ML041970610

G20040468 - Thomas Saporito Ltr. Dtd 07/01/04 & 07/04/04, Turkey Point Petition 2.206

ML041970610
Person / Time
Site:	Turkey Point
Issue date:	07/01/2004
From:	Saporito T National Environmental Protection Ctr
To:	Travers W NRC/EDO
Shared Package
ML042370238	List: ML041970610 ML042370299 ML042450002
References
2.206, G20040468, TAC MC3759-TP-3, TAC MC3760-TP-4
Download: ML041970610 (15)

Text

EDO Principal Correspondence Control FROM: DUE: 09/03/04 EDO CONTROL: G20040468 DOC DT: 07/01/04 FINAL REPLY:

Thomas Saporito National Environmental Protection Center TO:

EDO FOR SIGNATURE OF  : ** GRN ** CRC NO:

Dyer, NRR DESC: ROUTING:

Petitioners' 2.206 - Turkey Point Reyes Norry Virgilio Kane Collins Dean DATE: 07/13/04 Burns Miller, RI ASSIGNED TO: CONTACT: Cyr, OGC Skay, NRR NRR Dyer Goldberg, OGC SPECIAL INSTRUCTIONS OR REMARKS:

ThwokP-: ~-: s- ftS o-oI

NATIONAL ENVIRONMENTAL PROTECTION CENTER Environmental & Whistleblower Litigation Thomas Saporito Post Office Box 1173, Jupiter, Florida 33458 Executive Director Internet: www. nepcusa .netfirms.com Phone/Fax: (561) 625-9197 Email: nepcusa@lsp.com Email: saporitoZlsp.com My lirfe belongs to the whole community, and as long as I live, It Is my privilege to do for It whatsoever I can. I want to be thoroughly used up when I die, for the harder I work, the more I live. I rejoice In lIfe for Its own sake.

Lie Is no "brief candlew to me. It Is a sort of splendid torch which I have got hold of for the moment, and I want to make It bum as brightly as possible before handing It on to future generations. " - George Bernard Shaw, 1907 -

UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS WILLIAM TRAVERS, EXECUTIVE DIRECTOR FOR OPERATIONS In the Matter of: Date: July 1st, 2004 FLORIDA POWER & LIGHT COMPANY Docket Nos. 50-250 and 50-251 Turkey Point Units 3 and 4 (10 C.F.R. 2.206)

PETITIONERS' PETITION UNDER 10 C.F.R. 2.206 NOW COMES, the National Environmental Protection Center ("NEPC") and its undersigned Executive Director, and submit Petitioners' Petition Under 10 C.F.R. 2.206

("Petition") requesting that the U.S. Nuclear Regulatory Commission ("NRC") take immediate enforcement action against its licensee, the Florida Power & Light Company ("FPL") in firtherance of public safety and health and for the protection of the environment.

A. Petitioners' Specific Request for NRC Enforecmez Action

1. Petitioners request that the NRC take immediate enforcement action against the Florida Power & Light Company ("FPL" or "licensee") for the licensee's failure to adhere to the requirements of 10 C.F.R. 50.7, Employee Protection, which prohibits discrimination against employees for engaging in protected activities.

2. Petitioners request that the NRC issue its licensee, FPL, a Notice of Violation and Proposed Imposition of Civil Penalty in the amount of$ 100,000 per day retroactive to EDO - -G200404G8

NATIONAL ENVIRONMENTAL PROTECTION CENTER June 3, 1994 in accordance with Section 234 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2282.1

3. Petitioners request that the NRC Office of Investigations ("OI") re-open its previous investigation of FPL with respect to the licensee's discharge of Thomas Saporito on December 22, 1988 to determine whether one or more licensee employees engaged in willful wrongdoing conduct in violation of NRC regulations and requirements.

4. With respect to item #3 above, Petitioners request that any findings and/or determinations made by the NRC OI which support willful wrongdoing by the licensee be forwarded to the U.S. Department of Justice ("DOJ") requesting that the DOJ criminally prosecute the licensee and those licensee employees involved in willful wrongdoing in violation of NRC regulations and requirements. In addition, Petitioners request that the NRC Ol's investigation encompass alleged wrongdoing by the licensee and alleged wrongdoing by one or more of its employees and/or attorneys during the hearing held in 1989 as described in this petition at section B. I. below to specifically determine,

a. Whether the licensee's former Vice President, John Odom, willfully and intentionally lied under oath to mislead the NRC about violations of NRC regulations and requirements at the Turkey Point nuclear station; and

b. Whether the licensee's former Maintenance Supervisor, Joseph Kappes, willfully and intentionally lied under oath to mislead the NRC about violations of NRC regulations and requirements at the Turkey Point nuclear station; and

c. Whether the licensee and/or its attorney(s), including James Bramnick, willfully and intentionally caused, either directly or indirectly an omission of pages, and specifically testimony by John Odom ("Odom"), from the original hearing record transcript taken at the hearing in 1989 in the matter described below in this petition at section B. 1. to mislead the NRC about violations of NRC regulations and requirements at the Turkey Point nuclear station; and

d. Whether the licensee or its attorney(s), including James Bramnick, propositioned or bribed the ALJ, the Hon. Anthony lacobo, who presided over the matter identified in this petition at section B.l. below, during the time immediately following the conclusion of the 1989 hearing wherein licensee attorneys provided the AUJ a "ride" to his car.2

'Section 234 of the Atomic Energy Act of 1954 authorizes the NRC to impose civil penalties against its licensees in the maximum amount of S100,000 per day from the day that the violation was found to have occurred.

2 Petitioners aver here that the AU had no problem "wallcing" to his car throughout the entire duration of the hearing without the need for the licensee or its attorneys to provide assistance. Notably, the AU retired in south Florida prior to the remand hearing held in 1997 in the very same case. In addition, the ALJ, the Hon. David DiNardi, visited with Judge lacobo in south Florida while Judge DiNardi was presiding over the remand hearing in 2

NATIONAL ENVIRONMENTAL PROTECTION CENTER

5. Petitioners request that the NRC issue an ORDER requiring FPL to hire an independent industry consultant firm to conduct a study of the work environment at the licensee's Turkey Point and St. Lucie nuclear stations to determine if the licensee maintains a work environment consistent with NRC regulations and requirements and which encourages employees to raise safety concerns to the licensee or directly to the NRC without fear of retaliation.

B. Petitioners' Basis and Justification for Petition

1. On June 3, 1994 the Secretary of Labor ("SOL") for the U.S. Department of Labor

("DOL") issued a Decision and Remand Order ("D. & R. 0") in the matter of Thomas Saporito v. Florida Power & Light Company, ALJ Case No. 89-ERA-7 and 89-ERA-17. In Case No. 89-ERA-17, the SOL found that, "An employee who refuses to reveal his safety concerns to management and asserts his right to bypass the "chain of command" to speak directly with the Nuclear Regulatory Commission is protected under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C 5851 (1988). Covered employers who discipline or discharge an employee for such conduct have violated the ERA.";

". . . FP&L discharged Saporito on December 22, 1988 for three stated reasons,

'refis[al] to cooperate when directed by the Site Vice President [John Odom] to provide information regarding activities at Turkey Point that you alleged could potentially affect the health and safety of the public,' refusal to 'hold over for a meeting with the Site Vice President,' and 'refus[al] to be examined' by a company doctor. . . '

". . .When Saporito refused to reveal his safety concerns to Mr. Odom at the meeting of Nov. 23, 1988, and said he would only tell them to the NRC, T. 1438J, he was insisting on his right to bypass the chain of command in those circumstances. FP&L asserts that as the licensee responsible for nuclear safety at its power plant, it has the right under the ERA to order an employee to reveal his safety concerns directly to FP&L to determine if there is an imminent threat to public health and safety. T. 1438J-1438K; Respondent's Reply Brief at 18 ('It is in the interest of the public's health and safety . . . that immediate disclosure occur. A non-confidential informant's refusal to disclose his nuclear safety concerns [to management] is not protected activity under the ERA.'); RD. and 0.

at 18.";

"I need not decide whether it is appropriate under the ERA to balance Respondent's interests in immediate discovery of potential threats to public health and safety against Complainant's right to protection for reporting his safety the case described in this petition at section B. 1. Petitioners note here that both AU's ruled against the Complainant in both Case No. 89-ERA-7 and Case No. 89-ERA-17.

3

NATIONAL ENVIRONMENTAL PROTECTION CENTER

- concerns outside the chain of command because I find FP&L's reason for requiring Saporito to reveal his safety concerns to the Site Vice President disingenuous. Saporito told Odom on November 23, 1988, when Odom gave him a 'direct order' to tell Odom his nuclear safety concerns, T.14381, that Saporito,

'would tell the NRC his nuclear safety concerns 'at the first available opportunity' and Saporito said he would. T. 1438J; 907. At that point, FP&L knew that the NRC, the government agency responsible for nuclear safety, would be notified and it was reasonable to assume the NRC would notify FP&L immediately if there were an imminent threat to public health or safety. I find that FP&L violated the ERA when it later discharged Saporito. among other reasons, for refusing to obey Odom's order to reveal his safety concerns."

Id at 3-4 (emphasis added).

Although Saporito filed a petition in 1989 under 10 C.F.R 2.206 requesting that the NRC take escalated enforcement action against FPL for violation of NRC regulations and requirements under 10 C.F.R 50.7, the NRC denied his petition. The NRC's failure to take escalated enforcement action upon a finding by the DOL in AU Case No. 89-ERA-7, resulted in a "chilling effect" at the licensee's Turkey Point and St. Lucie nuclear stations. Moreover, the NRC's failure to take escalated enforcement action against FPL in the aforementioned case was apparently perceived by licensee management -as empowerment to retaliate against other employees at their nuclear stations for raising safety concerns. As evidenced below, the licensee engaged in unlawful and illegal discrimination against employees who raised nuclear safety concerns at its nuclear stations. To this extent, the licensee violated NRC regulations and requirements at 10 C.F.R 50.7 and in so doing, the licensee reinforced and maintained a "chilling effect" throughout its workforce intended by the licensee to dissuade other employees from raising safety concerns to management or to the NRC.3 Petitioners assert here that any subsequent statements made by the licensee to date regarding any employee safety concerns program in effect at their nuclear stations, is simply lip-service to the NRC, and that a well-established chilling effect has been carefully instilled at the Turkey Point and St. Lucie nuclear stations by the licensee over the last 15-years to date.

2. On July 16, 1996 the NRC issued FPL a Notice of Violation and Proposed Imposition of Civil Penalty 4 - $100,000 regarding a decision by the SOL issued 3 Petitioners assert here that the escalated enforcement action taken by the NRC against FPL in the amount of

$I00,000 was insufficient to deter the licensee in recurrence of 10 C.F.R. 50.7 violations. To the extent that the NRC intended its NOV's to deter FPL from further 10 C.F.R 50.7 violations, Petitioners contend that FPL simply accepts the NRC's monetary fines and penalties as a "cost of doing business" compared to the licensee's revenues of 1-million dollars per day per operational reactor. Petitioners further contend that the NRC should require its licensee's, like FPL, who are found in violation of 10 C.F.R. 50.7, to make payment of any NRC imposed civil penalties directly to the aggrieved employee, and that such an arrangement would better serve to dissuade the licensee from continued violations of 10 C.F.R. 50.7 especially if other licensee employees read the NOV posted at the nuclear plant.

4See, Turkey Point 3 & 4 (Florida Power & Light Co.). Notice of Violation and Proposed Imposition of Civil Penalty - $100,000 (DepartmentofLaborCase No. 92-ERA-010)(EA-96-05 1,July 16, 1996).

4

NATIONAL ENVIRONMENTAL PROTECTION CENTER on January 19, 1996, in DOL Case No. 92-ERA-010, Regino R. Diaz-Robainas v.

Florida Power & Light Company. Significantly, the SOL found that Diaz-Robaines' protected activities included: (1) identification of various technical issues involving safety concerns, regarding projects with which he was associated; (2) various verbal complaints to management alleging he was being discriminated against for identifying safety concerns; and (3) assertions made to FP&L management that he would go to the media and the NRC.

a. The licensee denied the violation and told the NRC that no corrective actions were required. 5

b. The NRC found in EA-96-051, that "While any discrimination against a person for engaging in protected activities is cause for concern to the NRC, this violation is of very significant regulatory concern because it involved discrimination by a member of management above the first-line supervision. The NRC places a high value on the freedom provided to nuclear industry employees to raise potential safety concerns to their management and to the NRC. Therefore, this violation has been categorized in accordance with the 'General Statement of Policy and Procedures for NRC Enforcement Actions' (Enforcement Policy),

NUREG-1600, at Severity Level II.... to emphasize the importance of ensuring that employees 6 who raise real or perceived safety concerns are not subject to discrimination for raising those concerns and that every effort is made to provide an environment in which all employees may freely identify safety issues without fear of retaliation or discrimination, I have been authorized . . . to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the maximum amount of

$100,000 for the Severity Level II violation. . ."

3. On June 5, 2003 the NRC issued a Notice of Violation (EA-00-230), to Florida Power & Light Company in reference to a DOL proceeding involving a claim of discrimination by the licensee against one of its employees Donald Duprey. The AU found, under a dual motive analysis, that Duprey was demoted in violation of the ERA, but that FPL had successfully shown that it legitimately would have demoted Duprey even if he had not engaged in protected activity... FPL advised the NRC that it [NRC] was in error when the agency asserted that DOL found that FPL discriminated against Duprey in violation of Section 211 of the ERA. In this regard, FPL asserted that the ALJ determined that Duprey made a prima facie case of discrimination requiring a response from FPL, but that both the ALJ and ARB concluded there was no violation of the Act and ruled in FPL's favor.

Petitioners contend that the licensee's denial of the violation coupled with the brazen assertion by the licensee that "no corrective actions were required", after the DOL filly adjudicated the matter, should have triggered escalated enforcement action by the NRC to ensure that the licensee's workforce at its Turkey Point and St. Lucie nuclear stations felt free to raise safety concerns to licensee management and directly to the NRC without fear of retaliation.

6 See also, Gary Phipps v. FloridaPower & Light Company, ALU Case No. 94-ERA-53.

5

NATIONAL ENVIRONMENTAL PROTECTION CENTER However, the AU and the ARB nonetheless concluded that Duprey's demotion by FPL was motivated, in part, by the illegitimate reason of Dupreys's protected activity. The violation described in EA-00-230 involves a violation of 10 C.F.R. 50.7, Employee Protection, in which the NRC concluded that FPL demoted Duprey in January 1999, at least in part, because of his engagement in protected activity. The protected activity involved Duprey's reporting nuclear safety violations and plant procedural issues to FPL supervisors and to the NRC.

The NRC stated in EA-00-230, that a. . Discrimination against employees who engage in protected activity is of concern to the NRC because of the potential for creation of an unfavorable working environment where employees may be unwilling to raise safety concerns . . ." Id at 2.

4. The licensee has failed to demonstrate that employees are free to raise nuclear safety concerns to its management or directly to the NRC without fear of retaliation at the licensee's Turkey Point and St. Lucie nuclear stations. Moreover, the licensee's hostile attitude towards the NRC in denying that it violated NRC regulations and requirements at 10 C.F.R. 50.7 is indicative of a "licensee management culture" that intentionally acts to dissuade its employees from raising nuclear safety concerns to licensee management or directly to the NRC.

To this extent, the licensee over the last 15-year period, has not demonstrated reasonable assurance to the NRC or to the public, that its employees feel free to raise nuclear safety concerns to the licensee's management or directly to the NRC. Therefore, the NRC must take further escalated enforcement actions against FPL to ensure the freedom of the licensee's employees to raise safety concerns to licensee management and directly to the NRC without fear of retaliation.

CONCLUSION Based on the information presented above, Petitioners request that the NRC GRANT their petition and take the requested enforcement action against FPL as described above to insure that a recurrence of violations of NRC regulations and requirements at 10 C.F.R. 50.7 does not occur by the licensee, and that licensee employees feel free to raise nuclear safety concerns to licensee management and directly to the NRC. In the balance lies public gafety and health.

Respectfully submitted, National Environmental Protection Center Thomas Saporito Executive Director 6

NATIONAL ENVIRONMENTAL PROTECTION CENTER A copy of the foregoing was provide to:

William Travers J.A. Stall Executive Director for Operations Senior Vice President U.S. Nuclear Regulatory Commission Florida Power & Light Company Washington, D.C. 20555 P.O. Box 14000 Juno Beach, Florida 33408-0420 Luis A. Reyes Regional Administrator Michael 0. Pearce U.S. Nuclear Regulatory Commission Plant General Manager Atlanta Federal Center Turkey Point Nuclear Plant 61 Forsyth Street, S.W., Suite 23T85 9762 S.W. 3 4 4 th Street Atlanta, Georgia 30303 Florida City, Florida 33035 Oscar DeMiranda Senior Resident Inspector Senior Allegations Coordinator Turkey Point Nuclear Plant U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm.

Atlanta Federal Center 9762 S.W. 344t Street 61 Forsyth Street, S.W., Suite 23T85 Florida City, Florida 33035 Atlanta, Georgia 30303 Russell Wise Hon. Jeb Bush Senior Allegations Cooridinator Governor U.S. Nuclear Regulatory Comm.

State of Florida 611 Ryan Plaza Dr. Suite 400 The Capitol Arlington, Texas 76011-8064 Tallahassee, Florida 32304 r,

7

JUL-4-2004 02:16P FROM:Thomas Saporito 561-625-9197 NATIONAL ENVIRONMENTAL PROTECTION CENTER Environmental & Whistleblower Litigation Thomas Saporito Post Office Box 1173, Jupiter, Florida 33458 Executive Direcor Internet: www.nepcusa-netflrms.com Phone/Fax: (561) 625-9197 Email: nepcusa@isp.com Email: saporito@isp.com My life belongs to the whole community, and as long as I live, it is my privilege to do for ic whatsoever I can. I wgrnt to be thoroughly used up when I die, for the harder I work, the more I live. I rejoice in life for Iks own sake.

Life Isno brief candle' to me. It Is a sort of splendi torch which I have got hold of for the moment and I want to make it burn as brightly as possible before handing it on to future generarlons. - George Bemard Shaw, 1907 -

FACSIMILE COVER SHEET Date: July 4th, 2004 To: Hon. William Travers Executive Director for Operations Company: U.S. Nuclear Regulatory Commission FAX: (301) 415-2700 Phone:

From: Thomas Saporito Total Pages Including Cover Sheet: 7 Message: If you fail to receive the entire FAX, please request a resend.

Please take notice The information corntained in this FAX document is intended for the individual(s) named above and is to be considered confidential in use by the receiver identified above. If the Individual receiving this FAX document is not the intended receiver or an agent of the Intended receiver responsible for delivering it to the intended receiver, you are hereby notified that you have received this FAX document in error and any use of this document is strictly prohibited and you should notify the sender immediately. Thank you for your cooperation.

JUL-4-2004 02:16P FROM:Thomas Saporito 561-625-9197 TO:13014152700 P:2/7 NATIONAL ENVIRONMENTAL PROTECTION CENTER Environmental & Whistleblower Litigation Thomas Sapouito Post Office Box 1173, Jupiter, Florida 33458 Executive Director Internet: www.nepcusa .netfirms.com Phone/Fax: (561) 625-9197 Email: nepcusa@isp.com Email: saporito@isp.com "My ifie belongs to the whole community, and as long as I live, it is my privilege to do for It whatsoever I can. I want to be thoroijghIy used up when I die, tor the harder I work, the more I Jive. I reJoce in life for im own sake.

Life is no "briefcandle' to me. Jt is a sort of spkndid torch which I have got hold of for the moment, and I want to make It bur" as &Orhy as possdble belbre ha riding it on to future generations. ' - George Bernard SAaw, 1907 -

UNITED STATES NUCLEAR REGCIRATORY COMMISSION BEFORE THE OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS Wll..LIAM TRAVERS, EXECI.VTVE DIRECTOR FOR OPERATIONS In the Matter of. Date: July 4th, 2004 FLORIDA POWIER & LIGHT COMPANY Docket Nos. 50-250 and 50-251 Turkey Point Units 3 and 4 (10 C.F.R. 2106)

PETITIONERS' SUPPLEMENTAL PETITION UNDER 10 C.F.R. 2.206 NOW COMES, the National Environmental Protection Center ('NEPC") and its undersigned Executive Director? and submit Petitioners' Supplemental Petition Under 10 C.FR..

2.206 ("Petition') requesting that the U.S. Nuclear Regulatory Commission ("NRC") take immediate enforrement action against its licensee, the Florida Power & Light Company ("FPL")

in furtherance of public safety and health and for the protection of the environment.

MTRODUCTION On July 1Vt, 2004 Petitioners requested that the NRC take immediate enforcement action against the Florida Power & Light Company ("FPL" or licensee') for the licensee's failurc to adhere to the requirements of 10 C.F.R. 50.7, Employee Protection, which prohibits discrimination against employees for engaging in protected activities. Petitioners now herein supplemcnt their July I ", 2004 petition under 10 C.F.R 2206 as follows:

A. Petitoners' Specific Request for NRC Enforcement Action

1. Petitioners rxquest that the NRC take immediate enforcement action against its licensee, FPL, and that the agency issue an ORDER requiring FPL to jndiatelp

JUL-4-2004 02:17P FROM:Thomas Sapori to 561-625-9197 TO: 130314152700 P:3/7 NATIONAL ENVIRONMENTAL PROTECTION CENTER bring the licensee's Turkey Point nuclear unit 3 and unit 4 and the licensee's St. Lucie nuclear unit I and unit 2 to a safe cold-shutdown condition.

B. Petitioners' Basis and Justification for Petition

1. On June 3. 1994 the Secretary of Labor ('SOL") for the U.S. Department of Labor (IOXL") issued a Decision and Remand Order ('D. & R. 0") in the matter of Thomas Saporito v. Florida Power & Light Company, AUJ Case No. 89-ERA-7 and 89-ERA-1 7 In Case No. 89-ERA-1 7, the SOL found that,

'An employee who refuses to reveal his safety concerns to management and asserts his right to bypass the "chain of command" to speak directly with the Nuclear Regulatory Commission is protected under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C 5851 (1988). Covered employers who discipline or discharge an employee for such conduct have violated the ERA-";

. . . FP&L discharged Saporito on December 22, 1988 for three stated reasons,

'refiusalJ to cooperate when directed by the Site Vice President fJohn Odom] to provide information regarding activities at Turkey Point that you alleged could potentially affect the health and safety of the public,' refusal to 'hold over for a meeting with the Site Vice President,' and 'refusfall to be examined' by a company doctor....

I find that FP&L violated the ERA when it later dischard SoRito. among offier reasons, for refusing to obey ONom's order to reveal his safety concerns."

Id at 3-4 (emphasis added).

2. The NRC's failure to take escalated enforcement action against FPL in the aforementioned case was apparently perceived by licensee m a nt as empowerment to reaiate against other employees at their nuclear stations for raising safety concerns. As evidenced below. the licensee engaged in unlawful and illeg.l discrimination against employees who raised nuclear saferty concerns at its nuclear stations. To this extent, the licensee violated NRC reulatiors end requirementS at 10 C.F.R. 50.7 and in so doing, the licensee reinforced and maintained a 'chilling effect" throughout its workforoe intended by the licensee to dissuade other employees from raising safety concerns to management or to the NRC.' Petitioners assert here that any

'Petitioners assert hare that the escalated enforcement action taken by the NRC against FPL in the amount of S100,000 wa insufficint to deter the lice in re c of 10 CYF.R. 50.7 violation To die extcnt thd dte NRC intended its NOV's to deter PPL from fOrther 10 C.F.R. 507?violations Petirloners contend that FPL simply acceps the NRC's monetary fines and penalties as a -ccost of doing business" compared to the licensee's revenues of 1-million dollars per day per operational remactor. Petitioners further contend Biat die NRC should require its licensee's.

like FPL. who are found in violation of 10 C.F.R. 50.7. to make payment of any NRC imposed cil penalties dikcly to the apuieved employee, and that such an arrangement would ttr serve to dissuade the licensee from continued violations of 10 C.F.R. 50.7 especially if other licensee employees read the NOV posted at the nuclear plant.

2

JUL-4-2004 02:17P FROM:Thomas Saporito 561-625-9197 TO: 13014152700 P:4/7 NATIONAL ENVIRONMENTAL PROTECTION CENTER subqit statements made by the licensee to date regarding any employee safety concerns program in effect at their nuclear stations, is simply lip-service to the NRC, and that a well-established chilling effcct has been carefully instilled at the Turkey Point and St. Lucie nuclear stations by the licensee over the last 15-years to date.

3. On July 16, 1996 the NRC issued FPL a Notice of Violation and Proposed Imposition of Civil Penalty2 - £100,000 regarding a decision by dhe SOL issued on January 19, 1996, in DOL Case No. 92-ERA-010, Regino R. Diaz-Robainas v. Florida Power &

Light Company. Significantly, the SOL found that Diaz-Robaines' protected activities included: (1) identification of various technical issues involving safety concerns. regarding projects with which he was associated; (2) various verbal complaints to management alleging he was being discriminated against for identifying safety concems; and (3) assertions made to FP&L management that he would go to the media and the NRC.

a. The licensee denied the violation and told the NRC that no corrective actions were required.?

b. The NRC found in EA-96-05 l, that 'While any discrimination against a person for engaging in protected activities is cause for concern to the NRC, this violation is of very significant regulatory concern because it involved discrimination by a member of management above the first-line supervision. The NRC places a high value on the firedom provided to nuclear idustry employees to raise potential safety concerns to their management and to the NRC. Therefore, this violation has been categorized in accordance with the 'General Statement of Policy and Procedures for N4RC Enforcement Actions' (Enforcement Policy),

NUREG-1600, at Severity Level 11.... to emphasize the importance of ensuring that employees' who raise real or perceived safety concerns are not subject to discrimination for raising those concerns and that every effort is made to provide an environment in which all employees may freely identify safery issues without fear of retaliation or discrimination, I have been authorized . . . to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the maximum amount of S 100,000 for the Severity Level H violation. . .

2 See, TurAey oih 3 & 4 (Florida Power & Lighi Co.), Nolicer of Violaion and Proposedlmposiron of CMivi Penaty - S 100,000 (Departmentof Labor Case No. 92-ERA -0I0)(EA-.05 1, July 16. 1996).

' Petitioners contend that the licensee's denial of the violation coupled with the brazen assertion by the licensee that "no corrective actions were requin, after te DOL fully adjudicated the mater, should have tiggered escalated enforcement action by the NRC to ensure that the licensee's workforce ax its Turkey Point and St Lucie nuclear stations felt free to raise safety concerns to licensee management and directly to the NRC without fear of retaliation.

'See oaro. Gary PhiApps v. FloridaPower & Light Company, AU Case No. 94-ER 3

JUL-4-2004 02:17P FROM:Thomas Saporito 561-625-9197 TO: 13014152700 P:5'7 NATIONAL ENVIRONMENTAL PROTECTION CENTER

4. On June 5, 2003 the NRC issued a Notice of Violation (EA-0O-230), to Florida Power

& Light Company in reference to a DOL proceeding involving a claim of discrimination by the licensee against one of its employees Donald Duprey. The AU found, under a dual motive analysis. that Duprey was demoted in violation of the ERA, but that FPL had successfidly shown that it legitimately would have demoted Duprey even if he had not engaged in protected activity. . . FPL advised the NRC that it [NRC] was in error when the agency asserted that DOL found that FPL discriminated against Duprey in violation of Section 211 of the ERA. In this regard, FPL asserted that the AU determined that Duprey made a prima facie case of discrimination requiring a response from FPL, but that both the AU and ARB concluded there was no violation of the Act and ruled in FPL's favor. However, the AU and the ARB nonetheless concluded that Duprey's demotion by FPL was motivated, in part. by the illegitimate reason of Dupreys's protected activity. The violation described in EA-00-230 involves a violation of 10 C.F.R. 50.7, Employee Protection, in which the NRC concluded that MP, demoted Duprey in January 1999, at least in part, because of his engagement in protected activity. The protected activity involved Duprey's reporting nuclear saety violations and plant procedural issues to FPL supervisors and to the NRC.

The NRC stated in EA-O230, that '. . .Discrimination against employees who engage in protected activity is of concern to the NRC because of the potential for creation of an unfavorable working environment where employees may be unwilling to raise safety concerns .. ." Id at 2.

5. The licensee has faled to demonstrate that employees are free to raise nuclear safety concerns to its management or directly to the NRC without fear of retaliation at the licensee's Turkey Point and St. Lucie nuclear stations. Moreover, the licensee's hostile attitude towards the NRC in denvin that it violated NRC regulations and requirements at 10 C.F.R. 50.7 is indicative of a "licensee management culture" that intentionally acts to dissuade its emnloees from raisina nuclear safety concens to licensee management or directly to the NRC. To this extent, the licensee over the last 15-year period, has not demonstrated reasonable assurance to the NRC or to the public, that its employees feel free to raise nuclear safety concerns to the licensee's management or directly to the NRC. Therefore, the NRC must take further escalated enforcement actions against FPL to ensure the freedom of the licensee's employees to raise safety concerns to licensee management and directly to the NRC without fear of retaliation.

6. The licensee cannot demonstrate reasonable assurance to the NRC that its employees at the licensee's nuclear stations feel free to raise safety concerns to the NRC without fear of retaliation.

7. FPM. cannot demonstrate reasonable assurance to the NRC that its employees at its nuclear stations feel free to raise safety concerns to the licensee's management or to licensee personnel associated with FPL's "soGcalled" employee's concerns program.

Therefore, there can be on reasonable assurance that the licensee will not tain 4

JUL-4-2004 02:18P FROM:.Thomas Saporito 561-625-9197 TO :13014152700 P: 6/7 NATIONAL ENVIRONMENTAL PROTECTION CENTER rctaliatc against its nuclear workers motivated by their protected activity under the Energy Reorganization Act (-ERA").

S. The licensee cannot demonstratc To the NRC ay amount of reasonable assurance that it will not again be found by the agency to be in violation of NRC regulations and requirements under 10 C.F.R. 50.7.

9. The licensee cannot demonstrate My amount of reasonable assurance to the NRC that the overall work environment at the Turkey Point and St. Lucie nuclear stations is totally free of an atmosphere which would otherwise dissuadc licensee employees from raising nuclear safety concerns to the NRC or to the licensee.

CONCLUSION Based on the information presented above, Petitioners request that the NRC GRANT their petition and take the requested enforcement action against FPL as described above to insure that a recurrence of violations of NRC regulations and requirements at 10 C.F.R. 50.7 does not occur by the licensee, and that licensee employees feel free to raise nuclear safety concerns to licensee management and directly to the NRC. In the balance lies public safety and health.

Respectfully submitted, National Environmental Protection Center Thomas Saporh7o Executive Director 5

JUL-4-2004 02:18P FROM:Thomas Saporito 561-625-9197 TO: 13014152700 P:7'17 NATIONAL ENVIRONMENTAL PROTECTION CENTER A copy of the foregoing document, Petitioncrs' Supplemental Petition Under 10 C.F.R 2.206 was provided the those individuals shown below on this 4h day of July 2004: / 9 William Travers Executive Director for Operations U.-S. Nuclear Regulatory Cnommission Washington, D.C. 20555 Luis A. Reyes Regional Administrator U.S. Nuclear Regulatory Cornmission Atlanta Federal Center 61 Forsyth Street, S.W.. Suite 23T85 Atlanta, Georgia 30303 Oscar DeMiranda Senior Allegations Coordinator U.S. Nuclear Regulatory Commission Atlanta Federal Center 61 Forsyth Street, S.W., Suite 23T85 Atlanta, Georgia 30303 Russell Wise Senior Allegations Coordinator U.S. Nuclear Regulatory Commission 611 Ryan Plaza Dr. Suite 400 Arlington, Texas 76011-8064 6