ML20217M075
| ML20217M075 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, Turkey Point  |
| Issue date: | 08/13/1997 |
| From: | Ross M FLORIDA POWER & LIGHT CO. |
| To: | NRC OFFICE OF ENFORCEMENT (OE) |
| References | |
| 2.206, NUDOCS 9708200133 | |
| Download: ML20217M075 (11) | |
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UNITED STATliS OF AhllittlCA NUCLl!AR REGUI.ATORY COhihilSSION llEFORE Tile DlltECTOR, OFFICl! OF ENFORCEh111NT In the hiatter of
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FLORIDA POWER & l.lOllT
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Docket Nos.
COh1PANY
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50 335.50 389
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50 250,50 251 (St.1,ucie Plant,
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Units 1 & 2)
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(Turkey Point Plant,
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Units 3 & 4) 1
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LLCENSEE'S RESI'ONSE TO SUPPL): MENTAL 10 CFIL2,2ft6 PETITIONS FlLF.D_ltY 1((OMAS J. SAPORITO.JR. AND NATIONAL LITIGATION CONS (!LTANTS 1
Florida Power & Light Company (FPL), the 1.icensee for the St. Lucie Plant, Units I and 2, and the Turkey Point Plant, Units 3 and 4 hereby responds, by its counsel, in opposition to the Supplemental Petitions (Petitions) filed under 10 CI R 2.206 by Thomas J. Saporito,Jr. and National I.itigation Consultants (Petitioner), dated hlay 11,1997, and hiay 17,1997, and to assertions made by Petitionerin a public meeting with NRC StalTon July 14,1997. This response incorporates by reference and should be read together with FPL's hiay 23,1997 response to Petitioners' April 23, 1997 Petition.
The Petitions are simply a reassenion of claims made in Petitioner Thomas Saporito's Department of Labor (DOL) proceeding against FPL. Petitioner has repeatedly leveled the same baseless charges against FPL,its counsel, and its employees over the past several years in a vs '
of missives submitted to NRC. The latest Glh'.
are no different, and contain unfounded and y '4 l Lf 9708200133 970013 J.'
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unwarranted demands Ihr enfbrcement action against current and former FP!, employees,and /Pl.'s labor counsel, as well as equally baseless requests that the conduct of certain individuals be considered for referral to the Department of Justice Ibr criminal prosecution. The Conunission should put a stop to the continued harassment of 1:Pl. and its employees and deny the Petitions outright.
The Petitions provide no basis for the extraordinary relief requested. Additionally, as explained further below. Petitioners'unsubstas.tiatedallegationsof DOL and 1 PL misconduct during a D01. proceeding should be raised in that proceeding and not belbre NRC, i:PL submits that Petitioner has not met the legal standards Ihr initiation of a proceeding or enforcement action under 10 CFR 2.206. Accordingly, the present l'etition should be denied.
EELRESPONSE e
Petitioner has not met the NRC's legal standards for instituting a proceeding under 10 C.F.R. 2.206. N!!C will initiate a proceeding or enforcement action under 10 C.F.R. 2.206 "only when substantial health and safety issues have been raised." Consolidated lidison Co. of New York (Indian Point, Units 1,2, and 3), Cl.175-8,2 NRC 173,175 (1975); Washington Public Power Supplv Syskm (WPPSS Nuclear Project No. 2), DD 84 7,19 NRC 899,923 (1984). llealth and safety issues are those w hich call into question the concir.sion that a nuclear facility can be operated safely. Ssx Metropolitanlidison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAll-729, 17 NRC 814,828 (1983).
As demonstrated below. Petitioner has not raised any substantial health and safety issue.
Petitioner merely continues to attempt to litigate the underlying linergy Reorganization Act case in 9
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two different Ibra: before the Department of Labor and NitC, Petitoners have provided absolutely no basis Ihr the relief requested. Accordingly, the Petition should be denied.
1)lSCUSSION 1,
lloth supplemental Petitions call (br enfbreement action and the issuance of civil penalties against named current and former FPl. employees and FPL's labor counsel, FPL denies that it discriminated against Petitioner Saporito, and therefore,any request Ibr personal entbreement action should be summarily rejected by 4RC, in any event, the NRC's " deliberate misconduct" rule, 10 CFR 50.5, was not enacted until 1991, three years after the events that gave rise to Petitioner Saporito's DOL case took place. NRC does not have the authority to apply regulations that were not in ihree at the time of Petitionei Saporito's discharge from FPL in a retroactive manner. Sec Ocetgla Power Cm (Vogtle lilectric Generating Plant, Units 1 and 2; llatch Nuclear Plant, Units I and 2),
DD 97-6,45 NRC 144,225 (1997). Moreover,the events relating to FPl/s discharge of Petitioner Saporito took place in 1988, The statute oflimitations on NRC's issuance of civil penalties is five years. 28 U.S.C. 2462. Therefbre. NRC would not have the authority, based on a finding of discrimination, to levy civil penalties against FPL or individuals.
2.
The Petitions as supplemented should be denied because no specific facts were alleged that could provide the basis fbr the enfbreement actions requested. Petitions filed under 10 CFR 2.206 must " set Ibrth the facts that constitute the basis for the request." 10 CFR 2.206(a) NRC need not take action on a petition filed under 10 CFR 2.206 where facts were not stated with specificity, Philadelphia Elec. Co. (Limerick Generating Station, Units I and 2), DD 85 11,22 NRC 149,154 (1989).
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The Supplemental Petitions contain only summary references to pleadings filed by Petitioner Saporito and transcript records of the DOL hearings in Sanorito v. I:PL 'these summary teferences do not satisfy the requirement of 10 CFR 2.206(a). Further, Saporito articulated no evidence in support of many of his allegations other than mere conjecture. See. e.g. Transcript of Public Meeting, July 14,1997 (Tr.) 108,129. Accordingly, NRC need not respond to the Petition, as supplemented.
3.
In the Second Supplemental Petition (at 4), Petitioner alleges the " falsification of a licensee company business record." This allegation was repeateo at the July 14 public meeting (Tr.
1Il 124). Specifically,at the remand hearingin Saporito's D01, proceedingagainst FPL(!!RA 89-7; lira 8917)before an Administrative Law Judge (Al.J), Petitioner Saporito alle 'ed that minutes of a mteting held with Petitioneron November 25,1988, advising Petitioner that his access had been suspended,was a " fraudulent document." This claim is baseless. Petitionerintroduced no evidence to support his claim or to suggest that the minutes were inaccurate. Instead, the hearing testimony established that the minutes accurately reflect what was said at the meeting. Petitioneradmitted this at the July 14 public meeting. Tr. 120 121.
Petitioner was actually objecting to the fact that at the November 25,1988 meeting, he was not advised that comments of the llargaining Unit (Illl!W) influenced FPL's decision to deny access.
Petitioner did not establish that there was any requirement that FPl. notify an employee of all of the considerations which go into an employment related decision, or that FPL had told him that all of the reasons for the reduction of access were being disclosed. Nor is there any indication that Petition 4
was injured in any way by the nondisclosure of this infonnation. Therefore, the claim that FPL
" conspired" with the lill!W to create a " fraudulent document" is wholly without merit.'
4.
Petitioner also alleges that there are " missing record transcripts" from the original hearing on Petitioners' Section 210 complaint, and the " missing transcripts" are the result of a
" conspiracy" between FPl., th)l., and the reporting company under contract to Dol.. Again, this claim has no merit. Duting the 1989 Dol, hearing in Saparjto v.1:PL, Saporito filed a motion to prese:Te testimony. asserting that 18 pages of testimony was missing from the record. The presiding AlJ dete mined that the so called" missing pages" had been located and ordered that the pages be senumbered and placed in the record. That ruling was not disturbed by the Secretary of1. abor in his order dated June 3,1994, or in the order denying Motions for iteconsideration dated February 16, 1995. Petitioner Saporito attempted to re litigate the " missing page" issue in the remand hearing held in January and February,1997 by filing a Motion for itemand and for Sanctions. The presiding AIJ denied that motion, holding that the Secretary's ruling on the " missing page" issue is final, subject only to review in the Court of Appeals.
Petitioner's requests for an NitC investigation into the " business record falsification" and
" missing page" issues are improper attempts to get "two bites at the apple" by seeking two different agencies, DOI. and NitC, to address the very same issue. Petitioner Saporito has the right to seek review from the U.S. Court of Appeals following a final decision by D01. NitC should not become 2 Petitioner also claims that fonner i PL employees John Odom and Joe Kappes tied in their testimony in the DOL proceeding.1r.119. As best as I Pl. understands the allegation, and it is not at all clear from the transcript, Petitioner is claiming that Odom and Kappes did not disclose the reasons for FPL's reduction in Petitioners' tesel of access during their hearing testimony. This contentionis false. Odom and Kappes testined in both the 1989 and 1997 hearings in the DOL proceeding that one of the reasons for the reduction in access was a concern raised by the liargaining Unit that Petitioner should not hase access to sital areas of the plant. Therefore, there was no false testimony, contrary to Petitioner's allegations.
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involved in a D01, Section 210/211 proceeding. 29 C.F.R. I8.32; gg. Westinghouse Elec. Corg (hiadison, Pennsylvania), DD 97-7,45 NRC 258 (1997)(allegations relating to D01, cases fall within jurisdiction and authority of D01. rather than NRC).
5.
Petitioneralleged in the July 14 public meeting that FPL engaged in discrimination when it hired a law firm to " interrogate" him about safety concerns and because he filed a D01, complaint. Tr. 96. This allegation is incorrect. Then Turkey Point Vice President John Odom hired the law firm of Steir, Anderson & h1alone to conduct a independent investigation into allegations of harassment and intimidation made by hir. Saporito prior to his discharge. In fact, the NRC's Of fice of Investigations relied in part on the findings of the Steir Andeison linn in a 1990 investigationof Petitioners' allegations,and concluded that it could not substantiate allegations that the Steir Anderson firm engaged in misconduct, improper actions,or unethicalbehavior.2 The facts show that the retention of Steir Anderson was not a discriminatory act against Saporito.
6.
Petitioneralleged in the July 14 public meeting that FPl.'s labor counsel engaged in improper conduct in 1989 when they offered the presiding judge a ride to his hotel. Tr.126. This claim is absurd. The facts were that FPils labor counsel encountered Administrative I.aw Judge Anthony J. lacobo walking alone at night in downtown hiiami. FP11s labor counsel believed that the Judge could be in danger given the time of night and the location, and drove the Judge less than one mile to his hotel. There was no discussion of any fact in issue during that shart cr; ride.
Petitioner admitted in the July 14 public meeting that Judge lacobo disclosed the car ride on the 2Ssg 01 Report ofInvest gation," Alleged falsification'AlterationDestruction of Required Plant Maintenance i
Records and Possible liarassment and intimidation of Plant Technicians." Case No. 2 88 012, Jan. 22,1990.
record to Petitioners' counsel. Tr.130. This contact did not violate 29 CFR 18.38(a), which prohibits ex parte conununications concerning any fact in issue.
7.
Petitioner also alleges that 1 PL failed to produce the personal calendar of John Odom in the 130L proceeding. Tr.136. This allegation is witbout merit. Petitioner Saporito fails to mention that he did not request hir. Odom's personal calendar (i.e., his daily appointment book) until the fall of 1996. When Petitioner Saporito requested it,it was promptly produced. Further, there are no specific facts alleged by Petitioner that pertinent information on pages of the personal calendar were " whited out." Tr.136. During the July 14 public meeting, Petitioner Saporito asked NRC to investigate the "w hite out" which appears on the November 30,1988, page of hir. Odom's personal calendar.
During the 1997 remand hearing in Petitioner Saporito's DOL proceeding, FPL stipulated that items had been " whited out" on the November 30th page of hir. Odom's appointment book, llowever, there was no evidence that there was anything suspicious about the " white outs."
hir. Odom's 1988 appointment book contains entries in pencil and entries in ink. A number of the penciled entries have been crased and a number of the ink entries have been " whited out."
There are erasures and " white outs" on pages other than the November 30th page of the appointment book, in fact, there are crasures and " white outs" on the beginning pages of the appointment book w hich pages cover that period of time before Petitioner Saporito even began working at the Turkey Point Nuclear Plant.
It is clear that the crasures and " white outs" reneet canceled or rescheduled appointments.
If a scheduled appointment was canceled or rescheduled, it was erasec' (if the entry had been made in pencil); and it was " whited out" (if the entry had been made in ink). If requested by NRC, FPL 7
will produce a copy of the document in question and explain further the nature of the information that was " whited out" of the calendar, which pertained tc can:elled meetings with representatives of the Japanese Union of Scientists and Engineers that John Odom was originally scheduled to
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attend Accordingly, Petitioners' request for an NRC investiption of the " white ouis" should be
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summarily denied.
CONCLUSION
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Accordingly, there is no reason to grant any of Petitioner's requests in the Petition, as supp' mented. Ilased on the foregoing, the Petition should be denied.
Dated: August 13,1997 espectfully submitted, t
Mitche'il $/Ross Attorney, Law Department FLORIDA POWER & LIGIIT COMPANY 700 Universe Iloulevard Juno lleach, FL 33408 (561) 691 7126 Counsel for Licensee mm
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CERTIFJCATE OF SERVICE 1 hereby certify that a copy of the foregoing document was served on the following this 13th day of August by United States Mait, first class posta e preptid:
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1 hiitch611 SXR'oss
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James Lieberman Leonard A. Wiens
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Director, Office of Enforcement Senior Project Manager U.S. Nuclear Regulatory Commission Project Directorate 11-3 l
Washington, DC 20555 Division of Reactor Projects-1/II I_
Office of Nuclear Reactor Regulation
,,j U.S. Nuclear Regulatory Commission h
Washington, DC 20555 Richard P. Croteau Frederick J. liebdon e
Project Manager Director, Project Directorate 11-3 Project Directorate 113 Division of Reactor Projects Division of Reactor Projects-l/Il Office of Nuclear Reactor Regulation Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory C'ommission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Jon R. Johnson Senior Resident inspector Director, Division of Reactor Projects St. Lucie Plant U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Region H 7585 S. Highway A1 A Atlanta Federal Center Jensen Beach, FL 34957 61 Forsyth Street, SW Suite 23T85 Atlanta, GA 30303 Senior Resident inspector U.S. Nuclear Regulatory Commission Turkey Point Plant Docs nent Control Room U.S. Nuclear Regulatory Commission Washington, DC 20555 P.O. Box 1448 Homestead, FL 33090
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~ Michael Stein ;
Susan Chidakel '
- . Director, Office of Enforcement Office of General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear RegulatoryCommission
- Washington, DC 20555" Washington, DC 20555' f
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