that the SM, by not informing management of his

observation and writing a CR, acted in careless disregard of requirements, after considering

(1) his position as the senior member of the operating crew; (2) his prior discussions with the

crew just two months earlier regarding the importance of being alert and attentive; and (3) his

failure to inform management despite being admittedly very upset with what he had observed

and despite meeting with operations management approximately two hours later. Although the

SM may not have observed the CRS sleeping, credible information was available to
Mr. Michael Balduzzi 3

substantiate that the CRS was asleep; therefore, in accordance with your procedures, the NRC

maintains that the CRS should have been relieved of duty and for-cause FFD tested.

Accordingly, after considering the information developed during the OI investigation and the

information that you provided during the enforcement conference, the NRC has determined that

four violations of NRC requirements occurred. The violations, which are cited in the enclosed

Notice of Violation (Notice), involve: (1) the CRS being asleep, and therefore, neither alert nor

attentive to his duties (Violation A); (2) the RO observing the CRS asleep, but deliberately

failing to take immediate actions to awaken the CRS, inform appropriate site personnel, and

initiate a CR (Violation B.1); (3) the SM, in careless disregard of requirements, failing to inform

appropriate site personnel and initiate a CR (Violation B.2); and (4) the CRS not being relieved

of duty and for-cause FFD tested (Violation C). 

Although there was no actual safety consequence resulting from this event because there were

no plant conditions that warranted immediate action, it is important for licensed operators to be

alert and attentive to their control room duties at all times so that they can adequately monitor

the reactor, manipulate reactor controls, and react to any plant transients. It is also important

that when licensed operators are not alert or attentive to their duties, appropriate action must be

taken to immediately correct the situation and inform management. After considering these

facts, as well as the willful acts of the RO and SM, the NRC has concluded that these four

violations should be categorized as a Severity Level III problem in accordance with the NRC

Enforcement Policy.

In accordance with the Enforcement Policy that was in effect in June 2004, a base civil penalty

in the amount of $60,000 is considered for a Severity Level III problem. Because the Severity

Level III problem included violations that were willful, the NRC considered whether credit was

warranted for Identification and Corrective Action in accordance with the civil penalty

assessment process in Section VI.C.2 of the Enforcement Policy. Because you did not identify

the violations, credit is not warranted for the Identification factor. Because your corrective

actions taken or planned were considered comprehensive, credit for corrective action is

warranted. Your actions included: (1) initial actions by the SM to assure the CRS became

attentive; (2) senior managers meeting with all operations personnel, security personnel and

other plant personnel to discuss the event, FFD obligations, and safety conscious work

environment requirements; (3) enhancement of back-shift monitoring; (4) enhancement of FFD,

Continuing Behavior Observation Program and safety conscious work environment training; and

(5) initiation of plans to conduct lifestyle training and operating crew teamwork training. 

After considering the available information, I have been authorized, after consultation with the

Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed

Imposition of Civil Penalty (Notice) in the base amount of $60,000 for the Severity Level III

problem. This action is being taken to emphasize that all licensed operators must remain alert

and attentive to duty at all times, and must act appropriately when conditions adverse to quality

are identified. You are required to respond to this letter and should follow the instructions

specified in the enclosed Notice when preparing your response. The NRC will use your

response, in part, to determine whether further enforcement action is necessary to ensure

compliance with regulatory requirements. 
Mr. Michael Balduzzi 4

As an option, you may request alternative dispute resolution (ADR) with the NRC in an attempt

to resolve this issue. ADR is a general term encompassing various techniques for resolving

conflict outside of court using a neutral third party. The technique that the NRC has decided to

employ during a pilot program which is now in effect is mediation. Additional information

concerning the NRC's pilot program is described in the enclosed brochure (NUREG/BR-0317)

and can be obtained at http://www.nrc.gov/what-we-do/regulatory/enforcement/adr.html. The

Institute on Conflict Resolution (ICR) at Cornell University has agreed to facilitate the NRC's

program as an intake neutral. Please contact ICR at 877-733-9415 within 10 days of the date

of this letter if you are interested in pursing resolution of this issue through ADR.

In accordance with 10 CFR 2.390 of the NRC's "Rules of Practice," a copy of this letter, its

enclosure, and your response will be made available electronically for public inspection in the

NRC Public Document Room or from the NRC’s document system (ADAMS), accessible from

the NRC Web site at http://www.nrc.gov/reading-rm/adams.html. The NRC also includes

significant enforcement actions on its Web site at www.nrc.gov; select What We Do,

Enforcement, then Significant Enforcement Actions. 

Should you have any questions regarding this letter, please feel free to contact Mr. Clifford

Anderson at 610-337-5227. 

Sincerely, 

/RA/

Samuel J. Collins

Regional Administrator 

Docket No. 50-293

License No. DPR-35

Enclosures: 1. Notice of Violation and Proposed Imposition of Civil Penalty

 2. Brochure NUREG/BR-0317
Mr. Michael Balduzzi 5

cc w encl:

G. J. Taylor, Chief Executive Officer, Entergy Operations

J. T. Herron, Senior Vice President and Chief Operating Officer

M. Kansler, President, Entergy Nuclear Operations, Inc.

S. J. Bethay, Director, Nuclear Assessment 

D. L. Pace, Vice President, Engineering

C. Schwarz, Vice President, Operations Support

J. F. McCann, Director, Nuclear Safety Assurance

C. D. Faison, Manager, Licensing

M. J. Colomb, Director of Oversight, Entergy Nuclear Operations, Inc.

D. Tarantino, Nuclear Information Manager

B. S. Ford, Manager, Licensing, Entergy Nuclear Operations, Inc.

J. M. Fulton, Assistant General Counsel, Entergy Nuclear Operations, Inc.

S. Lousteau, Treasury Department, Entergy Services, Inc.

R. Walker, Department of Public Health, Commonwealth of Massachusetts

The Honorable Therese Murray 

The Honorable Vincent deMacedo

Chairman, Plymouth Board of Selectmen

Chairman, Duxbury Board of Selectmen

Chairman, Nuclear Matters Committee

Plymouth Civil Defense Director

D. O’Connor, Massachusetts Secretary of Energy Resources

J. Miller, Senior Issues Manager

Office of the Commissioner, Massachusetts Department of Environmental Protection

Office of the Attorney General, Commonwealth of Massachusetts

Electric Power Division, Commonwealth of Massachusetts

R. Shadis, New England Coalition Staff

D. Katz, Citizens Awareness Network

Chairman, Citizens Urging Responsible Energy

J. Sniezek, PWR SRC Consultant

R. Toole, PWR SRC Consultant

C. McCombs, Acting Director, MEMA and Commonwealth of Massachusettts, SLO Designee 

Commonwealth of Massachusetts, Secretary of Public Safety
Mr. Michael Balduzzi 6

DISTRIBUTION w/encl:

ADAMS (PARS) CAnderson, DRP

SECY DFlorek, DRP

OCA JShea, PM, NRR

OEMAIL REnnis, NRR

OEWEB WRaymond, SRI

LReyes, EDO SCollins, RA

WKane, DEDR MDapas, DRA

MJohnson, OE DScrenci, PAO-RI

SFigueroa, OE NSheehan, PAO-RI

DStarkey, OE KFarrar, RI

LTrocine, OE DHolody, RI

JDyer, NRR RUrban, RI

RBorchardt, NRR R1DRP_Mail

PBonnett, NRR Region I OE Files (with concurrences) 

SLee, RI OEDO Region I Docket Room

LChandler, OGC

FCameron, OGC

MElwood, OGC

KRemsberg, OGC

SGagner, OPA

HBell, OIG

PLohaus, STP

GCaputo, OI

LTremper, OC

WOutlaw, OCM

MCheok, RES

Enforcement Coordinators RII, RIII, RIV

CJA

SISP Review Complete:_________________(Reviewer’s Initials)

DOCUMENT NAME: E:\Filenet\ML051960068.wpd

After declaring this document “An Official Agency Record” it will be released to the Public.

OFFICE RI/ORA RI/ORA RI/DRP RI/DRS RI/OI

NAME RUrban DHolody BHolian RBlough RCrlenjak for EWilson 

DATE 06/07/05 06/07/05 06/13/05 06/14/05 06/15/05

OFFICE RI/ORA RI/RA NRR/DIPM HQ/OGC OE/ES

NAME KFarrar SCollins RUrban

for

BBoger RUrban

for

SBrock

NLO RUrban for

DStarkey

RUrban for

DATE 06/16/05 06/21/05 06/22/05 07/08/05** 07/11/05 ***

OFFICE OE/SC OE/DD OE/D

NAME CNolan RUrban

for

JLuehman

RUrban for

MJohnson RUrban

for

DATE 07/11/05 *** 07/11/05 *** 07/12/05 ***

 OFFICIAL RECORD COPY **Per D. Starkey email

 *** “ ” “ ”
NOTICE OF VIOLATION

AND

PROPOSED IMPOSITION OF CIVIL PENALTY

Entergy Nuclear Operations, Inc Docket No. 50-293 

Pilgrim Nuclear Power Station License No. DPR-35 

EA-05-039

Based on an NRC investigation conducted by the Office of Investigations, Region I Field Office,

the report of which was issued on February 4, 2005, four violations of NRC requirements were

identified. In accordance with the NRC Enforcement Policy, the NRC proposes to impose a civil

penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C.

2282, and 10 CFR 2.205. The particular violations and associated civil penalty are set forth

below:

Technical Specification 5.4.1 of Facility Operating License No. DPR-35 for the Pilgrim

Nuclear Power Station (PNPS) requires the establishment and implementation of

procedures covering the applicable procedures recommended in Regulatory Guide 1.33,

Revision 2, February 1978. 

Regulatory Guide 1.33 recommends, in part, administrative procedures covering

authorities and responsibilities for safe operation and shutdown, and shift and relief

turnover. 

10 CFR Part 50, Appendix B, requires a quality assurance program for nuclear power

plants to assure that conditions adverse to quality are promptly identified and corrected,

and includes, in part, written policies, procedures or instructions. 

10 CFR Part 26, “Fitness For Duty Programs,” prescribes requirements and standards

for the establishment and maintenance of certain aspects of fitness for duty programs

and procedures by licensees, and each licensee subject to this part shall establish and

implement written policies and procedures to meet these objectives. 

A. PNPS Procedure Number 1.3.34, “Conduct of Operations”, Section 5.15,

requires, in part, that Operations personnel on duty will remain alert and awake

so that they may respond to plant conditions or emergencies. PNPS Procedure

Number 1.3.34 is required by Technical Specification 5.4.1.

Contrary to the above, for approximately four minutes on June 29, 2004, the on

duty Control Room Supervisor (CRS) was not alert to his duties in the control

room in that he was asleep in a chair, and therefore, not in a condition to

respond to plant conditions or emergencies. 

B. PNPS Procedure ENN-LI-102, “Corrective Action Process”, Section 4.1,

requires, in part, that all personnel working at Entergy Nuclear Northeast (ENN)

facilities are responsible for identifying and reporting problems. Section 5.1.1.4,

requires, in part, that any individual who discovers an adverse condition is

expected to ensure that: immediate actions are taken as necessary to minimize

the consequence of the condition; appropriate site personnel are notified of the

identified condition; and the condition is promptly documented in a Condition

Report (CR). ENN-LI-102 is required by 10 CFR Part 50, Appendix B.
Notice of Violation 2

Contrary to the above, on June 29, 2004:

1. a Reactor Operator (RO), at approximately 4:40 a.m., became aware of

an adverse condition (the RO observed the CRS to be asleep in a chair),

and the RO did not take immediate actions to awaken the CRS and

minimize the consequence of the condition, did not inform appropriate

site personnel that he had observed the CRS to be asleep, and did not

document the condition in a CR. 

2. a Shift Manager (SM), at approximately 4:45 a.m., became aware of an

adverse condition (the SM observed the CRS “head-bobbing” in a chair,

and was therefore, inattentive to his duties and not fully alert), and the

SM did not inform appropriate site personnel of the condition and did not

document the condition in a CR. 

C. PNPS Procedure ENN-NS-102, “Fitness For Duty Program,” Section 3.0,

defines, in part, for-cause testing as testing that is conducted as soon as

possible following an observed behavior that indicates questionable fitness for

duty. Section 5.3 states, in part, that factors such as fatigue, mental stress and

illness may affect an individual’s fitness for duty. Section 5.7 further states, in

part, that testing for-cause shall be based on observation or information received

from a credible source that indicates possible impairment of an individual’s ability

to work safely. ENN-NS-102 is required by 10 CFR Part 26. 

Contrary to the above, for approximately four minutes on June 29, 2004, the on

duty CRS was asleep in a chair in the control room and not fit for duty, and

appropriate measures were not taken to relieve the CRS from duty and have him

for-cause FFD tested. 

These violations constitute a Severity Level III problem.

Civil Penalty - $60,000. (EA-05-039) 

Pursuant to the provisions of 10 CFR 2.201, Entergy Nuclear Operations, Inc., is hereby

required to submit a written statement or explanation to the Director, Office of Enforcement,

U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and

Proposed Imposition of Civil Penalty(ies) (Notice). This reply should be clearly marked as a

"Reply to a Notice of Violation; EA-05-039" and should include for each alleged violation: 

(1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and

if denied, the reasons why, (3) the corrective steps that have been taken and the results

achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date

when full compliance will be achieved. Your response may reference or include previous

docketed correspondence, if the correspondence adequately addresses the required response. 

If an adequate reply is not received within the time specified in this Notice, an order or a

Demand for Information may be issued as why the license should not be modified, suspended,

or revoked or why such other action as may be proper should not be taken. Consideration may

be given to extending the response time for good cause shown. 

Within the same time as provided for the response required above under 10 CFR 2.201, 

Entergy Nuclear Operations, Inc. may pay the civil penalty proposed above or the cumulative

amount of the civil penalties if more than one civil penalty is proposed, in accordance with

NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear
Notice of Violation 3

Regulatory Commission, a statement indicating when and by what method payment was made,

or may protest imposition of the civil penalty in whole or in part, by a written answer addressed

to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the

Licensee fail to answer within 30 days of the date of this Notice of Violation and Proposed

Imposition of Civil Penalty, an order imposing the civil penalty will be issued. Should the

Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in

whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation"

and may: (1) deny the violation(s) listed in this Notice, in whole or in part, (2) demonstrate

extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the

penalty should not be imposed. In addition to protesting the civil penalty in whole or in part,

such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.C.2 of the

Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR

2.205 should be set forth separately from the statement or explanation in reply pursuant to

10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g.,

citing page and paragraph numbers) to avoid repetition. The attention of the Entergy Nuclear

Operations, Inc. is directed to the other provisions of 10 CFR 2.205, regarding the procedure for

imposing a civil penalty. 

Upon failure to pay any civil penalty due which subsequently has been determined in

accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the

Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be

collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, statement as to payment of civil

penalty, and Answer to a Notice of Violation) should be addressed to: Director, Office of

Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville

Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear

Regulatory Commission, Region I, and a copy to the NRC Resident Inspector at Pilgrim Nuclear

Power Station.

Because your response will be made available electronically for public inspection in the NRC

Public Document Room or from the NRC’s document system (ADAMS), to the extent possible,

it should not include any personal privacy, proprietary, or safeguards information so that it can

be made available to the public without redaction. ADAMS is accessible from the NRC Web

site at http://www.nrc.gov/reading-rm/adams.html. If personal privacy or proprietary information

is necessary to provide an acceptable response, then please provide a bracketed copy of your

response that identifies the information that should be protected and a redacted copy of your

response that deletes such information. If you request withholding of such material, you must

specifically identify the portions of your response that you seek to have withheld and provide in

detail the bases for your claim of withholding (e.g., explain why the disclosure of information will

create an unwarranted invasion of personal privacy or provide the information required by

10 CFR 2.390(b) to support a request for withholding confidential commercial or financial

information). If safeguards information is necessary to provide an acceptable response, please

provide the level of protection described in 10 CFR 73.21.

In accordance with 10 CFR 19.11, you may be required to post this Notice within 2 working

days. 

Dated this 14th day of July 2005