ML082330393
| ML082330393 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 08/14/2008 |
| From: | NRC/OCM |
| To: | |
| Orf, Tracy J.; NRR/DORL 415-2788 | |
| References | |
| NRC-2385 | |
| Download: ML082330393 (58) | |
Text
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 +++++
4 PETITION REVIEW BOARD (PRB) 5 CONFERENCE CALL:
6 FLORIDA POWER AND LIGHT 2.206 PETITION 7 . . . . .
8 THURSDAY, AUGUST 14, 2008 9 The conference call was held at 10:00 10 a.m., MARK MAXIN, PRB Chairman, presiding.
11 NRC HEADQUARTERS STAFF:
12 MARK MAXIN, Acting Deputy Director of Policy and 13 Rulemaking, NRR 14 RUSSELL ARRIGHI, Office of Enforcement 15 TOM BOYCE, NRR Branch Chief 16 MARY KAY FAHEY, Office of Investigations 17 MICHELLE HONCHARIK, PRB Coordinator 18 JENNY LONGO, Office of General Counsel 19 BRENDA MOZAFARI, NRR Project Manager 20 TRACY ORF, Petition Manager 21 KIMBERLY SEXTON, Office of the General Counsel 22 DAVID SOLORIO, Office of Enforcement 23 PETITIONER:
24 THOMAS SAPORITO NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
2 1 LICENSEE: FLORIDA POWER AND LIGHT:
2 MARJAN MASHHADI, Esquire 3 BOB TOMONTO, Manager 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
3 1 P-R-O-C-E-E-D-I-N-G-S 2 (10:09 a.m.)
3 CHAIRMAN MAXIN: Good morning and welcome 4 to the NRC meeting regarding the 2.206 petition 5 submitted regarding the Turkey Point nuclear power 6 plant in Florida.
7 Before we get into the heart of the 8 discussion, I would like to provide some general 9 information about the NRC's 2.206 petition process.
10 A) Under the Title 10 of the Code of Federal 11 Regulations, section 2.206, any person may petition 12 the NRC to take an enforcement-related action, such as 13 modifying, suspending, or revoking a license. B) The 14 NRC's staff guidance for the disposition of 2.206 15 petition requests is in management directive 8.11, 16 which is publicly available for review.
17 The purpose of today's meeting is to 18 provide the petitioner an opportunity to submit any 19 relevant additional explanation in support of the 20 petition. The meeting is not a hearing, nor is it an 21 opportunity for the participants to examine or 22 question the PRB on the merits of the issues presented 23 in the petition request.
24 No decisions regarding the merits of this 25 petition will be made at this meeting. Following the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
4 1 meeting, the PRB will conduct its internal 2 deliberations as to accept or reject the petition for 3 review. The outcome of this internal meeting will be 4 documented in the acknowledgement letter to the 5 petitioner.
6 I would like to summarize the scope of the 7 petition under consideration and the NRC activities to 8 date. On August 3, 2008, Mr. Thomas Saporito -- and 9 I will spell that name, and, of course, Mr. Saporito, 10 feel free to correct it if we've got it wrong --
11 Thomas, T-h-o-m-a-s, Saporito, S-a-p-o-r-i-t-o, --
12 submitted to the NRC a request under 2.206 regarding 13 a Florida Power and Light violation of the Energy 14 Reorganization Act of 1974, as discussed in the 15 Secretary of Labor's decision dated June 3, 1994. In 16 this petition request, Mr. Saporito requested that the 17 NRC issue a notice of violation and proposed 18 imposition of civil penalty of $100,000 to the 19 licensee.
20 On August 6th, the Petition Manager, Tracy 21 Orf -- that's T-r-a-c-y, Orf, O-r-f -- contacted the 22 petitioner, Mr. Saporito, to acknowledge receipt of 23 the petition and to make available the opportunity for 24 the petitioner to address the PRB.
25 On August 10th, the petitioner forwarded NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
5 1 additional information to the Petition Manager. These 2 documents have been made available to the PRB for 3 review. At this time the PRB has not reviewed the 4 petition as a Board.
5 Mr. Saporito, if I did not capture the 6 essence of the petition and the issues correctly, can 7 you please clarify during your remarks?
8 MR. SAPORITO: Yes. Yes, I will.
9 CHAIRMAN MAXIN: Thank you, sir.
10 Again, the purpose of the meeting today is 11 to provide additional information and explanation in 12 support of the petition. The purpose of this meeting 13 is not to provide an opportunity for the meeting 14 participants to question or examine the PRB regarding 15 the merits of the petition request. This meeting is 16 not a hearing. No decision regarding the merits of 17 the request will be made during this meeting.
18 Subsequent to this meeting, the PRB will 19 conduct an internal meeting to make a recommendation 20 on whether to accept or reject the petition for 21 review. The results of that meeting will be 22 documented in an acknowledgement letter to the 23 petitioner.
24 At this time I would like to introduce the 25 Board and then turn the meeting over to you, Mr.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
6 1 Saporito, the petitioner. The PRB typically consists 2 of a chairman., usually an SES-level manager at the 3 agency. It has a petition manager, which for a 4 plant-specific petition, is usually the licensing 5 project manager. Other members of the Board are 6 determined by the NRC staff request on the content of 7 the information in the petition request.
8 I am the Petition Review Board Chairman.
9 My name is Mark Maxin, M-a-r-k M-a-x-i-n. Tracy Orf 10 is the Petition Manager, the Petition Manager for the 11 petition under discussion today. Michelle Honcharik, 12 M-i-c-h-e-l-l-e, Honcharik, H-o-n-c-h-a-r-i-k, is the 13 office's 2.206 coordinator.
14 In addition, we have headquarters 15 technical staff and Region II personnel on the 16 Petition Review Board. We also obtain advice from our 17 Office of General Counsel represented by Jenny Longo, 18 J-e-n-n-y L-o-n-g-o, from the Office of Enforcement 19 represented by Doug Starkey.
20 MS. LONGO: Doug is not here.
21 CHAIRMAN MAXIN: Oh. Excuse me. Could 22 you please identify for the record? I apologize.
23 MR. ARRIGHI: Office of Enforcement, 24 Russell Arrighi, R-u-s-s-e-l-l, Arrighi, 25 A-r-r-i-g-h-i.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
7 1 CHAIRMAN MAXIN: And the Office of 2 Investigations?
3 MS. FAHEY: Mary Kay Fahey, M-a-r-y K-a-y 4 F-a-h-e-y.
5 CHAIRMAN MAXIN: If there is anyone else, 6 could other people who are not essentially referenced 7 herein identify who you are in the room and spell your 8 name clearly for the court reporter, please?
9 MR. SOLORIO: My name is Dave Solorio. I 10 work in the Office of Enforcement. Dave is D-a-v-i-d, 11 Solorio, S-o-l-o-r-i-o.
12 MS. MOZAFARI: Brenda Mozafari. That's 13 B-r-e-n-d-a M-o-z-a-f-a-r-i. I'm the Project Manager 14 for the Turkey Point plant at NRR.
15 MR. BOYCE: Tom Boyce. That's T-o-m 16 B-o-y-c-e. I'm a Branch Chief in NRR Projects for the 17 Turkey Point plant.
18 MS. SEXTON: This is Kimberly Sexton. I'm 19 with the Office of the General Counsel, 20 K-i-m-b-e-r-l-y, Sexton, S-e-x-t-o-n.
21 CHAIRMAN MAXIN: That is everyone in the 22 room? I will now proceed. As described in our 23 process, the NRC staff may ask clarifying questions in 24 order to better understand the petitioner's 25 presentation and to reach a reasoned decision whether NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
8 1 to accept or reject the petitioner's request for 2 review under the 2.206 process.
3 I will note that the licensee for the 4 Turkey Point nuclear power plant has also been invited 5 to this meeting and will be afforded an opportunity to 6 ask clarifying questions of the petitioner.
7 For those people who are representing 8 Turkey Point, could you please identify your name and 9 spell your names out for the record, please?
10 MS. MASHHADI: My name is Marjan Mashhadi.
11 It's M-a-r-j-a-n. The last name is Mashhadi, M-a-s, 12 two h's, a-d-i. And I'm counsel with Florida Power 13 and Light.
14 CHAIRMAN MAXIN: Is there anyone from 15 Florida Power and Light online?
16 MR. TOMONTO: My name is Bob Tomonto. Bob 17 is B-o-b. Tomonto is T-o-m-o-n-t-o. I'm the 18 Licensing Manager at Turkey Point.
19 CHAIRMAN MAXIN: We invite the licensee so 20 that they are aware of an ongoing request for action 21 against their facility and provide an opportunity to 22 ask any questions so that they may understand the 23 details pertaining to the facility.
24 Are there any general questions regarding 25 the 2.206 process before I turn it over to you, Mr.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
9 1 Saporito?
2 MR. SAPORITO: Yes. This is Mr. Saporito.
3 I would like for the record a point of 4 clarification. I would like to have identified for 5 the record those NRC employees who are representing 6 Region II, please.
7 CHAIRMAN MAXIN: Thank you.
8 Is there anyone from the region online?
9 (No response.)
10 CHAIRMAN MAXIN: Well, let the record 11 reflect there was nobody from the region that is 12 online, sir.
13 MR. SAPORITO: All right. I thought you 14 mentioned earlier that there was some representation 15 from Region II. That's why I queried.
16 CHAIRMAN MAXIN: Yes. That was incorrect.
17 Obviously no one from Region II is currently on the 18 line.
19 MR. SAPORITO: Okay. Is there a reason 20 that Region II is not represented since the licensee 21 being Florida Power and Light and specifically the 22 subject of the petition regarding the Turkey Point 23 nuclear plant is within the jurisdiction of Region II?
24 MS. HONCHARIK: They have been informed of 25 the petition and then copied on all documentation you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
10 1 have submitted unless the -- did you have something to 2 add?
3 THE REPORTER: Excuse me. This is the 4 court reporter. I am going to need everyone to say 5 their names before they speak because I can't identify 6 everyone.
7 MS. HONCHARIK: I apologize. That was 8 Michelle Honcharik.
9 MR. ORF: Yes. This is Tracy Orf.
10 The region was invited to the phone call, 11 but, for some reason, which we can't really speculate 12 on, they were unable to attend. As per management 13 directive 8.11, they are not required to be on the 14 phone call, but they're usually invited.
15 MS. HONCHARIK: And they will be provided 16 a transcript of today's call to review as well.
17 CHAIRMAN MAXIN: As a reminder for the 18 phone participants, please identify yourself if you 19 make any remarks, as already stated, as they will help 20 in the preparation of the transcript.
21 And thank you, Mr. Saporito. The phone is 22 all yours.
23 MR. SAPORITO: All right. Thank you, Mr.
24 Chairman. And thank you, members of the Petition 25 Review Board for providing me an opportunity to engage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
11 1 you in this manner.
2 The documents which I have provided to Mr.
3 Orf for your review, I would like you to put four 4 documents in front of you, if you would, one being the 5 August 3rd, 2008 petition, the second document being 6 the enforcement action identified as NRC number 7 TA-00-230 entitled "Turkey Point 3 and 4, Florida 8 Power and Light."
9 It's dated June 5th, 2003. The third 10 document would be document dated July 16th, 1996.
11 This is NRC identifier. That's another enforcement 12 action EA-96-051.
13 CHAIRMAN MAXIN: Could you say it a little 14 slower, please?
15 MR. SAPORITO: Oh, sure. I'm sorry. E, 16 as in Eddie, A, as in apple, dash,96-051, "Turkey 17 Point 3 and 4" and of "Florida Power and Light 18 Company, the licensee."
19 And then the final document would be the 20 August 10th, 2008 motion for reconsideration to bring 21 it into justice. Those are the primary documents I am 22 going to be referencing. So if you all would have 23 those in front of you, it would be appreciated.
24 CHAIRMAN MAXIN: Can you give us a minute, 25 sir?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
12 1 MR. SAPORITO: Absolutely.
2 CHAIRMAN MAXIN: We are just going to go 3 off the record for a moment, and we are going to go 4 mute for a second. Okay?
5 MR. SAPORITO: Okay. I forgot. There is 6 one more document.
7 CHAIRMAN MAXIN: Okay.
8 MR. SAPORITO: I'm sorry about that. It's 9 dated the 19th of January 2005. And it's a 10 recommended decision and order approving settlement 11 and dismissing complaint. And it's Department of 12 Labor case number 2005-ERA-00003.
13 MS. HONCHARIK: Okay. We are going to go 14 mute for a minute while we gather the documents.
15 MR. SAPORITO: Thank you.
16 (Whereupon, the foregoing matter went off 17 the record briefly.)
18 MS. HONCHARIK: This is Michelle 19 Honcharik. We are back now.
20 MR. SAPORITO: All right. May I continue 21 now?
22 CHAIRMAN MAXIN: Yes, sir.
23 MR. SAPORITO: All right. Thank you.
24 CHAIRMAN MAXIN: Thank you, sir.
25 MR. SAPORITO: First of all, for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
13 1 Board, I would like to make a clarification on the 2 record regarding the Chairman's opening remarks. He 3 identified the petition correctly. That's not an 4 issue. But he specifically made reference within his 5 discussion of the petition to the Energy 6 Reorganization Act of 1974. And that certainly is 7 applicable to the petition, but I would like to direct 8 the PRB's attention.
9 I'm looking at the August 3rd, 2008 10 petition, page 2. I'm not going to read through that, 11 but pages 2 and 3 encompass 10 CFR Part 50.7. That is 12 germane to the NRC's jurisdiction over complaints 13 filed within the ambiance of the Energy Reorganization 14 Act, which is a Department of Labor type of 15 proceeding.
16 The NRC jurisdiction clearly, clearly 17 falls under 10 CFR 50.7, which is an employee 18 protection provision much like the Energy 19 Reorganization Act, which is codified as an ERA 20 proceeding within the Department of Labor.
21 So I just wanted that point of 22 clarification that the PRB should make a reliance on 23 50.7 in addition to the Energy Reorganization Act when 24 they're considering this petition.
25 Okay. The general outline, I'm bringing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
14 1 it to the Board's attention that this petition that is 2 seeking the civil penalty of $100,000, which all I'm 3 asking for is the NRC to take enforcement action 4 within the ambiance of the 2.206 petition. That is 5 one of the requirements of the 8.11 mandate for the 6 Board to consider. The petitioner needs to be 7 requesting some type of enforcement action. And that 8 would be my request, for the imposition of a civil 9 penalty of $100,000.
10 Now, the base of the justification 11 section, page 4 of this petition, I generally outline 12 on here a decision by the Secretary of Labor, the 13 honorable Robert Reich at the time. He issued a June 14 3rd, 1994 decision, in which he explicitly held that 15 Florida Power and Light violated the Energy 16 Reorganization Act when they discharged me from my 17 employment at the Turkey Point plant. AT that time I 18 was an instrument control specialist at the journeyman 19 level. And I had been employed with the licensee for 20 approximately eight years.
21 I'm going to give you a brief summary. If 22 you all need more detail, I certainly can go in more 23 detail. But just briefly, during my employment at the 24 Turkey Point plant, which, to the best of my 25 memories/recollection at this instant, was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
15 1 approximately April of 1988 through December 22nd of 2 1988. I was working there as an instrument control 3 technician.
4 And throughout the context of that brief 5 period of time, I engaged in what's termed to be 6 protected activity within 10 CFR 50.7 and within the 7 Energy Reorganization Act vis-a-vis an employee 8 raising perceived safety concerns to the licensee 9 management and/or to the NRC or any other type of form 10 of protected activity, such as going to the media, et 11 cetera.
12 Now, at the time of my employment there, 13 there was an organization. I don't even know if they 14 still exist, but at the time, there was an industry 15 organization called the Institute of Nuclear Plant 16 Operators, I believe is what it was. It was codified 17 as INPO, I-N-P-O.
18 And they were a collective group of people 19 that were taking individuals from the nuclear industry 20 that worked at different licensee power nuclear plants 21 is my understanding. And this group of people would 22 periodically go around the country to do their own 23 inspection, much like the NRC at the time, had a team 24 of people going around. They issued these SALT 25 reports, Systematic Assessment of Licensee NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
16 1 Performance, if my memory serves me correct.
2 Well, INPO, which has no affiliation 3 whatsoever with the government or the Nuclear 4 Regulatory Commission but they were members of the 5 nuclear industry, they did a similar type of 6 inspection.
7 So back then, April-May, I guess, area, 8 INPO was on site at Turkey Point nuclear plant. And 9 back then Turkey Point was on the -- NRC had a watch 10 list it's called, a watch list of troubled plants.
11 And Turkey Point was very much at the top of this 12 list.
13 We had undergone a bunch of enforcement 14 actions from the NRC for violation of procedures and 15 some very serious types of violations. To the best of 16 my memory, I think the cumulative penalties were well 17 over a million dollars by this time.
18 Through my employment there, I observed 19 more violations of procedures. And it was so bad at 20 the time that the NRC mandated that the licensee had 21 to go to operate their facility under what was called 22 at that time verbatim compliance procedures.
23 The licensee specifically defined that for 24 us, meaning that if there is a 20-step procedure to 25 calibrate a valve in a reactor containment building, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
17 1 for example, you had to systematically go through each 2 step, initial it, and date it as being complete.
3 You couldn't go through steps 1, 2, and 3 4 and then skip over and do 9, 10, 11, and 12. You had 5 to do each and every step. And the reason that the 6 NRC required that was because of the continuous 7 violation of procedure there. I mean, some of them 8 were on misalignment. So there was very good 9 justification to implement that type of requirement.
10 My work at the St. Lucie plant prior to 11 that engagement, was the skill of the trade because we 12 didn't everything correctly. We didn't violate 13 procedures religiously. And the plant was very 14 well-maintained. So we could be the skill of the 15 trade, meaning you go out there and you accomplish 16 your procedures, but there was no verbatim compliance.
17 So during my tenure down at Turkey Point 18 in 1988, we had what's called plant work orders. You 19 get a document. And it outlined a piece of equipment 20 in a plant that required some type of maintenance.
21 It could be just a loop calibration. You 22 know, one official will go into the reactor 23 containment building and put some test equipment onto 24 a pressure transmitter and run that calibration signal 25 at 4 to 20 signal while his coworker would be in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
18 1 control room and monitoring the receiving instrument 2 of that, whether it be pressure temperature, flow, 3 whatever, and then would document that on your work 4 report, your calibration data.
5 These are the types of procedures that I 6 was engaged in doing. And these are the types of 7 procedures where I noticed other people we're not 8 properly complying with and/or the procedures were 9 actually written incorrectly. And in some instances 10 it would cause the employee to receive a higher dose 11 of radiation just simply because of the way that the 12 employee was required to execute the procedure.
13 So I brought these issues. I wrote them 14 down, my concerns, on a lot of these, a very lot of 15 these, work orders and would comment to my supervisors 16 at the time about these issues also.
17 And because I didn't get any feedback from 18 management regarding resolution fees concerned, I went 19 and communicated verbally and in writing to one or 20 more members of the INPO inspection team that works 21 there at the plant.
22 And then following that engagement, I 23 started receiving retaliation from Florida Power and 24 Light management. And as that retaliation continued 25 as I continued to raise these concerns, it got to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
19 1 level at some point -- I don't remember exact dates --
2 but at some point in that April to December time 3 period, I actually observed a falsification by a 4 couple of employees, where they actually falsified a 5 job involving nuclear safety-related type of 6 equipment.
7 I brought that -- at that time, things had 8 just gone too far. And management was not responsive 9 to my request outside of giving me retaliation. I 10 mean, that was my feedback. I would get disciplined 11 or accused of something, blah blah blah, every time I 12 would raise a concern.
13 So it got to the point where I said, well 14 -- and I have never done it in the eight years I have 15 been with a licensee, I have never contacted the NRC.
16 But I went out and I searched for this NRC form 3, 17 which at the time they were required to post.
18 And I read through that form and told me 19 that I have ever right to bring my concerns directly 20 to the NRC. And I figured, well, if anybody is going 21 to do something, the NRC is going to come inhere and 22 investigate this, they're going to correct these 23 problems before something happens and you could have 24 a release of radiation to the public.
25 So the management at the plant somehow NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
20 1 learned that I had raised safety concerns and it's my 2 understanding learned that I raised them outside the 3 ambiance of management there to the NRC.
4 And I got something -- November the 23rd, 5 1988, this fellow, John Odom, who at the time was 6 employed there as a senior vice president for nuclear.
7 And he specifically had authority over the Turkey 8 Point nuclear plant. There are two of them there:
9 units 3 and 4. And they held the licenses of DPR-31, 10 DPR-41. And he had complete responsibility and 11 authority over everybody at that facility, including 12 all of my management.
13 So because of the retaliation, I mean, 14 they give me too many job assignments. The production 15 supervisor, for example, this fellow by the name of 16 Jerry Harley, he sent me into the containment 17 building, 120 degrees in there. You had to wear 18 scooper gear, forced air respirator, sent me on a job 19 that really didn't require to be done.
20 It was so harsh an environment I had to go 21 home sick. I was dehydrated, heat exhaustion. And he 22 ran around the plant with that work order that he had 23 assigned me bragging that he got me. He got me. He 24 finally sent me home sick and testified in court he 25 wished I had died in there. He tested right under NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
21 1 oath he wished I had died in there, in that 2 containment building. That's the hostility, the 3 degree of hostility, at the time.
4 So when I came back, anyway, back, in 5 November 23rd, they have this meeting, November 23rd, 6 1988, Odom called this meeting. At this meeting, they 7 had all the high-level managers there. Odom was the 8 highest level manager, this fellow by the name of 9 Joseph Kappes, K-a-p-p-e-s. Odom is O-d-o-m, I 10 believe. Kappes was there and some subordinate 11 managers. It's a huge table. And union people were 12 there because the International Brotherhood of 13 Electrical Workers was our representative collective 14 bargaining entity.
15 So you had the president of the union 16 there and all these jobs who -- anyway, Odom at this 17 meeting, at one point in this meeting, he says, "Well, 18 I have heard or understand you have some safety 19 concerns."
20 And he wanted to know what those safety 21 concerns was. And I told him that I was -- that I had 22 contacted the NRC my safety concerns. At one point he 23 stood up and he supposedly according to him gave me a 24 direct order to tell the NRC my safety concerns. And 25 I just communicated that, you know, I am in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
22 1 communication with the NRC. Anyway, this fellow gives 2 me according to him a direct order to tell the NRC my 3 safety concerns, which I had already engaged with a 4 fellow, Demiranda.
5 Oscar Demiranda at the time was -- I think 6 he was a senior allegations coordinator. Anyway, I 7 sat a while with him at the time providing my concerns 8 to him. There was a lot of communication with him.
9 CHAIRMAN MAXIN: Could you spell that, 10 please, spell that name for the record?
11 MR. SAPORITO: Yes, absolutely. I'm 12 sorry. It's D, as in David, e-m, as in Mary, i-r, as 13 in Rick, a-n, as in Nancy, d-a, Demiranda.
14 CHAIRMAN MAXIN: Thank you.
15 MR. SAPORITO: Oscar Demiranda. Yes, sir.
16 And so the NRC vis-a-vis Mr. Demiranda had been 17 brought up to speed all along for my raising concerns.
18 And if my memory serves me correctly, Region II had 19 the information about my rights as a protected 20 employee and the DOL process, et cetera, et cetera.
21 So by this time, I had already engaged the 22 Department of Labor. I filed a discrimination 23 complaint under the Energy Reorganization Act because 24 as soon as I went to INPO, they retaliated against me.
25 They gave me so many job assignments.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
23 1 This guy is going around wishing I was dead. He's 2 going around bragging I am sick. They're accusing me 3 of all kinds of stuff, like making racial slurs, oh, 4 just a host of things. This guy Kappes calls me into 5 a high-level management meeting, you know, through the 6 whole course of that month.
7 We were working a refueling outage at the 8 time. So they had us working ten hours a day. I 9 don't recall something -- it was a five or seven-day 10 work week, but it was not uncommon to work seven days 11 a week ten hours a day at that time. And I distinctly 12 remember we were working ten hours a day.
13 So by the time November 23rd, 1988 rolls, 14 around, Odom hired -- and I had already engaged an 15 attorney at this time because I'm going to be going to 16 court on an ERA proceeding.
17 Odom hires three attorneys, Steir, 18 Anderson, Malone, a law firm, to come in and 19 investigate me. So these guys, they go up to the St.
20 Lucie nuclear plant, and they interrogate all of my 21 coworkers up there, call them into offices and asking 22 all about me. Then they come down to Turkey Point.
23 They were doing the same thing.
24 So I took that as another retaliatory 25 action. And Odom at the -- during the November 23rd NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
24 1 meeting, there was a break in that meeting. They're 2 holding me over beyond my ten hours I had already put 3 in. This meeting was late at night. And, you know, 4 at the time I had three small children and a wife.
5 And I couldn't leave the facility.
6 So they take a break. And the union 7 people approach me. You know, well, their concern was 8 that the Florida Power and Light, the licensee, they 9 wanted the Department of Labor complaint -- and they 10 attended the hearing -- to go away. I said, "Well, 11 look, if they want to settle this matter, that's 12 fine."
13 They're obviously -- you know, the 14 discussion, to the best of my recollection, to date 15 was, you know, I'm not going to have a job here 16 anymore. So they're going to have to pay my wages.
17 going out ten years. I have a family, a house, a car, 18 and a boat, blah blah blah. I'm making -- I was 19 making like $50,000 a year there. So I'm looking at 20 ten years.
21 I tell him, "Tell them give me $500,000, 22 and I'll dismiss this complaint," I said, because I'm 23 going to have to, you know, find alternative 24 employment. And this is going to have to get me 25 through for who knows how long until I can get back NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrqross.com
25 1 into the industry because, you know, what's going 2 through my mind is they could just turn around and 3 blacklist me. All of these utilities talk. And I may 4 not even be able to get back into there.
5 So they go back and approach FP&L. And 6 they reject that. And the DOL investigator was a 7 fellow by the name of John Guinnes I believe was his 8 name. He came on site. He interviewed me, FP&L.
9 And, anyway, my attorney came on site. FP&L's 10 attorney came on site, this guy name of James 11 Brammick, B-r-a-m-m-i-c-k, I think, if memory serves 12 me. And Guinnes is G-u-i-n-n-e-s, I believe.
13 Anyway, they had a big meeting. And they 14 come out of the meeting. And they couldn't reach a 15 settlement figure. So the matter was going to go to 16 trial. And so after that, everybody -- and I go back 17 to work.
18 And a week -- no. I think two days after 19 that November 23rd meeting, Kappes calls me into his 20 office. And they said, "Well, because you refused a 21 direct order to tell Odom your safety concerns, we're 22 removing you from the instrument control shop. And 23 we're assigning you to go" -- like they had like a 24 training building, a completely separate building far 25 and away from the instrument control department. "We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
26 1 want you to go in there and rebuild valves, valve 2 actuators."
3 And so that was another retaliatory act.
4 And all my coworkers saw that. And they would sneak 5 out there and tell me more safety concerns about the 6 plant. And I would file these back to the NRC, to 7 Region II and this guy, DeMiranda. And, you know, 8 he's saying, "Well, why don't they -- why don't you 9 just tell them to call me directly?"
10 And I said, "Oh, I suggested that, but 11 they're not going to do that because they're 12 retaliating against me. And they're scared for theivr 13 jobs."
14 So the next thing that happened was a week 15 after the November 23rd meeting, which was November 16 30th, 1988. I put in my ten-hour day. And I wasn't 17 feeling too hot. And I stand there with my coworkers 18 in the shop, and we're ready to go home.
19 And Kappes -- Jerry Harley approached me.
20 It was the production supervisor, tells me that "You 21 have to stay overtime because Odom wants you, to ask 22 you about your safety concerns," you know.
23 I said, "I don't have any safety concerns 24 I want to discuss with Odom."
25 And so Harley runs and tells Kappes what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
27 1 I had said. So Kappes comes to the instrument control 2 shop. And he again says, "You have to stay overtime 3 because Odom wants to ask about your safety concerns."
4 And again I refuse. I have, you know, 5 personal family matters to attend to and, you know, 6 it's my quitting time. I'm going home. And he says, 7 "Oh, I'm giving you a direct order. You have to stay 8 for this meeting to tell Odom about your safety 9 concerns."
10 I said, "Well, I'm going home sick." I 11 said, "I haven't been feeling good all this time."
12 And I've been going under this retaliation sinc-e 13 April. And this is already the end of November. And 14 so he immediately suspends me and has Harley escort me 15 off of the property.
16 And I get home late in the day. And the 17 next day I go to the doctor. And my doctor says, 18 "You've got severe gastritis." And I explained to her 19 what had been going on at the plant, what I had been 20 under."
21 She said, "Well, it's stress. It's from 22 the stress you're undergoing over there. And you're 23 getting your stomach." And she explained all of that 24 medical stuff and told me not -- you know, she gave me 25 a medical leave of absence for like two weeks, if my NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
28 1 memory serves me right.
2 And so I'm recovering from this illness.
3 And Kappes calls me at home. And they're wanting to 4 send these attorneys, no less, if you can believe me.
5 They want to send these attorneys to my house to 6 question me.
7 I said, "This is not going to happen." I 8 said, "You're upsetting me calling me at home telling 9 me you're sending attorneys here." I said, you know, 10 "I'm represented by counsel. You should go deal with 11 my attorneys."
12 Anyway, I go back to work mid December.
13 And there Kappes again holds a meeting and says, 14 "Well, Odom is requiring you to go see a company 15 doctor."
16 I says, "Well, what for?"
17 He says, "Well, he wants to find out if 18 you -- you know, they want to find out -- management,"
19 being all of them together because they had meetings, 20 obviously. "They want to find out if you were too 21 sick to go to Odom's office when you left the plant 22 after I had suspended you."
23 I said, "Listen, my doctor gave me a slip 24 saying I was legitimately sick. You all paid my sick 25 time. So you all affirmed that I was legitimately NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
29 1 sick" because if you weren't legitimately sick, they 2 wouldn't pay you your sick leave. "What's the real 3 reason you're forcing me to go? Is this fitness for 4 duty? Is that what you're saying?"
5 He wouldn't say whether it was or whether 6 it wasn't. They kept going around and around. And I 7 says, "Well, here's my doctor's name. Call her up.
8 I don't need to go see another doctor."
9 - Oh. Well, then there was a break in that.
10 And he ran it by somebody or other. And he come back, 11 and he says that -- their doctor I think was this 12 fellow by the name of Dr. Dolsey. And I think it's 13 spelled D-o-l-s-e-y, but I'm not certain on that. And 14 he says, well, they had a conversation. "Dolsey is 15 not satisfied. You know, he is going to need a 16 thorough examination."
17 And this is an examination, mind you, to 18 find out if I was well enough two weeks ago. This guy 19 is going to make a medical determination of whether a 20 patient is two weeks prior able to go from point A to 21 p6int'!B.
22 So, anyway, I go to this doctor. And I 23 says, "I would like to know, why are you examining 24 me?" I'm asking him questions about why I am there to 25 be examined.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
30 1 And he goes out of the office. I just 2 presume he made a phone call or something because I 3 don't know what he did when he left the office. He 4 came back in. He instructed me to leave. I had a 5 union representative at the time there who witnessed 6 all of this.
7 And I go back to the plant. And they tell 8 me I'm -- you know, they call me into a meeting. They 9 say, "Well, you're fired because you refused to tell 10 Odom your safety concerns on the 23rd. You refused to 11 tell Odom your safety concerns on the 30th. And then 12 you refused to be examined by our company doctor."'
13 Anyway, the matter went to trial, went to 14 a hearing after I was fired. The Department of Labor 15 at the time, the Wage and Hour Division, they ruled in 16 my favor. And they awarded me $100,000.
17 The matter was appealed on both sides. We 18 went to trial. And the first judge heard the case.
19 He ruled in FP&L's favor. Then the Secretary of Labor 20 reviewed that decision, which is required.
21 And the Secretary of Labor said that the 22 judge did not consider the case within the legal 23 framework that he was required to, being you have to 24 consider it in what is called a dual motive analysis, 25 being "Was the employee engaged in protected activity?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
31 1 If the employee was engaged in protected activity, did 2 any part of that protected activity play a role in the 3 employer's decision to terminate the employee? And if 4 it did, then the employee wins." So the Secretary 5 looked at the decision by the judge, and he said, 6 "Well, the judge didn't properly apply dual motive 7 analysis to this case because the judge didn't even 8 find that there was a prima facie case." All right?
9 And by the time this went to trial, they 10 had already consolidated the case. There was actually 11 two complaints filed: one after the INPO incident and 12 one after the discharge. So it ended up becoming case 13 number 89-ERA-7/17. That's why because it's two 14 consolidated cases there.
15 The Secretary affirmed that -- the judge's 16 decision that the agency causation on the first 17 complaint but held that FP&L did violate the law. And 18 when they disciplined/discharged me because of my 19 refusal to tell Odom my nuclear safety concerns at the 20 November 23rd meeting, in fact, the Secretary of Labor 21 -- may I refer the Board at this time to page 8 of the 22 August 10th, 2008 motion for reconsideration? On page 23 8, the second paragraph down there, the Secretary 24 wrote in June 3rd --
25 CHAIPRMAN MAXIN: Mr. Saporito?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
32 1 MR. SAPORITO: Yes, sir?
2 CHAIRMAN MAXIN: Mr. Saporito, just so we 3 can catch up with you, sir?
4 MR. SAPORITO: I am sorry.
5 CHAIRMAN MAXIN: That's fine. You're 6 doing great. Thanks.
7 (Pause.)
8 CHAIRMAN MAXIN: Okay. Go ahead.
9 MR. SAPORITO: In his decision, the 10 Secretary stated, "His grounds for dismissal, " on page 11 7, 7 and 8 -- I'm sorry about that. Page 7 at the 12 bottom, towards the bottom, it says, "when Saporito 13 refused to reveal his safety concerns to Mr. Odom at 14 the meeting November 23rd, 1988, he said he would only 15 tell them to the NRC. He was insisting on his right 16 to bypass the chain of command in those 17 circumstances."
18 The Secretary then made a finding. He 19 said, "I find FP&L's rationale for requiring Saporito 20 to reveal his safety concerns to the site vice 21 president disingenuous. If Saporito told Odom on 22 November 23rd, 1988 when Odom gave him a 'direct 23 order'" -- and that's in quotes -- "to tell Odom his 24 nuclear safety concerns that Saporito would only talk 25 to the NRC, Odom then ordered Saporito to tell the NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
33 1 his nuclear safety concerns at the first available 2 opportunity. Saporito said he would.
3 "At that point, FP&L knew the NRC, the 4 government agency, responsible for nuclear safety 5 would be notified. And it was reasonable to assume 6 the NRC would notify FP&L immediately if there were an 7 imminent threat to public health or safety."
8 The Secretary made a second finding, "I 9 find that FP&L violated the ERA when it later 10 discharged Saporito, among other reasons, for refusing 11 to obey Odom's order to reveal his safety concerns.
12 "As grounds for dismissal, FP&L also cited 13 Saporito's refusal to stay after his regular workday 14 on November 30, 1988 to attend a meeting at which Odom 15 again wanted to ask Saporito about his safety concerns 16 and Saporito's refusal to be examined by a company 17 doctor.
18 "Odom's decision to require Saporito be 19 examined by a company doctor grew out of the excuse 20 Saporito gave on November 30 for refusing to stay late 21 for the meeting with Odom, that Saporito was ill and 22 Saporito was taking 12 days sick leave after November 23 30, that Saporito was suffering from stress-related 24 medical problems.
25 "Each of these reasons for discharge is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
34 1 related, at least in part, to Saporito's refusal to 2 reveal his safety concerns to FP&L, an act I have held 3 protected under the ERA."
4 And he remands the case back to the judge 5 with the statement that "This case is remanded to the 6 ALJ to review the record in light of this decision and 7 submit a new recommendation to me on whether FP&L 8 would have discharged Saporito for the unprotected 9 aspect of his conduct in these instances."
10 So what the Secretary did here, which is 11 very critical to this 2.206 petition, is the Secretary 12 made a finding and a holding of law that the November 13 23rd, 1988 refusal to tell Odom the safety concerns by 14 Saporito is a protected activity.
15 Saporito was wholly protected within the 16 umbrella of the Energy Reorganization Act to take his 17 concerns, his safety concerns, directly to the NRC and 18 that when FP&L, Odom ordered Saporito to reveal his 19 concerns and later discipline him because of his 20 refusal, in that instance, that FP&L violated the ERA.
21 So that is a matter of law now, an 22 upholding that has withstood the test of time. This 23 case has been cited in numerous cases, subsequent 24 cases, as a protection under the ERA, which because 25 the Nuclear Regulatory Commission was actually tiraded NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
35 1 within the Energy Reorganization Act of 1974 and 2 because NRC regulations under 10 CFR 50.7 are drawn 3 within and parallel the employee protection provisions 4 of the Energy Reorganization Act, the NRC has to 5 accept the Secretary of Labor's finding with respect 6 to the November 23rd, 1988 instance of the subsequent 7 retaliation by FP&L that the Secretary found the 8 licensee to have violated the ERA. Therefore, the 9 NRC, in kind, has to find that FP&L violated NRC 10 requirement at 10 CFR 50.7.
11 Now, this decision by the Secretary of 12 Labor, on the 16th of July, 1996, the NRC issued a 13 notice of violation, an imposition of a civil penalty 14 of $100,000 against the Florida Power and Light 15 Company for illegally discriminating against another 16 nuclear worker there at the Turkey Point nuclear power 17 plant again.
18 And if the Board would turn to -- what 19 page is this? -- the second page of that document, 20 it's entitled "EA-96051, Turkey Point 3 and 4, Florida 21 Power and Light." The first page is a letter 22 addressed to Mr. Plunkett, who is an FP&L manager 23 there. It's an NRC letter to Mr. Plunkett.
24 Well, the second page of that letter and 25 the second paragraph of that letter specifically state NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
36 1 that "While any discrimination against a person for 2 engaging in protected activity is cause for concern to 3 the NRC, this violation is of very significant 4 regulatory concern because it involves discrimination 5 by a member of management above the first-line 6 supervision."
7 The NRC places a high value of freedom 8 provided to nuclear industry employees to raise 9 potential safety concerns to their management and to 10 the NRC.
11 So what's the NRC is saying here, we're 12 issuing this notice of violation. And this notice of 13 violation is very serious because the discrimination 14 was involving a member of management above the 15 first-line supervision.
16 Now, in my particular case, the Secretary 17 of Labor found on June 3rd, 1994 that John Odom, he 18 was the senior vice president for nuclear. He was the 19 top dog at the plant. There was nobody with higher 20 authority over him over those two nuclear plants.
21 So this violation of the ERA in the 22 holding by the Secretary of Labor in case 89-ERA-7/17 23 is more egregious, more egregious, than the violation 24 that the NRC found against Florida Power and Light in 25 EA-96-051, involving a nuclear engineer, a Regino R.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
37 1 Diaz-Robainas, who is an engineer down there at the 2 nuclear plant and a significant -- also because the 3 date of issuance is 16th of July 1996, the date that 4 the NRC issued this notice of violation, but this 5 comes on the heels within two years of the Secretary 6 of Labor's finding of June 3rd, 1994 about that Odom, 7 Senior Vice President, was not only found to have 8 violated the law and violated the ERA and violated 10 9 CFR 50.7, but he was also found to be disingenuous in 10 the Secretary's view on his reasoning for taking the 11 retaliation.
12 So it's kind of -- I don't know what the 13 proper word -- it's surprising to me, I guess, that 14 the NRC didn't reference the prior case, the 15 89-ERA-7/17, when they issued this notice of violation 16 in the Robainas case because of the short duration of 17 time between the two adjudications.
18 However, following this 1996 adjudication 19 by the NRC finding that the licensee violated the law 20 -- I'm getting just a little bit ahead of myself here.
21 I'm going back again to the 16 July 1996 notice of 22 violation. And I'm still on page 2. So I'm going 23 just to the next paragraph.
24 The second sentence of that paragraph says 25 that the NRC determines -- it says that "In your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
38 1 letter of April 24th, 1996," meaning FP&L's, "response 2 to the NRC," it says that -- it says, "The NRC 3 determined that your letter of April 24th, 1996 and at 4 the conference, you," being FP&L, "stated that 5 corrective actions were not required because no 6 violation occurred and that existing programs have 7 been effective in ensuring that employees feel free to 8 raise safety concerns."
9 That -- you know, when I read something 10 like that, that just sends chills through my body 11 because that's how it's made. It just reeks of 12 arrogance on the part of FP&L management that a 13 government agency that oversees licensee activities 14 with respect to nuclear power for the protection of 15 public health and safety that their response to a 16 government agency would say, "We're not guilty. We 17 didn't do it. There was no violation. You have no 18 right to take enforcement action against us." I mean, 19 that's what you're telling the government.
20 So that is an egregious and outrageous 21 position and to me tells me that the cancer is still 22 alive and growing at that nuclear power plant, even 23 after the Secretary's finding in 1994, even after the 24 NRC's finding in July 1996.
25 So what happens is in June of 2005, there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
39 1 is a document that you all have in front of you. It's 2 entitled "EA-00-230, Turkey Point 3 and 4 (Florida 3 Power and Light Company."
4 In June 5th, 2005, the NRC again issued a 5 notice of violation with respect to another Department 6 of Labor discrimination complaint, which is identified 7 as the case number 2000-ERA-5, ARB case number 00-070.
8 The NRC sends this notice to Mr. Stall, 9 who is still employed there at Florida Power and 10 Light. And, *again, they reference a violation of 10 11 CFR 50.7, which, again, is the employee protection 12 provision.
13 The gist of this case was that a plant 14 operator who filed a complaint was being demoted 15 because he engaged in protected activity. And 16 although there was no relief afforded him by the 17 Department of Labor, there was a finding by the judge 18 and it was affirmed by the administrative Review 19 Board, which is the ARB, that FP&L actually did 20 violate the Energy Reorganization Act, at least in 21 part, through disciplining this employee.
22 And on that basis, the NRC issued this 23 notice of violation, imposition of civil penalties.
24 And, again, FP&L denies that there is a violation, 25 nothing is wrong here, employees can raise these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
40 1 safety concerns to anybody they want. We're not going 2 to beat them up.
3 But they certainly did. And the 4 government, Department of Labor, found that they 5 violated the law. The government, being the NRC, 6 found that they violated the law. And they arrogantly 7 deny they violated the law. And so the NRC takes 8 enforcement action. You know, that's only five years 9 ago, only five years ago, this last time.
10 Now, the NRC's rationale in the Deprey 11 case, this last case, this case, case number 00-7-070, 12 ARB case number 00-070, just so the record is pretty 13 clear on that, the NRC rationalized correctly that 14 just because there is no relief granted to the 15 employees doesn't mean a violation of the NRC 16 requirements didn't occur because both the judge and 17 the ARB said that FP&L, at least in part, 18 discriminated against its employee under the ERA.
19 And that now is very critical again to my 20 petition, my 2.207 petition, which I'm going to 21 discuss here in a bit again with respect to the latter 22 part of the Secretary's June 3rd decision in that 23 case.
24 The Secretary of Labor already made a 25 concrete finding that, yes, FP&L violated the ERA with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
41 1 respect to the November 23rd, 1988 meeting, where Odom 2 demanded my safety concerns.
3 Before I get into that, I would like to 4 direct the Board's attention to the last document. It 5 is identified as a Department of Labor document. It 6 is case number 2005-ERA-00003. 2005-ERA-00003 stated 7 the 19th of January 2005. So this is only two years 8 later, after the last violation that the NRC gave to 9 FP&L that we just talked about.
10 This comes on the heels two years later.
11 There was a recommended decision and order by a judge 12 approving a settlement dismissing the complaint. This 13 was affirmed by the Administrative Review Board.
14 So what you have here is an employee at 15 FP&L's nuclear plant engaging in a protected activity 16 sufficient to carry a prima facie case to court and 17 consideration by FP&L's counsel obviously. And 18 negotiations transpired at some point before this goes 19 to trial. And they end up settling the case. That is 20 all fine and good. That's what the employee wanted 21 and gave that employee some relief.
22 But, nonetheless, here the government, 23 being the NRC, stopped short. And they just take this 24 settlement on face value. And in my view, the 01 25 should have gotten engaged also. The Office of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
42 1 Investigations. The NRC 0I should have gotten engaged 2 and executed a 10 CFR 50.7 investigation to find out 3 if there was a violation of NRC requirements. Just 4 because there's a settlement in the ERA proceeding, 5 this doesn't immunize any licensee from violating 10 6 CFR 50.7.
7 I don't think the government, being the 8 NRC, fully understands that principle of law because 9 I reviewed numerous, numerous cases over the last 20 10 years. And, believe me, every time that I have seen 11 a settlement, I have never seen any follow-up by the 12 NRC. Anyway, that's just an extraneous point I wanted 13 to bring on this record.
14 So, going back to the petition and going 15 back to the Secretary's finding, referencing again the 16 August 3rd, 2008 petition -- I'm at page 4, where the 17 Secretary made his finding. And, with that in mind, 18 I am going to direct the Board's attention back to the 19 August 10th, 2008 motion for reconsideration on page 20 8 and 9. What happened --
21 CHAIRMAN MAXIN: Just a minute, sir.
22 MR. SAPORITO: Oh, sure. I am sorry.
23 CHAIRMAN MAXIN: I want to turn to the 24 page. You said it was 8 and 9?
25 MR. SAPORITO: Yes, sir, on the motion for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
43 1 reconsideration.
2 CHAIRMAN MAXIN: Got it. Thank you.
3 MR. SAPORITO: Okay. At the bottom of 4 page 8 and continuing on to page 9, there is some 5 discussion about a Secretary of Labor who made a 6 ruling subsequent to FP&L's filing a motion for 7 reconsideration of the June 3rd, 1994 decision.
8 And the Secretary sustained his initial 9 decision, saying that there was no justification to 10 reconsider that decision. And it stood as a matter of 11 law. And he again reiterated that the FP&L violated 12 the ERA when it discharged for refusing-to obey 13 management's order to reveal its safety concerns.
14 Following that, I wanted to talk about the 15 decision with respect to the Secretary of Labor's June 16 3rd, 1994 polling. He issued the -- following the 17 June 3rd decision and remand order and following 18 FP&L's challenge, unsuccessful challenge, the 19 Secretary specifically in his remand order 20 specifically directed the judge -- it's going to be a 21 second judge because this is another hearing. The 22 first judge retired. And so they assigned it to 23 another judge, who hadn't ever heard the case.
24 So the Secretary specifically told, 25 instructed, and directed the judge to look at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
44 1 Saporito's case with respect to the November 30th 2 refusal to tell the safety concerns, now, with respect 3 to the incident where Saporito allegedly refused to be 4 examined by FP&L company's doctor. And only look at 5 those two issues and give me another recommended 6 decision of whether Saporito could have been legally 7 discharged for any unprotected aspect of those two 8 incidences.
9 And so what occurred was the judge -- we 10 did go back to trial. And the judge issued another 11 recommended decision and order, which was subsequently 12 affirmed by the Administrative Review Board finding in 13 favor of FP&L. But the problem with that decision and 14 the genesis for this motion for reconsideration is the 15 fact that the Administrative Review Board and the 16 administrative law judge were required by the 17 Secretary's 1994 order on remand to evaluate the case 18 on a -- you again have to apply the principles of a 19 dual motive analysis to try to discern if the 20 protected activity and the disciplinary action can be 21 separated. And if they can't be separated, the 22 employee has to win.
23 So if you look at the -- you don't have to 24 look right now, but if you re-review the judge's 25 decisions and review the ALB's decision with respect NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
45 1 to the November 30th incident, the one in my safety 2 concerns, and the subaccount requirement on the 3 judge's physical examination, you will see that both 4 the judge and the Administrative Review Board, they 5 failed to properly apply the dual motive analysis 6 because they specifically said that those were 7 unprotected acts. Okay?
8 They did not consider the protected parts 9 of those incidents, the protected part being that the 10 reason, the sole reason, -- and I emphasize those 11 words, "the sole reason," for the November 30th 12 meeting that was conveyed to Saporito by Harley, Jerry 13 Harley; and by Joseph Kappes, both licensee managers 14 above the first level because my first-level manager 15 was Greg Verhoeven. That's spelled V-e-r-h-o-e-v-e-n, 16 if my memory serves me. Hew as my first-line 17 supervisor.
18 So two managers above my first level were 19 directing me to divulge my safety concerns again to 20 Odom. And I refused to both of those orders by Jerry 21 Harley and later by Kappes.
22 The only reason that they told Saporito he 23 was being required to hold over was because Odom 24 wanted to ask him about his safety concerns again.
25 That's all. There was no other reason given.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
46 1 They didn't say, "Oh, you know Odom 2 collected a bunch of these work orders. And he wants 3 to sit there and go through them with you." No, they 4 didn't say that. They didn't say, "Oh, you know, 5 Odom, you know, he wants to make sure that you 6 understand what a nuclear safety concern really is."
7 No. That was never conveyed. And the transcripts of 8 those hearings will validate what I am telling the 9 Board.
10 So the only, only direction and the only 11 reason given to Saporito for that meeting is because 12 Odom wanted to ask Saporito about his nuclear safety 13 concerns again.
14 And when I refused Harley's order to give 15 my safety concerns to Odom, he went to Kappes. And 16 it's in the court's transcripts. He went to Kappes.
17 And he told him, "Saporito is refusing to stay late to 18 tell Odom his safety concerns at this meeting."
19 So Kappes upon hearing that, he personally 20 came to the instrument control shop, where I was on 21 November 30th. And he again told me the reason that 22 I was required to stay overtime beyond my quitting 23 time was because Odom wanted to ask me about my safety 24 concerns. That's the only reason Kappes gave me.
25 And when I refused to attend that meeting NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
47 1 and Kappes suspended me, Kappes went back to Odom's 2 office immediately following that incident. And he 3 told Odom that I refused.
4 So both the incident involving -- where 5 Kappes refused to tell Harley the safety concerns, 6 that he was not going to stay to tell him the safety 7 concerns, and the subsequent incidents, where Saporito 8 told Kappes he's not going to stay late because, you 9 know, how he was to have told Odom his safety 10 concerns.
11 That's twice more that Saporito refused, 12 two more direct orders to reveal his safety concerns 13 to management's orders, a finding that the Secretary 14 of Labor has found to be a violation of the ERA. And 15 Odom communicated both of those refusals.
16 Kappes told him he refused Harley.
17 Therefore, Odom sent Kappes to come get Saporito. And 18 Kappes then goes back and says, "Saporito refused 19 Kappes' direct order."
20 So the Secretary of Labor -- excuse me.
21 The Administrative Review Board, who is legally the 22 agent representing the Secretary of Labor -- there's 23 no legal difference between the two entities.
24 The Administrative Review Board and the 25 administrative law judge both incorrectly applied the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
48 1 legal standard of a dual motive analysis on the 2 November 30th incident because they did not consider 3 the protected aspects of that engagement.
4 When you have an employee at a nuclear 5 power plant where he is approached by two levels of 6 management in front of his immediate supervisor and 7 they are ordering him to divulge his safety concerns, 8 you're saying, "You're going to stay late because the 9 Senior Vice President of the nuclear power plant wants 10 to ask you about your nuclear safety concerns" and 11 that employee refuses, he is protected. He is well 12 wholly and fully within the umbrella of protection 13 under the Energy Reorganization Act.
14 And because the Administrative Review 15 Board and the judge did not consider that protected 16 status of the employee, they incorrectly found that 17 FP&L carried their burden in arguing a legitimate 18 reason for requiring Saporito to stay late that day.
19 There was no legitimate reason.
20 And the record will prove me out that not 21 only was Saporito engaged in protected activity in 22 refusing to attend that meeting, but Odom already 23 knew. He already knew what Saporito's safety concerns 24 were because Odom had been talking to the NRC. He had 25 been talking to this fellow Demiranda, Oscar Demiranda NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
49 1 -
2 CHAIRMAN MAXIN: Mr. Saporito?
3 MR. SAPORITO: Yes, sir?
4 CHAIRMAN MAXIN: If I could just interrupt 5 just for a moment? A lot of the -- we very much 6 appreciate your perspectives. This is Mark Maxin.
7 We very much appreciate your perspective 8 on this and your opportunity to make this petition.
9 A lot of the points and comments, as you have well 10 pointed out to this point, are clearly articulated and 11 enunciated in the record. And also so once we render 12 a decision one way or the other, you will have an 13 opportunity if you want to comment again later on.
14 So I guess I am just trying to find out if 15 you could kind of punctuate your remarks because, I 16 guess, you know, the court reporter was only scheduled 17 for basically only just another five minutes pretty 18 much is what we agreed to. And based upon that as 19 well, we have other schedules that we have attended 20 to.. So I would appreciate --
21 MR. SAPORITO: Well, let me just state for 22 the record, then, that if that's -- because that was 23 not my understanding at all. Number one, for the 24 record, it's my understanding that the petitioner who 25 participates in these PRB conferences, there is no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
50 1 time limit. That's number one. That's my 2 understanding.
3 And, number two, I want to delineate these 4 points that I am bringing up now with respect to the 5 November 30th incident and with respect to the 6 December 16th incident regarding the doctor visit 7 because I am going to state on the record here that I 8 am amending my 2.206 petition to enclose both 9 incidences because, like I stated earlier on the 10 record, not only is this a matter under the Energy 11 Reorganization Act; it's very germane to 10 CFR 50.7.
12 And because of that requirement under 50.7, you know, 13 the NRC is required to do certain actions to protect 14 the employee. And so it bears directly on the basis 15 for the entire petition in my view.
16 And if we all don't have time to do it 17 today, then we need to continue this proceeding. But 18 I am in no way agreeing to terminate this proceeding.
19 I am not agreeing to cut it short. And I'm not going 20 to be summarizing any of my positions at this time.
21 I can certainly appreciate the Board's 22 scheduling, and I can certainly appreciate the 23 concerns for the court reporter's time. However, I 24 was not communicated those concerns by Mr. Orf in his 25 communications to me. And it's my view that there is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
51 1 no time limit on this proceeding.
2 And if I'm incorrect, please feel free to 3 correct me, but my position is that I need to continue 4 this at another time, another date at the Board's 5 choosing. And that will be fine. But I am not ending 6 this today, no way.
7 CHAIRMAN MAXIN: We'll take your points 8 under advisement and get back to you on your request 9 for additional time. I guess we will get back to you 10 after this proceeding as to whether we will reschedule 11 another time frame or to -- how much more time do you 12 think you need, sir?
13 MR. SAPORITO: Well, probably an hour.
14 CHAIRMAN MAXIN: This is well beyond the 15 normal time frame that we authorize in these 16 petitions. And it's particularly because a lot that 17 you're talking about, sir, is really elaborately 18 identified in the record.
19 MR. SAPORITO: Yes. But that is the whole 20 reason for public participation and engagement with 21 the NRC, so that the public has an opportunity to 22 clarify points, emphasize points, and to provide the 23 Board, the Petition Review Board, with perspective and 24 not just give documents to the government and say, 25 "Hey, read this and let me know what you think."
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
52 1 I mean, that's the whole rationale behind 2 the participation by the public. And, you know, if 3 the public is going to be denied the unlimited time, 4 which by law is my understanding that the public has, 5 we need to address that issue separately, I guess, 6 because it's my understanding there are no time limits 7 here.
8 I certainly have some aspects of this 9 matter that I need to convey to the Board in my own 10 words and through my own viewpoints.
11 CHAIRMAN MAXIN: Okay. We will take your 12 request for a motion for additional time under 13 advisement and get back to you after this proceeding.
14 You have two more minutes left at this 15 point. Is there anything else that you want to -- oh, 16 we're already behind. Okay.
17 MS. MASHHADI: I am sorry. This is Marjan 18 Mashhadi with Florida Power and Light.
19 CHAIRMAN MAXIN: Yes.
20 MS. MASHHADI: If I may take two minutes?
21 CHAIRMAN MAXIN: Yes, ma'am.
22 MS. MASHHADI: I understand that there are 23 time constrains. But I would like to point out that 24 Mr. Saporito has been attempting to litigate this 25 exact issue for over 20 years.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrQross.com
53 1 He has had no success. His appeals have 2 been repeatedly rejected by the ALJ, by the ARB, as 3 well as the Eleventh Circuit Court of Appeals. He has 4 taken this all the way up to the Supreme Court and has 5 lost at that level after two decades of virtually 6 identical, fully litigated and meritless complaints.
7 He is clearly abusing the whistleblower 8 protection process. He is trying to harass FP&L. He 9 is trying to perform an Enron around the numerous 10 unfavorable rulings that he has received from both the 11 Department of Labor and the courts and the NRC in 12 order to harass FP&L.
13 As a result, FP&L would like to ask that 14 the NRC actually order the complainant to cease from 15 filing 2.206 petitions with respect to the 1986 16 discrimination allegations, which has already been 17 fully litigated. We believe that this is a waste of 18 time, this is a waste of resources, both of the 19 Commission and of the Licensing Board and of the PRB 20 as well as of FP&L.
21 We recognize that this is an extraordinary 22 measure, that this is, frankly, an extraordinary 23 petitioner. And we would like to make that request in 24 order to wrap up once and for all these meritless 25 allegations.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
54 1 MR. SAPORITO: This is the petitioner, 2 Thomas Saporito.
3 I would like to strenuously object on the 4 record, number one, that the licensee was 5 well-instructed, FP&L was instructed, at the beginning 6 of this proceeding that they were allowed to ask 7 questions of the petitioner or questions of the Board, 8 but they were never permitted to make such outrageous 9 comments apart, separate and apart, from that 10 understanding.
11 And to suggest to this Board on a public 12 record that the NRC deny a member of the public an 13 opportunity to file a 2.206 petition is just 14 egregious, outrageous, and arrogant on their part. It 15 just makes my point of how they treat employees at 16 their nuclear power plant. And that is why they file 17 ERA complaints for protection, why they turn to the 18 NRC under 50.7 protection.
19 I would request that their entire lengthy 20 comments be stricken from this proceeding in their 21 entirety. If they want to file a motion with the NRC 22 to ridiculously request that a member of the public be 23 denied access to this 2.206 process, then let them do 24 it in writing under a separate forum. This is not the 25 forum for such conduct violations.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
55 1 CHAIRMYAN MAXIN: We are not going to 2 strike the record, but we will consider the motions.
3 And we will respond accordingly after this hearing.
4 As noted earlier, no NRC decisions 5 regarding the merits of petitioner's requests will be 6 made during this meeting. Subsequent to this meeting, 7 PRB will conduct an internal meeting to make a 8 recommendation on whether to accept or reject the 9 petition for review. The results of the meeting will 10 be documented in an acknowledgement letter to the 11 petitioner.
12 At this time does the staff at 13 headquarters have any questions for the petitioner?
14 (No response.)
15 CHAIRMAN MAXIN: The answer is no. The 16 licensee, I guess you have already made your point, I 17 assume?
18 MS. MASHHADI: Yes. Thank you.
19 CHAIRMAN MAXIN: I want to thank the 20 petitioner for taking the time to provide NRC with the 21 clarifying information on the petition you have 22 submitted.
23 With that, I would like to conclude the 24 meeting. And we are going to --
25 MR. SAPORITO: This is -- hello?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
56 1 CHAIRMAN MAXIN: Yes, sir?
2 MR. SAPORITO: Yes. I just need to 3 clarify the mailing address. I've been told by the 4 United States post office my mailing address should be 5 illustrated as Post Office Box 8413, Jupiter, Florida 6 33468-8413 just so that the mail gets to me.
7 CHAIRMAN MAXIN: I am just going to have 8 Mr. Orf repeat that address so we make sure that it's 9 accurate. Can you hear him? He is going to start 10 now.
11 MR. ORF: Okay. This is Tracy Orf. I've 12 got P.O. Box 8413, Jupiter, Florida 33468-8413.
13 MR. SAPORITO: That's correct.
14 MR. ORF: All right. Thank you.
15 CHAIRMAN MAXIN: With that, these 16 proceedings are closed.
17 (Whereupon, the foregoing matter was 18 concluded at 11:35 a.m.)
19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Florida Power and Light Name of Proceeding: Petition Review Board with Mr. Saporito Docket Number: (none)
Location: Teleconference were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
. Samuel Wojack Official Reporter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com