ML20083B000
| ML20083B000 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 12/21/1994 |
| From: | Balcom R HOUSTON LIGHTING & POWER CO. |
| To: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| Shared Package | |
| ML20083A986 | List: |
| References | |
| IA-94-029, IA-94-29, NUDOCS 9505110230 | |
| Download: ML20083B000 (16) | |
Text
{{#Wiki_filter:- -_ - __ _ __ -__ _ James Lieberman Director, Office of Enforcement U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Resnonse to Demand for Information I A 94 029 December 21,1994 On October 26.1994 the United States Nuclear Regulatory Commission (NRC) issued a Demand for information (DFI) to me, stating that I was guilty of deliberate l' misconduct in the February 1992 revocation of Afr. Thomas J. Saporito's unescorted access to the South Texas Project Electric Generating Station (STP).. The NRC also issued an accompanying lengthy press release to the same effect. The DFI should not have been issued because the revocation of Alr. Saporito's access authorization was in compliance with NRC requirements, and I did not engage in deliberate misconduct. As shown by my attached affidavit (Attachment 1), I did not cause flouston Lighting & Power Company (HL&P) to discriminate against hfr. Saporito because he had engaged in protected activities. I did not cause HL&P to violate 10 CFR 50.7 nor did i violate 10 CFR 50.5. The NRC actions have the effect of advising every potential employer that the agency has determined that i engaged in deliberate misconduct. Because the nuclear industry is closely regulated and anyone branded with NRC disapproval is not considered for management responsibility, the practical effect of these NRC actions has been to effectively bar me from consideration for employment in NRC licensed activities. The result is no different than if the NRC had issued an immediately effective order. Consequently, I demand a prompt hearing to consider the charges against me and enable me to clear my name, and 9505110230 941222 ~ PDR ADOCK 05000498 Q PDR i )
a prompt hearing to consider the charges against me and enable me to cle resume my career. : Because of the immediate effect of the NRC actions, I request th I ? hearing be initiated immediately and conducted expeditiously. The DFI is based on an Office 'of Investigations (OI) report (4-92-003) received only after the DFI. I have reviewed that report and found that it evidence that contradicts my af6 davit. Instead, it relies on inferences that are unsupported assumptions and " facts" that are often mistaken. Some of the erro deliberate efforts to mislead to create a case against HL&P and me. An examp discussion on page 35 of the Report concerning HL&P's August 14,1992 letter to NRC The 01 Report states: This document stated that SAPORITO's access was revoked by "STP pe who were not aware of his involvement in a " protected activity" [the Gli 2.206 with the NRC}. t INVESTIGATOR'S NOTE: The evidence indicates that JUMP, BALCOM, and ODOM, by their own admissions, were all aware that SAPORITO had Gled a 2.206, HL&P's actual letter states (at page 8, first paragraph): i The revocation followed an investication and recommendation concerning these matters by STP personnel who were not aware of his involvement in a " protected activity" (the filing of a 2.206 petition with NRC). (emphasis added). HL&P's statement clearly refers to Mr. Hinson's investigation and recommendation to me, not to my decision or any action by Messrs. Jump or Odom. at page 5 ofits letter HL&P speci6cally stated "At the time he made this determinatio revoke Mr. Saporito's access], Mr. Balcom was aware that Mr. Saporito had filed a '2.206 petition'...." HL&P's letter also clearly stated that Mr. Jump also knew of the 2.206 2-
v ~ i petition. By misquoting and mischaracterizing HL&P's letter, the OI Report creates an unfounded perception that I did not rely on the recommendation of Mr. Hinson, and that HL&P's letter was not accurate. This, and the numerous other similar errors in the OI Report, raise serious questions about the objectivity of the NRC investigation. It is particularly unfair for the NRC to have taken the action of publicly declaring me guilty of wrongdoing because these charges already have been rejected by an impartial body, a federal Grand Jury that investigated this matter based on NRC's referral. When I was informed that a Grand Jury was investigating these allegations, and that I was a target of the investigation, I voluntarily appeared before the Grand Jury to testify. I did this though I was advised that as a target, I would not be compelled to testify. I answered all the questions without invoking any fifth amendment rights because I knew the truth would not be incriminating. On April 8, l99-1, following the Grand Jury investigation, the United States Attorney sent me a letter stating that I was no longer considered a target or " putative defendant" by her of6ce or the Grand Jury. The DFI states that I engaged in deliberate misconduct and asks questions to enable the NRC to decide whether enforcement should be taken against me. Before I should be called upon to answer questions about enforcement against me (i.e., the punishment to be imposed),I should be given an opportunity to appear before an impartial hearing board to cross-examine witnesses against me and present evidence to prove my innocence. Although I am including responses to the DFI questions in Attachment 2, I emphasize that it will not be sufficient for the NRC to decide simply that no enforcement is appropriate. I am entitled to an explicit retraction of NRC's statement that I am guilty. 3-
The issuance of this DFI and the associated press release have had an. immediate and ' continuing adverse impact on my family and me. NRC'should immediate and publicly retract its purported finding that I engaged in deliberate misconduct. If the NRC ~ l will not issue an immediate public retraction, I am entitled as a matter of basic fairness to a l prompt hearing on whether i engaged in deliberate misconduct. ~ further request that the I V L hearing be conducted on an expedited schedule to provide the earliest opportunity to clear my a name and permit me to resume my career. because this matter is very urgent to my family and me, I request that the NRC respond to my request for - hearing within 30 days. i i Respectfully submitted, M/ r1m Richard L. Balcom t 1 i t k I h I t I j.- i
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i AFFIDAVIT I, Richard L. Balcom, being duly sworn, hereby depose and say that I am familiar with the content of the attached Response of Richard L. Balcom to Demand for Information and that the matters set forth therein are true and correct to the best of my knowledge and belief. ,WN/h! = - Richard L. Balcom STATE OF TEXAS ) ) COUNTY OF MATAGORDA ) Subscribed and sworn to before me, a Notary Public in and for the State of Texas, this alday of h 1,.e,I994. %,d b M. A. COUGHUN Notary Public inind for the mn rumc. s== w im u,com, n.a ti,,i s/30/ss State of Texas i ,,f ATTACHMENT l' f l
- l AFFIDAVIT'OF RICHARD L..BALCOM 2
I I, RICHARD L. BALCOM, being. duly sworn, say as follows: -{ l 1. I am currently employed by Houston Lighting' and Power l Company.as.the Manager of Security at the SouthtTexas . Project Electric Generatingtation' (STPEGS). j 2. At the time of the events described in this Affidavit, as - .part of my ordinary duties, I ' served as the Access Program Director. (APD) for-STPEGS. As APD,- I; had responsibility for determining whether personnel seeking - unescorted cecess to STPEGs should be granted or denied i access under the STPEGS Access Authorization. program. The Access Authorization program is required by NRC regulations set forth in 10 CFR 73.56. These regulations are designed to assure that NRC nuclear power plant i licensees provide unescorted access onlylto.individualss who are " trustworthy and reliable, and do not constitut<2. 1 an unreasonable risk to the public health and safety,. including a~ potential to commit radiological sabotage." In accordance with NRC regulations and guidance docu-t ments, the STPEGS Access Authorization program contains procedures and criteria for determining whether access' should be granted or denied. I 3.. One specific responsibility of the APD is to " adjudicate" any cases in which a question as to an individual's trust-worthiness.or reliability arises. Information raising such a question ' may arise initially as a result of reference checks or data in an individual's access authorization paperwork, or may become known later based on a criminal history check'or from other sources. ~In such cases, the APD evaluates the information to deter-mine whether denial'.of site access is warranted. 4. On February 6, 1992, I performed an adjudication of the access authorization paperwork cf Mr. Thomas J. Saporito, Jr. A credit check of Mr. Saporito had disclosed some credit problems, and Mr. Saporito's paperwork also'showed an arrest, subsequently " discharged," in September 1990 for trespassing. The paperwork also noted that Mr. 1 Saporito had been discharged from Florida-Power & Light Company's Turkey Point nuclear plant "as a direct result-of (his) participating-in a NRC investigation of the Turkey Point Nuclear Plant." Upon evaluating these concerns, I concluded that the. credit issues were not particularly large or unusual, and t;iat the arrest alone, without a conviction, was not a sufficient basis for i denial of access. With respect to the termination from j FPL, while this seemed unusual, participating in an NRC i I h h i
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...p,. y ~ invcatigation is ' Enot. grounds for. idenial of ~ access. l -Ac_cordingly, I. determined at that time that Mr. Saporito should not be denied unescorted-access to STPEGS. j I "5. .On or about February 12-14, 1992,-I was informed by Mr. Warren Kinsey, Vice President-Nuclear Generation, that a i petition had~been filed pursuant to.10 CFR 2.206, and-that Mr. William J. Jump had been assigned to investigate J the matter raised by the petition.- Shortly thereafter, I assigned one 'of my managers, Mr., Rex Moore,- to investi-1 gate security-related. concerns identified'in the peti-tion. I directed Mr. Moore to coordinate his efforts with Licensing personnel assigned by Mr. Jump. 'There-after, I did not ' participate in the investigation of i those concerns (though I did attend-one meeting at which plans for investigating each of the concerns in the peti-i tion were discussed). I was specifically instructed to keep the identity of:the 2.206 petitioner confidential. 6. At approximately 12:00 noon on February 20,. 1992, Mr. Watt Hinson, who reports to me, came to me and. stated that'he had been given some litigation records involving i Mr.. Saporito by Mr. Jump which Mr. Jump had asked him to
- review, Later in the af ternoon, I met with Mr. Jump and:
j Mr. Hinson to discuss the results of Mr. Hinson's review. Based on the-information provided to me.by Mr.'Hinson, I concluded that, because there did appear to be imissions in Mr. Saporito's access authorization paperwork, more-investigation was appropriate. Since I knew that Mr. Saporito had filed the 2.206 Petition, I was concerned that no inappropriate action be taken against Mr. l i Saporito. Accordingly, I asked Mr. Hinson (without referring to the fact that a. 2.206 Petition had ~ been filed) how this type of information had normally been handled in the past. He informed me that' the. normal course was to provide the individual with an opportunity-to explain any apparent omissions or discrepancies. I then directed Mr. Hinson to interview Mr. Saporito to determine whether there might be a reasonable explanation } for the apparent omissions in his paperwork. Neither I nor Mr. Jump informed Mr. Hinson that Mr. Saporito had i filed a 2.206 petition. 7. At approximately 5:30 or 6:00 p.m. on February 20, 1992, i I again met with Mr. Hinson and Mr. Jump. Mr. Rick Cink was also present. Mr. Hinson informed me that he had. just completed an interview with Mr. Saporito, which was-also witnessed by Mr. Cink. Mr. Hinson recounted that during the interview, Mr. Saporito confirmed that there. were omissions from his access' authorization paperwork relating to previous employment, termination from previous employment, and other matters. These omissions i 1 l
3.d ? Q 3% includsd several which were not. apparent from Mr. i y* u Hinson's. review of the: litigation-materials, and which' Mr. Saporito did_not admit to until closely questioned.' ( 'I. reviewed ' these omissions and noted-that there were several ' which L involved " facts highly unfavorable to Mr. Saporito 'and which,. had.I o known them at. the ' time ' I-performed his initial adjudication on' February 6, 1992; would? likely have. led me to ' deny. unescorted: access to STPEGS.- Based.on these numerous omissions, I concluded. that there was a systematic pattern of e. omission of i adverse information indicating'that the omissions were willful and that these omissions reflected adversely on Mr. Saporito's trustworthiness. ~ 8. STPEGS Access Authorization procedures specifically list. ~ as a basis for access denial: the willful omission - or - falsification of material facts on paperwork submitted in. l . support of employment or access authorization. Based on the facts obtained during Mr. Hinson's interview, and in-accordance with this procedure,.I decided to revoke Mr. Saporito's access to STPEGS, and directed Mr. Hinson to have this accomplished. Thir decision-was made.by ne' acting only.upon-.the advice of Mr. Hinson.. Mr. Jump and' Mr.
- Cink, though present, did not counsel me-as to whether or not Mr. Saporito's access should'be continued or revoked.
During this meeting, no discussion relating to Mr. Saporito's 10 CFR $ 2.206 petition or any other safety allegations by him-took~ place. 9. On March 4, 1992, in response to a-request'made by Mr. Saporito during an exit interview, I mailed a letter to L; him' describing the. basis for the denial of his access j authorization. 'A copy of that letter is attached as j Exhibit A to this' affidavit. 1 i l Richard L. Balcom Manager of Security i i l 1 ! l .. ~
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- STATE OF TEXAS )
o ) ) Subscribed and sworn to before me, a Notary Public in and for-the State of Texas, this 7. day of Apa, w, 1992. mi Muts 8 MASM 1* e,ca w tien Umsi li!
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y. 'o s. The Light c o mp a ny h Texas Project E1cetric Generating Station ) Sout P. O. Dos 289 Wadsworth. Texas 77483 Houston Lighting & Power Reristered Mail March 4, 1992 Return Receiet Reeuested ST HS.XX-16743 File No.: Sil Mr. Thomas Saporico 7881 Piper *.ane Lake Worth, Florida 33463
Dear Mr. Saporito:
In response to your request. I as providing you a written statement of why your unescorted access to the protected areas of the South Texas Project Electric Generating Station has been withdrawn. The reason for withdrawing your unescorted access was the omission of material information from the forms submitted by you in support of your request for unescorted access. I made this determination based on information discussed in your interview with Mr. J.V. Hinson on February 20, 1992. This interview was witnessed by Mr. R.U. Cink. During that interview, Mr. Ilinson reviewed with you the access authorization request data form that you executed block by block. You identified severa) omissions relating to previous employment, terminations for cause, and.other areas. The access authorization request data form you executed states that omissions or misstatements in 3 information provided by you may result in denial of access authorization. In response to your request. I vill allow the fifteen (15) day period for requesting an appeal to begin when you receive this letter. If you choose to appeal this decision, please provide any new, pertinent information that was not available during your interview witt Mr. Hinson. I have attached a Request For Appeal form you may use in tran: titting such information. Very truly yours, / / k /--- Richard L. Balcom Manager, Nuclear Security ) A Subsidiary of Houston Industries incorporated
'ja ~ .c, m. ( ATTACHMENT 2 Answer to Demand for Information f .g I. Why the NRC Should Not Take Action to Prohibit My involvement in NRC. Licensed Activities for Some Specified period of Time, or Take Other Enforcement Action that the Commission Deems Appropriate i The NRC should not take action to prohibit my involvement in licensed activities, l or any other enforcement action against me, because i did not e1 gage in any misconduct,' deliberate or otherwise. I did not discriminate against Mr. Saporito or cause HL&P to discriminate against Mr. Saporito. This~is shown by the affidavit I provided, the information provided by HL&P in its August 21,1992 response to the NRC's request for the basis for the action taken against Mr. Saporito (and its August 14,1992 letter that was referenced in the August 21 response), the information provided by me to the OI investigator, and my voluntary testimony provided to the federal Grand Jury impanelled in the Southern District of Texas, Houston Division, to investigate this case for the U.S. Department of Justice with respect to potential violations of Title 42 United States Code Sections 5851 and 2273. The conclusion of the OI investigation that I discriminated against Mr. Saporito because of his protected activities is wrong, and is not supported by the evidence recited in the OI Report itself. For example, the Agent appears not to have understood that once HL&P determined that material' information had been omitted from an access authorization application, HL&P was compelled by NRC regulatory requirements to determine promptly if the omission was intentional. The DFI does not give any reason for NRC's rejection of my testimony to the OI Investigator that I based the revocation of Mr. Saporito's access authorization on his willful ? -I-i I 4 I m
3,, - l A... ~^ ~ omission of material information from his' written request'for access, and not because of his ' : protected activities.- Simultaneous with issuance of the DFI to me, the NRC also issued a Notice of Violation and Proposed imposition of Civil Penalty - $100,000 and Demand for. Information (NOV). The NOV cites two reasons for NRC's conclusion that HL&P's decision. i to revoke Mr. Saporito's access authorization was in6uenced by Mr. Saporito's 2.206 Petition. First, it states that Mr. Saporito's explanations for the omissions were reasonable. Second, it. states that the decision was not consistent with HL&P's previous decisions in access j adjudications. As shown below, neither reason is valid, and neither supports the conclusion. ] There is nothing in the NOV or the 01 Report to explain the basis for NRC's assertion that Mr. Saporito's explanations for his omissions were " reasonable." The O! Report l t itself reaches no such conclusion.. in fact, his explanation -- that the jobs he had omitted were ( i only temporary or not full time -- did not provide any justiGcation for his not having listed them in response to a question directing that he list gyerv emolover within the previous five { L years. I also knew that some of the facts he omitted -- having been discharged by three i employers -- were derogatory and he had a clear motive for intentionally hiding them. I did i not consider Mr. Saporito's explanations plausible, neither did Mr. Hinson, nor would any j i responsible professional in the Geld. To the extent the DFI relies on alleged inconsistencies in HL&P's prior treatment of i similar cases it is equally 6 awed. After the 01 Geld investigation in 1992, HL&P conducted a detailed study that found that the decision in Mr. Saporito's case was consistent with prior { r i cases that were truly similar. The 01 Report contains an argument that tries, but fails to disprove the validity of HL&P's study, The 01 Report argues that of the eleven prior cases t f i e
i L y '.. ' found by HL&P in which the individual had omitted employment information, three were not comparable because other. derogatory information was involved. This argument does not disprove HL&P's conclusion. Even if those three cases are disregarded, the remaining cases still show that HL&P took omission of employment information seriously. In five of the remaining eight cases HL&P denied or revoked access. In none of the eight (or eleven) cases had the individual omitted as much information as hfr. Saporito.' Even if the NRC's analysis of these esses is correct, which I do not believe to be ( the case, it would not justify any action against me. When I decided to revoke Mr. Saporito's I access authorization, I had been APD for just over one month. I was familiar with the HL&P ] Access Program requirements and relevant NRC guidance, but I had not reviewed the access decisions made by my predecessor APDs during the prior four years. During the brief time I had been the APD, I had decided a number of access adjudications, but only a very small fraction of the appraximately 400 cases subsequently reviewed by the OI Agent. Consequently, a review of the adjudication decisions made before I became APD is not evidence of the state of my mind when ! made the decision, nor is it any indication of how I interpreted and applied the Access Program requirements. Nfy decision to revoke Mr. Saporito's access authorization was consistent with Afr. Hinson's advice and with the manner in which I had made previous decisions as APD. ) 1 ' The DFI apparently misreads the 01 Report, in claiming that another case, not cited by HL&P, involved an individual who omitted three discharges by prior employers. The OI Report notes that in one adjudication, the identity of whn.h i: redacted from the released version of the OI Report, an individual was granted access although he had three discharges by prior employers (as had Afr. Saporito). The OI Report does not claim, as does the DFI, l that the individual had omitted this information from his access authorization application. l l
1 s.y e. In short, the bases cited by the NRC for its conclusion about me are clearly erronwas. There is nothing in the DFI issued to me, the NOV issued to HL&P, or in the OI Report that should lead any reasonable person to question my motivation in making my decision on Mr. Saporito's access authorization. It was dictated solely by the HL&P investigation findings and applicable NRC and procedural requirements and was not influenced in any respect by the fact that Mr. Saporito had filed a 2.206 petition. I did not engage in any willful misconduct, and should not be the subject of any NRC enforcement action. IL Why the Commission Should llave Reasonable Assurance That I Willin the Future Abide by Commission Regulations That Protect Individuals who Engage in Protected Activities The NRC should have reasonable assurance that I will in the future abide by the NRC's regulations that protect individuals who engage in protected activities because my actions with respect to this case show that one of my primary concerns when I was informed about the omissions in Mr. Saporito's access authorization paperwork was that no inappropriate actions be taken against him. Contrary to the NRC conclusion that my actions represent deliberate misconduct, my actions were required by HL&P's Access Program and 10 CFR 73.56 provisions specifying that unescorted access be provided only to individuals who are " trustworthy and reliable " They were also in conformance to the requirements of 10 CFR 50.7(d) thr. "an employee's engagement in protected activities does not automaticall, trier hira or her immune from discharge or discipline for legitimate reasons or from adverse action dictated by non prohibited considerations " 4
I hy o, I am familiar with the requirements of 10 CFR 50.7 and Section 210/211 and have always fully supported those requirements and underlying policy to ensure unhindered communication of safety concerns in an environment of open communication. I have never taken any action against anyone for raising a concern, and have not tolerated any such action by my subordinates. I have worked in the nuclear power field for senty seven years, including eleven years in the United States Navy and sixteen years in the commercial nuclear industry. While in the Navy, I served for two years as an Atomic Energy Commission safety monitor at the Shippingport Atomic Power Station. I have held Senior Reactor Operator Licenses on both units of the Zion Station, the Westinghouse Nuclear Training Reactor, and both units of the South Texas Project Electric Generating Station. During my career in the nuclear industry I have proved my dedic.ition to nuclear safety, my recognition of my responsibility to identify and resolve safety concerns, and my openness to the concerns of others. Before my assignment as Manager of Nuclear Security at STP neither the NRC nor any other agency or employer has called my integrity into question. I was employed at STP from October 1983 to December 1993. During that period I held supervisory and managerial positions in reactor operations, quality assurance, and nuclear security, in each of these positions, my areas of responsibility have been routinely inspected by the NRC. The results of these inspections have confirmed that the programs I supervised have been characterized by a dssire to identify and correct problems, not to suppress them, and there has never been any finding that I, or the personnel who worked under my supervision, failed to raise and address all safety concerns that came to our 5-
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attention. To the contrary, repeatedly the NRC has found that the organizations I have led were aggressive in identifying and pursuing safety concerns. As an example, the report of the NRC Diagnostic Evaluation at STP states that beginning in 1990 and continuing into 1993 -- i for the most part, the period of my tenure as Quality Assurance Director - "the team found p. numerous records which documented QA's persistence in attempting to gain management attention to their safety findings." The comments of the Diagnostic Evaluation Team show that the personnel 1 directed in Quality Assurance did recognize their responsibility to identify problems, and rather than being discouraged from documenting them, were encouraged and enabled to identify and document them. III. Other Considerntions I have provided open and honest mformation concerning this matter and have cooperated fully with the NRC, DOL and Department of Justice investigations into this matter. I did not try to conceal any information about this matter. My actions with respect to this investigation have not suggested that I have anything to hide. When I was called upon to decide whether HL&P could continue to find Mr. Saporito to be trustworthy and reliable in light of Mr. Hinson's investigation findings, my focus was on compliance with the access authorization requirements. I believe that an impartial NRC Hearing Board, upon receiving a complete explanation of the facts and relevant NRC requirements, will recognize that my actions were proper, and that no action should be taken against me. 6-l -}}