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