ML042370299
| ML042370299 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 08/02/2004 |
| From: | Ellen Brown NRC/NRR/DLPM/LPD2 |
| To: | |
| Arroyo, Jose, NRR/DE/EMEB, 415-2149 | |
| Shared Package | |
| ML042370238 | List: |
| References | |
| 2.206, G20040468, TAC MC3759-TP-3, TAC MC3760-TP-4 | |
| Download: ML042370299 (22) | |
Text
1 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
2.206 Petition Review Board Conference Call Docket Number:
50-250 and 50-251 Location:
Conference Call Date:
Monday, August 2, 2004 Work Order No.:
NRC-1640 Pages 1-24
1 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
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3 PETITION REVIEW BOARD (PRB) CONFERENCE CALL 4
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5 TURKEY POINT NUCLEAR PLANT 6
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7
- MONDAY, 8
AUGUST 2, 2004 9
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10 PETITION REVIEW BOARD:
11 HERB BERKOW 12 PETITIONERS:
13 THOMAS APPARITO 14 NRC STAFF PRESENT:
15 EVA BROWN, Project Manager and Petition Manager 16 STEPHEN H. LEWIS, General Counsels Office 17 DONNA SKAY 18 MICHAEL MORRIS, Division of Licensing and 19 Project Management 20 JOSE ARROYO 21 NICK HILTON, Office of Enforcement 22 CHERYL MONTGOMERY, Office of Investigations 23 24 25
2 P-R-O-C-E-E-D-I-N-G-S 1
MS. BROWN: Hi, this is Eva Brown at NRR.
2 MR. SAPORITO: How are you. This is 3
Thomas Saporito with NEPC.
4 MS. BROWN: Hi. Give us another couple of 5
seconds. Were still gathering.
6 MR. SAPORITO: Thats no problem.
7 MS. BROWN: Thank you.
8 (Pause in proceedings.)
9 MS. BROWN: Mr. Saporito, are you still on 10 the line?
11 MR. SAPORITO: Yes.
12 MS. BROWN: Thank you. Im sorry for the 13 delay.
14 MR. SAPORITO: Thats alright.
15 MS. BROWN: So were going to go ahead and 16 get started. Of course, good morning. My name is 17 Eva Brown. Im the petition manager. For this 18 petition, Mr. Herb Berkow is serving as the Petition 19 Review Board chairman. Id just like for everyone 20 to introduce themselves. I guess Mr. Saporito, why 21 dont we start with you.
22 MR. SAPORITO: Alright. My names Thomas 23 Saporito and Im the executive director for the 24 National Environmental Protection Center. We filed 25 two petitions regarding the Turkey Point Nuclear 26 Plant under 10 CFR § 2.206, one dated July 1, one 27
3 dated July 4 of this year.
1 MS. BROWN: Okay. Why dont we go around 2
the room and start with you, Mike.
3 MR. MARSHALL: My names Michael Marshall.
4 Im the section chief at the Division of Licensing 5
Project Management.
6 MR. BERKOW: Hi, Im Herb Berkow. Im the 7
Petition Review Board chairman.
8 MS. SKAY: Donna Skay, Agency 2.206 9
(inaudible).
10 MR. LEWIS: Stephen Lewis, General 11 Counsels Office.
12 MR. ARROYO: Jose Arroyo, project 13 engineer.
14 MR. HILTON: Nick Hilton, Office of 15 Enforcement.
16 MS. MONTGOMERY: Cheryl Montgomery, Office 17 of Investigation.
18 MS. BROWN: Okay.
19 MR. SAPORITO: Anyone else?
20 MS. BROWN: No.
21 MR. SAPORITO: Okay.
22 MS. BROWN: So Herb, Ill turn it over to 23 you.
24 MR. BERKOW: Good morning. My name is 25 Herb Berkow, and as you mentioned Im the chairman 26 of the Petition Review Board. The subject of this 27
4 teleconference is the 2.206 petition submitted by 1
Mr. Thomas Saporito of the National Environmental 2
Protection Center. The petition is dated July 1, 3
2004, and its been supplemented in a letter dated 4
July 4, 2004.
5 The petitioner has requested that the NRC 6
take immediate enforcement action against Florida 7
Power & Light, which is the licensee for the Turkey 8
Point and St. Lucie plants, for the alleged failure 9
of the licensee to adhere to the requirements of 10 10 CFR § 50.7, Employee Protection, which prohibits 11 discrimination against employees for engaging in 12 protected activity. The submittal also requests 13 that a notice of violation be issued and a civil 14 penalty imposed in the amount of $100,000 per day 15 retroactive to June 3, 1994, in accordance with the 16 Atomic Energy Act. Mr. Saporitos letter requests 17 that the Office of Investigation reopen the employee 18 protection case regarding his dismissal from FPL, 19 and that any findings that support willful 20 wrongdoing be forward to the Department of Justice.
21 Lastly, the submittal requests that the NRC issue an 22 order requiring FPL to hire an industry consultant 23 to study the work environment at FPLs Turkey Point 24 and St. Lucie nuclear power plants.
25 The supplement to the July 1 petition also 26 includes a request that the NRC take immediate 27
5 action against FPL by issuing an order requiring FPL 1
to bring Turkey Points Unit 3 and 4 and St. Lucie 2
Units 1 and 2 to cold shutdown.
3 The Petition Review Board has evaluated 4
the petition and supplement, and our preliminary 5
assessment is that it raises issues that were the 6
subject of NRC staff consideration and resolution 7
several years ago. Our process provides an 8
opportunity for you, Mr. Saporito, to address the 9
PRB before we make a final decision in order for you 10 to provide additional justification and supporting 11 information as to why your petition satisfies the 12 criteria for review under 2.206 process.
13 And I would like to just read one 14 paragraph from our Management Directive 8.11, which 15 gives criteria for rejecting petitions under 2.206.
16 And one of them is that the petitioner raises issues 17 that have already been the subject of NRC staff 18 review and evaluation either on that facility, or 19 similar facilities, or generically, for which a 20 resolution has been achieved, the issues have been 21 resolved, and the resolution is applicable to the 22 facility in question. This would include requests 23 to reconsider or reopen a previous enforcement 24 action, including a decision not to initiate an 25 enforcement action, or a directors decision. These 26 requests will not be treated in 2.206 petitions 27
6 unless they present significant new information.
1 So I suggest that you use your allotted 2
time not to discuss the merits of your case, because 3
thats not the purpose of this telecon. Rather, you 4
should focus your remarks solely on demonstrating 5
you have provided substantive new information that 6
was not available previously, and that would justify 7
reopening the previous investigations.
8 You will be informed of the PRB decision.
9 We will meet following this telecon and make a final 10 recommendation. Should the PRB decide that the 11 petition does not satisfy our criteria for review 12 under 2.206, you will still receive a complete 13 written response to your concerns.
14 Do you have any questions on the process 15 or the way this phone call will be conducted?
16 MR. SAPORITO: I just want to clarify for 17 the public record your last remark. Actually the 18 Volume 8 of the Licensees Oversight Program, the 19 review process for 10 CFR § 2.206 petitions in 20 Handbook 8.11, Part 3, at Page 12, second paragraph 21 down, the last sentence actually says, "These 22 requests will not be treated as a 2.206 unless they 23 present significant new information," not 24 "substantive" as you quoted. Its only significant.
25 MR. BERKOW: I stand corrected.
26 MS. BROWN: Did someone else join the 27
7 line? This is Eva Brown. I heard a beep. Alright.
1 MR. BERKOW: Okay, Mr. Saporito, its 2
yours.
3 MR. SAPORITO: Alright. First of all, as 4
I just reiterated, the intent here is to present 5
significant new information which was not previously 6
available to the NRC or to OIG when their 7
investigations were performed. And the request and 8
the petition is in part for a reopening of those 9
investigations, but it also asks for enforcement 10 action separate and apart from those investigations.
11 Whether or not those investigations even go forward, 12 were still requesting enforcement action.
13 And the substantial part of the 14 significant new information that has developed since 15 the NRC initiated an investigation to this case was, 16 first of all, on June 3, 1994, the Secretary of 17 Labor found that the NRC licensee Florida Power &
18 Light violated the Energy Reorganization Act, in 19 fact discriminated against myself when I raised 20 safety concerns to the NRC. The Secretary found and 21 held as a matter of law that FP&L violated the ERA.
22 The NRC didnt take enforcement action, 23 but subsequent to that decision Donald Duprey, 24 another employee of Florida Power & Light filed a 25 DOL discrimination, and the Department of Labor held 26 that even though Duprey didnt prevail in his 27
8 ultimate discrimination case, nonetheless FPL 1
discriminated against him in part because he raised 2
safety concerns to the NRC. And the NRC took that 3
decision, and initiated enforcement action against 4
Florida Power & Light because of the DOL findings.
5 Even though he did not ultimately prevail in that 6
case. Also, the petition points to Robainas-Diaz, 7
who was a nuclear engineer who was discriminated 8
against. And he in fact prevailed on his DOL case.
9 But each of these cases, it all involved 10 discrimination because the individual, including 11 myself, raised nuclear safety concerns regarding 12 procedures at the Turkey Point plant. We raised 13 them to the NRC, and we were discriminated against.
14 So there is precedent set by the NRC now that you 15 dont even have to win your case, there only has to 16 be a finding by the Department of Labor that part of 17 the discrimination was upheld by the Department of 18 Labor, such as the Donald Duprey case. As in my 19 case, the Secretary found that the ERA was violated.
20 Therefore, 10 CFR § 50.7 of the NRCs regulations 21 and rules was violated. The NRC as a matter of law 22 now, pursuant to their own regulations, must take 23 enforcement action, and thats as clear cut as it 24 can be. There is no gray area in there whatsoever 25 as far as were concerned.
26 Second -- thats a separate issue. That 27
9 does not depend on any NRC investigation, or any OI 1
investigation, or any OIG investigation. That is a 2
factual determination by a government agency, the 3
United States Department of Labor, and the NRC has 4
consistently through the history of the agency not 5
taken enforcement action against any of its 6
licensees until after and based on the Department of 7
Labor findings. There you have a Department of 8
Labor finding, and we expect enforcement action be 9
taken. We expect escalated enforcement action and 10 retroactive enforcement action. And the $100,000 11 penalty which we want enforced per day retroactive 12 to June 3, 1994, is actually were going to modify 13 that. We want that increased to $120,000 a day, and 14 thats allowed for. There was a change in NRC 15 policy. I dont have it right in front of me right 16 now, but the NRC is actually allowed a $120,000 a 17 day penalty to enforce against its licensees. So 18 were asking the NRC up that to $120,000 a day 19 retroactive back to June 3 because the licensee --
20 June 3 of 1994, because the licensee has been in 21 violation since that date.
22 The next point I want to make is we bring 23 information, new information, significant new 24 information, to the PRBs attention regarding this 25 issue. And that is back when this discrimination 26 complaint, Case 89-ERA-7 and Case 89-ERA-17, was a 27
10 consolidated discrimination compliant before the 1
Department of Labor. When it initially went to 2
hearing in 1989, John Odum was the vice president 3
for nuclear oversaw -- seen the operations at Turkey 4
Point. And he testified under oath that on November 5
30, 1988, that he ordered me to meet with him in his 6
office because he wanted to interrogate me about his 7
safety concerns -- about my safety concerns. And he 8
stated under oath that, you know, he wanted me at 9
that meeting because he wanted to know if there was 10 any immediate safety concerns concerning the 11 operations at Turkey Point. And that was his basis 12 for requesting me at that meeting. And his 13 statement was, in front of all the other employees 14 that I work with there, in front of the judge, was 15 that the NRC -- meaning the NRC Region 2, was not 16 technically competent to determine what a nuclear 17 safety concern was, despite the NRCs presence.
18 They had NRC resident inspectors there. His 19 statement under oath was that the NRC was not 20 technically competent to determine what a nuclear 21 safety concern was. At his nuclear power plant.
22 And he did not admit that he had engaged 23 the NRC that very morning of November 30, and he 24 talked to Oscar DiMiranda and George Jenkins, who 25 was the director of enforcement at that time. And 26 they told him that there was no immediate safety 27
11 concerns raised by myself. And that if there was 1
immediate safety concerns, they would certainly 2
advise him immediately, or someone there 3
immediately. And he did not own up to that under 4
oath in 1989.
5 And when that happened, I was in court and 6
I was so taken back by that statement that I got up 7
out of court while he was still on the witness 8
stand, and I went to the payphone right outside the 9
courtroom. One of the FP&L people followed me out 10 there, some female, and I didnt care. She was 11 standing right next to me, and I got on the phone to 12 Oscar DiMiranda. I told him exactly what I just 13 told you, what Odum testified that the NRC was 14 basically incompetent, didnt know what the hell 15 they were talking about, couldnt possibly determine 16 what a nuclear safety concern was at his nuclear 17 power plant.
18 And there is -- I did a FOIA request at 19 that time, and the NRC withheld all the records 20 because it now was under investigation. But since 21 then, there has been documents released by the NRC 22 which prove what I just said. DiMiranda documented 23 all those events. It also shows that DiMiranda and 24 Jenkins took the conversation with Odum over the 25 telephone, and told him there were no immediate 26 safety concerns, that if there were he would bring 27
12 them to Odums attention, or someones attention at 1
FPL. So Odum knew that before he ordered me to that 2
meeting. He was well advised of that, and he didnt 3
own up to it under oath.
4 And thats significant. Thats new 5
information that wasnt available at the time of 6
that hearing. And when I had DiMiranda on the 7
phone, I said, well, you know, Im going to file a 8
2.206, and I waited for his testimony. So when it 9
got into court, the hearing ended, I waited for 10 those transcripts. I ordered a transcript, and I 11 got the transcript, and that very testimony from 12 Odum was missing. Two weeks of hearings, there was 13 thousands of pages of transcripts, those pages were 14 missing. I brought that to the judges attention, 15 and he allows FPL -- FP&L had their own court 16 reporters in there. They hired their own court 17 reporters, and they sat right next to the Department 18 of Labor court reporters in that courtroom in 1988 -
19
- 1989. The hearing was in 1989. And the judge 20 allowed that to happen. So then he allowed FPL to 21 take their transcripts and put them to the 22 Department of Labors official transcripts, and he 23 made a ruling on that basis.
24 So I mean, when I could not find those 25 pages of Odums testimony, which I heard from my own 26 ears, I ordered the taped transcripts from the 27
13 Department of Labor. And they send me the tapes.
1 And there was a problem with the Department of 2
Labors equipment. It was making feedback, its a 3
signal generated back to the microphone, and they 4
couldnt fix it. So when I listened to the tapes, 5
the majority of the tapes you couldnt humanly 6
transcribe. So that means the majority of that 7
record was FPLs own record. It was not even the 8
Department of Labors record. I brought all that to 9
the attention of the judge, moved for a mistrial, 10 and he still allowed them to go forward with it.
11 So the intent here is FP&L, you know, in 12 our opinion, they intentionally were trying to 13 mislead not only the Department of Labor but the NRC 14 about a violation of 10 CFR § 50.7 at their nuclear 15 plant. They discriminated against an individual, 16 myself, and retaliated against me because I raised 17 safety concerns to the NRC. And where is the 18 intent? The intent is because Odum was a senior 19 executive officer. He was a vice president at that 20 nuclear plant, and he lied under oath. He didnt 21 own up and admit under oath that he had talked to 22 the NRC that very morning, that he knew darn well 23 there was no immediate safety issue that was brought 24 to NRC by myself, and that if there was that the NRC 25 would certainly tell him. So he pretended to this 26 judge, Judge Acoba (phonetic), that thats the 27
14 reason he had to have me at that meeting. And 1
thats why he ordered me to come to that meeting to 2
divulge my safety concerns, because he had to know 3
if there were any immediate safety concerns. He 4
lied under oath. Now, thats new information that 5
wasnt available to the NRC at that time. And 6
certainly the NRC used their exemption authority and 7
didnt allow me to have those records regarding the 8
NRCs DiMiranda and Jenkins discussion with Odum.
9 Following that there was a remand hearing 10 in 1997 before Judge DiNardi. Odum, I put him back 11 on the stand, and now he testified, oh, yes, the 12 NRC, they did tell me that, that there was no 13 immediate safety concerns, and I have every 14 confidence in the world about the NRC, you know.
15 Theyre very competent people. I worked with them 16 in the Navy, and they certainly, you know, know what 17 a safety concern was. So he contradicted his own 18 testimony from the first hearing. Now hes telling 19 the second judge that, oh yes, well you know, I 20 talked to the NRC and I knew that there was no 21 immediate safety concern, but I still had to order 22 him to this meeting. And it just proves that they 23 intentionally misled the NRC for the last 16 years 24 about this whole issue. They misled the Department 25 of Labor to avoid a finding by the government, by 26 either agency, that there was wrongdoing, that they 27
15 had discriminated against myself in raising those 1
safety concerns.
2 And over these years, the record shows for 3
itself that there has been other employees besides 4
myself whove been discriminated against there as 5
soon as you raise safety concerns to the NRC.
6 Theyre going to discriminate against you, and 7
theyre going to -- and theyre going to do it every 8
time. So theres a chilling effect out there, and 9
when people see people get fired, retaliated 10 against, demoted, whatever the discrimination is, 11 they are going to raise safety concerns. And thats 12 the second point of this petition, that theres a 13 chilling effect out there, that Odum lied under 14 oath. Actually thats the third prong, that 15 chilling effects a third prong, its a result of 16 the NRC not taking enforcement action from the 17 findings back by the Secretary of Labor in 1994 to 18 date. And the proof and the new significant 19 information is the second remand hearing where Odum 20 testified the NRC has access to those case 21 transcripts.
22 The matter is currently sitting in front 23 of the Administrative Review Board before the 24 Department of Labor on my motion for 25 reconsideration. I brought all this new evidence to 26 their attention. Theyre currently reviewing the 27
16 entire case now. Im asking for the entire case to 1
be reversed in my favor. If not, then I am 2
certainly entitled to a new hearing. But in any 3
case, as far as the NRCs concerned, as far as our 4
petition is concerned, here Im going to read, right 5
here is the section, one of the sections. Prior to 6
Odums ordering the complainant, which is myself, 7
Saporito, to a meeting on November 30, 1988, Odum 8
was told by the NRC that Saporito had not conveyed 9
any safety concerns to the NRC that had any 10 immediacy to them. Odum was also told by the NRC 11 that if the NRC had any immediate safety issues, 12 that they would certainly cooperate and notify Odum.
13 As Complainants Exhibit 127, at Pages 36 to 38, 14 that was Oscar DiMirandas deposition testimony that 15 was taken in 1997. Exhibit 11 in that deposition, 16 and his deposition is a matter of record. Theres 17 other documents in there that support -- well 18 support the fact that Odum had full knowledge that 19 the NRC had no immediate safety concerns that were 20 given from myself.
21 So he lied under oath at the first 22 hearing, and his testimony at the second hearing 23 contradicts his testimony at the first hearing. So 24 testimony at both hearings is an aversion to try to 25 avoid and mislead the NRC and the Department of 26 Labor that there was a violation out there at the 27
17 nuclear plant when he harassed, discriminated 1
against, and ultimately fired me.
2 And Odums testimony, he even -- like in 3
the Diaz-Robainas case, they ordered him under a 4
pretext, under fitness for duty, yes, youve got to 5
go take this physical because youre not fit for 6
duty. Well they tried the same thing on me. He 7
ordered me to go see a company doctor. And after 8
Id already been treated for gastritis by my own 9
doctor. And he testified at the second hearing now, 10 again he contradicted his testimony from the first 11 hearing. He testified at the second hearing that, 12 well, you know, I already decided to fire you even 13 before I sent you to that hearing. His testimony at 14 the first hearing was a lie on the second prong of 15 their reasons for firing me. Because he 16 contradicted himself at the second hearing. The 17 reason -- the fact of the matter that his testimony 18 says that he fired me before they even ordered me to 19 go see their doctor, which I believe was on December 20 15, 1988. His testimony was he fired me -- he 21 already made his decision to fire me even before he 22 ordered me to see the doctor. So therefore, that 23 whole reason to see the doctor, thats all 24 pretextual. Thats all baloney.
25 Now -- and thats a very legal point, 26 because that shows hes trying to mislead the 27
18 Department of Labor. That proves hes trying to 1
mislead the NRC that theres a violation. Because 2
the whole reason for discharge is all pretextual.
3 He had no reason to order me to that meeting 4
November 30. He had absolutely no reason to order 5
me to go see a company doctor.
6 And all this that Im telling the board 7
right now is a matter of record. Its in the 8
Department of Labor transcripts. All this testimony 9
is under oath, and it proves that Odum lied under 10 oath. It proves that Joe Kappes. Joe Kappes was 11 the maintenance superintendent, or maintenance 12 manager, whatever his title was. He reported 13 directly to Odum. I was at a meeting with Kappes, 14 and Kappes told me that -- because I asked for time 15 off to go see my -- I had hired an attorney at that 16 time, and he said they wont -- I know theyre just 17 F-ing with you, that they should give you the time 18 off, theyre just trying to get rid of you. And I 19 reported that immediately to Oscar DiMiranda. And 20 DiMiranda recorded that. Its in his deposition 21 testimony, its in the FOIA document, in his logs, 22 in DiMirandas logs, that that occurred. And Kappes 23 denied that at both hearings. He lied under oath 24 that that meeting took place, and that those 25 comments were made. And I told Kappes in front of 26 several witnesses the day that he ordered me to see 27
19 the doctor, I said youre doing this because I 1
raised safety concerns. I said youre just 2
retaliating against me, and you people are just 3
setting me up for discharge.
4 And thats all in the record. And there 5
was witnesses there when I made those statements, 6
and this whole case, the whole -- the fact that the 7
transcripts were taken, were modified and adjusted, 8
and pages were taken out, and then you end up 9
finding out that the majority if not the entire 10 transcript is FPLs own transcript. So all this 11 stuff was intended, as far as were concerned, to 12 mislead both government agencies, Department of 13 Labor and the NRC. This information was not 14 previously available to the NRC OI or to the NRC OIG 15 back when we initially asked for the enforcement 16 action.
17 But notwithstanding all that, and separate 18 and apart from all that is the fact of the matter is 19 the Secretary of Labor made a finding of fact and a 20 findings of law that FP&L violated the Energy 21 Reorganization Act. On that basis alone, separate 22 and apart from all this other material information, 23 and all this other new information we just now 24 presented to the NRC PRB, the NRC is required by 25 their own mandate to take enforcement action against 26 FP&L. And its based on case precedent where the 27
20 NRC did such, on Donald Dupreys case, which is a 1
recent case, and a recent finding, where the NRC 2
took enforcement action. And thats a parallel 3
case, its a case where the Department of Labor only 4
made a finding. Even though they ultimately didnt 5
rule in the employees favor, they did make a 6
findings of fact that the ERA was violated.
7 And on all these bases that I have just 8
stated, this is new information and it certainly 9
qualifies our petition, and meeting the criteria for 10 petition to be evaluated by the PRB. And that is 11 substantial information.
12 And the PRB, you know, we would urge you -
13
- we know that George Jenkins has since retired from 14 the agency, but Oscar DiMiranda is still a viable 15 employee there, and we urge you to have a discussion 16 with that gentleman. And he certainly can fill you 17 in on exactly what was said to Odum. And he has his 18 records. Theyre well documented in the NRC files, 19 and can bring to light that whole issue. And if you 20 have any questions wed be certainly glad to answer 21 them.
22 MR. BERKOW: This is Herb Berkow. Does 23 that conclude your remarks, Mr. Saporito?
24 MR. SAPORITO: Yes, sir, it does.
25 MR. BERKOW: Okay. Well, let me ask if 26 anybody here has any questions or clarification.
27
21 (No response.)
1 MR. BERKOW: No, we dont. Okay, well we 2
certainly will take your comments under advisement, 3
and we thank you very much for participating with us 4
this morning.
5 MR. SAPORITO: Well, I appreciate having 6
the opportunity.
7 MR. BERKOW: Good. Okay, thank you and 8
have a good day.
9 MR. SAPORITO: You too, sir. Bye-bye.
10 (Whereupon, the foregoing matter went off 11 the record.)
12 13 14 15 16 17 18 19 20 21 22 23 24