ML17352A688
| ML17352A688 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, Turkey Point  |
| Issue date: | 06/07/1994 |
| From: | Saporito T SAPORITO, T.J. |
| To: | NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| References | |
| 2.206, NUDOCS 9407010054 | |
| Download: ML17352A688 (18) | |
Text
Fi A ENRGY PAGE B2 Z)M O'Dm Florida Energy Consultants, Inc.
1620 Nonh U.S, 1, Suite 6 Jupiter, Hocida 334$ -3241 TelcPbotM,'407) 745-1186 PacaimQI:
(407) 745-1186 June 07, 1994 Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
Petition Filed Under 10 C.F.R. 2.206 Against the Florida Power C Zigbt Company
Dear Sir:
COMES
- NOW, Florida Energy Conaultants, Inc.
("FEC" )
and Thomas J.
- Saporito, Jr.,
(hereinafter "Petitioners" )
in accordance with 10 C.F.R. 2.206, and hereby file a request for specific action by the U.S. Nuclear Regulatory Commission
( "NRC" )
within a
reasonable time against the Florida Power 6
Light Company
("FPL") and operator of the Turkey Point and St.
Lucie nuclear stations located in the State of Florida.
A.
Petitioners request that the NRC institute a
show cause proceeding pursuant to 10 C.F.R. 2.202 to modify,
- suspend, or revoke FPL's permissive operational licenses authorizing operation of the Turkey Point and St.
Lucie nuclear stations.
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86/8ik' S
PACK 83 Executive Director for Operations U.S. Nuclear Regulatory Commission FFL 2.206 Petition June 07, 1994 Page No.
2 B.
enforcement action against PPL for violating NRC requirements under 10 C.P.R.
50.7 in retaliating against Thomas J. Saporito, Jr. for. hfs having engaged in protected activities duri.ng hi.s employment period at the FPL Turkey Point nuclear station in 1988 as an instrument control technician.
k k
k k
k enforcement acti.on against 'FPQ"emp2~6'e Mr. John Odom for violating
'NRC requirements under
'10 C.F.R. 50.7 in retaliating against Thomas J.
- Saporito, Jr. for his having engaged i.n protected activities duri.ng his employment period at the FPL Turkey Point nuclear station in 1988 as an instrument control technician.
D.
k k
k enforcement acti.on against each and every i.ndividual FPL employee found to have been directly or indirectly involved in violating NRC requirements under 10 C.F.R. 50.7 in retaliating against Thomas J.
- Saporito, Jr. for hie having engaged in protected activities during his employment period at the FPL Turkey Point nuclear station in 1988 as an instrument control technician.
Petitioners request that the NRC conduct an investigation of FPL under 10 C.P.R.
50.7 to determine the direct or indirect involvement each and every individual FPL employee may have had in violating NRC requirements under 10 C.F.R. 50.7 in retaliating agai.net Thomas J.
- Saporito, Jr. for hie having engaged i.n protected activiti.ee during his employment period at the FPL Turkey Point nuclear station in 1988 as an instrument control technici.an.
86r 87/1994
~"
f'~ m~wY 4LPv r~
d4 Executive Director for Operations U.S. Nuclear Regulatory Commission FPL 2.206 Petition June 07, 1994 Page No.
3 D.
Petitioners request that the NRC refer i.ts i.nvestigative findings to the U.S.
Department of Justice
("DOJ")
for federal prosecution of those FPI employees who were directly or indirectly involved in violating HRC requirements under 10 C.F.R. 51.7 in retaliating against Thomas J.
- Saporito, Jr. for his having engaged in protected activi.ti.es during his employment period at the PPL Turkey
. Point nuclear station in 1988 as an instrument control technician.
Petitioners 'request that the NRC conduct an investigation of FPL under 10 C,F.R.
50.7 to determine. if the overall work environment at the FPL Turkey Point, and St.
Lucia nuclear f
1 h
11 y d~
WtY freely contact the NRC with perceived safety concerns.
F.
Peti.tioners request that the NRC conduct an investigation of FPL under 10 C.P.R.
50.7 to determine if the overall work environment at the FPL Turkey Point.and St.
Lucie nuclear stations provides for employees to <<bypass<<
the FPL <<ohain of ooamaacP i.n raising safety concerns to the NRC.
Petitioners request that the NRC conduct an investigation of FPL under 10 C.P.R.
50.7 to determine if the overall work environment at the PPL Turkey Point and St.
Lucia nuclear t
1 1 t t
1 lllty d~
mty fraely contact the NRC <<cond'identially'ith perceived safety concerns.
Petitioners request that the NRC conduct an investigation of FPL under 10 C.P.R.
50.7 to determine if the overall work environment at the FPL Turkey Point and St.
Lucie nuclear 1
h tlty d~ sty freely contact the NRC with perceived safety concerns vithout firat ayyriainy FPL management about the saf ety concerns'
86/B7/1994 12: B4
~a'r-cP4cGY Executive Director for Operations U.S. Nuclear Regulatory Commission PPL 2.206 Petition June 07, 1994 Page No.
4 I
The NRC generally defers
..to the DOL process before taking action and normally does not take independent action with respect to alleged discrimination for the exercise of a
protected activity prior to a
decision by a
DOL Administrative Law Judge
("ALJ") absent a compelling safety reason.
2.
Zn Case Nos.
89-ERA-7/17 the ALJ rendered
.a recommended decision and order
("RDO") in June of 1989 finding that FPL discharged Thomas J.
- Saporito, Jr.
for reasons of insubordination.
- However, in a tune 3,
1994 Decision and Remand Order issued by the DOL Secretary of Labor
("SOL"),
the SOL ordered the ALJ to revisit his earlier RDO and issue a new RDO in this case.
3, The SOL held, in part, that "...The Administrative Law Judge (ALJ) recommended that this case be dismissed because Respondent Florida Power f
Light Company (FPEJ )
fired Complainant Thomas J. Saporito, Jr. for what the ALJ viewed as legitimate
- reasons, three acts of insubordination.
find, however, that one of those acts clearly was protected under the ERA, for the reason stated
- above, and the others may have had protected aspects.
Therefore, I
am remanding this case to the ALJ to review the record and submit a new recommendation on whether Saporito would have been fired for legitimate reasons even if he ha& not engaged in protected activity..."
?
86/87/1994 12:84 487-lle6 86 Executive Director for Operations U.S. Nuclear Regulatory Commission FPL 2.206 Petition June 07, 1994 Page No.
5 4.
The SOL further found that
"...Saporito told Odom on November 23,
- 1988, when Odom gave him a "direct order" to tell Odom his nuclear sa fety concerns
>at the first available opportunity" and Saporito said hc would...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 FPCL immediately if there were an imminent'hreat to public health safety... Indeed, Odom called the HRpwn Noy, 30, 1988 and was told that none of Saporito's concerns hal any imme4$ ate safety implications...Z RincL thah PPALq+hk~,gya.~
it later disoharysd
- Saporito, among-'@ei" ',Seasons', 'Ar refusing to obey Odei,'s order to revea1:
his safety concerns...~
(emphasis added).
The SOL also found that "...As grounds for dismissal, FPSJ also cited Saporito's refusal to stay after his regular work day on November 30, l.988 to attend a meeting at which Odom again wanted to ask Saporito about his safety concerns...and Saporito '
refusal to be examined by a
company doctor.
Odom' decision to require Saporito to be examined by a
company doctor grew out of the excuse Saporito gave on November 30 for refusing to stay late for the meeting with
- Odom, that Saporito was ill, and Saporito's reason for taking 12 sick days leave after November 30, that Saporito was suffering from stress related medical problems...Each of these reasons for discharge is related, at least in part, to Saporito's refusal to reveal his safety concerns to PPH, an act I have held protected under the ER...~
(emphasis added)
ae/e7/1994 12: 84 ce7-1186 PAGE e7 Executive Director for Operations U.S. Nuclear Regulatory Commiision FPL 2.206 Petition June 07, 1994 Page No.
6 6.
The NRC and DOL have a
long standing Nemorandum of Understanding
("MOU") which provides for the cooperation of these two government agencies to work together on DOL discrimination complaints as in Case No.
89-ERA-7/17.
- Thus, while NRC actions in discrimination cases are normally held in abeyance pending the DOL
- process, there are
- times, because of the significance of the issues to public health and safety, the--
NRC actions. ara warranted notwithstanding the ongoing DOL process.
7.
FPL violated NRC requirements under 10 C.P.R.
50.7 in Odom's questioning Saporito on November 23, 1988; FPL's placing Saporito on restricted status; PPL's providing Saporito with demeaning job assignments
~
and Odom' attempted interrogation of Saporito on November 30, 1988.
FPL clearly retaliated against Saporito for his having engaged in protected activity in raising safety concerns regarding operations at Turkey Point. to tha NRC and requesting that tha'NRC conduct an investigation of his concerns.
8.
FPL's retaliatory actions taken against Saporito in 1988 as described above in par.7 constitute a
"hostile work environment" under the law.
The harassment incidents and adverse actions taken against Saporito by FPL during Saporito's employment in 1988 at Turkey Point, mora than satisfy the elements establishing a prana facie case of a
~hostile hark eaviromaeat>>.
2rgaCk.,
Case No.
91-ERA-9, slip op. of AIJ, at 36-3'7 (July 2,
1992).
>>>>bl 0/(z s Qdv Ic>> 84 487-7 1186 FLA hnecv
~
r AGc, 88 Executive Director for Operations U.S. Nuclear Regulatory Commission FPL 2>>206 Petition June 0'7, 1994 Page No.
7 9.
The NRC is mandated by the U.S.
Congress to ensure that the overall work environment at facilities authorized and licensed for operation hy the NRC is free from hostility and
>>1>>>>>>>>
~
>>>>>>>> lly the NRC with perceived safety concerns without fear of reprisal by their employer for doing so.
The NRC simply
" -.cannot tolerate a>>hostile work aaviromeaat>>
at the PPL Turkey Point and St. Lucie nuclear stations.
10.
In Case No, 89-ERA-19, the NRC invoked enforcement action against the licensee because the licensee allowed.a >>hoatf.le mrk eavironaaat>>
to exist at the Palo Verde Nuclear Qenerating Station.
- Indeed, the NRC<s Notice of Violation stated, in part relevant hereto, that:
<<..>>Both situations are significant bee:ause discrimination may create a chilling effect which could discourage individuals from raising safety issues.
Such an environment cannot be tolerated if licensees are to fulfilltheir responsibilities to protect the public health and safety.
- Thus, licensee management must avoid actions that discriminate against individuals for raising safety
- concerns, and must promptly and effectively remedy actions that constitute discrimination..."
11.
The NRC has authority to take the actions requested in this petition to ensure that PPL maintains a
work environment
>>>>*h WWW and confMentially to the NRC without fear of reprisal.
- See, e.g.,
55 Fed.
Reg.
- 10397, 3.0402 (War, 11, 1990).
See also, Ellison v. Brady, 924 P.2d 872 (9th Cir. 1991).
B6/B7/1'9a>>
i
. B4 487-1186 FLA KhRGV Y
Executive Director for Operations U.S. Nuclear Regulatory Commission FPL 2.206 Petition June 07, 1994 Page No.
8 12.
FPL has engaged in the illegal conduct of a
continuing violation of NRC requirements at 10 C.P.R.
50.7 in retaliating against Thomas Z. Saporito,
- Moreover, FPX appears to have retaliated against other workers at Turkey Point who have raised safety concerns to the NRC
- See, Hark Clymer v. Plorida Power fc Light
- Company, Terry Dysart v. P'lorida Power
& Light Company, Richard Robaines v.
Florida Power C Light
- Company, and Ben Young v.
Florida Power
& Light Company.
This continuing violation of NRC requirements by PPL has enhanced a
~cld.llinN effect~
at Turkey Point which was initiated upon Saporito's termination 3-days before Christmas in 1988 for having raised safety concerns to tha NRC.
13.
The NRC has expressly defined protected activities under the ERA and NRC regulations at 10 C.P.R.
50.7(a) to include; (i)
Providing the Commission information about possible violations of requirements imposed under
[the ERA or the Atomic Energy Act] I (ii) Requesting the Commission to institute action against his or her employer for the administration or enforcement of these requirements; (iii) Testifying in any Commission proceeding.
14.
The NRC provides that employees like Saporito may communicate privately without interference from licensee employers like FPL as follows:
86/87/19'94 12: 84 487-1186 Executive Director for Operations U.S. Nuclear Regulatory Commission PPL 2.206 Petition June 07, 1994 Page No.
9 (a)
Commission inspectors may consult privately with workers concerning matters of occupational radiation protection and other matters related to applicable provisions of Commission regulations and licenses to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection.
(b),During the course of an inspection any worker may bring privately to the attention of the inspectors, either orally or in writing, any past or present condition which he has reason to believe may have contributed to or caused any violation of the act, the regulations in this chapter, or license condition...10 C.F.R. 19.15.
15.
PPL's interrogation of Saporito regarding his safety concerns communicated to the NRC constitutes discrimination under the ERL.
NRC regulations at 10 C.P.R.
50.9 provide that the DOL process is an extension of the NRC's authority,
- Thus, the NRC has authority to act on this petition.
Xn consideration of the above, PPL cannot demonstrate to the NRc reaeonable assurance that it did not illegally retaliate against Saporito in fostering a hostile work environment at Wrkey Point, in assigning demeaning
)obs to 8aporito, in denying
- benefits, terms, and conditions of employment to Baporito, and in firing Saporito 3-days before Christmas in 1988 for Saporito having engaged in protected activity. Additionally, FPL cannot demonstrate to the NRC reasonable assurance that a "chilling effect'oes not exist at the Turkey Point and St. Lucie nuclear stations which dissuades employees from freely raising safety concerns confidentially to the NRC without fear of retaliation for so doing.
86/87/1994 12: 84 487-1186 EheGv T
Executive Director for Operations U.s, Nuclear Regulatory Commission FFL 2.206 Petk.tion June 07, 1994 Page No.
10 Accordingly, it is appropriate for the NRC to consider this petition under 10 C.P.R.
2.206 wherein the Petitioners have set forth the facts that constitute the basis for the request.
CIL DD85-13.,22NRC149r 154(1985)
~
Respectfully submitted,
.Por the Environment Thomas J. apor, Jr.
President and CRO cc:
Hon. Joseph I. Lieherman Hon. John Dingell Hon. David Williams Oscar DeMi,rancta Executive Director for the National Hhistleblower Center
DOCKET NO(S) 50-302, 50-335, 50-389, 50-250 and 50-251 Nay 31, 1994 DISTRIBUTIPN
~
'Docket File w/o encl.g PD II-2 r/f ETana SEE ATTACHED LIST
SUBJECT:
CRYSTAL RIVER UNIT 3, ST. LUCIE UNITS 1
AND 2, AND TURKEY POINT UNITS 3 AND 4 The following documents concerning our review of the subject facility are transmitted for your information.
DESCRIPTION OF DOCUMENT Notice of Receipt of Application Draft/Final Environmental Statement Notice of Availabilityof Draft/Final Environmental Statement Safety Evaluation Report, or Supplement No.
Environmental Assessment and Finding of No Significant Impact Notice of Issuance of Environmental Assessment Notice of Consideration of Issuance of Facility Operating License or Amendment to Facility Operating License Biweekly Notice; Applications and Amendments to Operating Licenses Involvin No Si nificant Hazards Conditions See Page(s)
Exemption DATED Construction Permit No. CPPR-Facility Operating License No.
Order Monthly Operating Report for X
Annual/Semi. Annual Report:
Other
, Amendment No.
,Amendment No.
transmitted by Letter transmitted by Letter Office of Nuclear Reactor Regulation fnclosures:
As Stated OFFICES SURNAME>
OATEN See nest page NRR/PD II-2 ETana ~g 5/'31/94 NRC FORM 318 ttolao) NRCM 0240 OFFICIAL RECORD COPY
cc:
Chief Division of Habitat Conservation U.S. Fish 5 Wildlife Service U.S. Department of the Interior Washington, DC 20240 Crystal River Unit 3 St. Lucie 1
and 2
Turkey Point 3 and 4
Regional Radiation Representative U.S.
Environmental Protection Agency Region IV Office 345 Cortland Street, NE
- Atlanta, GA 30365 Dr. William Cunningham FDA Research Chemist National Institute of Standards and Technology Reactor Building 235, Room B-108 Gaithersburg, MD 20899
DOCKET NO(S).
50-302, 50-335s 50-389, 50-250 and 50-251 April 13, 1994 DISTRIBUTION:
l Docket File w/o encl'.
PD II-2 t./f ETana SEE ATTACHED LIST SUBJEGT:
CRYSTAL RIVER UNIT 3, ST. LUCIE UNITS 1
AND 2, AND TURKEY POINT UNITS 3 AND 4 The following documents concerning our review of the subject facility are transmitted for your information.
DESCRIPTION OF DOCUMENT Notice of Receipt of Application Draft/Final Environmental Statement Notice of Availabilityof Draft/Final Environmental Statement Safety Evaluation Report, or Supplement No.
Environmental Assessment and Finding of No Significant Impact Notice of Issuance of Environmental Assessment Notice of Consideration of Issuance of Facility Operating License or Amendment to Facility Operating License Biweekly Notice; Applications and Amendments to Operating Licenses Involvin No Si nifIcant Hazards Conditions See Page(s)
Exemption DATED Construction Permit No. CPPR-Facility Operating License No.
Order Monthly Operating Report for Annual/Semi-Annual Report:
fot th d
Other
, Amendment No.
,Amendment No.
transmitted by Letter transmitted by Letter Office of Nuclear Reactor Regulation EncIosures:
As Stated See nest page OFFICE>>
SURNAME>
OATE>>
.NRR/P.Q I.l.-.2..
.r,To~a.Ejg 4(13/94 NRC FORM 318 110/801 NRCM 0240 OFFICIAL RECORD COPY
cc:
Chief Division of Habitat Conservation U.S. Fish 5 Wildlife Service U.S. Department of the Interior Washington, DC 20240 Crystal River Unit 3 St'. Lucie 1
and 2
Turkey Point 3 and 4
Regional Radiation'Representative U.S. Environmental Protection Agency Region IV Office 345 Cortland Street, NE
- Atlanta, GA 30365 Dr. William Cunningham FDA Research Chemist National Institute of Standards and Technology Reactor Building 235, Room B-108 Gaithersburg, MD 20899
Docket No.
(10 C F.R. 2.206)
Thomas J. Saporito, Jr.
Florida Energy Consultants, Inc.
1620 North U.S.
1, Suite 6
Jupiter, Florida 33469-3241
Dear Mr. Saporito:
On June 7,
- 1994, you filed a Petition under 10 C.F.R. 2.206 on behalf of yourself and Florida Energy Consultants, Inc., requesting that the NRC take action against the Florida Power and Light Co. as operator of the Turkey Point and St. Lucie nuclear power stations.
This letter acknowledges the Nuclear Regulatory Commission Staff's receipt of your Petitxon.
In your Petition, you ask that the NRC institute a
show cause proceeding under 10 C.F.R. 2.202 to modify, suspend or revoke the Licensee's operating licenses.
- Further, you ask that the NRC take escalated enforcement action against the Licensee for violating 10 C.F.R. 50.7 by retaliating against you for engaging in protected activities during your employment at the Turkey Point station in 1988 as an instrument control technician.
You also ask that the NRC take escalated enforcement action against John Odom, a Licensee
- employee, as well as every other Licensee employee who is found to have been involved in the retaliatory actions which were taken against you.
In order to determine which Licensee employees were involved in the retaliatory actions, you ask that the NRC conduct an investigation and refer the results of the investigation to the Department of Justice for federal prosecution of the employees involved.
You also request that the investigation examine whether the overall work environment at Turkey Point and St.
Lucie is free from hostility and encourages employees to freely contact the NRC with safety concerns, to bypass the chain of command in raising those
- concerns, to contact the NRC confidentially with any safety
- concerns, and to contact the NRC without first apprising management about safety concerns.
In your Petition, you call attention to the conclusions reached by the Secretary of Labor regarding your claims in Saporito v. Florida Power E 1'ight Co., Case Nos. 89-ERA-7 and 89-ERA-17, issued on June 3, 1994.
Further, you allege specific acts of retaliation, such as placing you on restricted status and giving you demeaning job assignments, and claim that those actions comprise a hostile work environment which warrants enforcement action by the NRC.
According to your Petition, the Licensee has retaliated against other employees as well, creating a chilling effect at Turkey Point
which began with your termination in 1998.
En your view, the Licensee has violated 10 C.F.R. 50.7 and 19.15 and the Energy Reorganization Act.
The Staff will review your Petition in accordance with 10 C.F.R. 2.206.
I will issue a final decision with regard to your Petition within a reasonable time.
A copy of the notice that is being filed for publication with the Office of the Federal Register is enclosed for your information.
Sincerely, James Lieberman, Director Office of Enforcement
Enclosure:
As stated cc:
Florida Power and Light Co.
U.S.
NUCLEAR REGULATORY COMMISSION Docket No.
FLORIDA POWER AND LIGHT CO.
(Turkey Point and St. Lucie Nuclear Plants)
RECEIPT OF PETITION FOR DIRECTOR'S DECISION UNDER 10 C.F.R. 2.206 Notice is hereby given that on June 7,
- 1994, Thomas J.
- Saporito, Jr.
filed a petition under 10 C.F.R. 2.206 of the Commission's regulations requesting that the NRC take action against Florida Power and Light Co. as operator of the Turkey Point and St. Lucie nuclear power stations.
The Petitioner asks that the NRC institute a
show cause proceeding to modify, suspend or revoke Florida Power and Light Co.'s operating licenses and that the NRC take escalated enforcement action for retaliatory actions which were taken against
- him, a former employee, for engaging in protected activities as defined in 10 C.F.R. 50.7.
Petitioner asks that the NRC also take escalated enforcement action against every employee of the company who is found to have been involved in the retaliatory actions.
In order to determine which Licensee employees were involved in the retaliatory
- actions, and to assess the overall work environment at the plants, Petitioner asks that the NRC conduct an investigation.
In addition to the specific acts of retaliation he claims were taken against him, the Petitioner alleges that other employees have also been retaliated
- against, creating a chilling effect at the Turkey Point plant beginning in 1988.
Petitioner
asks that the NRC initiate an investigation into his claims, which involve alleged violations of 10 C.F.R. 50.7 and 19.15 and the Energy Reorganization Act, notwithstanding the fact that they are being pursued within the Department of Labor, because of the asserted public health and safety implications involved.
The Petitioner's request has been referred to the Director of the Office of Enforcement.
As provided by 10 C.F.R. 2.206, appropriate action will be taken on this request within a
reasonable time.
A copy of the Petition is available for inspection at the Commission's public Document Room, 2120 L Street, N.W., Washington, D.C.
20555.
FOR THE NUCLEAR REGULATORX COMMISSION James Lieberman, Director Office of Enforcement Dated at Rockville, Maryland This day of 1994 '