ML17352A612

Forwards Memo in Response to 940307 10CFR2.206 Petition & 940323 Suppl Thereto Filed by Tj Saporito.Response Describes Circumstances Which Led to Saporito Being Terminated & Also Addresses Questions Raised in Recipient 940407 Ltr

ML17352A612
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	05/20/1994
From:	Goldberg J FLORIDA POWER & LIGHT CO.
To:	Lieberman J NRC OFFICE OF ENFORCEMENT (OE)
References
2.206, L-94-126, NUDOCS 9406030197
Download: ML17352A612 (251)

Text

ACCELERATED D10'RIBUTION DEMONSMTION SYSTEM REGULATORY INFORMATION DISTRIBUTION SYSTEM (RIDS)

ACCESSION NBR:9406030197 DOC.DATE: 94/05/20 NOTARIZED: NO DOCKET FACIL:.50-250 Turkey Point Plant, Unit 3, F3:orida Power and Light' 05000250 50-251 Turkey Point Plant, Unit 4, Florida Power and Light C 05000251 50-335 St. Lucie -Plant,. Unit 1, Florida Power & Light Co.- , 05000335 50-389 St. Lucie Plant, Unit 2, Florida Power & Light Co. 05000389 AUTH'AME AUTHOR AFFILIATION.- --,= r GOLDBERG,J.H. Florida Power &. Light, Co.

RECIP.NAME RECIPIENT AFFILIATION LIEBERMAN,J. Ofc of Enforcement (Post '870413)

SUBJECT:

Forwards memo in response to 940307 10CFR2.206 petition &

940323 suppl thereto filed by TJ Saporito.Response describes circumstances which led to-Saporito 'being terminated & also addresses questions raised in recipient 940407 ltr.

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Florida Power B Light Company, P.. ox 14000. Juno Beach, FL 33408.0420 MAY 2 O 3990 L-94-126 Mr. James Lieberman

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Director-; Office .of-Enforcement United States Nuclear Regulatory Commission

'Washington,- DC: 20555

Subject:

. Turkey Point Units'3 and 4 Docket Nos. 50-250 and 50-251 St. Lucie Units 1 and 2 Docket Nos. 50-335 and 50-389

. 10 CFR 2;206-Petition Filed b Thomas J. Sa orito

Dear Mr.:

= Lieberman:

Attached is 'our memorandum in response to'the March 7, 1994, 10 CFR 2.206 petition and March 13, 1994 supplement filed by Thomas J.,

-Saporito, Jr. As you requested, the attachment also addresses the questions raised in your letter of April 7, 1994.

As more fully described in the attachment, the petition (including the supplement) is wholly without merit. The petition simply repeats allegations previously made by Mr. Saporito which the NRC and DOL have already extensively considered and determined do not warrant further action. The petition provides no grounds for the NRC to institute a revocation proceeding or for the baseless charge that FPL has taken action with respect to Mr. Saporito which has a "chilling effect" on employees who wish to raise safety concerns.

In that connection, NRC inspection results and previous NRC decisions relating to earlier petitions containing the same allegations directly contradict many of Mr. Saporito's contentions.

In these circumstances, if it would also be wholly inappropriate, even within the Commission's authority, for the Commission to take any of the actions relating to back pay and compensatory damages requested by Mr. Saporito and it would be similarly inappropriate for the Commission to inject itself into the proceedings related to Mr. Saporito now before the Department of Labor.

The attached response describes the circumstances which led to Mr.

Saporito's being terminated, as developed in seven days of evidentiary hearings before a Department of Labor Administrative Law Judge conducted in 1989. Those hearings examined the reasons for Mr. Saporito's discharge referred to in your April 7, 1994

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~ ~ letter and alleged as the basis for the relief requested in Mr.

Saporito's latest petition. After a thorough review, the Judge denied Mr. Saporito s claims. Specifically, the Judge determined that the" actions taken against Mr. Saporito were not motivated by any protected activity, but that the actions "by FPL and its management personnel were a result of [Mr. Saporito's]

contentiousness and recalcitrance as an employee. Saporito's 9aOao=.OSV7 Se0520 PDR ADOCK 05000250 an FPL Gruup company PDa fj I4

Kr. James Lieberman Hay 20, 1994 Page 2 di charge resulted .:solely from his';crossing: the - line:; from >.

contentiousness ='and '

recalcitrance "--'into :.the area of

.insiSo:dination."

r l a. i<<41

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l

In response>> to yaur

;request',':-th'e attachment -'.also addresses< the

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circ~stances "in which FPL believes it is appropriate-;to=..inquire about employees.'afety -concerns, whether or not'these concerns have been disclosed to the NRC. As" recently noted by chairman Selia; ".[i)t 'is not the NRC,,- but;- the licensee"who has the fj.rst responsibi'lity 'or safety" and that .the. commission,.".encourages employees to report violations immediatp3.'y-"to their.-supervisors.so the licensee can. investigate and resolve issues." ;5 number of NRC requestion, regulations,,-'in effect now '.and. ~t ..the.:~time . of .the events=.;in either explicitly- require employees to report unsafe conditions or clearly contemplate that employees will-do so..~ This

,policy .is obviously appropriate. The-..prompt identification and correction of safety problems is essential to nuclear safety and a cornerstone of NRC's regulations. As a practical matter, both licensees and the NRC rely on plant personnel to identify- safety,

-issues that come to their attention. The ability of .the licensee and ;the NRC to assure public health and safety is impaired if employees fail or:refuse to report .them.

Consistent with these principles, FPL s policy is to direct employees to report safety concerns to their immediate supervisor or to a higher management individual, or to report them through the Company's employee concern program. As an alternative, employees are also advised that they can report any concerns to the NRC.

In this case, Mr. Saporito, in November, 1988, openly announced that he had safety concerns, but refused to tell licensee management the nature of those concerns. Therefore, licensee management specifically directed Mr. Saporito to immediately report his"concerns to the NRC. Despite his present assertions, the fact is that Mr. Saporito did not report his claimed safety concerns to either FPL or the NRC at the, time FPL directed him to do so. He therefore effectively precludec'ither FPL or the NRC from evaluating the significance of those concerns from an operational safety perspective in a timely way.

One further matter warrants the Commission's attention and action.

For over five years, Mr. Saporito has filed numerous complaints and instituted duplicative and redundant proceedings against FPL before both the NRC and the Department of Labor. To date, all of these.

proceedings have been found to be without merit and based largely upon insupportable 'allegations; in no case has the action requested by Mr. Saporito been found to be warranted. As early as 1990, one DOL investigator concluded that Mr. Saporito was using the legal remedies made available to licensees'mployees "to terrorize the company [FPL] rather than being a victim>> and that "Mr. Saporito

Mr. James Lieberman Fmy 20,

- 1994 Page 3-e I Ik will continue to level charges at Florida Power & Light," until he receives monetary compensation one way or the other." - Zhe. current petition and. supplement, filed more thanthan'he-"latest five years after Mr.

Saporito left Turkey Point, are wo more round in Mr. Saporito's" campaign, attempting

- to en'list NRC and other governmental processes in support of" his 'effort to coerce a

-

financial settlement from FPL.

FPL is harmed by Mr. Saporito's continuing mi'suse of the NRC's processes but this cost does not fall on .just FPL. These repeated unfounded claims "have led - to 'xtensive investi'gations and expenditures, of resources by the NRC and the Department of Labor, and breed cynicism- among licensees, -"employees and members of the public who are seriously concerned about nuclear safety. We therefore-urge the NRC to review the petition in the context of the many prior unsubstantiated claims and proceedings which Mr.

Saporito has filed relating to Turkey Point and take whatever action is appropriate to stop this ongoing abuse.

,A We recognize and appreciate the Commission!'s obligation to treat fairly all who avail themselves of the remedies-provided by law and the NRC's regulations to raise safety and related concerns.

However, where, as here, there exists a prolonged history of frivolous, repetitive claims which as noted by a DOL investigator appear to be motivated by private, pecuniary gain some restraint is called for. We submit that, in dispositioning any future filings of this type by this petitioner which contain no new information, the Commission should not as in this case seek further views of the licensee or otherwise attenuate the process but rather dismiss the pleading summarily with a caution to the petitioner that the Commission's processes shall not be further abused.

Respectfully, J. H. Goldbe President, Nuc r Division JHG:abk Enclosure

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~~

~ cc: Chairman Ivan Selin Commissioner Kenneth C. Rogers Commissioner Forrest J. Renick Commissioner Gail de Plangue Senator J. I. Lieberman vNRC Document Control Desk

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MEMOB2QG)UM IN RESPONSE TO MARCH 7,'1994 10 CFR 2 206 PETITION AND MARCH 23'994 SUPPLEMENT THERETO FILED BY THOMAS J. SAPORITO, JR.

MEMORANDUM IN RESPONSE TO XO CPR 2.206 PETITION PILED BY THOMAS J. SAPORITO JR.

INTRODUCTION This memorandum responds to the March 7, 1994, 5 2.206 Petition 1/ and March 13, 1994, supplement thereto, filed by Thomas J. Saporito, Jr., 2/ and the associated inquiries in an April 7, 1994, letter transmitted to Florida Power. G Light Company ("FPL") by the Nuclear Regulatory Commission ("NRC")

Director of Enforcement. As more fully described below,'his 2.206 petition is without merit, contains factual inaccuracies and misleading statements, and is premised on an incorrect understanding of NRC law and policy. Mr. Saporito's Petition is an attempt to reopen matters that have already been exhaustively reviewed by the NRC and the Department of Labor ("DOL"), and to enlist the NRC in his campaign of redundant and meritless proceedings to extract money from FPL ~

Mr. Saporito's Petition requests: (1) that the NRC file an amicus curiae brief "regarding issues of fact" 3/ in a DOL proceeding initiated by Mr. Saporito (the evidentiary heari::gs in that case were concluded more than five years ago and resulted in a recommended decision adverse to Mr. Saporito); (2) 1/ Letter from Thomas J. Saporito, Jr. to NRC, dated March 7, 1994 (hereinafter referred to as "Petition" ).

2/ Letter from Thomas J. Saporito, Jr. to NRC, dated March 13, 1994 (hereinafter referred to as "Supplemental Petition" ) .

3/ Petition at 1.

0 that the.NRC institute a show, cause proceeding to suspend, revoke, or "modify, the, operating license for the Turkey Point nuclear plarit;.and:(3) .t;hat'~.NRC institute a,proceeding and order FPL to:reinstate Mr. Aayorito, and pay.him "back. wages, a-'c." lO '> Y i> 4i I front pay, compensatory damages for...pain and:suffering,"siY and take 4a I f i hi other actions. 4/

As shown below, Mr..Saporito has provided no sound basis for any of the requested actions. Hi.s Petition rests II entirely on allegations that were thoroughly reviewed by the NRC C

many years ago and have previously been determined not to warrant further action. Accordingly, the Petition should be denied summarily and in its entirety. Furthermore, the Petition, viewed in the context of prior filings, stands as a clear case of abuse of the NRC's processes, resulting in a waste of both NRC and licensee resources and diverting attention from legitimate efforts to ensure nuclear plant safety. As such; FPL requests that the Commission take such action as will make clear that it will not countenance further baseless and redundant filings by Mr. Saporito in the future.

ZI. THE ALLEGATIONS IN THE PETITION ARE REPETITIONS OF CLAIMS THAT HAVE PREVIOUSLY BEEN INVESTIGATED AND DETERMINED TO BE BASELESS At the core of Mr. Saporito's allegations is his discharge from employment by FPL in 1988. The facts and, circumstances surrounding that discharge have previously been 4/ Petition at 2.

0' L3 extensively, litigated before the DOL,and have. aXpo been the subject of numerous previous 5,2..206 petitions and letters to the NRC. As furth~ describad below, both:tQe;g)OL; and ~e NRC have r i" 5 already determined that @he allegations.advanced Wy Mr. -Saporit'o are- meritless and- warr'ant-,no relief.

r Q v Long before he .claimed to have any nuclear safety concerns, Mr. Saporito's empl'oyment wither FPL was characterized by

'I ~ ~ I\

mediocre work performance and'disciplinary actions, including suspensions and demotions. In, addition, prior-to asserting any alleged nuclear safety concerns, he claimed on numerous occasions to have suffered:."harassment," i"mental duress~" "humiliation and v <

grief, " "discrimination, ". and "extreme stress" concerning a variety of issues, and demanded millions of dollars in payment from FPL. At'one point, M . Saporito .alone had more than 50 separate grievances pending, and was responsible for more than one-half of all of the Union grievances at the Turkey Point plant, which employs more than 700 people.

Mr. Saporito's ultimate discharge was the direct result of three separate acts of insubordination in response to entirely reasonable requests by FPL management. The facts and circumstances surrounding Mr. Saporito's discharge are thoroughly described in the recommended decision of the DOL Administrative Law Judge ("ALJ" or "Judge" ) who heard the contemporaneous testimony of Mr. Saporito and those who supervised and worked with him. After hearing this testimony and weighing the evidence, the Judge determined that Mr. Saporito's discharge was

0 "in no way'motivated by Complainant.'s protected activity. >>- S/

-The Judge summarized his findings as follows:

'-'The actions='taken. against [Mr "'Saporito] by- FPL -. ".

and its management personnel were a result of -his

'.. contentiousness and recalcitrance as. an employee;=.

Saporito's discharge resulted solely from his crossing the line from contentiousness into the area of insubordination. 6/

and'ecalcitrance The Judge's determination was based in large measure on h

determ'nations regarding Mr. Saporito's credibility made during C.

the hearings. Afte hearing Mr. Saporito's own testimony and that of other witnesses, the Judge determined that several of the particular allegations advanced by Mr. Saporito could not be believed and were not true. 7/

In response to 2.206 petitions and other letters filed by Mr. Saporito in 1988 and 1989, in which Mr. Sapor'o repeated the claims he had advanced before the DOL, 8/ the NRC also evaluated the circumstances surrounding Mr. Saporito's d'scharge.

The NRC's evaluation included Mr. Saporito's allegation that his discharge had a "chilling effect" on other employees at Turkey Point. The NRC Directo" of Nuclear Reactor Regulation ("NRR")

reviewed the DOL Judge's decision and determined that:

5/ Sa orito v. Florida Power & Li ht Com an , 89-ERA-7, 89-ERA-17, slip op. at 18 (June 30, 1989). A copy of this recommended decision is appended as Attachment 1.

6/ Id. at 21.

7/ Id. at 19-21.

8/ See Florida Power & Li ht Com an , (Turkey Point Nuclear Generating Plant, Units 3 and 4), DD-90-1, 31 NRC 327 (March 22, 1990) .

Because ..the.DOL Administrative Law Judge did not-substantiate petitioner's allegation, and because nothing~n the Petition or'therwise available to me leads me to conclude the Petitioner's allegat'ion [that ~he was discriminated against for engaging in protected activity] is valid, I hive concluded'-that'here -is no basis. for the requested relief. 9/

Similarly, with respect to Mr. Saporito's claim that a "chilling effect" upon other employees resulted from his 1

the Director noted that the NRC Office of j'ischarge, k

1nvestigations ("OI") had conducted an investigation of those claims and that:

The 'OI investigation concluded, based upon the large volume of testimony received from numerous interviewees and the extensive review and analysis of pertinent records, correspondence, and documents, that the alle ations of em lo ee harassment the chillin effect condition and Licensee discrimination a ainst individuals who re orted or identified nuclear-safet -related concerns could not be substantiated as alleaed. 10/

Based on these facts, the Director determined that "no basis exists for taking the actions requested by the Petitions In sum, Mr. Saporito's current allegations are simply a rehash of the claims he made to the DOL and NRC in 1988 and 1989.

Those claims were thoroughly evaluated in contemporaneous hearings, investigations, and decisions and found to be without 9/ Id. at 331. The Director noted that it would consider the matter further depending upon its ultimate resolution by the Secretary of Labor.

10/ Id. at 330-331 (emphasis added).

11/ Id. at 331.

6 merit;, the current petition contains no new facts and ..should.he "similarly rejected.

~ ~ '. k (( '( '(( (

III. WERE FPL' - INQUIRIES .AS TO.-MR. SAPORITO'.S !ALLEGED SAFETY CONCERNS ENTIRELY PROPER AND MOTIVATED BY MANAGEMENT' SAFETY OBLIGATIONS (

In his April 7;:- 1994 letter to FPL, the Director. of

,Enforcement requested,FPL to describe the circumstances .under which it "believes it is appropriate to inquire about employees'afety concerns, whether~or not these concerns have been raised to the NRC," 12/ and to describe the circumstances-under which

\

FPL sought to =,obtain"information regarding-,Mr. Saporito's alleged

.safety concerns.

FPL's policy towards employee safety concerns balances the overriding interest in protecting -the public health and safety through timely notification of safety concerns against an employee's choice to take his concerns directly to the NRC. The policy reflects that safety problems can be detected and corrected only if employees report them, and that employees must feel free, without'ear of discrimination or retaliation, to report concerns to either the Company or the NRC. FPL directs its employees to report concerns by informing appropriate supervision or management or the Company's confidential employee concern program, Speakout. As an alternative, employees are directed to inform the NRC of their concerns.

12/, Letter from James Lieberman (NRC) to FPL, dated April 7, 1994, at 1.

Wit'h -r'espect to iziquiring'bout-"a particular employee's concerns,i."f management becomes'ware that an employee=has concerh, 'FpL be3.'iives chateiRis entirely proper to a'safety

"'inqu'ix'e about the-*'specific nature 'of the concern 'so'that it can be evaluated and 'corrected; This policy i's c'ons'istent with, and necess'itated by, FPL's obligation'to protect the public health and safetyin the operate'o'n of'ts nuclear facilities'"and by NRC regulations designed-'o "ensure'hat this obligation 'is fulfilled.

A'undamental basis 'of nuclear" power'lant regulation is that when a safety p'roblem is identified, the licensee is responsible for evaluating that problem and taking act'ion to assure that'lant safety is maintained and that the problem is corrected. As recently noted by NRC Chairman Selin, "the licensee . . . [has] the first responsibility for plant safety. In that regard, the NRC encourages employees to rep"rt violations immediately to their supervisors so that the licensee can investigate and resolve the issues." 13/

Numerous NRC regulations and policies explicitly or implicitly require that safety problems identified by employees be promptly reported to the licensee. For example, the Quality Assurance Criteria for Nuclear Power Plants require that:

Measures shall be established to assure that conditions adverse to quality . . . are-promptly identified and corrected. . . . The identification of the significant condition 13/ Testimony of NRC Chairman Ivan Selin before the Subcommittee on Clean Air and Nuclear Regulation, Committee on Environment arid Public Works, United States Senate, dated July 15, 1993.

=-adverse-to*quality,.the cause'of--the condi:-

tion, and the corrective action taken shall be* documeated= and re rted to a ro riate levels of mana ement. 14/

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q () g f( jjlC ('l'< l .Jdl-,kl ills ~ '

LJJI Similarly, Commission regulations- requ'ire licensees to .train .all

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individuals given access to the plant's protected area on their responsibility to report concerns to management. Specifically, 't I ~

the regulations state that:

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All individuals working in or frequenting any portion of a restricted area . . ;> shall be instructed of their responsibility to report

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promptly'o the" licensee any condition -which.may lead to or cause a violation of Commission regulations . . . . 15/

The obligations of NRC rep'orting requirements, such as those contained in 10 C.F.R. 5 50.72, 5 50.73, and 10 C.F.R. Part 21 are similarly dependent upon a licensee's ability to elicit safety concerns from its employees. For example, 10 C. F. R. 5 21.21(a)(3) provides that licensees must adopt procedures to ensure that responsible officers and directors are notified of defects in plant basic components or failure to comply with Commission regulations. 16/

14/ 10 C.F.R. 50, Appendix B, Criterion XVI., "Corrective Action" (1994) (emphasis added) .

15/ 10 C.F.R. 5 19.12.

16/ The NRC's enforcement policy also provides that individuals who conceal safety problems from the licensee may face individual enforcement action. 10 C.F.R. Part 2, Appendix C, Criteria VII1 "Enforcement Actions Involving Individuals" provides examples of situations which could result in enforcement actions against individuals, including

"[wj illfullywithholding safety significant information rather than making such information known to appropriate supervisory or technical personnel in the licensee's (continued...)

.These are good reasons for these requirements.'lant technical specifications and. Commission regulations often require rapid action.,= For ~,example,',the; determinMipn.'that a...problem with I

a piece -of.",equipment renders it inoperable "may require action

, within as, little,as aae hour

~ after the;dj.scovery:.-of the problem;

,some= items require. immediate action. 'Similarly, obligations .to report 'certaintypes of conditions to'..the;.NRC,-state.and local

'authorities, and the Federal Emergency Management Agency are IE often imposed on an. immediate or one, hour basis. Clearly, if employees- know of safety concerns, but do not reveal them, the

.licensee cannot'take action to comply with these safety,-

reporting, and notification requirements.

In addition, many safety concerns are complex in nature. A detailed understanding of plant-specific system and' corn;,;nent functions may be required in order to assess effects on system or component operability or overall safety significance.

Such determinations often require the resources of licensed plant operators, safety committee personnel, and engineers who have been trained on the specific workings of the nuclear plant and are licensed to take appropriate operational action in order to ensure that the plant continues in a safe condition. Unless the employee describes the nature of the problem, there is no way to evaluate it and take appropriate action.

16/(...continued) organization." Enforcement sanctions specified in such cases include removal of the individual from all nuclear-related activities.

0 10 Based. upon .these'.-considerations,,:once. an employee .

announces that,he.or she:has' safety-concern,,'PL believes that it is~incumbent upon~the"licensee to inquixeggs to the nature of that- concern so that- it..-can. be.:promptly evaluated .and'ddressed.

"This policy, must,Ne appl'ied.with reason." FPL instructs employees-'.that they may,: as-an,alternative;to=.speaking directly to the Company, raise=concerns -wit) the NRC. While,ultimately it is=. the licensee t5at has" the licensed. oPerators, technical resources, and physical control of the. plant necessary to take action to"ensure safety, the Company recognizes that some employees may wish to take thej,r, concerns to the NRC, and that it is their right to do so. Accordingly, in cases where employees choose not to divulge their safety concerns through the means available at FPL, the Company directs them to bring those concerns to the NRC. If they report their concerns to the NRC, the Company does not question them about the nature of their discussions with the NRC. Nor, when the NRC investigates allegations it has received, or passes on such allegations for FPL to review, does FPL attempt to determine the identity of the alleger. FPL believes that this policy represents a sound balance between the need to quickly obtain and address information regarding potential plant safety problems, and the need to ensure that personnel feel free to bring concerns to either the Company or the NRC.

FPL's inquiries as to Mr. Saporito's alleged safety concerns were entirely proper and fully consistent with these

policies. The circumstances under which those inquiries. took place may be summarized as follows:

1. " Mr.-.;Saporito had voluntarily .announced to. FPL .,

management that he,had nuclear safety concerns. He did not try to keep his identity secret. He was not 'a "confidential" infcrmant .

2. Mr. Saporito did not,state that he had disclosed his nuclea safety conc'erns to the -NRC.- The FPL personnel-- who requested that Mr. Saporito:disclose his concerns did not believe that those concerns had'een communicated to the NRC:, Indeed, NRC personnel later told FPL, that Mr. Saporito had not described his safety concerns to them, but that they had encouraged Mr.

Saporito to inform FPL of his concerns. 17/

f

3. FPL was not aware of the substance of Mr. Saporito's nuclear safety concerns when he was directed to disclose them and.

'did not have any way to evaluate their significance for plant safety without more information.

17/ Mr. Saporito now claims in his current Petition that "everyone involved knew [that these concerns] had already been reported by Petitioner to the NRC." Petition at 7. In fact, Mr. Saporito had not reported those concerns to the NRC, but indicated that he would do so. The responsible FPL officer then directed Mr. Saporito to disclose his concerns to the NRC at the first available opportunity. Several days later, in a discussion with the NRC's Allegations Coordinator for Region II, FPL management learned that Mr.

Saporito did not follow this direction and had not disclosed his concerns to the NRC. FPL management was also informed at this time that the NRC had specifically encouraged Mr.

Saporito to inform FPL of his concerns. Mr. Saporito also refused to disclose his concerns to local union personnel.

See Sa orito v. Florida Power G Li ht Com an , 89-ERA-7,.

89-ERA-17, slip op. at 9-12 (June 30, 1989).

12

-4. Although Mr. Saporito asserted that his concerns would not 'immediately affect the public's health and safety-; he pr'ovided no basis for this judgment.----FPL management did not believe that Mr. Saporito was necessarily in a position to know whether or not 'his concerns had immediate safety sign'ificance.

VQ P Mr. Saporito had"'no licensed operator training, was not'rained or qualified to -make operability-'determinations g 1 I'LL ~ pre, regarding y Pl Turkey Point systems, structures, oi'omponents, and'as not qualified by tra'ining or *procedure to ascertain whether plant activities were in compliance with the plant's technical specifications.

5. Therefore, FPL directed Mr. Saporito to disclose his nuclear safety concerns. Tne responsible officer felt that, given his legal and professional obligation to resolve any identified safety problems at the plant, he had no choice but to attemp- to determine the substance of alleged safety problems.

When Mr. Saporito refused to describe his concerns, FPL specifically directed Mr. Saporito to immediately report those problems to the NRC. Mr. Saporito did not. do so. 18/

These circumstances are described in substantially more detail in the DOL Judge's recommended decision (Attachment 1).

Notably, after hearing the testimony of Mr. Saporito, the FPL 18/ Mr. Saporito's behavior, including his refusal to divulge his alleged safety issues, was of such concern to his co-workers that local union officials took the highly unusual step of requesting FPL management to restrict Mr. Saporito from access to the vital area of the Turkey Point plant.

The union personnel explained to FPL management that they were concerned that Mr. Saporito might try to justify his as yet unspecified claims by creating safety problems.

Id. at 10.

4 0

13 management '-personnel-.involved, and .Mr.'.'=Saporito's .co;workers, the I

I Judge determined that =the inquiries by FPL management.-were entirely reasonable and .were motivated by a desire. to fulfill FPL's health and..=safety'bligat'ions.~<19/

As officers and employees of an NRC licensee, the FPL management personnel involved. were directly 'charged-with assuring that the: plant ran. safely .and,:in, compliance with MC regulations.

Zf a safety problem existed, it was their duty.to promptly evaluate it and take whatever.actions. might be necessary to maintain the plant in a safe condition, to comply with NRC reporting requirements, and to comply with the Turkey .Point Operating License and Technical Specifications. Without any specific information as to the nature of the safety problems allegedly identified by Mr. Saporito, they could not fulfill these obligations. Since the only available source of information on the alleged problems was Mr. Saporito, they had no reasonable choice but to ask what his concerns were. Not to have done so would have been tantamount I

to ignoring management's responsibility for plant safety, operating license requirements, and reporting requirements. Furthermore, it was entirely unreasonable, and contrary to explicit and implicit NRC regulation and policy, for Mr. Saporito to refuse to report his alleged safety problems to either FPL or the NRC.

14 IV. THE 2.206 PETITION IS AN IMPROPER ATTEMPT TO CIRCU?%TENT THE DOL'S APPEAL PROCESS SPECIFIED IN SECTION 210/211 OP THE

- ENERGY REORGANIZATION ACT OP 1974 A. An NRC Hearin Concernin :Mr.'a orito'.s -Alle ations Would Be an Im ro er Du lication of the Statutor DOL

, Process Mr: Saporific's request that the NRC institute a-.show cause proceeding regarding his 1988 discharge and " 'any chilling effect'hich may have been instilled . .. ;" [at FPL] as a result of [this] discharge, "20/ would be an improper- and

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unnecessary duplication of DOL's process set forth in Sanction 210/211- of ERA. Congress aut.'horized the DOL to investigate complaints of,whistleblower'retaliation and to provide relief where a violation is found. Section 210/211 specifically prov'es that:

Any employee who believes that he has been discharged. or otherwise discriminated against by any person in violation of subsection (a)'f this section may... file... a complaint with the Secretar of Labor . . . alleging such discharge or discrimination. 21/

Upon the receipt of a complaint:

[T] he Secretary [of Labor] shall conduct an investigation of the violation alleged in the complaint... [and] issue an order either providing the relief prescribed in" subparagraph (B) or denying the complaint. 22/

20/ Petition at 2, 3.

21/ 42 U.S.C. 5 5851(b)(1) (emphasis added).

22/ 42 U. S. C. 5 5851 (b) (2) (A) .

Congress also provided that:

Any person adversely affected or aggrieved'by an order . . . may obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the-order-was"issued, allegedly occurred. 23/

Further, 'action by the 'NRC 'that duplicates the DOL's proceeding is"-inappropriate 'because U

it would all'ow Mr. Saporito to get "two bite's at the apple" -- in effect, filing the same grievance in "two different'agencie's. It is a wel'l establ'ished principle that parties should not be afforded a second opportunity to argue the saee issues in another forum oi to introduce'new evidence that could have been produced in an earlier proceeding.=24/ This principle is justified by reasons 23/'2 U.S.C. 5 5851(c). Congress specified that the filing of a complaint with the DOL and the DOL's investigation should not delay the NRC from taking appropriate action "with respect to an allegation of a substantial safety hazard."

I 42 U.S.C. 5 5851(j). This statutory exception, however, is inapplicable because, as already determined in previous NRC decisions on earlier petitions containing essentially, the same allegations, Mr. Saporito has failed to raise in his Petition any such issues. See the NRC decisions cited in Sections II and V.

24/ See, e.cC,, Combustion Enaineerin Inc. (Hematite Fuel Fabrication Facility), LBP-89-25, 30 NRC 187, 191 (1989)

(" It appears sensible . . . not to afford a party two bites at the apple."). See also. EEOC v. Westin house Elec. Cor 925 F.2d 619, 631 (3d Cir. 1991) ("A remand should not be ordered when 'two bites of the apple'ould be given to a litigant who . . . has neglected to produce evidence to support a desired finding and has, therefore, failed to carry the requisite burden as to a particular issue.");

Northwestern Indiana Tele hone v. FCC, 872 F.2d 465, 471 (D AC. Cir. 1989), cert. denied, 493 U.S. 1035 (1990) (no second opportunity afforded to comply with administrative exhaustion requirements because "[t)he efficiency and fairness values served by exhaustion principles would be seriously compromised if agencies were obliged to furnish (continued...)

16 of economy and:fairness., 'Zt clearly applies'o Mr. Saporito who is requesting, 'five years.'.after an initi'a'1.trial an'd'ecision by the ALJ, that the NRC provide -him yet'nother opportunity to.re-litigate the fact's- upon'hich the. DOL ALJ issued a recommended decision adverse to him, and which the NRC has already reviewed and-determined not 'to warrant action.

As explained ix Sections II arid V,. Mr. 'Saporito's clai;ms were already"ful'ly liti'gated in the DOL proceeding. It would be an incredible duplication of effort and waste of governmental resources to hold yet another hearing on these matters. 25'/, Mr. Saporito .was discharged in December of 1988, The DOL's hearing was held in February of 1989. More than five years have passed since the hearing. As a practical matter, given the passage of time, it,,would be extremely prejudicial, and contrary to the statute cf limitations imposed by 5 210/211 of 24/(...continued) such second bites at the apple."); Szubak v. Secretar of Health E Human Services, 745 F.2d 831, 834 (3d Cir. 1984)

(claimants should be affordei only one fair opportunity to demonstrate eligibility for benefits under any one set of circumstances because otherwise "[a] claimant might be tempted to withhold medical reports, or refrain from introducing all relevant evidence, with the idea of

'obtaining another bite of the apple'f the Secretary decides that the claimant is not disabled.") .

25/ See, e. cC,, General Electric Co. (Wilmington, North Caiolina Facility), DD-86-11, 24 NRC 325, 332 (1986) (" Generally,

.when a complaint has been filed with [DOL] alleging d'scrimination by an NRC licensee, the NRC defers its consideration of the matter until [DOL] has acted. This policy avoids duplication of effort and the needless expense of resources.").

t the ERA, A

his claims before the -NRC.

t 17 to permit Mr. Saporito to institute t

a new proceeding on Finally, Mr. Saporito will "receive'wo plenary reviews of the ALJ's recommen'ded decision. First, the .Secretary of Labor will issue a final order'based not only on the recommended decision of the AL'J, but also on the record as a whole. 26/

the decision of t'e Secretary of Labor is adverse to Mr.

Saporito, he may appeal the order to a U.S. Court of .Appeals. 27/

The record of the proceedings b'efore the ALJ will then. be transmitted to 'the appellate court, which will make yet another review of Mr. Saporito's case. 28/ The statutory framework established by Congress does not provide for the NRC to interfere with proceedings before the DOL. In sum, NRC intervention in the DOL case*is neither legally author'zed nor equitably justified.

B. The Personal Relief Re ested b Mr. Sa orito Can Onl Be Obtained from the DOL Mr. Saporito's request that the NRC "provide (him] with a 'make whole'emedy," including reinstatement, frontpay, backpay, and damages for "pain and suffering" 29/*is inappropriate because the NRC does not have authority to afford such a remedy; relief of this type can be obtained only through 26/ 29 C.F.R. 5 24.6 (b) (1) .

27/ 42 U.S.C. 5 5851(c) .

28/ 29 C.F.R. 5 24.7(c).

29/ Petition at 2.

0 the. DOL. 30/ The NRC has. itself recognized that it. is without authority to provide "traditional.,- labor-related remedies to 4ndivjduals fear their losses resulting from, discrimination." 31/

Similarly- --

p-,=; ...(. =

n The. Cqmmissj.on' current,-employee protection rules, including 5 .50.7, are derived from 5 210 of

.;.)he,EnergyReorganization Act of 1974, as amended.

Section 50.7 itself states, "[t]he protected

,,";,,: activities arg, establishedin Section 219..;"

~.Section- 210,provides employees who.pave been the. ".

"-=victims of.. impermissible .discrimination with a direct means of obtaining a remedy against their employer. including -obtaining job,reinstatement and back pay. The responsibility for administra-

tion of the employee remedies under 5 210 rests with the Secretary of the United States Department of Labor. 32/

Chairman Selin has similarly stated:

Where an alleger suggests that discrimination may have already occurred, we emphasize to the individuals that, if they want a personal remedy for the discrimination, they mtxst contact the DOL promptly. It is not that we force them to go to the DOL, but we make it clear that we are not in the position to give them this remedy. 33/

Further, Mr. Saporito's request to shutdown FPL's Turkey Point plant and to impose on FPL a posting requirement to offset any "chilling effect" his termination may have had on 30/ 42 U.S.C. 5 5851(b)(2)(B). See discussion at pp. 14-17 above.

31/ Nuclear Enercr Services, DD-93-16, 38 NRC 255, 260 (1993).

32/ Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), DD-85-9, 21 NRC 1759, 1764 (1985) (citations omitted) .

33/ See Testimony of NRC Chairman Ivan Selin before the Subcommittee on Clean Air and Nuclear Regulation, Committee on Environment and Public Works, United States Senate, dated July 15, 1993.

19 other FPL employees is neither'.warrante'd nor'ppropriate. Mr.

Saporito does'ot i=ite any authority or'pecific evidence to .

t support'-his assertions that FPL's Turkey"Point:pplant is operated

~ ~

1>>

in an unsafe"-manner and'that.his':dis'charge resulted in, any "chilling effe'ct." C4 In"fact, this "chilling effect" allegation was previously made by-Mr; Saporito.in the 2.206 'peti.'tions he filed in 1988 and 1989. In 1989, an NRC -invest3.gati'on determined that 1 ~~

these allegations could not be substantiated, and that there was

'

no basis for granting relief regiiested by Mr. Sapor'ito. 34/ The NRC conducted' second investigati:on in 1991 to determine if any "chilling effect" existed at FPL which discouraged the reporting of safety, concerns. Although that investigation related to FPL's nuc ear engineering department, it is significant that the NRC concluded that "[t)here was no evidence found to substantiate the allegations of an overall atmosphere of intimidation, threats, coercion, harassment, or negative evaluations to limit the pursuit of safety issues." 35/

The NRC has found FPL's nuclear plants to be free of any "chilling effect" on other occasions since Mr. Saporito's discharge. For example, between September 21 and October 15, 1993, the NRC conducted a comprehensive inspection of FPL's St.

Lucie and Turkey Point Nuclear Safety Speakout Programs to 34/ See pp. 4-5 above.

35/ NRC Inspection Report Nos. 50-250/91-45 and 50-251/91-45, Executive Summary at p. ii.

20 evaluate their- effectiveness "in addressing safety concerns. The NRC examined procedures and records, and interviewed numerous FPL personnel.

• The'nspection identified "no-viola=ions or deviat'ions.". 36/ *In particular, the NRC concluded that FPL's Speakout Program encouraged employees to'-.share any concerns with their supervisors:" 37/

Kith-respect to. the procedures implementing the I

Speakout Program, the NRC found them to be'comprehensive and r p detailed, including 82 pages of. instructions andr forms." 38/ The gs inspectors'also found that the "personnel administering the p ro g ram were well qu alified and adequate resources had been committed to ensure program implementation." 39/

Moreover, the NRC inspectors interviewed numerous FPL employees including: Senior Managers; Speakout Program supervisors and investigators; and 50 other FPL employees (including 20 from St. Lucie, 20 from Turkey Point, and 10 from Juno Beach). The employees interviewed included representatives from various levels (i.e., technicians and supervisors) in various disciplines, including: engineers; operators; maintenance planning; electrical, mechanical, and instrumentation and control maintenance; quality assurance; health physics; and chemistry. Of all employees interviewed, each stated that they 36/ Id., Cover letter at 1.

37/ Id., Encl. at 1.

38/ Id., Encl. at 2.

39/ Id.

21 were aware. of .the Speakout program and that they would raise safety concerns. 40/ Further, contrary,to Mr. Saporito's .

I "chilling .effect" assertion, nearly 20% of those interviewed had r

used the:Speakout Program, "and all but one was satisfied with the Speakout .resolution of -all~.of their concerns." .41/-. The NRC 1,

inspection teamthus ".concluded that the FPL employees perceived

"~ QC-the Speakout Pxogram tm.We effective.:" 42/

Similarly,- the NRC has repeatedly Sound that the Turkey Point plant;is operated in a safe manner. For example, the NRC's P

most recent Systematic Assessment of Licensee Performance

("SALP") report, issued on May 14, 1993, states that "[o]verall plant performance continued to improve in almost all areas. This improved performance was due to the licensee ' continued commitment to self-identification and correction of potential problems; a strong management team; and a dedicated, experienced staff." 43/ A conservative approach to plant safety was also noted, and five of the seven areas 'rated were given a "1," the highest rating, with the others ranked "2 - improving." The ratings thus reflect "superior" or "good" performance in every area. All areas were similarly rated "superior" or "good" in the previous SALP report issued on December 2, 1991.

40/ Id., Encl. at 3.

41/ Id.

42/ Id.

43/ NRC Inspection Report Nos. 50-250/93-03 and 50-251/93-03 dated May 14, 1993, Encl. 2 at 3.

22 In view of,.the NRC's recent .inspection of; FPL',s Speakout,Program and finding that the Program,.is, effective in handling and.resolving employee,safety concerns >.and the NRC's

~ ~

overall determination that,.Turkey -Point is operated with a commitment go ident.if ication and 'correction of problems, Mr.

Saporito' "chilling ef feet" claims are completely baseless. His demand,; tq.,!'mode.fy,,suspend; pr revoke>~[FPL'} permissive operational;licenses'!44/ and to impose a posting requirement on FPL should .thus be. denied.

C. The Requested Amicus Brief b the NRC Is Not .Warranted Mr. Saporito's request "that the NRC construct and submit an amicus curiae brief to the U.S. Department of Labor reaardin issues of fact . . . concerning the Licensee's retaliatory conduct towards Petitioner during Petitioner~s period of employment at the Licensee' Turkey Point nuclear station" 45/

should be denied. (emphasis added) . It is\ well established that the role of an amicus curiae is to "assist the tribunal in resolving matters of general public import or [to] insure a complete presentation of difficult issues so that a proper decision is reached." 46/ Indeed, "[o]ne rarely, if ever, encounters participation amicus curiae in the actual trial of It 44/ Petition at 1.

45/ Id.

46/ Nuclear Fuel Services Inc. & New York State Ener Research and Develo ment Authorit (Western New York Nuclear Service Center), ALAB-679, 16 NRC 121, 125 n. 11 (1982).

23 factual issues in an evidentiary hearing . . . .., An. amicus curiae can neither inject, new issues .into a proceeding nor alter

%*

the contentof the record developed bythe parties." 47/

Signi,ficantly, as Mr. Saporito cpncedes in his petition, all factual issues are already before. the DOL. The hearing before. the, DOL ALJ. lasted seven days. Mr. Saporito was r

represented';Py counsel. He had a.'.full opportunity to present and other".,evidence, and-Y'itnesses to,.cross-examine witnesses called by FPL.'ll of the-witnesses testified under oath. Mr.

I Saporito's 'request is simply an attempt"to burden the record 'with C

hearsay allegat'ions through the indirect route wf an amicus 4

curiae brief.

Further, under the circumstances of this case, there are no legal or public policy issues to be briefed. The only policy'ssue raised by Mr. Saporito -- whether "licensee employees have a right to bypass licensee management and report pe ceived safety concerns directly to the NRC" (Supplemental Petition at 6) -- is irrelevant because at the time Mr. Saporito was asked to describe his concerns, he did not report them to either FPL or the NRC. In fact, FPL specifically directed Mr.

47/ Public Service Co. of New Ham shire (Seabrook Station, Units 1 and 2), ALAB-862, 25 NRC 144, 150 (1987). See also Resident Council of Allen Parkwa Villa e v. HUD, 980 F.2d 1043 (9th Cir.), cert. denied, 114 S.Ct 79 (1993) (amicus ~

curiae generally cannot expand scope of appeal to implicate issues that have not been presented by parties to appeal);

New En land Patriots Football Club Inc. v. Universit of Colorado, 592 F.2d 1196 (1st Cir. 1979) (an amicus is one who, not as a party, gives information of some matter of, law in regard to which the court is doubtful or mistaken) .

Saporito to, immediately. bring his concerns to the NRC, but was told by an NRC official several days. later that Mr. Saporito had not reported any specific concerns. 48/ Accordingly, the supposed policy issues raised by--Mr. Saporito .do not,exist in 1

this case, and no amicus curiae brief is warranted.

'.

>5' THOMAS SAPORZTO' CURRENT PETITION IS THE LATEST ZN A SERIES OF BASELESS AND REPETITIVE FILINGS -AND ALLEGATIONS WHICH SHOULD NOT BE COUNTENANCED

/

Mr. Saporito's current Petition should be viewed in light of the numerous unsubstantiated allegations concerning FPL's Turkey Point and St. Lucie nuclear power plants that he has previously asserted. These have included: five DOL Section 210 (now Section 211) "whistleblower" complaints; over twenty-five petitions, supplemental petitions', or corrections to petitions under 10 C.F.R. 5 2.206 filed with the NRC seeking to have the Turkey Point plant shutdown; over fifteen petitions or letters with NRC Region II similarly seeking to have Turkey Point shutdown; six petitions to intervene and requests for hearing involving Turkey Point and FPL's other nuclear plant, St. Lucie; and numerous letters to senators and congressmen, NRC Commissioners, the President of the United States, and even former Soviet President Mikhail Gorbachev requesting his assistance in shutting down the Turkey Point plant. We respectfully submit that while we strongly support the right of 48/ Sa orito v. Florida Power & Light Co., 89-ERA-7, 89-ERA-17, slip op. at 11 (June 30, 1989).

25 any .citizen,to avail himself or herself of the remedies afforded I

by law under the Atomic Energy Act or otherwise, C

the Commission has a duty to protect itself and its licensees against gross abuses of its processes; this is such a case.

En his latest 2.206 Petition dated March 7, 1994, as

• 'p '

Q supplemented on March 13~ 1994, Mr. Saporxto presents no new r; 'I facts, but simply recounts old allegations already made in his I

previous filings, Which both the NRC and the"DOL exhaustively investigated and rejected years ago. The. following summarizes the record of Mr. Saporito's irresponsible use of NRC and DOL processes to raise repetitious and inflammatory, but unsupported, I

a'egations as a means of harassing and attempting to extract money from FPL.

Mr. Saoorito Files Two DOL Section 210 Whistleblower Com laints On October 14 and November 28 1988.

Mr. Saporito first began his now six-year attack on FPL on October 14, 1988 and November 28, 1988, when he filed two complaints with the DOL against FPL alleging violations of Section 210 of the ERA. Mr. Saporito supplemented his complaints six times, raising additional allegations that FPL harassed, discriminated aga'nst, and ultimately discharged him on December 22, 1988, in retaliation for having engaged in protected activity. 49/ The allegations now raised by Mr. Saporito in his 49/ See Savorito v. Florida Power S Li ht Co., 89-ERA-7, 89-ERA-17, slip op. (June 30, 1989).

26 present 2.206 Petition,.are. essentia.ally. identical to those heard and rejected by the DOL ALJ five years ago.

After seven days of hearings,and after reviewing post-hearing briefsfiled by both parties, the DOL,.ALJ concluded that Mr. Saporito's behavior constituted insubordination, "which warranted dismissal." ~0/ Specifically, the ALJ stated that:

My review of the record convinces me that the

'reasons given by [FPL] for the discharge are "

sincere and valid in the circumstances and were in no way motivated by [Mr. Saporito's]

protected activity. Again, ironically [FPL]

could not, consistent with s'afe and sound management practices, tolerate insolence mani.fested by the behavio of an employee who alleges safety concerns and fails to divulge them when asked, refuses to take a minute or two to explain to the Site Vice President why he could not attend a meeting and then refuses to undergo a physical examination, scheduled by management in an attempt to ascertain whether the refusal to holdover was medically warranted and whether [Mr.

Saporito'] medical condition was such as to warrant his return to an important and sensitive position in a nuclear power plant. 51/

Accordingly, the ALJ concluded that:

The actions taken against [Mr. Saporito] by FPL and its management personnel were a result of his contentiousness and recalci-trance as an employee. Saporito's discharge resulted solely from his crossing the line from contentiousness and recalcitrance into the area of insubordination. Furthermore, the insubordination impacted on the Site Vice-President's grave responsibility to 50/ Id. at 19. Mr. Saporito's appeal of this decision to the Secretary of Labor is pending.

27 assure tQat the nuclear facility over- which he holds jurisdiction operates safely. 52/

The ALJ's decision was, to a great extent, based on credibility determinations adverse to Mr. Saporito. Foi example, the ALJ held that Mr. Saporito's testimony of being too sick to attend a meeting with the Si.te Vice President (af'ter initially claiming that-.,he could not attend because of "family business")

was not credible. 53/ Mr. Saporito also testified*that he,did not refuse to undergo a physical examination. The ALJ ruled that testimony was not credible in light of Mr. Saporito's prior statements=thug he would not undergo the examination. 54/ At the hearing, Mr. Saporito also admitted, on cross examination, that he falsified his employment application at FPL. 55/

Mr. Sa orito Files First 2.206 Petition With The NRC Concernina FPL's Turke Point Plant On December 21 1988 Concurrent with his DOL 210 complaints, Mr. Saporito filed a 2.206 petition to shutdown FPL's Turkey Point Nuclear Generating Plant, Units 3 and 4 and suspend those licenses. 56/ Mr. Saporito supplemented his peti=ion Units'perating 52/ Id. at 21.

53/ Id. at 20.

54/ Id.

55/ See Sa orito v. Florida Power & Li ht Co., 89-ERA-7, 89-ERA-17, Hearing Transcript at 966.

56/ See Florida Power & Light Co., (Turkey Point Nuclear Generating Plant, Units 3 and 4), DD-89-5, 30 NRC 73 (July 12, 1989) . A copy of this decision is appended as Attachment 3.

29 employee harassment. and discrimination, at. Turkey Point., >he NRC wrote <to Mr. Saporito that:-

=

-Because none of the above letters addresses new concerns . . . or provides information we-did not already have, no additional NRC -- ~

action is necessary. Please be advised that we do not plan to.separately of any future letters you might acknowledge'eceipt submit regarding suspension/revocation of the Turkey Point licenses. 60/

t '

On July 12, 1989, in a Partial Director's Decision denying the petition as it related to Mr. Saporito's alleged safety concerns, the NRC concluded that "no substantial basis was found for taking the actions requested in the Petition." 61/ The lg ~

NRC deferred consideration of the issues involving discrimination and destruction of documents pending further investigation by the NRC 01. Prior to issuance of this final decision, however, Mr.

Saporito on two separate occasions raised additional claims of harassment, intimidation and coercion in violation of 10 C. F. R. 5

50. 7 -- the NRC' implementing regulation of Section 210 of the 60/ Letter from'T.E. Murley (NRC) to T.J. Saporito, Jr. dated April 14, 1989. A copy of this letter is appended as Attachment 6. Many of Mr. Saporito,'s allegations were not matters initially identified by him, but were simply restatements of items previously addressed in NRC inspection reports or FPL Quality Assurance reports.

61/ Florida Power 6 Li ht Co., (Turkey Point Nuclear Generating Plant, Units 3 and 4), DD-89-5, 30 NRC 73, 83 (July 12, 1989) .

30

.On .March;22, --1990, the-NRC issued a 'Final Director's Decision denyingaMr..Saporito's remaining requests. 62/ The Director based his denial on the'conclusions reached by--an l

extensive NRC OI investigation into. Mr..Saporito's discrimination and document falsification claims. The= Director noted that:

The OI investigation concluded:;-'based upon the large volume of testimony received from

. numerous. interviewees -and the;extensive review and analysis of pertinent records, correspondence, -'and document's", that the allegations of em lo ee harassment the chillin -'effect condition and Licensee discrimination acrainst individuals who re orted or identified nuclear safet -related concerns could not be substantiated as

~alle ed. Additionally, there was insuffi-cient evidence to confirm the allegations that instrumentation and control maintenance records were willfullyand intentionally falsified, altered, and/or destroyed to conceal procedure violations. Finally, the investigation also concluded that no Turkey Point employee who testified for [Mr.

Saporito] at the DOL hearing was knowingly harassed or discriminated against by the Licensee for this activity . . . . 63/

Further, taking into account the DOL ALJ's June 30, 1989 decision in 89-ERA-7 and 89-ERA-17, the allegations in Mr. Saporito's petitions, and other available information, the Director rejected Mr. Saporito's allegation that his employment had been- adversely affected because he raised safety concerns. 64/ The NRC therefore concluded that "no basis exists for taking the. actions 62/ See Florida Power &. Li ht Co., (Turkey Point Nuclear Generating Plant, Units 3 and 4), DD-90-1, 31 NRC 327 (March 22, 1990).

63/ Id. at 330-31 (emphasis added) .

64/ Id. at 331.

31 requested in tPe;.Petitions as no,.substantial health and safety issues .have. been; raised by the Petitions," 65/

r. Sa orito Wr'tes Letter-To Mikhai'1"S. Gorbachev Dated March 6 1989 first 1

While this 2.206:petition, as well as his two DOL cases were pending, Mr. Saporito requested Mikhail Gorbachev, c 1 Jt then President of the SovietUnion, to apply the resources of the

.Soviet Union to "secur[el the safe shut down of the Turkey Point Nucle~ Reactors . . . ." 66/ Mr. Saporito also sent copies of "the letter to then President Bush, a local congressman, the NRC, and "ALL MEDIA SOURCES."

Mr. Sa orito Petitions For Late Intervention And Requests A Hearin On Ma 16 1989 And On Jul 3 1989 Re uests To Reverse NRC Decision Aoorovin Turke Point License Amendments Issued March 27 1989, Again while his 2.206 petition and DOL cases were pending, on May 16, 1989, Mr. Saporito filed an after-the-fact petition to intervene and request for a hearing on a March 27, 1989 license amendment in which the NRC authorized changes to FPL's qualification requirements for the Operations 66/ Letter from Thomas J. Saporito, Jr. to Mikhail S. Gorbachev dated March 6, 1989. A copy of this letter is appended as Attachment 7.

H 32 Superintendent; ~ The Commission denied %he .request'.as;untimely and found -that no good"cause was shown'for such untimeliness:. 67/

"Even in. the face" of the Commission's.denial of his-hearing request on the, license amendments, on.pXuly .3;.=1989, Mr.

.Saporito requested a modification of the licenses'to reverse the March 27, 1989

approval'of those amendments. The NRC .again rejected Mr. Saporito's <request stating that his submittal "appea s to be an attempt.to circumvent the rules for timeline'ss raises the same issues .raised in [Mr. Saporito's hearing request on the license amendments], which was denied by the Commission . . . , [and] does not raise any new issues not previously considered by'he Commission in the issuance of the amendments." 68/

Mr. Saaorito Files Second 2.206 Petition To Shutdown FPL's Turke Point Plant On June 20 1989 On June 20, 1989, Mr. Saporito filed his second 2.206 petition concerning the Turkey Point plant in less than six months and prior to any decision on either his December 21, 1988, 2 206 petition, the numerous supplements to that petition, or his

~

pending DOL complaints. Mr. Saporito further supplemented this petition on June 22 (as amended August 12) and July 3, 1989.

Like his first petition, Mr. Saporito sought the shutdown of the 67/ See Florida Power & Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), DD-89-8, 30 NRC 220, 228 (Sept. 25, 1989). A copy of this decision is appended as Attachment 8.

68/ jd.

33 Turkey Point facility.,andlsuspensionaof the .Unit 3 and 4 .".

operating'-licenses. -'r S.aporito also requested ,inter alia, the NRC to investigate an alleged drug usage problem and FPL's corrective measures; and:investigatealleged reactor. pressUre vessel'mbrittlement,, which. had: previously"been a, subject of litigation before the Atomic Safety and Licensing Board and had been reset;ved.',69/ After:reviewing, Mr.-.Saporito's allegations, the;:NRC again denied the petition stating that "no basis exists for taking the actions requested in the Petition, since no substantial health and safety'.issues, have been raised by the V

Petition. " 7.0/ .:.

Mr. Sa orito Petitions To Intervene In FPL's Exemption Re uest For St. Lucie From Provisions Of 10 C.F.R. Part 20 On Au ust 14 1989 On August 14, 1989, Mr. Saporito petitioned to intervene and requested a hearing on FPL's request for an exemption from those requirements of Part 20 concerning the use of "protection factors" in respirators used by workers in radioactive environments. 71/ After due consideration, the Commission denied the request "because [Mr. Saporito] ha [dj not demonstrated a cognizable interest that could be addressed in any 69/ Id. at 220.

70/ Id. at 228.

71/ See Florida Power & Li ht Co. (St. Lucie Nuclear Power Plan", Units 1 and 2), CLI-89-21, 30 NRC 325, 326 (Nov. 30, 1989).

0 34 proceeding, ". 72/ nor had Mr ..Saporito met any of -,"the threshold standards for instituting a proceeding under the .Commission's regulations." 73/

v ,~

Mr.- Sa orito Files Third 2.206 Petition To Shutdown Turke Point Plant On December 29 1989 I' ~

~ >1k ~ I II Notwithstanding the NRC's full denial of one of his two previous 2.206 petitions, and the partial denial of the other (later denied in full), Mr. Saporito filed yet another.2.206 petition which was similar in nature to the earlier petitions and requested essentially the same relief. This petition, his third that year, was filed on behalf of the Nuclear Energy Accountability Project ("NEAP"), an entity which generally acted as Mr. Saporito's alter ego. 74/ Among other things, Mr.

Sapcri"o requested the NRC to investigate trips of Turkey Point Units 3 and 4, impose a civil penalty and immediately suspend Turkey Point's operating licenses if the investigation revealed that the reactors tripped due to poor maintenance practices or improper operation of the plant.

72/ Id.

73/ Id. at 330.

74/ Mr. Saporito founded NEAP in September 1989 and was its "Executive Director." Its "immediate objective [was) to secure the safe shut down of the Turkey Point Nuclear Plant." See NEAP publication. entitled: "The Whistleblower Newsletter," Vol.: II, Issue: 7, dated January 2, 1990, appended as Attachment 9. Mr. Saporito has subsequently disbanded NEAP,

35 As with his other meritless petitions, the NRC found that Mr. Saporito -"presented no specific facts in support of

[his] 'allegations;- and =ha[d] not raised any-new information which

[was] not already being reviewed by the NRC." 75/ Since Mr.

Saporito failed to "set forth the factual 'basis for [his]. request with the specificity required by 10 C.F.R. 52.206," the NRC determined that "further action need not be taken on [the]

~ 'I request." 76/ j 1

I Mr. Sa orito Attem ts To Partici ate In Three Turke Point 0 eratina License Amendment Proceedin s Between Oc"ober 1989 And October 1990 1

Between October 1989 and October 1990, Mr. Saporito and NE:-.P attempted to participate in three operating license amendment ("OLA") proceedings involving FPL's Turkey Point plant.

In every instance, the Commission denied the petitions to intervene and hearing requests either because they were untimely, withdrawn by Mr. Saporito, or because they failed to comply with the Commission's well-established rules on standing.

On October 22, 1989, eleven months after the time specified in the Notice of Opportunity for Hearing, Mr. Saporito filed a petition to intervene in FPL's OLA-4 proceeding regarding pressure-temperature limits.=- The Licensing Board held the petition "inexcusably late," found no basis for untimely filing, 75/ Letter from T.E. Murley (NRC) to T.J. Saporito, Jr. dated January 23, 1990, p.1. A copy of this letter is appended as Attachment 10.

76/ Id.

0 36 and'accordingly rejected,,it in its entirety. 77/ The Appeal Board similarly affirmed. 78/

On December 29, 1989, Mr. Saporito and NEAP petitioned to intervene .in. FPL'.s OLA-5~.proceedingito,.upgrade the technical specifications for its Turkey Point plant so -that they would conform to a recently-approved standard NRC.format. Mr. Saporito subsequently -withdrew from the proceeding,"claiming that FPL and its counsel had harassed and intimidated him. The Licensing Board, however, found these=.allegations to be groundless and ad'monished Mr. Saporito for. making -such unsupported accusations.

The Board stated:

Based on this failure to supply information, we conclude that Mr. Saporito was not subject to any coercion and we order that all material 'alleging coercion shall be consid-ered struck from our record. Ne 'also caution Mr. Sa orito not to make defamator char es in this roceedin unless he is reoared to rove them. Further unsubstantiated attacks could constitute rounds for barrina him f om artici ation. 79/

77/ See Florida Power & Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-5, 31 NRC 73, 83 &

n.12 (Jan. 16, 1990).

78/ See Florida Power & Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-950, 33 NRC 492, 496 (June 24, 1991).

79/ See Florida Po~er & Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP.-90-16, 31 NRC 509, 514 (June 15, 1990) (emphasis added). A copy of this decision is appended as Attachment 11.

37

.:The'-Licensing Board..subsequently =dismissed:NEAP, the

'sole remaining intervenor in the-'OLA-.5 proceeding,"for lack=

stating--.:80/- .;.-i- r --'-ic.!> of'tanding,

-We are particularly concerned. that HEAP has=

not brought to bear any substantial expertise to ~demonstrate. the-importance and-immediacy of its concerns or to justify the necessity of .considering .them. 81./

Both the Appeal Board 82/,and-the-Commission g3/. affirmed;the:.-:

Licensing Board's determination.

Notwithstanding the Licensing Board's decision-regarding M==. Saporito-'s and NEAP's lack of 'standing, both NEAP and Mr. Saporito filed'intervention petitions and requests for hearing on FPL's OLA-6 proceeding to permit an emergency power system enhancement at the Turkey Point plant. As the Licensing Board, Appeal Board, and Commission held in the OLA-5 proceeding, the Licensing Board here similarly denied both petitions. for failure to demonstrate standing based upon residence or work 80/ See Florida Power & Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-24, 32 NRC 12, 15, 17 (July 18, 1990). A copy of this decision is appended as Attachment 12.

81/ Id. at 17.

82/ Florida Power & Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952, 33 NRC 521 (June 28, '1991)

(holding that "NEAP's argument is without merit." Id. at 529) .

83/ Florida Power 6 Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-91-13, 34 NRC 185 (Sept. 11, 1991).

-'38 activity in-the vicinity- of Turkey -Point.:,;84/ ".Xn particular, the

~

'Board noted- that it was unable to="conclude that'=Mr. Saporito and

'EAP. had 'demonstrated standing'n 3.ight< of='inconsistencies in-Mr.

.!Sagbrito's"statements" ,includingssworn testimony,-concerning".his I

residence and mailing address, 85/ which apparently changed depending upon. what proceeding Mr. Saporfto was testifying in.

~: Although Mr. Shporito filed a notice of-appeal -of the Board's decision, he failed to timely file,a'rief in support of his appeal. Accordingly,'he Commission dismissed the appeals 86/

Mr. Sa orito Files Third DOL 210 Whistleblower Com laint A ainst FPL On March 14 1 90 And An Additional 210 Com laint A ainst ATI Career Trainin Center On Ma 11 1990 On March 14, 1990, less than 1M years after filing his first 5 210 complaint, M . Saporito initiated his third unsuccessful DOL 210 case against FPL. Mr. Saporito supp emented his March 14, 1990 complaint on March 27 and again on March 30.

He claimed that FPL had blacklisted him and interfered with his employment as a technical instructor for ATI Career Training Center causing ATI to terminate his employment ~ Mr. Saporito 84/ See Florida Power k Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-91-2, 33 NRC 42 (Jan.

23, 1991). A copy of this decision is appended as Attachment 13.

85/ Id. at 46-47.

86/ Florida Power & Li ht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-91-5, 33 NRC 238 (April 3, 1991).

A copy of this decision is appended as Attachment 14.

39 subsequently filed a separate, similar complaint against ATI on May 11, 1990, and the two cases'"a@ere consolidated.

After a"hearing, the DOL ALJ held that Mr. Saporito had failed to establish a ~rima facie case against either FPL or ATI. 87/ The ALJ specifically noted that Mr. -Saporito' immediate supervisor at ATI "credibly testified that he 1

terminated Mr. Saporito because he was not a 'eam player', as evidenced by his poor attitude . . . and because he personally disliked [Mr. Saporito]-"'-88/ -'Moreover the ALJ noted that with 4

respect 'o his "chilling'.effect",. allegations, Mr. Saporito

~ +

I Ypf ji,p' p p "offered no proof . . .--failed -to call-.p single FPL employee to I

p testify at the hearing, nor were any affidavits or depositions of FPL employees contained in the record corroborating Mr.

Saporito's claim." 89/

Mr. Sa orito Files Fourth DOL 210 Whistleblower Complaint A ainst FPL on Se tember 4 1990 In early September of 1990, Mr. Saporito initiated his fourth unsuccessful DOL 210 case against FPL. In that complaint, Mr. Saporito alleged that FPL authored a list of persons (the "NO LIST" ) who were not eligible for re-employment or for recommendation for employment to other prospective employers.

87/ See Sa orito v. Florida Power & Li ht Co. and 'ATI Career Trainina Center, 90-ERA-27, 90-ERA-47, slip op. at 22 (Nov.

6, 1990) .

88/ Id. at 21.

89/ Id. at 16.

40 Mr. Saporito stated that he obtained the list "by an abandoned missile base between 1:00 a.m. and 2:00 a.m." from a "Turkey Point worker" who "would only identify himself as Terry," but whcse actual identity Mr. Saporito disclaimed knowledge of. 90/

FPL conducted an investigation regarding the document and determined that the list was not an FPL document and that the circumstances surrounding its creation were, to say the least, suspl.cl.ous.

The DOL Wage and Hour Division also investigated the matter and also reached the conclusion that the document was not genuine. In fact, the DOL investigator who conducted the investigation, stated in his Narrative Report that: '

All the credibility remains on FPL's side.

Once again, a case could be made that Mr.

Sa orito was usina the ERA 210 statute to terrorize the comtian rather than being a victim. 91/

Furthe , the Wage & Hour investigator expressed the view that "Mr. Sa orito will continue to level char es at Florida Power &

Light unt'l he receives monetar compensation one wav or the other." 92/

90/ See Affidavit of Thomas J. Saporito, Jr. at 1-2, attached as Exhibit 1 to his DOL Complaint dated September 4, 1990.

91/ Narrative Report of E.G. Morel, DOL Wage & Hour Investigator dated October 30, 1990, at 3 (emphasis added) . A copy of this report is appended as Attachment 15.

92/ Id. (emphasis added) .

r e

~ 1

-..cjf * .si+

Mr. Saporito did 4' na not'ppeal s g~,

• the Wage and Hour

'll V ~

g p g

Division's determination and ceased attempting to persuade the 1

DOL and NRC that his,."NO LIST" was genuine and not a fabrication.

C Mr. 'Sa orito Files Fourth 2.206 Petition With NRC To Shutdown The. Turke Point Plant On Januar 3 1992 Based on claims almost identical to those alleged in his previous, 2'.206 petitions, Mr. Saporito, on January 3, 1992, filed a fourth 2.206 p'etition requesting the NRC to initiate a show cause proceeding and take enforcement action against FPL based upon an'alleged continuing practice of employee harassment and discrimination at the Turkey Point plant (where Mr. Saporito had not worked for more than four years). The NRC evaluated the allegations made in the petition and "concluded that it does not provide any basis for any action against FPL." 93/ Moreover, the NRC explicitly stated that "[t]he basis for this position is that

[Mr. Saporito] has. not provided any new information that has not already been addressed by the licensee and the NRC staff." 94/

Mr. Sa orito Files Fifth DOL 210 Whistleblower Com laint A ainst FPL on October 27 1992 In October of 1992, Mr. Saporito initiated yet another unsuccessful DOL 210 case against FPL. This time Mr. Saporito alleged that an official of FPL blacklisted him by telephoning an official of Arizona Public Service Company. After a hearing, the 93/ 57 Fed. Reg. 6748 (Feb. 27, 1992).

94/ Id.

42 DQL ALJ held that Mr. 'Saporito again failed to'stablish even a prima facia case. 95/

The Current Fi'fth '.2'06 Petition The curre'nt 5 2.206 Petit'ion by gr. Saporito is simply Ji l s a repetition, of previous allegations that .have been thoroughly

'I] 1 investigated and repeatedly found to be without. merit.. The'

~ a Petition is the latest in a years-long series of allegations which, upon investigation, have been found to be.baseless, of little signifi~cance, a

or simply a rt hash.,of issues already C ~ i C documented and well-)known to the licensee and the NRC. The e e allegations in the current Petition do not raise any new facts or safety issues, but are an irresponsible abuse of NRC processes and waste of the resources of both the NRC and FPL.

VI. CONCLUSIONS Mr. Saporito's latest Petition should be denied. It contains no facts of which the NRC was not aware at the time it denied Mr. Saporito's previous petitions on exactly the same issues. The Petition also is an improper attempt to circumvent a DOL proceeding to which both Mr. Saporito and FPL are parties, and which is progressing on its normal course. Mr. Saporito has presented no specific facts in support of his allegations of a "chilling effect" or other safety problems at FPL's Turkey Point 95/ See Saoorito v. Florida Power & Li ht Co., 93-ERA-23, slip op. at 11 (Nov. 12, 1993.). A copy of this recommended decision is appended as Attachment 16.

0 43

~

directly

~

Nuclear Station, andhis bald allegations are C~

) ~

contradicted by inspections and evaluations performed by the NRC

'8 staff. For 't hese reasons, Mr. Sagorito's Petition should be

~ ~

r; ~

t' rejected.

The circumstances under which FPL directed Mr. Saporito to divulge his safety concerns show that that request was If A a V C entirely proper. At the.. time of the request,:Mr. Saporito had voluntarily afnnounced to the Company that he had safety concerns and had not disclosed* those concerns either to the Company or to f C

\ f, the NRC. Failure to inquire as,.to,the nature .of Mr. Saporit'o's.

concerns would have. been irresponsible and inconsistent k'afety with the Company's regulatory and safety obligations. In addition, FPL specifically directed Mr. Saporito to disclose his safety concerns to the NRC at the earliest opportunity, a direction with which Mr. Saporito did not comply. FPL was subsequently informed by the NRC that Mr. Saporito had not divulged any specific safety concerns to the agency, and that the NRC had encouraged Mr. Saporito to report his concerns to FPL.

Mr. Saporito's attempt to portray these inquiries as somehow improper distorts the facts, ignores the licensee's solemn and primary obligation to protect public health and safety, and directly contradicts NRC regulations.

Mr. Saporito's current 2.206 Petition is simply the latest in a series of attempts to extract money from FPL by harassing the Company with multiple, redundant, and baseless legal proceedings. The NRC should not allow itself to be

e 44 or indirectly enlisted in furtherance of this I'irectly enterprise. Accordingly,'PPL respectfully requests that, at M~

a minimum, the Commission cease treating these repetitious filings as having presumptive merit, and summarily reject them.

V<

L'

ATTACHMENTS FOR MEMORANDUM ZN RESPONSE TO MARCH 7, 1994 10 CFR- 2.206 PETITION AND-MARCH 23, 1994 SUPPLEMENT THERETO FILED BY THOMAS J. SAPORITO, JR.

U.S. DepartmenT of Labor

~ ~ Office of Administrative Law JuCges e~er John W. McCormack Post Office and 1

DATE: ~sun'e",. 30,~19 M

,RoomCourthouse 409

'

"'Boston. Massachusetts 02109 Ig ggPFL ~Waa g CASE NOS ~: 89-ERA-7'9

'ERA'7 IH Tnr tf ATTER OF ll Thomas- J c'tapoMtA Jr .

Complainant phd 1' e Florida V

Power and ight Company, Respondent Appearances:

Trent Steele, Esp.

301 Clementis Street Qe a t:Da') va Beach, PL 3340 1 For Complainant Thoaas J. Saporito, Se, on brief Jr'ro James ST Bramnick, Zsq.

Paul C. Heidmanng Espy 200 South Biscayne Boulevard Suite 3600 Miami, FL 33131 for Respondent Alice Riesman, Esg.

Robert Sugarman, Esq.

5959 Blue Lagoon Drive Suite 150-Miami, PL 33126 Special Appearance counsel for Union Employee-witnesses Before: Anthony J. Zacobo Administrative Law Judge

':Recommended Decision and Order" Den in Co& laint This is a proceeding under the Energy Reorganization Act of t974, as amended, (Act) 42 0-S C $ 5B51 and the

~

~

irp}caen ing regulations found in 29 Code of Federal

,

Regulations part 24, whereby employees o- employers subject to the Act and regulations caay file complaints and receive

certain redress upon a shoving of being -activity."The subjected to discriminatory action -"Resulting from protected hearing in this procehBing vas held 'in Miami, Florida, an February 1 through 3 and February 9+'0, 13 and'4, 1989.

The parties1 appeared and vere 'given the oppartunity to pr'esent evidence and argument 2 Briefs vere received -by June 2, 1989.

Procedural Histor These cases stem from comp'laints dated October 14, 1988, (89-ERA-7) and 'November 28, 1988, and subsequent dates", (89-ERA-, 17) by'r "Thbmas 'a'aporito, Jr , Lodged Administration+ Wage -and Hour with the Employment Standards Division, af "the U.S Department of Labor {DOL) alleging" he was subjected to harassment, discriminatory conduct and ultimately dismissal by Respondent+ Florida X'over and Light company, (FPL), because of certain activity protected by section 5851(a) (1-3) of the Act ~ In the absence of any evidence as to the data of aailing, the complaints shall '-be deemed filed as 'of the dates they bear 29 CFR 24 3(b) The

~

initial camplai'nt alleged that.Mri" Sapoiito vas the subject as'- a 'esult af a of discrimination <<nd'arassment communication sent to 'he Ctuclear Regulatory Commission (NRc ) on September 29, 1988 "regarding a siriee af events concerning a management person at the nuclear plant.>> RX

75. This matter @as investigated by the'age and Haar Division and found to be without merit an November 18, 1988. The determination @as timely appealed by Complainant and vaa given the docket number 89-ERA-7 On November 28> 1988 a second letter of complaint was sent by saporito to the Wage and Hour Divisian alleging saf ety concerns to the SRC by Complainant on November 20 and 2 3, 19 8 8. Then fel loved three o the r complaints by Mr .

Baporito dated (a) December 6th, alleging harassment and iscrimination for further protected activity, letters to the NRC dated December 2nd and 5th'b) 16 h,complaining .of FPL 's ef forts to submit him to a medical December examination as retribuion for protected activity and (c) an December 20th and 23rd, 1988 complaining of being discharged (at first, suspended vithout pay until further notice) allog>>dly as retr$ hution for his pratected activity. These counsel for the International Brotherhood af Electrical Workers <ere allowed confer to participate only insofar as to be available to vith vitnes'ses

~ho ~er e union members.

2/ . p "e-hearing conference ~as held in Miami on January 5, 1989 before another judge who later recused himself.

latter complaints vere treated as one by the Wage and Haur Division vhich concluded on January 10+ 1989 that the allegata'kans vere valid, ordered 'Hr. Saparito be made exhale and that. he also be- ava'rded $ 100,000.00 in compensatory damages. Complainant appeals, seeking $ 500,000-00 in compensatory damages- Respondent seeks dismissal't the complaints. This matter Wats assigned docket No- 89-ERA-17.

This proceeding embraces aridat shall 4 dispose of bath docketed cases-I Basic Issue 0 It a~ 4 issue

'Fj in these g '.

vf

'a~as is vhether t The basic the Complainant>> because of protected activity< +as the sub5ect 54 ot prejodk.cial aatione and ultimately dismissal by his employer, PPL.

r Preliminax'bservations The Act specifically requires an 'indi'vidual 'to tile a complaint vithin thf,rty""days of *'the occurrence'f the alleged violation .in order to o'btain 'redxess'2 U.S.Q.

$ 5851 (b) (1 allegedly

) 29 CPR 24 ~ 3 improper (b) activities accordingly by PPL j

onl those Within 30 days of Octobex 14, 1988 axe embraced vithin the initi'al complaint.

b,ny subsequent actions vould be embraced by either the initial ox the subsequent complaint,st In its brief~ PPL hates that the United States Court of Appeals, Fifth Circuit+ has held that an employee's activity, to be protected, mast involve communication vith a government entity Brovn s Root, Inc v. Donovan 747 p 2d

~

1029 (5th Cir 1984) ~ This, rule is contrary to vhat I bel.ieve to be the ma)ority rale and contrary to the position taken by the Department of Labor- Xansas Cas a Electric Ca ~ v Brock, 780 P 2d 1505 (10th Ciri 1985), Nackovick v.

~ ~

Uriversit Nuclear S stems, Inc ~, 735 P 2d 1159, (9th Cir ~

1984 ). The issues shall be treated on this premise, although I shall distinguish betveen Complaint' aommuniaationl ta gnvarnmantal and non governmental agencies.

Sti ulations The parties stipulated that:

all times relevant to the instant camplaints, Complainant, Thomas J ~ Saporito, Jr i vas an employee of Respondent, FPL ~ vithin the meaning of Sectian 210 of the Act, 42 U.S.C. $ 5851-Responden, FPLr is an employer vithin the meaning of the Act

Respondent is a 1iceasee of the Nuclear Regulatory Commission (NRC >-

-Complainant ~as hired by. PPZ in the job cclassification o f Instrument 6 Control Specialist-

. ~

4 4 F:

V' Complainant 'b'egan vorking for Respondent .on May ch 8,

.

1982. ' A

\

Throughout -Complainant's employment with Respondent, Complainant vorked in gob classifications covered .by the collective bargain:ning agreement entered into bg PPL and the

~

International Brotherhood of-. Electrical Workers APL-CIO (IBEX') That 'collective bargaining agreement contained a "grievance'.-~procedurer ending in .binding arbitreti~n-I 4 1 tv

~I Complainant's job history vith Respondent includes vozk at, several PPL -power plants'oth fossil fuel and nuclear powered As bexe pertinent~ he worked'~At Turkey Point ower X Plant (nuclear) from April 13, ~1985 to. -June 22; 1985, from August 24, 1985 .'to Pebruary 1 1986, and from June 6, 1987

~

to Jane 20, 1987'.

Il ~

y He vorked at, the St. Lucie Rover plant (nucleaz) from June 20, 1987 to April 23, 1988 as an Instrument and Contxol specialist-Nuclear until he voluntarily transferred to Turkey point in the same capacity on April 23, 1988.

Respondent discharged Complainant on Oecember 22, 1988. The validity or lack of ~alidity of the matters raised by Complainant in 19SS to the HRC regarding plant safety is not.

at issue in this proceeding- The parties also stipulated as to the dates of nineteen different items of correspondence Complainant mailed to one oz vazious agencies. Among these f a letter sent to the Institute of Nuclear Plant Opezations (INpv >, a priv<ate industry group the NRC aad 1)QL ~ The letter to TYPO was sent oa Ray 9, 1988 and zeceived by tPL the same day. The first letter to PPL vith a copy to NRC was sent and received on September 29'988 There then

~

followed a series of letters to either HRC or DOL, or both/

within short intervals from October 31st to December 28, 1988 ~

Summar of the Pacts This summary is based on the findings and conclusions I have reached after hearing the testimony and observing the demeanor of the witnesses and reviewing the transcript and canal I L c of c cocr<- ac Ecru~> c tn annZOpriate SeqmentS Of the record shall be as follows: TR for tran cript of the hearing, CX fo" Complainant's exhibits, RX for Respondent's exhi i=s, CB for Complainant' b ief and RB for Respondent' br'ef. Since neazly all of the events embraced in this

~

proceeding transpired in the year 1988 the month and date ~

alone shall be generally used in referring to various events taking place in 1988.

~ . 1, < ~ g was first employed by FPL in 1982- - FPL is c:nmplainant a '>licensee of- the, HRC'-- hs here pertinent'i

- it ~operates nu'clear power pla'nt's" in St- >>Luc'ie. CoGnty". and Turkey---Point "

( Dade County ), Florida -'- Complainan't, 'durin'g 1988 amd for ~

some 'ime prior'" there to,' es'i'ded Pin'. Jupiter",

as about two and one-h'al f 'ours '.away from the Florida,'escribed

'=

Turkey Point p'lant- TR 232.'. ',Obviously<< traf fXc cohditions vill af feet the driving time

~ ~, TR 782'- .I~ take official notice that the" distance "is well in excess of -"100 miles. -

In April.- 1988- he suc'cessfully bid" 1'on the basis 'aC the FPL-IHE'8 bargaining"-agree'ment, on" a job }it Turkey Point~" Having been

.

st a t i oned at "Turkey Paint in the =,past i. theta... vas some ~

'anticipation of his arrival by those: vho knew ~him. Nr.

Jerard Harley, the I s c 'production supervisor, had been an I a C Technician and a Job Steward f orhad.thevorked Union in 1985 and 1986. TR" 1726.. He ~and Complainant together.-for about f our months at St+ 'Lucie in -.late-"-1985 and early 1986 During this period he~..had - lived in r@aporito's home on a m'utnally =convenient basi.s. Harley hadxthe use af a bedroom

• in Complainant's home and he > pravided transportation for complainant 'n return TR 1727. He vas nat pleased to learn Saporito was going to work in his shop+ believing him to be a -"non-worker" Barley considered him.a threat to his efforts to improve production and made various adverse statements about Saporito's imminent arrivals VR 1730-1.

Ms. Lore tha Hathis, an -I s c Specialist at Turkey Poi.nt and a Job steward at the time, alsa knew Complainant from his pas" stints at Turkey Point She had been called upon to complete jobs originally assigned to Saporito vhich he had/

for one reason or anather, fai.led to complete T'R 560-3 In her vt.ew, Sapporito's 'return was regarded by the employees as an event ~ TR 573-4 ~

It was in this setting that on the first day he vas due to report to Turkey Point, .Saporito called in sick. TR 231. Shortly thereafter, he challenged the failure af management 'to include his telephane number in Jupiter an the call out listi the list used to summon1884-5 employees for emergency or averti.me work Tr 232<<3, He also requested a long distance telephone access number to use to call home for personal-business use, if he was required to perform unscheduled overtime, for example This, too, after ~

some debate involving union stewards was denied TR 234-.5, 1330-1, 1885-6 ~

During this same early period complainant is alleged to ha:e made derogatory racial remarks regarding Ms. Hathis.

TR 1734 . 'Whether thi s took place or Mas aided and abet ted by Ha 'y, is unclear because hachis and the other union

employees wha may have same knavledge af the affair canc luded i. t vas an i nt reunion'at te r reca1 ved vi thin that

i. or ga'n'i x at'fan ~:: The'y- re fused'a discuss the matter';- except. ta hach sha~-"that management va's at'tempt i'ng "ta use-"i 6 ac a "cpear on

~

vh ~ to'mpale" 6mplainant. " ~ TR S1 7-520- Th'is' vas

'a 1 1 ege'4 1y i ri cant ra st to management ~

s relative indi f f erence vhen 'she had complained about somevhat similar episodes, Ac I noted on

$.evolving othe rs in the past - TR 52 1, 584 the 'deco'rd -i'n ~an ) unction "arith Mathis 'ei that' f M'E. R'oher&'-Bayle, '",the 'Ch i ef Stevard, 'nd others'; I

= tl.mony 'as well as am not 'going'o gi ve any probati ve 've i ght ta thei r testimony vastness ze garding this aspect of the'ake'ecause I do not 'believe a shauM be 'al jawed to pikk .and ch'aoce't'he areas about vhich=- he or- .she vi'll testi fy "TR'.<557 -8, '88-242 ter.ther, it c 1 c u'd s i i the 'ie I ab 1 ty 'o f he i r'Mes ti% buy Scene za 1 1 y .'c' In a'ddi'tidn'*to t'6e 'foregoing'; the -'firsts Wuplei of4're'eks

~

of Complainant, s arrival at Turkey 'Point- also included. an alleged infraction -'of the'ules 'egardi'ng notification pa plant mana'gement'that one is out eiA' Saporito called=-Pn .,

"~me morning and 'before 'having seen "a physicf.an< advised the

'FPL an~svering:mach in'e- he "rould "be cut sick that. day and 'the next. m He .late'z of fered to preient a >Qhys5.'cian ' note 5 aoti-f ya.o's th'a ao+<<+ '"'Pn 744- naut?hr"."'nless there'- is

~ *

'-

'clear evidence of a continuing illness or incapacitation, such as a hospitalisation < an employee is expected to call

~

f ar each day he is sick TR 1753 %hi le it started, it ~ it's is also . clear that Saporita was given, at the unclear when request of Mz - Greg Verhoeven, his immediate supervisor, special one-persan" )ob assignments because other

) ourn cyme n in Ve rhoeven .' crew did not like to vork vith hi= ~ TR 1378 Saporito also allegedly did tva )abs incorrectly which came to management's attention. TR 189 1-4 ~ In any event, on May 4th< while under the sczutiny Supervisor>

of an INPO team evaluating the Maintenance Department 's operations, a gob assigned to Saporito resulted in a con f rontatian betveen Sapozito on the one hand, and the Production Hazley, and the Maintenance Department Bead, Daniel Tomassevski, on the other, regarding vhat procedural steps vere necessary to carry out the vork order - The ) ab was evantua 1 ly assigned to another technician, Mz. Milliam Dinan TR 1895 9+ TR 1743 7 There ~

vas also a canf rontation regarding the propriety of a "meal ticket" submitted by Complainant for reimbursement One is entitled to a prepared meal beyond one 's scheduled vork shif t if one works a certain periad Saporito submitted a supermarket receipt vhich vas not reiaburseable. TR 1736.

vhen saparita protested that the practice vas allowed at St. Lucia, a check vith that plant revealed he had bean enbrailed in a similar situatian there and rebuf fed. TR 1858 90. These ~as testimony from coro emz ?nyii~ that this requirement is overlooked at times. TR 2152.

Qn May 9, Saparito vrate ta the ZNPO evaluation team

~ I dye I~ ~ .I alleging that ',there, vere, various inadequacies:.in the I s c

~ ~

Department.,and What, Barley,;gas, nat . technically,c'ompetent" to f ul f il his <(gnctans ~ iRX 51, ~garS.ous others i;;j,ncluding Nr. Joseph Kappes< .4he~Maintenace ..Department. Superiytendent, vere;i copacd- .-. a~i ';..ay... he< ..~. i c:.

Tomassevski,iaaf I ~

On t>e morning .of . Nopday~,. Nay 9th >> - ter revieving .<during the ..veekend'he events in. which,SaporQo vas involved over the prior tvo veeks, brought his .concerns.

ta Kappes;and -~noted.ctha4 discipline vas varranted; TR

=

il962;4. He prepa'red three 'xe'ports.of diseipli~e'ROD';s) and

.,a xaeeting Mas convened <<ith Sapazito j several- 5ab .stevards, .

'and Kappes.; Tomassovski p', Har3ey c'and->1'Verhosven~ .e ..TR:"100 ~

,Xappes',"'.<<he ran ~heeating~ alleges <this .vas decided before he 1earned; af.ithe ZHPO letter ~

. TR," 1972,- Theabove-noted episodes vere ~ revieved ,-After counseling Saporito that insulting, racial references ..vould;t not, be tolerated, the matter>-.vas.-.dropped~ . -.%'R )979',-,gappeq also 'dropped the meal

'ticket. issue, after further dliscussion

~ a .O'R l979-$ 0 ~ . Sick

-leave =-vas the>ispb5ec't of N.scussian,-"including alleged excessive abs'enteqism ;,.TR,1906-7~::1981';.<<..Complainant's )ab vas apso discussed '.but.. continued to 'a .future performance ,

time in. orper "to allov Saporito time to reviev <the .plant vork orders (PWOs)~ TR 1982 .'.

This meeting is alleged by Complainant as one of the first reactionary measures taken by FPL in 'retaliation for voicing his safety concerns. 'Be became a marked employee."

(CB 18 ) ~

XZ

'the summer vitnessed several other meetings and confrontations. Some vere. cantinnances of the May 11th meeting, TR 1989 90 ~ Xappes camplained to Nr John odom, Site Vice President i about Saporito ' candnct and explored the feasability of firing him or transferring him elsevhere ~ TR %995-6. During this same general period saporito's bid on a gob at the St Lucio plant vas denied, despite his being the senior qualified bidder+ a violation of the b8rgaining agreement Camplainant alleges that thisi too, reflects tbe continuing harassment he vas sub)ected to during this periods TR 777-782'his is denied by FPL

>I'- <>><>+ P- Legp1i. the la4negechcnto 'rh 1 N>>- ~ <44-person at St Lucio vho had made the decision, testified tha he vas familiar vith both Saporito and the other candidate, a Nr- Chuck Denning ~ After conferring v4th

.oaaszevski, Leppla concluded that Denning vas the better choice. Saporito vas considered "barderline" insubordinate du='ng his prior tour at St. Lucien TR 1613 On July 28th Complainant, var ordered by Harley to take some readings in a containmen't,. area'"" vhere temperatures vere close to 120 degrees Farenheit RX'133- The gob vas rotated among the department's personnel so as to spread the possible exposure t'o radiation aÃd thus keep the dosage lov for any one person- 'Saporito. had sero exposure- TR 1761.

Barley ackovledged t6at vhen Saporito left the containment ere'a 'f eeli'ng'ill, compla'inS.ng h'e 'c'ould have died= in their'e, that he commented "Maybe he should have-" Harley disclaims that the assignment ar the comment vere motivated by Saporito's protected activS,ty,, TR 1766. The task had been assigned to 'another individual the aight before vithout iacS.dent "TR '1764 Ee vieveci Saporito as one vho spent most'of his -time vriting g~hung up on procedure"3 rather than'vorking ~ TR 1762.

Complainant filed his fi'rst complaint vith DOL on October 14th. RX 75 Zn Lt he alleges FPL manageaent at Turkey Point Huc lear as ."<<gyre'vely discriminating and harrassing (sic) him because of protected'activity, via, a letter dated September 29tb. to NRC'egarding the canduct of Mr. Brace Koran. The four page letter vas addressed to Kappes> copy to others iacluding Odom< union leaders Robert Boyle and Leoaard Spring and to MRC RX 68 Complaiaant recited four episodes vhere Koran, his immediate

~ Za it supervisar at the time be'gan shouting at him and gesticulating> including pointing directly at [him] vith his finger. loran vas accused of aasvering a telephone inquS.ry cancerniag Saporito's creditvorthiaess and, vhile acknowledging Complainant ha1 vorked for FPL far some years, suggested he may not continue to be employed dS.d not improve TR 1697-8i if his conduct In the letter, Complainant rec;uested $ 500,000.00 as compensation for damages aad Respectfully request(ed} that this employee floran] undergo extensive drug testS.ag vithia the scope of the FPL Fitness for Duty Program and additSoaally this employee (Koranl should be psychalagically evaluated to determine behavior varraats removal of his unescorted access ta our if hS.s nuclear facilities ~ RX 68, p 4 ~ ComplaS.nant also suggested Koran's unescorted access to restricted areas be suspended until the evaluatians vere carried out, aad he is declared fit; alleging that he, Complaiaaati is concerned about the health aad velfare af his fellov employees and the general public.

incidents complained of vere essential1.y confrontation~ ~acmic Koran became frustrated vith scpozito'o intransigence in several matters involving vork procedures,

interpretation of rules and work. habits, and especially n Saporito's rather indifferent response to instructions. TR 1469-1690. KorXR'cknowledged that he was out of line in speaking about Saporito as he did to the woman vho identified herself as being from a credit union- TR 1697-8. "Saporito'dentified the caller as a potential landlady from whom he was considering renting a room. He vas of fered the raom, in any -event ~ TR 1106-1114.

Saporito became embroiled in another confrontation a few weeks l'ater v'i th a FPL ~instructor + Robeit. Bager, 12th. The initial incident "arose from a question on'ctober Saporita put tot Bo'ger during .a refresher class concerning the rule on wearing hard .bats. Boger felt he vas being admonished 'y Saporito for disagreeing ~ith-=him. TR 166 The follaving day Boger encountered Saporito discussing vith anothe r instructor the carre'c'Ines s of certain aspec ts of a test saporita aad -the ather employees had taken the previous day Although Complaiaant had passed he had returned to discuss certain aspects of the-:test = He had a. right .to do so. TR 1646- 'owever< the discussion escalated to an argument during which Boger shouted obsceaities at Sapozitoi falloriag him out the door as Complainant retreated from the instructor 's verbal onslaughte TR 802@ '1647 1651e This aberrant behavior" was reported to superiors at Turkey Point aad. vas also reported by Saporito to.MRC~ as anathez indication of the harassment he was being sub)ected to and as suppart for his concern that management could nat deal with the matter He felt that the health and safety af the public required NRC intervention ~ RK 76

'n the same day, October 13th< Complainant received a vritten warning for excessive absenteeism Be believed this to 'e a form of reprisal for his earlier protected activity. TR 819-21'85 'The record shavs, hovever, that the subject of the discipli,nary meeting vas nat unique ta Complainant TK S16-7q TR 667~

1779'he Koran and Boger episodes vere each subjected to a rather tharough investigation by the Turkey Point Quality Assurance Department which concluded that aeither individual constituted a threat Each. vas recommended for further training: Koran in being a supervisor dealing with dif f icult" employer/employee relations: Sager in dealing with confrontational situations. RX 77, 79.

Odo, the Site Vice President, in view of the above even=a, concluded the an outside investigative team was

"

~ S e * / At situation't, A

Turkey Point and report A

necessary to. reviev the to him,,After conferring vith. FPL of ficials he;retained the

~

f irm oz, stier, .:hnde~n 'st: salable:(%AH.), attorneys; vho had performed a>> similar Sunctiwi"'<lsevhere, charging .them vith the'cack of examini.ng .saporhto~s-,charges:of harassment.,andA dist r imination and his aI,legatiene. -concerni JLg imager -., and:

Koran. ~" He also gadyised- ithe ~5RC.: TR, 420~33 .:9iSaporito $ ~

refused to .cooperate unless hits gyre.evances vere addressed.

~

TR 1428; .4+aporito, a'ion'e, f had,,:f i],od more "than 50', of the

~

grievances,'filed-.at Vurkey~poine+o, TR '1433) ';. .,Odom agieed to ~

address them porsoaaXly'and"airanged a woeting for .November 23rd. 'con November 21st.~he learned .Nor"=the-'.4irst time that -

Sapor i to bad nualear . safety; iooxKcerna.:.. i.The folloving,day he

~

learned- that;Saparitg. would -not;gggaa1.=;.tq.. +he Quality Assurance .Superintendent vhat . those -concerns vere ~?8 1438. The neat day, November 23rd,;he began a virtually day

'long meeting vith Camplainant, union ~of ficials and others in

-

an", attempt. "ta -:resalve'~the.,pre.evances ~ ., ,Late.;. in =the conf eren~e -Odom raised =the i cjuestion 'of .Saporito 's. nuclear saf ety .conce.r~s ',and asked ~him to disclose . thew Nhile Saporito - refused ".to acknovledging ".having such:aeancerns, divulge them, stating he vould reveal them, only to the HRC.

Odom allegedly. "directed>> =,hinL to divulge theca,"nov. He intended the inquiry ta be an order ~ TR 14388 I ~ Chief Job Stevard Bayle believed the request by Odam to Saporito not to have been an order" and therefore Saporito vas not insubordtinate- TR 151 4 Odom later orderect Saporito to at least divulge his cancerns to the HRC. TR 14385. Zn response, Saporito demanded'arcus statianery and office equipment and supplies to aid in preparing his report ta the NRC and as a precondition ta speaking to SMi TR 1438I, RX

88. Of those present, neither Bayle nor Nathis felt the demand for supplies and equipment vas reasonable ~ TR 369-70, 596-7 ~

Neer the ond of that same I>>eating Saporito a1so rafucod to divulge his safety concerns to Leonard Spring,, president of the local union- TR 386 ~ Later that evening, Xappes advised odom that in viev of Complainant's unvillingness to divulge safety concerns some gob stevards approached him and expressed concern that Saporito ad,ght create a problem ta

)ustify his positian TR 388 9, 2015 l'.t vas suggested that complainant be excluded from the plant's protected area. TR 390, 2017 ~ Xappes took the suggestion to Odom and they agreed to restrict Complainant's access to vital a "eas. TR 1438N, 2017 ~ Complainant still had area, access ta the I s C shop vhich, vhile vithin the protected vas not

'n a vi al area. TR 2019 ~

V k e ah "'ov about lfavtebtr )0th 04'oe oonto'otal "Nc 'ooers DiHiranda af 'the BRC rcg5.oval af f ice inquiring;abaut any nuclear safety: concerns DiMiranda. may have learned from

-Saparito. He learned that while, .Saparito- had .contacted Dil'.i randa, he -spoke,;in ~ague generalities:

concerns were divulged.'R 1438S 'n no ..speci f ic November 29th-many of the outstanding grievances were resolved-. The principal one J'L being an. agreement (which Odom achieved by, going "over-..the head" of ..his St~ Lucie counterpart . (TR .1441-.2) } ta, award Saparita -the:, Z,.k. C Technician's 5ob transfer to .St. Luciy.

retroactively- - ta -- July - -,16th, vith reimbursement for commun'at-ion expenses sustained by the employee during the interim. TR 1230-41 This vas designed to become ef fective December 17th, ta enable Saporito to meet the. SAM attorneys before, he, left Turkey point,, TR 1440 4'

on November. 30th; Complainant met vith the attorneys for about six haurs,;beginning, at 9 30 aim = TR 913-4. Xt about- 5 p m ~ , Xappes told Barley ta aaazaan Caparita to aact with Odom to discuss his safety concerns. TR 1793, 2023-4.

Odom learned Saporito vas ta)king to the investigatars. He decided this vould be a good time to talk to Complainant to establish a protocol for Saporito's reviev of the records he had requested to document his safety concerns< to attempt to define a nuclear safety concern and to learn vhat thase concerns vere. Ee felt a 'ertain sense af urgency in ascertaining the precise nature of Saporito's concerns because he considered Saporito to be not qualified to de ermine vhether they'e important or not- TR 1446.

Believing Complainant to be scheduled to vork until 7~ 30 p.m., he asked Xappes to summon him for the meeting. Kappes told Earley to fe"ch Saporito Harley approached Saporita at the I s C shop vhere Saparito was standing near another vorker's bench speaking with several co-workers ~ Shen told af tbe seating, Saparito declined, stating at first that he had no safety cancerns ~

He later, said he had personal family business to attend to ~

TR 1794. when Kappes vas" told of this he relayed the message to Odom vho ordered him to tell Saporito he vanted him present for a meeting. Kappes approached Saporita as he was still standing> talking to his co-workers TR 2025.

Kappes leaned over a stool to tell him he vas required ta a"z,end a meeting vhen Saporito turned and was startled.

Kappes alleged, and X credit it, that na hostility vas intended. When he told Saporito of Odom's summons, Saparita at first declined, stating again he had personal family business to attend ta. TR 2025 'hen Kappes insisted hc

'"ne vhat TR 2027

'aporito, h'e V',

countenance vhen he ~made ~%his later s'tatement tes ificd:

It's

<<r did

'While

<<

"-an'd strai'ght 'i.n 'thyes,~@is vhale changed,"'and-"he gave me one of Chose "I gotcha looks," and he .said, "I~m sick."

~

holdover far'< the "meetirig Saporito declined", 'aying ~ he vas "sick."" 'TR ':2027. There is a disp'ute as ta Camplainant's then <<said- "'He I'ooked acknavledging

(" leaning'") by a vork bench, as vas 'noted"by'Barley bo'dy'-'English'(sic)

'he

<<

"vas 'tanding

~

/<<P l

Kappes; had at first- given as an'%<<xcuse<'ersonal

'earli'er,'and and facaily matters" to attend ta, testified he vas feeling very poarly from the intensi've examination- he had'undergone from the SAM attorneys eailier in the day TR 916-20.'rs Rasemary saporito tect i fied her husband vas the pr acceding '-vook, November 24th, and "complained "of ill on 'hanksgiving Day

~

having stomach-type chest pains vhen he gat hone the night of November 30th TR 699, 705 Hr- Kyle Roberts vas present

~ ~

during the Kappea "Saporita conf rontat fan. 'While'"confirming account of the episode, including the fact 'appes'asic that Kappes varned Complainant he vas making ea career decisian" vhile ordering him to holdaver several times<

nevertheless, failed ta see any smile" on,sapariCa's face vhile giving his second excuse for failing ta haldover. TR 2027. In any event Kappes believed Complainant .vas lying to him and vas being insubordinate in front of other e ployees. TR 2027-2028, 2044 'appes left the shop and returned vith Barleys He told Harleyr in Haporito's presence, that Camplainant had refused a direct order and told Saporito he vas being 'and suspended He told Harley ta walk saporkta to the gate zaaave his planC acceee badge. TR 2028-9 ~ The tine to traverse the distance betveen the I t C Shop and Odom's office vas one variously described as being less than one minute (TR 145) to a couple minutes " TR 1255-Comp~inant had not, earlier in the day sought to be +

released early from vark due to illness TR 1246-7 He did not seek aid at the plant, nar did he seek it on the vay He explained hone, or in th>> Jupiter area. TR 924< 1258-9 he vas unf amiliar vith medical facilities in the Miami area and that he had to stop along 'he road several tines ta rest. He knev vhen he got hone his vife< a registered nurse, cauld help hin- TR 923-4< TR 1259-

~ He sav his dac or the next day ~ TR 1259.

- After Harley escorted Compgainant framthe shop, Kappes repo'rted what transpired ta Odom and the union stewards who had assembled for the meeting. TR 2034- Odom'esiring ta get to the botiom of the safety issue, instructed Kappes to put the suspension in abeyance, cantact Saporito and get him back to work- TR 1453-4, 2034. This was done the next day. TR 2035. ..Saporito stated 5e was an sick leave until Scl @wired lac u Cue 4v eae~df qa1 4reor4sa o >~+ te o% ~ace 2035.

VX r; k On December 5th, Kappes called Complainant and told him that FpL was r'equesting him to be -'evaluated by a Campany doctor concerning" the=~medical=. disord'er due 'to 'ptresi vhiCh he had reported and inquired .vhether the interrogation by the* sAM attorneys could be continued in the Jupiter area-Saporito told him that he vas not veil=sr enough to be that he 'as declining the "request" to bc ~

'nterviewed='and seen by a lCompany 'doctar. TR 927-8, 1285. Odom advised union of f ici'.'als j Messrs ~ Sims and Soyle < that Saporito vould have to see a Company doctor'efore returning ta vark to resolve two issuess the circumstances surrounding his refusal to holdover on Novoaber 30tht and his aodica1 disorder related to stress TR 428-9> 1457-8 He also told then if Comz l~lnant's and the Camyany's doctors disagreedg FpL and the unlon could select a th1rd doctor to reaolvo the matter. TR 1458-When Complainant returned to vork on December 12th vith a doctor's note excusing the absence Xappes told him he had to see a Company doctor- Saporito refused< alleging he vas being harassed due to protected activity ~ TR 2042'36 This request vas repeated on December 13th, citing as reasons: to ascertain vhether Complainant had been too 'ill to hold-over on November 30th; and to see vhether he vas fit to return to his vork as an I a C Specialist- TR 2046-7, 438. on the folloving day, at Complainant's suggestian, it vas agreed that the respective doctors should canfer and perhaps eliminate the need for the company-sponsored physical examinations TR 936 This hoped for resolution did not come to pass- Dr- Richard Dolsey, the. pEL consultative physician~ concluded he had to examine Saporito in order ta give a properly informed apinion- TR 832.

0 On Doceafibor 16th Kappeo told Complainant that arrangoftaontc examination vf.th Dr woro grado for'ho concultatico phycical, e Dolsey. Arrangeaftents vere aade for a supervisor, Willis, to drive S'aporito and a fob stevara, Robert Caponi- Saporito stated he vould go to see the doctor but vould not be examined- TR 2051, 443-4. Des'pite this ansvez, Kappes decided to send Saporito to Dr. Dol'sey Dz- Dolsey's 'f

'an the'hance', he might change hi,s mi.nd-advised Complainant to comply and then grieve pe.sonal medical history fice 'omplainant refuied 'to form'R TR 2052." Bayle 605, 1297.

vas a'ccompanied by kaponi 'into the'hysician'sa-'xamining

~ TR 451.

fill out the Complainant at zoom. TR 606. Willis remained outside i.n the 'reception area. TR 611.

't I sa s e "rica lacks gslaaL iacaypca'acti 1aa'-'liQ eiaaalaai j- aacasasa." 1s

"

~a diepu't'ed- ta 'ome'egree. is undisputed hovevez> that a

upon Dz Dolsey's arrival> 'Complainant. told him that before anything else, he had same questions he <<anted answered 607-8, 834,' 942, 1298 ~ '" After: ansvering questions, he attempted to'"ask Sajporita some questions and

'

number 'f-TR to examine him. Saporito <<auld neither ansver questions nor e aabw t to dan exaamination Convvqaaeatly + Dolacy aa'ked 6apozito and Daponi to Xoave ~ TR 834-6 ~ During the oouroc of this Dolsey entered and exited the examining room one or tvo times. TR 835, TR 939-43 On December 19th Saporito explained his version af vhat transpired in Dolsey's office to PPL management, arguing that he did not refuse to be examined ~ Be allegedly left the of fice on Do1sey's instruction TR 943 aovever, vhen asked by Kappes as to <<hether or nat he refused to be CeVatS(gtSR feAPhr4rh AgaOVaraR OWfb nnOtaatonl VQ 1'Ah%. XaaZZaafa suspended saporito ef fecti.ve immediately on December 19th.

Id ~, 2054 ~ On December 22nd *Saporito <<as dischazged by John Odom for his (a> refusal ta reveal his safety concerns to Odom on November 23rd, (b) refusal to holdaver on November 30th to attend a meeting vith Odom. and (c) refusal to undergo a physical examination by Dry Dolsey ~ RZ 104, TR 255 A licable Lav The parties agree that Complainant has the initial burden of establisbang a ~rima facie case sbovieg:

(1) that the party charged vith discrimination is. an employer subject to the Act; (2 ) that the complainant vas an employee undez the ihCt s

~ '

v Z ~ ~

(3) -that 't'e-'omp1a'ining'mployee vas-><discharged or.

compensacion, t;

" terms, '-

otzherbyiseiscr'imf.shee'd pgainstz .~4th" respect to hie or her.

conditions;, -.-

c r.: '>rivileges, of employee n tS ' + - 4 ~ f . - sV ~ 1 EJ- )

that activicys ~-

Qr'1 (4 )" "thzh;cemployee. engaged;.In2 Protected ~

(5 ), that. ~he, employer kncv ox had knoulq4ge that the employee engaged In protected activityy an5 s r* Vs 3 ~ * ~

thit- hthe retaliation against 'the-<employee -.gas 1 ~

44) '

matiVi aCed, at eleaet ".in part, "..by theh.ellplO'ye) S.den@aging,, in.. 6 protected activit} E e u>>

~ s burden of proof ~hifts to P

the a'espondent to;. prove affirmatively that theg-same,tdecision vould:,have been made even if the .employee had not =engaged'n protected-activity j s 6 V

' e

~

DISCUSSION AND <ONCLUSH)88 rr - ~

g I ~ z s~ ' C Hy L evicv c9f t130 raeor d 'isL thie,casa leon vi'noes me that f ailed to meet the sixth of the six elements necessary to establish his case- The probative evidence ot record fails to shobf that, the alleged discrimf.natory actions and eventual discha ge vere motivated in any vay by Coaplainant's protected act,ivity, be recert allegatione in the fall of 1988 beginning in it the XHPO letter in Hay or the more sePtember 20, 1s88 cx 20- Rven 4 f one vere to finds arguendo, tha>> a pries facie ease vere established, it is obu ous 'that the actions taken by Fpz, against conplainant starting in September 1908 vere entirely varranted in ~

Respondent's role as a manager and Mould have been pursued regardless of vhatever protected ac>.ivity Complainant aay have engaged in The individual actions of Koran and Sager fghal1 be treated ~if~fg in cZreggtaz'etail ~

Complainant arrived at Turkey Z'oint ia lkpril 1000

.preceded by an unfavorable reputation, pertaining to his 3/ DeFord v. Secretar of I abor+ 700 P ~ 2d 281, 286 (6th Cir. 1983 ) l Mackoviak v. Universit Nuclear S stems, Zso. ~ 735 S ~ 76 1159, 1162 19th Cir 1984); Loafers u ~

Baltinore Gas a 8lectric co . 83 983-9 slip op aL3 at

~ ~

9 (Nuv. 29, .1003), adopted by SOL.

4/ A shc a f t v 0 niv ~ of Cincinnati, 83-ERA-7f slip op of ~

SO'at 12-13 (Nov 1, 1984 ); Mackoviak v. Universit

~

1 uc l ea S stems. Inc ~, 735 F 2 d 1159 1164 (9 th Cir e 198 ); Consol'dated Edison of N.Y, Inc. v Donovan, 673

".2d 61, 62 (2nd Cir. 1982) .

work habits, whether deserved or nat- TR 574, $ 752- This Mas not diminished ,when he called in sick on his first scheduled day at Turkey Point despite the fact he clearly had a good medical reasan. TR 231. Respondent's management tean did not require new" af Saporito's letter to IHPO to develop a hostile attitude when on Hay 4th, he delayed a jab twa hours in a confrontation <<ith supervisors, a task someone clos, less cxpcriecaced, complctcd in ono and ane-half hours- TR 1743 A3.1 this transpired under the eyes of the ZhPO evaluation team. Daniel Tomasrewski, the I a C Department Head, summarized the situation thus':

z 'c aovcz.- oooo was suppased to oo aaay SI..oblosc Scorn whse be a six and seven year ex-perienced Journeyman in 'such a shart periad of time- TR 1899 Saparito gave as well as he receivedi .being personally responsible for more than one-half of,all the grievances f'led at Turkey Point. TR 1433.

1. Turning now to the specific allegations made 'on by Complainant in his complaints. ~ The complaint filed October 14, 1988'nd its subsidiary letters dated October 31 an'd November 8, 1988 were embraced in the determination of the Vage and Hour Division oa november 18< .. 1988 and became the case docketed as 89-RRX 7 Essentially this gzoup af complaints a3.leg~ that Complainant was the subject of retali atory discriminatory practicea, such, as threatening behav'r by Karan and. Bogez and disciplinary action foz alleged infractionf such 'as excessive absenteeism. The clear preponderance of the, probative evidence demonstrates that these charges are not true The Koran and Boger episodes werc nothLng more then argumento precipitated at Leaet In part by complainant's contentiousness- Both Koran and Boger contributed to the affair by their low tolerance for such behavior. Koran and Boger, each in his own,vay, displayed outrageous reactions toSaporito's conduct- Xozan should not have vented his frustratans on the telephone to an unknavn caller. Bogez should nat have shouted obscenities. Their conduct, however, was clearly not motivated in any way by whatever protected activity Complainant wishes to point to.

The same holds tzue <<ith regard to all the ather alleged injustices suffered by Saporito regarding absenteeism, meal tickets cad job performance or assignee~ts.

~ Qhi}e may ar may not be matters which Saporito might gri.eve successfully, the alleged in]ustices are nat shown to'e causally related to his protected activity 'at

~ Zf the matters were dealt wi th by FPL management a higher than usual level or in a sli ghtly harsher than usual way, it was

P< A entirely due to the fact that Complainant constituted a gz eater than usual personnel problem ~ Z credit the testimony of Koran, Boger, Barley, Kappes, Tomassevski and Odom that their actions towards Saporito were in no way related 'to his pr'atected activity.

-"=

studied their testimony Zn I observed their this connection Z demeanor and ~

note that Verhaeven; while characterising management's treatment-of Saporita as not usual", admitted asking Harley to assign Camplainant "one-person gobs because others in Ver}ioven 's -'cc'e< did not like to work with him- TR 1375 Z conclude the@'e is no persuasive wvidence to support Complainant's charges. This conclusion is reached after careful and sympathetic review of the recard, recagnieing the, serious financial and professional straits in which "himself Complainaef'inds pre 2 ~ The campl aint of Navemb'er 28, 1988 and the subsequent

=

letters embrace the negotiations surrounding Complainant's unsuccessful attempt ta transfer to the St Lucie plant/ ~

his~ being given demeaning assignments due to -his restricted clearance level, and hS.e suspension and ultimate dioehazgo-They are embraced in 'case No'i 89 BRA-17 Complainant eummarQct his pasiton in hie brief vhere he states:

At issue in ?'>> s case is vhether Camglainant engaged in protected activity in accordance with 42 U.s.c. 55851 and as a matter af lav, and whether the decision. by PPL to terminate Complainant'e employment vas motivated by animus toward Complainant solely because af his engaging in protected activity, ar far reasons not protected by this (Act). CB p. 3.

The record overvhelmingly supports Respondent's positioA that the denial of the St. Lucio transfer vae a matter vhich was ac ed on long before the effective date of the first co"plaint and therefore outside the scope af this proceeding 42 U.S.C. $ 5851(b) (1) Assuming this matter falls vithin the scope of the praceeding because

~

it vas still being negotiated in the fall of 1988 (a conclusion vhich is purely hypatyher.ical), it ie quite evident that the St- Lucie people,, having had experience with Saporitoi vanted nothing mar e o f him. "Borde r l ine insubordination. He lacked the willingness to work cooperatively vith management and his peers. He intimidated his supervisors. Be was very unproductive-- ~" He filed: "Numerous grievances-" TR 1615. These are the views of the individual who had been Car plainant ' supervisor at St- Lucia- TR 1610 ~ The same inc'idual, charles Leppla, was instrumental in re jecting I credit this Sapa".ito 's attempt to return~ TR 1613-

-

e s '-.. o n y-

Complainant 's access to restricted areas <as ~ithdraMn far very valid reasons entirely independent af his alleged Protected activity Ironically hi access wa limited as a s'a'fety 'precaution TR~ 38S-'9> 2'01'5 I cr'edi.t the'easons

~

~

adva'need by Kappe's and"'bdom.1 - Complainant 's~ icosa'len'ce to~ards Odom and Sp ing during "the"-November.'" 23rd conference" properly g'ave his'o>>workers~4and supervisors r'eason'o ' at "1'eait vonj5ez, if not worry",bout Saporit'o-'s future'anduct The 'record also makes it'lears tRat "Compla'i'hant"-~s 'pheac'cupatian v'Xth ~procedures led the Praduc(ion Sujervt,sor ta give him+assignments vhich enweb]oa hia to soak hloh4 boclll1CA flhhhA'p VAhlPR fA Mhl k Pith him" TR 1752 The'-,last, matters far consideragian are the .series of Mhich culminated in" Campla5;-nant's discharge ~ Responde events cites

.

three wo MO'rs bas'S.c episodes,'aaplainant 's-(a) refusal ta divulge /is safety concerns to Odbm- on November 23rd<

.

~ C "I

( 4 %

X o.

e 0l

%roe l

re fusal to 'oldover to

,

(b ), meet withOdom on Sovcmber 30th, . and h-(c) refusal to ,submit.-Co a physical examinatian by a licensed physician chosen by tPL ~

vy reviev af the record convinces ae that the reasans g've-.. "y Respondent for the discharge are sincere and valid in ::".. circumstances and vere in no vay sLotivated by Cc=; '. a':.ant's protected activity again, ironically Respondent cc;1 d not> consistent 'vith safe and sound management practices,

- c i e rate insolence aanl foal.c4 by tbo behavior of aa caployec aha alleges safety concerns and fails ta divulge them +hen asked, refuses to take a minute or tea to explain to the Site

'" ce President vhy he could not attend a meeting and then

=efuses to underga a physical imam!.nation, scheduled by

=.4negemont in an attempt to ascertain whether tho refuoal ta ho'dover @as medically var=anted and vhether Complainant's medical condition vas such as to varrant his return to an important and sensitive position in a nuclear paver plant ~ TR 616-7 ~ 4 shall review each af these in greater details Saporito vas asked by Odom at a formal meeting, in the presence of others to divulge his safety concerns and refused to ao oo Th5.c 1c not oontrovoreoa

~ ~ 'r4e cont rova~sy i w over whether the request" was an "order " I credit the testimony of John Odom on this point It vas substantiated by Loretha

!.a his, a Mitness called in behalf of Complainant vho ~as largely favorable to Complainant yet vho Mas not entirely uncri ti col of ei tho r Cneplainant or Respondent FPL- TR 513-4.

I

~~

524.5 In addition< vhen one views the circumstances under

'the subject matter of the Pe'adily"under'st'and concerns Odom's

'n vhich the reques't f'ar 'i4'for64%ion'<<ep 'made ~-a'andn'uclear.

+equest-'-safety chagrin

~

a'nd pover everyone.'s plant--one can concern --"about ~<Saporito-'s <+Intentions and,, future conduct.

Complainant's PefusaX bonstihated fnlubordination-'rhich,<'f Q.',my opi nibn j voti fied discharge At the very loatt i t certainly constituted a valid increment .tovard. the ultimate conclusian to z

discharge Complainant- tl

~ >( g4 f+

Comp'lainanti~s ref usal to 'holdover for a .eee ting- vith Odom

~

on~ November 30th constituted an insubordinate act . vhich Mazranted dismissal I credit. Odom's testimony that he felt a certain sense of urgency in ascertaining the pzecise nature of Saporito'a concerns -because; he> did not- believe Sayorita guali-fied to determine vhether or not they vere important TR 1446an It is obvious h'e. has a continuing, obligation to search .aut in'dividual voiciny safety -concerns ,and to leazn of. their

<

precioe 4atuxc- I oannot iiagini a resyansib1.i sanigement person not vanting personally to be involved in such a situa-tion. Leaving the matter .to a .government agency person

~

-

(DiMiranda) located many miles avay vould reflect poor 5udg-ment, indeed. The question then arises as to vhether Comp-lainant's refusal to holdover vas 5ustified in the circum-stances. I conclude it vas not. As noted above, puted that the distance betveen Saporita's shop and Odom's of-it is undis-fice is trifling TR 1255, 1451

~ ~ Saporita vas not lying dovn but s=anding vhen first seen by Harley and later by Kappes ~ TR 179, 2025. Saporito testified he vas "leaning on his vork bench.. TR 9t8. The fact is also undisputed that he at first ta c Ha" ley and Kappes that he had personal business to attend ta ~ It vas also TRundisputed that he vas biding his time until euitting time ~ 919 These circumstances coupled vith the f ac that he had, both prior and subsequent to this, failed to seek any medical attention or assistance at the plant but elected to drive the extended distance homei regardless of she hez he stopped along the vay, fail to support his conten tion. This seriously undermines the credibility of Saporito's testimony. I also nate that vhile Complainant alleges that the condition vas long-standing, and said this ta Dr Xlapper on Decembez 1st, he had not saught medical treatment far the con-dition at any earlier date and accarding to Dr. X]apper, /I had 5/ Ns. Mathis and several other employees made vague references to alleged zctalilation by FPL vhen safety..

concerns Mere voiced in the past- These vere rather vague and not convincing.

absolutely no sign af having any problems wi.th gastritis during that period (August 1988) "or in the fallowing months until he presented to my af fice on 'December 3, 1$ '88" CX 90; P. 1 f.

do not eeecLit the testiaony by'oiap1ainant on'hic point, that is, of,.bet,ng tao sick'o ettend a meeting with Odom. Zt challenges common sense- " tt wah-contemptuous conduct towards a at ~

management official who had made a legitimate request. To a gue,ghat regular. boll ove'r<~ules'-'dea'ling with 'ab completion s1tuatians apply in th'e instant circumstances is =abviously 'a specious argunent not, worthy,:of further comment P ~

~ ~ 5. "~ N t f Lpstgy,. we come to the 'epispde."surrounding ~PSs efforts to require pappritp tounjlprga. alphyggcal.axaminaekon for.<he ceasans cited;above 'and Saporitoip reacton thereto" hs I review, the cigcumstaqpes X.findQt, strang j" that;- an individual who urged that a co-warke~t,- ggrkey Point "unde~a 'extensive

.drug testing. r [qq4,lpe] <psychology,cally evaluated." 'Xo .ascertain his fitness .ta coqtinye..ta functon At the plant+>.should" then balk when the tables are turned ~,, TR 1295'X 68, p 4. Zn any

~

event, the, record clearly'st'ablishes that Sapozito .knew mf the purposes of the physical examination IR 1287-8~ 6308 -~ The union had advised him,-to comply with the orper and gzieve thzough established bargaining pracedures ~ ~ TR 1289 Yet, Complainant stated before leaving for Dri Dolsey's office that

~

he would g'o but refuse to be examined. TR 1295-6 . That he intended to carry out his purpose is supported by his zefusal to even make out the personal history me4ical form hande4 to him on his arrival TR 605.

Complainant argues on brief that Dr Dolsey never requested to examine Camplainant nor did the dactor indicate that ao oxazainatfon Mac required ac C'.ompl ainant was never asked to undress oz even unbuttan his shirt. CB p. 47 Dr Dolsey

~

testi fied Complainant not only refused to be examined but refused to answer questians preliminary to the examination- TR 834-6. l credit this testimony- Dolsey appeared to be a cred'ble witness ~ He answered questions forthrightly. Although he performs examinations for FPL far pay, this constitutes a small percentage af his overall practice TR 850 Caponi, while stating that Dr -Dolsey dismissed them from his of ficeg also tesgified that Dr Dolsey tald Complainant:" .. fX]t s ~

obvious that you won't let me examine you- And Tom (Saporito) said, wel], I still have same more questians to ask."

Viewing this statement from a witness who was obviously biased in f avor of Complainant and who appeared to be evasive, especially on cross-examination, in the light of Dolsey's testimony, the earlier admissions of Saporito regarding his intentions not ta be examined and the averall circumstancbs su rounding the visit ta the physician's office, one cannot cone to any other rational conclusion Saporito, true to his

earlier vordie vent to "see" t'e doctor but not ta be examiners,,

and, in facts re'fu5ed to." ben exam'.ned . To come .to any other coh lusioti would r'e@ire a s'ort of sophistry with which I am f ami liar as Com<<P'lainant 's argument that the examination was part of a t'jconspiracy r

has no probative basis in the record.

I e

'(<<*

I' i(

1. = << ~1 a u T Ultimate.-Findin s 'and Conclusion 1 <<aV<<

co'ncludc i 'h'erof o're~,',hat '"(Co(op1a9.nant h'as failed ('n pre-ent e- (ri e'aoi ease. Tho act Co(<<c"' t a>qp<<(<<g(t ( net Cenp'lalnant n( 1 plr ann lte nasa@en~aint peraennel 4ere a'uuulu of hZe contdntiousn'ess'nd recalcitranc~'s 1 an -employee.

Sapozito',s>.dischaz'ge. resulted solely from-'-his crossing the line f rom co~entiousneas and '(.,recalcitrance ( into t <<+he area of insubordinaton,. Furthermore, the:.insCbordination'mpacted on the Site Vice President'.r "grave responsibility to assure that the nuclear facility ovex,vhichhe holds (jurisdiction operates safely -Z vhs impressed. by 'hov; solemnly this responsibility is

~

shared hy the other employees, both union and non union, vho testified- r

~ '

For complaints

~

the foregoing be Denied reasons(

a<<

it, is Ordered that the ANTHONY ZACOBO administrative Law Vud~e Dated ~ 30 Boston, Nassachusetts gg89 A JI/maq

~

'.S. Department of Labor A ~ah' Mcrceoee City Ctnler FL LauoerOah. FL

'l 3330'.

Otfice of Aoministrat~e Law Judges 200 S Andrew's Avenue, Suke 605

~ a vY Iri tPq I ~

~ I Date i November 6, .1990 IN %iE RATTER OP "-r-- i"l:

C~

THOUS J. SAPORXTO p Complainant, CUE NO. t 90-ERA-0027 t t' '

' r FLORIDA POWER AND-rLXGHT CCNPANT,'espondent

~

4 C and THQYQB 4 SAP OR X TO r CASE,MO. s 90-ERA-0047 Complainant, vo ATX CAREER TRAXNXNQ CENTER, and FLORIDA POWER fr LIGHT CQKPANY ~

Respondents, Appearances:

BXLLXE PZRNER GARDE, ESQ.

For the Claimant J~S S. BRAMXCK, ESQ. and PAP~ C. HEIDMANNr ESQ.

Por the Respondents BEFORE ! E. EARL THOMAS District Chief Judge ECOSCEND RC 5 0 DROER This proceeding arises under Section 210 of the Energy Reorganization Act of 1974, 42 V.S.C. 5 5851 (hereinafter 'ERA' the 'Act") and the implementing regulations set forth at 29 C.F.R. Part 24. These provisions, commonly knovn as the "this }eblover'rovisions, protect employees against discrimination in employment for attempting to implement the purposes of the ERA and the Atomic Energy Act, as amended, found a" 42 U.S,C. 2011 et ~se .. A hearing was held in Port

Lauderdale,, Florida-,on August 21 and 22~. 1990 and all parties

were-Afforded fell opportunity eo:present..evidence and legal argument; Briefs @cere gocoi~, in,this'Office from Complainant and Respondent, Ploi3.da Power.,and:Light Company (hereinafter

, PPL") . Respondenty. MX Career Training Center (hereinafter

'.ATZ') 4$ ;d not, submit a ~st-hearing brief=but instead relied upon the'ssertions contained in PPL's document.'-

FE.nLooaF PRE Casa ...

These cases stem from complaints dated March 14, 1990 (90-ERA-..27),and,Hay $ 1(,1990,$ 90-ERA-47}y, as amended) hy.

K". Thomas J; Sapoxito, Jr.;:againit PPL and ATX for harassment

~

and discriminatory conduct W,vioXition og the Act.,~

that inf,tial Saporito complaint, brought solely against PPL<=lleged Mr.

was the subge'ct of an ongoing, practice and pattern of intimidation and harassment through <<blacklisting'esigned= to discourage him and others from cipating Ln protected activities. Specifically< Comp ~umt alleged that, he was plaoed in an 'embarrassing and <ntimipating position before his employer (ATI)'hen -an attorney for PPL forwarded ~~Loyment verification letter to the school. The purpose of this letter was to determine whether Mr. Saporito worked in Miami. The co espondence was sent in connection with a proceedLng before the United States Nuclear Regulatoxy Commission, Atomic Safety d Licensing Board (hereinafter HRC'nd ASLB', respectively) regarding licensing of PPL's Turjcey Point plant in which Co=plainant sought to intervene. Purther, the complaint alleged that a comment which an PPL spokesperson had made to a local ne~~paper reporte was discriminatory and $ oopm~aed Y . Saporito's procurement of future employment.

Compla~at amended his initial complaint, by letter to the Un'ted States Depart Labor (hereinafter.'DOL'), on of Y~rch 27, 1990. Therein, he stated that he had received a second lette fxom PPL's attorney, which had been copied to ATI, outlining the xeasons for the original inde;.zy. Ãr. Saporito believed that this letter was an additional instance of intimidation.

Kr. Saporito further supplemented his March l.4th complaint to the DOL on March 30'990 In this correspondence,

~

Complainant alleged that he had been bypassed for an afternoon teaching position at ATZ as a direct result of PPL's actions; thus, he maintained FPL was continuing an existing pattern of harassment.

After an initial investigation by the DOL Mage and Hour Division, the agency concluded, on April 2, 1990, that no violation of the ERA had occurred. Accordingly, Mr. Saporito's o"iginal petition was denied.. Complainant timely appealed that dete~nation and negneeted a de novo public heating.

fee ~ I t'l Complainant~~ second camplaint~-.dated May 22~; 1990/ lfas filed..againsg hath.PPL.and ATE. Xa that complaint, Mr, Saporito alleiged that he was terminated,hy ATI in May, 1990 due, to the previously iqferenced correspondence,.issued by APL..Ln March. Zt is to be noted.that Complainant was proceeding pro se until this paint.

e J ~

, On June 4< 1990, the OOL issued.its decision with respect 0'o Comp3,ainant's second cause of action.. Again, Me Rage and Hour Divjsion determined that no violation of th ~ Act had been substantiated. Ãr. Sapazito thaely appealed;that cbatermination as well. lW r"

I K + lt C~plainant,'s tv@ complaints vere consOlidatod for hearing by Order of Consolidation dated June 13,> 1990. Thereafter, the matter was referred to the Office, of,RhninLstrative~v Judges (or adjudication. -;The exhibits proffered. at;,the hearing~ along with the hearing transcript, comprise the, racord herein.

FZHDXNQS OP FACT hHD COSCLUSZOQS OF Lbà A

I. BKZR~UHD pw, Saporito was employed by FPL, a private utility company, from March, 2982 until his discharge on December 22g 1988. While Complainant challenged the validity of this termination under the Act, Administrative Law Judge Anthony J.

Iacobo det.ermined in his Recommended Decision and Order of June 30, 1989 that Xr. Saporito was properly discharged far insubordination. The reasons found to uphold the termination were three-fold; namelyi Complainant's refusal to divulge safety concerns to PPL management; Complainant's refusal to holdover to attend a meeting scheduled by his supervisors) and Complainant's refusal to submit to a physical examination hy a licensed physician chosen by FPL. This decisian was appealed by E=. Saporito and is currently pending before the Secretary of Labor.

Prior to his discharge, Complainant irked at FPL's Turkey ~

Paint Nuclear Power Plant (hereinafter <<Turkey Point<<) near Homestead, Florida. He resides in Jupiter> Plorida vhich Judge Zacobo )udicially naticed as a distance in excess of 100 miles from the facility. Complainant obviously had great concern regarding safety conditions at Turkey Point as he initiated'/

The following abbreviations vill be used when citing to the record in this matter: 'RX for Respondent's Exhibits; <<CX'or Complainant's Exhibits and <<TR'or Hearing Transcript.

0 contact with the NRC regarding alleged safety violations at the plant i~'1988, Moreover; Er. Saporii& has continuously between maintained this contact, ostensibly to provide a conduit PPL nuclear,power 'employees a@4.<he HRC,".'-

On December 5~ 1988< Complainant sent information to the HRC detailing eighty two alleged safety violations at Turkey Point. "As a result of the a3,legations, the KRC deployed an investigative team to the plant to detezmine-the validity of Kr'.Sapqrito's-concerns. '-,Of,the eighty-~ allegations raised, the HRC teim determined that thirty-~e vere unsubstantiated, thirty-one ware at least.partial.ly substantiated but hYid 'little or no safety significance ->> and the remaining twelve had been previously identified by FPL and the propex corrective actionsdeal had already been. taken. This.-investigation'received. a great of publicity within the community thzough the local.eecLLa.

On December 14, 1989, Compla&uuit secured a ~-time teaching position at ATZ M Miami, Florida. "M'I is a technical school, 'offering courses in electronics," air conditioning/refrigeration, computer-'assf.sted desijn and other related sub)ects. ATZ is headpmrtered in'Dallas, Texas and is accredited by the National Association of Trade and Technical Schools {hereinafter>>2QPX'S'). The Eiami school operates on a system of ten-week charters and employs approximately twenty to t>'rty instructors to teach a three hundred forty menbcz student body.

Complainant was so employed, teaching an evening class in digital electronics, from the date of his hiring un'.3. he was discharged oa Hay 10, 1990. Kr. Saporito was hired by Razukall Nithezs, Director of Education at ATI until ad.d-April, 1990.

Dr. Pete Diaz subsequently replaced Kr. Vithers. Both Ya. Vithezs and Dr. Diaz reported to Kaxk QxtmLnn, the Director of the school. As Director, Ee. Guten oversees all operations at the school but does not become involved in the day-to-day management of the various departments unless a problem arises.

According to both Y=. Gutaern and Dr. Diaz, who had control over hiring and termination ~ithin his area, Complainant ~s discharged due to his poor attitude and because he vas not a

'team player.'r. Saporito, on the other hand/ cckntends he was discharged solely on the basis of his participation Ln protected activities under the Act.

L. The Golden Cement Xn October, 1989, Complainant formed an environmental organization known as the Nuclear Energy Accountability project (hereinafter 'P~'). Complainant is the President, Treasurer and Executive Director of NEAP as mell as Editor of the group's

newsletter. The purpose of this organisation is to 'ensure that the nuclear power, plants + Florida,operate safe3.y and in,full compliance, with feder+1 gagu3.ati'ons. <<

Execu'~ Director. of allegat.i'on tha'4. a

~,

2'eb~~ry, 14.$ 990,'. Complainant, in his capaceity as

~lity

'.CA xoquested the ~c. Qnvelstigate,.on control inspector", Steven.,E. Kennedy, was resigning from FPL- because he was <<being force4 to sign-off safety related documents for parts .and equipment which he had not inspect;eds<<W addition to forwarding the allegatLons to the <<

NRC g Complainant released then'llegations to all media sources.

According to Xx. Saporito,he took that action because policy (and Qe'o1icy of, HEAP) to hold.. e,"fovirnment it is his repres'entatiyes, as wsll as Ne ntili&es a'ccountable to the p'ublic 'for act'.ions tha't Mve" an impact on public health 'and safety.'y coping the allegata;ons,to'he media, he would be ensured the NRC adequately Xnvestig&ed M.s concerns.

e The" following day,'; Pebruary 15, 1990'The Hiami Serai'ld pub'ished. a story based "on Ri. Sapor].to's letter. The art cle stated that the NRC was investigating allegrations ~t Kennedy, an FPL inspector, had <<resigned because he was ordered Steven to falsi.fy safety inspection reports.<<

On February 16 1990, Kr. Kennedy wrote a letter to the HRC refuting the allegations plainant had raised in M.s penrnary 14, 1990 letter sK.ennedy stated, inter alia,t pl 'P 1YV I. *h th I 1F letter. Zn his post<<hearing brief, he states <<although it is not dispu ed... that Steven E. Kennedy authorM tha rebuttal let e"..., it is clear,... that the origin of the Letter is in question... The fact... that the Letter was distributed to the media by ppL on the same day it was authored raises the legitimate question of how, and why the letter was generated.

employee reading the article might well assume that if a safety concern was raised, PPL had within its power the tools to create real problems for the alleger regardless of the aerits of the allegation, enough to get an employee to issue a rebuttal for use by ppL against the Complainant.'omplainant has offered no ob$ ective evidence to support such a contention. Indeed, the Couw has not found an iota of evidence in the record to cast doubt on the authenticity of authorship or the motivation behind such correspondence. Accordf.ngly, the letter in question ia found to be the work, and solely the work, of Kz. Steven E, Kennedy.

According to xecent news items, a self proclaimed -=

-'huclear- '.watchdog<< group: issued a letter teMhe Nuclear Regulatory Commission that ms very misleading and in many respects Mtal3y false. Xn the past, I

. have. doubted. thicrodibi3,itymf..this: group md their ..

.actions in this'case riinforces.-this-belief. X was not contacted by thm and I consider the letter vh1ch th y sent to the HRC to be'documented evidence of=-their

=

rirrespons&ility. They'have done a cEsseriiee

=-

to,!

myself;"Florida-Pcarereand 'Light Co., -'and the pub&.c'fn

'general; ".

=

This statement< 'like many others in this case, ms distributed to the local media, particularly newspapers in Paha Seach, Brassard and Dade Counties. Charles Zlmorep-'-a reporter with the Palm Beach-Post,-contactad both:Complainant aM PPL for cemaamt on K.. Kennedy's letter. Hr. Saporito stated that <<there's a cloud hangMg over this 'whole-knvestLgatibn." <<Ray-'Golden, -YZL~s Comnunication's- Coordinator, said <<finally this may be one zaore nail in Saporito'-s "eof fin. <"-~ Kr. Golden testifi4d~that to' he believed his-"!ccamnent to be an off-the-record response request, for his personal opinion. Both statements +em published

!  ! ~!7,199 ~ <<!.!  ! *hP~lS!

After publication of'r. Golden's ecauu:k, CcnnplaSmmt states that he felt 'humiliated and embarrassed<<because the paper is widely distributed M the area Lo ~ah hag his family and other FPL employees xeside. Further, he believed that Golden's comment 'cU.scredited him and undermined the ~rk he

+as doing to protect, public health and safety.>> To support this contention, Claimant asserts that sMce the <<naS.1 in the coffin' atement was published, workers at PPL nuclear facilities have been much more relucent to make their safety concerns kaovn to hM, resulting in this 'channel of &formation to the HRC dxying up PPL maintains that Mx. Golden's statement adChessed Complainant's cxed&ility Mth the NRC solely. Kz. QoMen 'meant that by Ccrnplainant's am actions, Complainant's cxed1bility with the NRC may be waning ~ Indeed, Respondent cites tedge Xacobo's determination that Complainant had been discharged for insubordination and the fact that the MRC's investigative team failed to substantiate a number of Complainant'a safety allegations at Turkey Po&t as the other Saporito's credibility.

'nails'ddrossing'r.

B. The Ba&er I~ters Subsequent to Mr. Saporito's disMssal frceze pPL but prior to the Golden continent, Complainant had sought to intervene, on his o~ behalf ds well as HEAP'sg in an ASLB proceecKng regarding

amendmentl to the technical specifications for two nuclear generating. units at,,Tummy Point., Be',,filed a petition to intervene on .December 27~.19'89. .In January, 1990, both,2'PL and the hRC fS.led motions opposSng Ccimplafnant's petitSon on the ctround that Complainant lacked the repxisite standing to intervene as he neither lived nor worked swithin the.stat'4s HRC's fifty-mile 'zone of interest.~ .riefly,'he NRC'a rule that an intervenor must either hark or reside vithin fifty xd.les of the nuclear pow'er plant',to meet the standing,.

Com'plainan'4'iled"'an xepx3.rement. da March 5 1996 arnot'Bed petition to intervene an "affidavit stating the p c in the ASLB piocee~g. He,--attached location of his Job at 2LFZ and hS.i hcnu:s of alloy with the school to establish-his compliance vS.th the fifty-mile rule.

John T. Bulter, a partner in the law firm of Steel, Hector a Davis in Kiami<~d Harold Reit, a partner. in the law firm of Newmin f Ho],,tzinger< P.C,, in Qashington, D.C., vere co-counsel for FPL in the ASLS,proceecKng. "M or deut ch 6< 1990, thoy decided to.verify the information Sn Complainant's afficbavit as the cruestion of Er SaporXto'I stanching ms of'reat 'Xmport to the hSLB pioceedSng.

F<. Butler and Kr. 'Reis discussed various aethodsI ranging telephone call to a deposition, to verify these facts.

from a They settled on mailing a 3etter to ATX as it auld provide them with w itten documentation of the contact. FcuMer, they decided to send Complainant a copy of the letter. %ho correspondence, signed by Mr. Butler, requested hTZ verify the employment-related statements which Complainant had proffered in his affSdavit.

On March 8, 1990, Mr. Gutmann received Mr. Butler's letter.

Y=. Gutsy testified that he cU.d not 'pay much attention to the letter as he routinely receives'alary and employment verification requests. Consistent with M.s policy, Kr. Cutmrmn informed F<. Saporito of the inquS~ and told him that he was going to confirm that Complainant vas employed at ATZ.

Complainant told Ya. Gutmj!ea that it was ~okay'o respond.

. Guano+ stated that he did not believe that Complainant fans embarrassed or concerned about the letter at the time, Be also did not find the correspondence to be intimidating, hosti3.e, coercive or unprofessional. Moreover, Nr. Gutmann did not believe the letter to be of particular significance to warrant discussion with anyone else at the school. Mr. Gutmann telephoned Mr. Butler on Rarch 9, 1990 and confirc~

Complainant's employment with MZ. Upon confirmation~ FPL withdrew its challenge to Complainant's standing.

On the same day as the Gutmann-Butler telephone conversation, Complainant nate the NRC alleging that the P~rch 7, 1990 letter from Hr. Butler placed him in an

'emba, rassing and intimidating position before his employer.'e further claimed that it was "totally out of line and unethical

~

',

0

and unp'raf essional and 'represents an anvaxranted -attack of

.

Mri Saporita'-s '-integritp Md privacy.~-Compl'ainant provided Mr. Sutler with 'a .eopj ='of his correspondence. oRx . 'Butler testif ie'd that" he was surprised>> by Complainant's response as he felt Butler the letter to ATI was innocuous . On March 19, 1990, and" lQ.""-'='Reii-. draf ted a letter to Ccxmplaknant Mch they copied to ATI. Thex ein, Xr . Butler stated that he regretted that Cceplainant found his iaftial carrespondence threatening or coercive and that its sole purpose ms'-'Co verify the facts relating to the stanch@-isaue. .',

Subsequently, the ASLB adCkessed Ccaap3.a%nant'i'-'ssertion that: he felt Intimidated by Kr. Butlex's Letters Xn a Memorandum and Order dated April 24, 1990 > the ASLS stated the fallowing ' Kr. Saparita] has not pexsuaded the Bawd that

=

there is any valid reason for his serious char'ge of intimidat3.on. >> With respect to Kr. Butler's'= firat letter, the KALB scatsd, ante'r. alkaa. 0 0 ee4 have examined- that letter [to MX) and have

. We concluded that purpose o f conf it @as a simple f actual Xncpxiry for the-ixming factsl concerning Rr. Saporito' employment. There is nothing in the Letter that consider to be Intimidating. Indeed, all the lettex

~

may have done with z'espect to Kr. Saporito's employment relationship is to bxing to the employer's attention, in a neutral manner, a fact that is ccemen knowledge and that Mr . Saporito reasonably must have expected his employer to learn during the course of this litigation:

that Mr. Saporita is involved in a case affecting Florida Power and Light...

Complainant then amended his complaint, on Ãnxch 27, 1990, to include the allegation that PPL continued to haa:ass, Intimidate and embarrass him before his anployer by eo~ng the letter of apology to AZI. The ASLS also commented on Kr. Butler's second letter. The ASLB stated that while there did not appear to be

'any strong reason'or Sutlex to send a copy of that letter ta ATZ, Butler may have felt <<that the letter auld reassure the employer about there being no coercive intent letter] and we find that the routine copying of that letter doested the first not, by itself, demonstrate coercion to this Baed.<<

C. lainant's l t Relationshi As previously noted, Kr . Saporito ma employed as a part-time instructor an December 1 4, 1 9 89 . He vas hired by Y" . Withers, who was thm the school ' Director of Education, and worked approximately twenty hours a meek. M Sapoxito taught a class in digital electronics from 6!00 p.m. until lla00 p.m.,

Monday through Thursday. Kr. Withers, and subsequently Dr. Diaz, was his immediate supervisor.

Beginning in January, 1990, problems arose between Complainant and the school's administration. Hr. Saporito

.testiQ.ed'."that:;he had 4Hficti&yobtaining teaching supplies from Mr. Withers. Rotably, he stated that this was a problem prior to the Butler letters M "well-as afterhard.. ,Se.'.aXso had trouble

obtaining supplies from Dr. Diaz.

Mu6W  : b w En late March, 1590, =two instruc'tora Iett ATZ during the quarter -'- One of those-Mstructors ~Calvin ~ewoodI= taught an

-afternoon...class in semi-conductor electronic's. Thai'e vas also a paid assivtant instructor assigned to~~t"class Jorge Jorge.

.

Mr. Gatewood>ad-not ~formed Mr. Withers that he was leaving ATI's employ. Indeed, Chere was a four-day period during which Yw. Withers thought, Mr..;Gatewood was absent dhe to-illness ~

=During that period of Chne< iKrt- Withers hact Rr. george.teach the class. Er. Withers sat 'Sn on the class and.observed. that Mr. Jorgb~was -doingw fine gob. Moreover'~-'the class~had accepted

'-him. --.Mr~,Withe~ then 'Learned:that =Mr. Ga4owood va4 'leaving.

4.' v- ";'- ~nz 8>.

Complainant spo3ce to Mr.- Witheis abo~t filling the vacancy created by Mr, Gatewood's .departure. -Complafxunt'anted the

'position so that he could teach full-true. Kr. Withers decided .

not to assign Complainant to the class because he felt that Yw. Gatewood's departure was disruptive and did not wish to disturb the class further by introducing a new instructor.

Therefore, he decided to replace Rr. Gatewood with Mr. Jorge.. At the hearing, Complainant stated that he was bypassed for the position vacated by Pz. Gatewood as a result cf the Butler le-ters.

At the end of the month, Mr. Gutamm received another w=itten request to verify that Complainant worked at ATI. The recpest, was fxom a mortgage company. In response to one question on the fozm, Mz, Gutmann wrote that the probability of Complainant's continued employment at 2LTI was <<excellent.

P . Gu~nn ccepleted the form on March 29, 1990, after he had received the Butler letters.

In addition to Mr. Gatewood leaving ATZ in the midst of the.

spzing quarter, Mr. Withers also departed. Kr. Withers left on Friday, April 20, 1990 and his replacement, Dr. Dias/ began working for ATI on Tuesday, April 17, 1990. During Mr.

days at MI, he tried to organise a tentative schedule for Withers'ast the instructional staff for the next quarter. He needed someone who could teach microprocessors. Mr. Withers had a brief conversation with Complainant in which he asked him whothor ho was able to teach that material and whether he was available to teach in the afternoon during the upcoming quarter. Complainant responded that he was able and available. Kz. Withers advised

-lo<<

Pw. Gutmann that C lainant was available to teach "microprocessors in ~e afternoon d'or the next quarter.

Hr. -'Gutmann subsequently of fered Ccxmplainant the -position>>

.'owever;he intendbd to reserve final-"'approval on We totality of the tentatiW- schedule to Dr. Diax..

a p

Shortly after 5i. Dias's arrival., Kr.-Cutmuurheld a staff imeeting to int6xiuce br. Dia'x to the-facu3.+ of 'the school. At Cthe "meeting", 'Dr. Dias teStified that'Omplainant diSplayed a "nega'tive attitude towards hen. Mr. Saporito denies this asserts.on. Dr. Dias also, stated that the yemainder of the staff was upbeat and~siiive about, Qs apyointsent,.

Prior to the meeting, Ez:. Gutminn discovered a letter written'y Ccmp3.ainant'on his desk. 'The letter addiessed 'various

,,complaints that Hr.'aporito Qd w3.th the school. Namely,

Comp.ainant fou'nd ATX.'s c~3.cul~ to ke Lnoonsistent, student

.supplies deficient, lab equipment cniMated and arly instructional materials .scarce and c3:assrooe'oaMs dirty.

eai4taiaed,

'&. Saporito sent a copy of this 3,otter to ATI headquarters in Dallas and to the Executive Director of RKTTS Kr. Gutaumi met

~

with Complainant and asked him to draft a letter to HAPL'S informing them that ATX was resolving his concerns. Complainant so wrote the accrediting agency and copied the correspondence to Ym. Gutm~~ and the ATI headcpmrters. Apparently, both parties believed they could 'work out their differences. ~

.

On April 23, 1990, Kr. Guten held a meeting with Dr. Dias and Complainant to discuss Complainant's letter. .At that meeting, Er. Gutmann confirmed his offer to Ccnnplainant to teach both afternoon and evening classes, thus a full-time position, du ing the school's next quarter, At this point, Dr. Diaz made no objection to Complainant's appointment. Additionallyg Dry Diaz testified that as of the April 23rd meeting, he was unaware of Complainant.'s involvement in proceecKngs with FPL.

Dr. Dias conducted his first staff meeting at the end of that week or early the following mek. He testified that Complainant.'s attitude at the meeting was poor. Dr. Dias reached-the decision that Mr. Saporito had to be replaced. Sametime after April 23I 1990 and before May 7, l990< the date on which l Gu&lBIill received a deposition subpoena in connection with this proceeding, Dr. Diaz approached Rr. GutmLnn and told him that he was going to discharge Complainant. Dr. Dias told YD GQQnann that he was very unhappy with Complainant and that he

~

did not want Complainant on his staff. Kr. Outworn reiterated that it was Dr. Diaz's decision as long as he had a replacement for Complainant. Both administrators decided to allow Complainant to finish the quarter before discharging him.

Accordingly, Dr. Dias waited until May 10, 1990 to terminate Complainant. Concomitant with the discharge, Dr. Diax offered to v"its letters of recommendation for Complainant.

L1-A.factual dispute cvCsts 'as to the language...utilized by =.

Dr. Diaz during the discharge:meets.ng. Complainant testified that:at--the. meeting; Dr.;Diaz'told him that he had been '.directed to terminate:.Complainant hy 9Q:. Gut5ann'cause 3Cr. Gu'tenn cd not .want ATZ .involved".&th...litigation involvtng:FPI and DOL. ~

Dr. Ciaz denied ma3Mj any such statement.-.-. Dr."- Diaz testified that he told Complainant that he.would not- be n'ceding -him"the next. quarter.becauia Complainant its not.a team, player'nd he did-~ot want. him ae part.'nf Ke staff ...

tapproximately;.ane se

~ p 4\+3h 1 after'he II

'cKscharge meeting, Compliant scrnt a letter- to. Dr.:.Diaz repxeeting Mat he;~ite,--

letter's of.~recommendation, for t& prospect&re mployers.=..

Dr.. Diaz sent the xecpostod .)otters .and mailed, copies of them to Complainant.-<<.The body..of"those=Betters .was identical; letters stated, inter alia, that. Complaiaant 'always oaves to olass prepared and his papsrworh was DayeccaMe. Kr. Saporito possesses outstanding organisatianal s3ci3.ls and.tie in my experience .dependable and punctual.~. Ho other contact was made .

between the parties until di,scovery proceduree mre initiated in context of this proceecLLng.-

ZZ ~ STATMi?HT OP THE Lh%

A. Issues The issues presented herein are basically tvoc (1) Na.s the comment by an PPL'e spokesperson inherently discr~natory conduct sub]ecting PPL to the Act's mandatee; and (2) Did the Butler letters amount to blacklisting in violation of the ERA and cause Complainant'a termination from ATZ.

B. Establi a %Mrna PacS.e Case To sustain a discr~Lnation claim under the WhS.stleblover Protection Provision of the Energy Reorganization Act, the complainant must prove> by a pesponderance of the evidences th tc the party charged with discrimination is an employer sub)ect

'1) to the Act; (2) the complainant was an employee under the Act; (3) the complaining <<mployee was discharged or otherwise discr~nated against with respect to his or her compensation, terms, conditions, or privileges of employment; (4) the employee engaged in protected activity;

12 (5) the employer, knew or had Knowledge thet t4e employee engaged.

in protected .activt<y>- and

~

• e

{6);Me retaUatSw.against.-Ne pm'.oyoe ms aotivated, at least in:.parg, .by She employee's e@gagMg in~tected acQ.vity.3 Once the ccmylainant; establishes a ~zSis facie case, the huidan s

of proof shifts to the respondent to prove a7Fizmatively that the same decision would have.-been @ade,even in'I' protected activity.+

if the enplope had not engaged IIIe;-,JURISDICTX~ p~

~

AO ~ <<0 I n This case ms: brought'-'ader the Employee Pxe~tion provision of 42 Q.S.C. 5, 5851. -The statute pnrvidesc J

• a

~

Ho employer, Mcluding a Commission licensee f Ml applicant for a..'Comunission-,j.icense, or a contractor or -,,

a subcontractor of a Commission licensee or applicant, may discharge any employee, or otherwise discrizdLnate against any employee w9.th respect to his ccnnpensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a repast of the employee)-

(1) comN8ncedI caused to be ccmm~codg or is about to coamwce or cause to be ccesaenced a proceeding under this chapter or the Atomic Energy Act, of 1954, as amended f42 U.S.C.k,.

$ 2011 et ~s .], or a proceeding for the administration or enforcement of any requirement unposed under this chapter or the At~c Energy Act of 1954, as unended; (2) testified or is about to testify in any such proceeding or~

(3) assisted or participated or is about to assist oz participate in any manner in such a proceeding or in any other manner in such a 3/ De":ord v. Secret of Labor, 700 F.2d 281'86 (6th Cix.

1983); Fmckowiak v. Universit Nuclear S tems Inc., 735 p.2d 1159, 1162 (9th Cir. 1984); Ledford v. Baltimore Gas t, Electric 83 ERA 9, slip op. ALJ at 9 (Nov. 29, 1983), adopted by SOL. 'o.,

4/ Ashcraft v. Universit of Cinc~ati, 83 KQ. 7, slip op. of SOL a= 12-13 (Nov. 1, 1984)g Mackoviak v. Unfversit nuclear Svs ems Inc., 735 PE 2d 1159~ 1164 (9th Cir. 1984)~ Consolidated Edison of H.Y. Inc. v. Donovan, .673 F.2d 61, 62 (2nd Cir. 1982).

proceeding or in any other action to carry

". out the purposes'-of this chapter ox'the Atomic Energy-Act of 1954, as amended

-(42 U.S.C.A.'-$ -2011 ot ~s Wr this teibunal to exercise "Jurisdiction over a cla&f<it must first be determined that the Act's- in the'caiise of action fall ~ithin the scope of -the jerticipanti provisions. Xn the instant case, the Court-must detkrmine-whether-'ATX and P'PL aie "

'.huployers<<sub)oct to the Act and whether Kr. Saporito is an employee'ntitled to the ERL's protections.

1 p ), Q .-1~i/

An employer is defined as 'a'Commissi.on licensee, an applicant for a Commission license, or a contractor nr subcontractor of a Commission licensee or applicant. ~

unde"signed firstERA's turns'-Co~ATZ;

.'he XII Complainant maintains that falls within the definition of an employer -because=the Congressional intent bd&d the Act was for it to be 'liberally construed" to effectuate its remedial'jnxrpose. Complainant cites a National Labor Relations Act, (hereinafter RES<<) case where a bank was held to be an employer because its conduct tended to discourage unionization, even though the action was not directed at the bank's employees. See, Seattle-Pirst National Bank v.

NLRB, 651 F.2d 1272 (9th CXr. 1980). Wh1,le e Court agrees that the Act should be construed broadly and that SLRA case law is t~

be referenced for guidance in this area, these concepts cannot be employed to extend coverage beyond the plain aeax~g of the ERA.

ATI neither operates a nuclear power plant on its own behalf or under contract from any other entity nor is applicant for any such license. ~~erg ATZ maintains no it an special relationship with FPL. WM.le a limited number of ATX graduates may eventually be employed at PPL, there exists no recruitment program between the two organizations. Xt appears to this Office that the sole contact between the corporate entities, prior to this proc~Ning< was the sale and purchase of electricity.

ATZ~s The language of the Act appears definite on activities do not place the school within the realm of its face.

the definitional terms oet forth in 42 U.S.C. S 5851. Moreover, the legislative history relating to the employee protection provision of the ERA indicates that the word 'employer refers to entities related to nuclear power plants either by contract or license from the NRC. Notably, the Congressional records addressing this legislation describe the whistleblower provision as <<provid[ing]

protection to employees of Commission licensees< applicantsg contracto"s, or subcontractors...'ee, H.R. Conf. Rep. Ro. 95-

796, 97 8 8 II., 2 8 8, 26 )l9 8), ~I Code Cong. i Admin. H<<ws 7303.. Accordingly~ 9ATI,Ls not an 6 I )1978) 9 6, employer vithin the meaning af the Act; therefore, this Court lacks )urisdiction, ta decide Complai'nant's claiza against ATI.

6 4 ~

Bs FPL as. 1 The Court next addresses FPL's availability for suit under the ERA. It is beyond doubt that FPL fLts Ijuarlly within the Act's definition of a covered employer. ==%hat remains questionable,, ho@ever, is whether FPLy t3u~gh its, actions<

sub)ected its employe .,

it'self,to 'the

~p .

9 2 46 4.,

ERA'a".provisians,-after Re, Saporito g

"8-q; left Case law has. established that an employer is capable of discriz~tion, thus sub)oct to the Act,, even though the individual discriminated qgainst is not its employee. ~Town u.

Philadel hia Electric Ca. < S7 ERA ll> 88.,ERA 1 (Pebrtmry 4, 1988), Xndeed, Ln. Ei3. v. Tennessee -Valle Authorit,,',87 %RA. 23 (Ray 24, 1989), the Secretary of Labor e - at e language of the Act 'is not limited in tonus to discharges ar discrQLination against any~ specLfic employer's employees, nor to e"ployees. However, the Secretary also noted that 'this ruling

'his'r 'Lts is limited to the narrow facts and circumstances here presented..

There is no occasion here to decide whether other employees, differently situated, could seek the Act's protection from alleged discrimination. Nonetheless, a former employer was found liable, under a continuing violation theory, for discriminating against a former employee. enrieder v.

Fetromlitan Edison Co. < 85 BRA 23 (April 2, Ecenrieder case eld, however, that the basis for this ruling vas 1987). The the detera~tion that the former <<mployee had been employment with other nuclear facilities by the respondent.

'blacklisted'rom Zn the instant case, for PPL to be subject to the Act's provisions, it must be found to have discr1md~ted against Complainant through continuing discriminatory actsg specificallyy through the alleged means of blacklisting.

C. laLxumt as 1 The determination of whether Mr. Saporito is a covered employee under the Act goes hand-in-hand vlth a decision regarding FPL's status under the ERA. Complainant aay only be deemed an amplayee of FPL if it is established that FPX. engaged in discriminatory conduct against him. seed Rill, ~su ra. Iyhusd to dete~ne whether this Court may rule in tEis instance, Lt must first be established that FPL engaged Ln ongoing discriminatory conduct against Ya. Saporito in violation of the Act.

XV~..-.THE SC

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.

~;. c~~.caieRatxbar an ~ployee e5':ah MRC olicenesac<<&lie:tho iiRCNtle<<.C¹i:hke~loyer and ~e emp3.oyer -"Aubsicpxontly cdisQuuged is .a .licensee caf =We 'SRC,- threats.";iyiiCnguise 40 tthfe Cause of

~6 ~lejoe.'>>.<While FPL act.'ion ocnznseck a fter Coeplai&ant and -FPL -had Mzzkhatod: their

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~rRespondents"'thxOuyh- thief;5-'conduct>-tee~ Comp&inant nkrthat~h&as4M~-SitindLakte4-'gainst as.,evidenced by=tvompecif ic "acts. =.=XnS;tially~ Xr.:- Saporito contends that ..thh Moaunimt~hp'~WL~~ spokesperson';=-Ray O'Olden, in ",

the Palm Beach Post"is inheiently discriminatory- conduct, M violation .of the Act. 5 Seconlly~~.Ccniplainant'tates that -the employment~>erif ication, lot~s -.aen&hy~Z Ws,:couieel to connection with'he {XSLB procooding=, <<intirforod-.Withe "terms, and conditions 'of his.".employaeit<<Mth"-ATX.'hus -. as .a,former employer, FPL blacklisted Complainant causing'g his eventual discharge from ATZ. 'Complainant beliovos these actions vere taken as a-result of his participation ia protected activities.

Spec'fically, Kr. Saporito alleges that his actions of reporting his safety concerns about PPL's Turkey Point plant to the RRC and his petition to intervene in an FPL licensing proceeding form the foundation for those alleged discriminatory practices. This Office must review each of these incidents separately to decide whether Complainant has established a ~rima facie case nnder the ERA.

B. The Golden Ccament One of the focal issues in dispute herein is vhether the

'nail the coffin'tatement by Ray Golden, as published in the S.n Pal~ Beach Post, constituted an act of inherently discrixinatozy natu al consequence i of*wthe I certain conduct on the part of an employoo. NLRB v. Erie I QQ Ipdl action is to encourage or discourage

~ 'olf th Re istez Co ., 373 U.S. 221 (1963). If actions are so deemed, the employer is hald to have intended tho foreseeable consequences of its actions and specS.fS.c proof of discrimS~tory tent S.s not required.

Xn the instant case, the comment, attributable Co PPL by the nature of Yw. Golden's employment as Ccnmnunications Coordinator, arose from a series of events culminating in Steven Kennedy's resignation from PPL. As previously notod, Ccanplainant forwarded. correspondence to the SRC stating that Zr. Kennedy resigned because he vas being forced to 'sign equipment he had not inspected. Kr. Saporito additionally copied off'n parts and

.

-.

this letter to the; local media..:Subsequently, Mr.. Kennedy publicly refuted Complainant-'I assertions regarding =hf.i-Beach resS.gnatiozx.,Charles Mmora, a repoitex pith the palm Ib14 d'C,pl!

Boa parties-resorted to. cliche'a:- to arpress theii opinions.',

Saporito stated there was a. cloud, hanging,,ever the. ihole investigation &. Golden said-that Hx. Kennedy'e-refutation of Complair.ant's allegation,-finally..-. may be-one mcce~l in'his coffin.'ra Complainant asserts that the nature of the comment reveals animus togaed.,ComplaMant and his a~vXMep.. Xt sends.a message that those who utilize Complainant as a conduit of information to the NRC are,subject, to s lar treatmant.. RuMer, Complainant maintains that this animus is corrected to the activities of Complainant protected by the Act. ks pm'of of, these.allegata.one, Mr. Saporito states that,:the Golden Comment has had a.chilli6y effect on FPL omployees as employee contact with Complainant has decreased, significantly since the stateient's publication. SQu-e this communication has produced a chilling, effect, according to Complainant, Lt is inherently discrMLnatozy. Therefore, K".. Saporito is under no legal obligation to establish a discriminatory intent on the part of FPL.

The Court cannot agree with th5.s assertion. The ~nail the coffin'manent. speaks to Ccmplainant's credibility, not te his engagement in protected activity. Given the nature of the contact between Complainant and PPL to that point, it reasonable that PPZ auld have cause to question Mr. Saporito's appears believeahility. ThS,s lack of credSbilSty, and possible decrease in PPL employee contact with Complainant, cannot rest with PPL ~

Saporito's own conduct~ as evidenced by his discharge from PPL for insubord5.nation and Kr. Kennedy's mfutation, can only be blamed for any loss of contact with employees at PPL. Notably, Complainant proffered no proof of this alleged chS.lling effect.

Be failed to call a single PPL employee to ~stuffy at the hearing, nor ~re any affidavits or depositions of FpL enrplayoes contained in the record corroborating Ãr- Saporito'I claim.

Additionally, thS.s cceaaent does not rovaal parti.gulag animus towards Complainant. Rather, it appears to be a somewhat innocuous statement addressing Kr. Saporito's crecU.bility.

Conplainant his statemet spaM only to PPL's perception of Ccanplaimmt's credibS.lity.

Complainant notes that hie allegations vere raised in good fa'th, although the ma)ority of his concerns ~re unsubstantiated. He further maintains that PPL has no

wo wlmut ~ublicly-humiliating. employees Mo raise safety that, FPL, through the 'Golden Comment, sent a message to concerns'nd employees that 'they better he gight~Xf they are going to the NRC.'he evidence beliei such a'inding.'hile an employee is-not requS.red to shmr that it is true that hedisclosed.,unique evidence to tho-.NRC, or -evidence that an employer ittiiapted to hide in *order to establish a case under the ERA, the alleged retribution for this action must be supported by the record.

nepord, ~su ra at 286. That showing has not heen made here.

Respondents have not gne sti oned,a,nd t-hereappears no reason to question, Complainant's good faith in "raisingiiafety allegations.

However, a sealous belief in uns'ubstantiite4,concerns cazmot 5.nto a viable oceylaint by reading moxa.into a-.ceament be'ormed than eristss Accordingly, the Court finds that the Golden iComment-was neither inherently d5.scrizLinatory nor a violation of the BRA.

Respondents maintain that 'if the Golden comment is vinson as substantial, it is protected by PPL's H.rst 1men('heat x'ight to free speech. Both paxties to this cause of action are free to exercise their rights of free speech'oreover, vere this proceeding grounded in defamation, Kr. Saporito's status as a public figure would repxire clarification. Hcneever, as the Court has ruled that the Golden CemHhnt is not a violation of 42 U.S.C.

$ 58519 the statute in question, a discussion of any First Amendment ramifications of the Golden Comment is unwarranted and beyond the scope of this tribunal.

C. The Butler Le)mrs

1. Discr&af mto

-

Intent The second significant area of dispute revolves around the letters sent to ATI by John Butler, counsel for PPL in the ASLB proceeding, regar(Mg verification of Complainant's employment at ATE. Complainant maintains FpL's motivation for these letters was an intent to 'intbnidato, threaten, restrain, coorce, blacklist, discharge or... di~scr~Lnate'gainst Complainant for his involvement in protected activities. Moreover, Kr. Saporito asserts his termination by ATX vas caused by, and in the spirit of, this discriminatoxy intent.

Discximinatoxy intent or xetaliatoxy motive is a legal conclusion provable by circumstantial evidence although there exists testimony to the contrary by a witness who perceived a lack of improper motive. Rllis Pischel State Cancer Hos ital v.

Ywrshall, 629 P.2d 563 (8th Cir. 1980), sert. en'd., 405 U.S ~

l040 (l981). Several methods, snoh as anger toward 0omplainant's protected conduct and a suspicious sequence of events surrounding.

the employees conduct, may serve to establish the requisite

discriminatory motive In whi'stleblowsr claims.5 Complainant notes the Golden Comment as the instance of PPL's animosity toward Cccaplainant's protected activity and the events surrounding the Butler letters, as well as the letters themselves, as suspicious. Since the undersigned has previously addressed the Colden Ccaament, there exists no cause to reiterate the Court's findin'g except to note that the 'nail in the does not reflect animosity toward Mr. Saporito's coffin'tatement participation in protected activities.

7ddressk.ng the Butler letters, the undersigned finds that FPL had a lejitimate Interest in verifying Complainant's employment with ATI. Mr. Sapozito sought to intervene In an AELB proceeding regarding FPL's Turkey Point facility. The question of his standing was pivotal to his availability to intervene. He sought to establish that standing through his employment at KTI.

1n addi.tion, the method PPL chose to corroborate Kr. Saporito's affidavit was reasonable under the circumstances. The letters in question were merely a verification of Information request and a

-letter of apology- WhS.le the same employment Information could have been garnered vocally, it is 'not unreasonable for FPL to '-

prefer to have written documentation. The language of both the initial inquiry and the subsequent apology were not coercive, intimidating or threatening. Indeed, the correspondence appears direct and professional.

Complainant contends that the letters vere,'carefully written and edited to affect Complainant's standing in the licensing proceedings by effecting his .employment at ATI.',

Mr. Sapozito cites that since two partners at two law firms drafted the employment verification letter, there must exist some end" they sought to achieve. Particularly, he proffers that this letter intended to "plant a seed of doubt'y informing ATI that one of their employees was involved in a ma)or legal, proceeding with FPL over its nuclear plant. PmMer, Complalrumt maintains the second letter was copied to GATI to ~nourish the seed'y reminding the school of Complainant's involvement with FPL and to inform them that they too ~e involved.

Again, the Court, is unpersuaded by this argmnent. The sequence of events surrounding the Butler letters suggests no discriminatory intent or retaliatory motive. Indeed/

evidence as a whole does not support such a conclusion. Xt does not appear unreasonable that in an ASLB proceeding, a matter of considerable import to PPL, that two attorneys would be ut5.lised in that parti,cular proceeding..Further, as Complainant~s

~5, '

Sim=one v.

C ~

Simmons

. 11,'74Inc., .28Mo.

Industries 15115 (~

87 TSC 1

C'989);

(July 14, 198S).

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.=19= " '

assertion that he worked within the fifty-ingle .~sone of focal to his availability to intervene in the hearing, the Interest'as verification letter was, important to the proceeding as a whole.

collaboration between two attorney~ amployed by the same client does snot automatically give rise to a discrLminatory intent.

Complainant offered no obgective evidence>'circumstantial or otherwise, to establish that FPL discriminated against him through the Butler letters as xetyliation for his participation in the ASLB proceeding.

2. ~ldklf Concomit'ant Wth this assertion Cs Camplainant's a&egation that FpL blacklisted him through the Butler letters.

Blacklisting is defined as!

A list of- persons marked cut.for special avoidance, antagonism, or enmity oh the part of those who prepare the list or those among whom it is intended to circulate; as where a trades-union 'blacklists'r3cmen who refuse to conform to its rules, or where a list of insolvent or untrustworthy persons is published by a commercial agency or mercantile association.

Black's Law Dictiona (5th Rd. 1983).

Since blacklisting, by its very nature, Is a continuing course cff conduct, it may constitute a continuing violation If upon an employees protected activity, under the ERA,.

it is based enrieder, sutra, at 29. Xn the ease at har, the Butler letters do not all within this definition. The initial letter, as previously noted, was solely an employment verification request. Upon confirmation of Complainant's employment at ATZ, FPL withdrew its ob$ ection to his standing in the ASLB proceeding.

Ere Butler's second letter, which was copied to ATZg docs not constitute blacklisting either. The evidence of record suggests that the parties Involved took little note of the apology. Significantly< the ASLB did not consider the letters to.

constitute blacklists. To establish a rima facie case under the ERA, Complainant must prove that FPL too a verse action against him because of his protected activities. The Butler letters, either under a theory of discriminatory Intent or blacklisting<

cannot sustain such a finding.

3. 2Lt -C1$ .ent Privil e and %ork product Mith reference to Respondent's assertion that the Butler letters const,ituted work product and fell within the attorney-client, privilege, the undersigned has previously addressed that issue. By Order dated August 9< 1990< this Office ruled that

C"

~

'0-' d':

I since the nature of -Complainant's allegations mre directly correlated- to the Butler,letters, the attorney-client privilege was unavailible. ~~er, the.vork-product doctrine ~s only held. applicablo to Kz..Sutler~a mental iapress3.ons and "litigation strategy. The lettozs themselves vero 'not. so covered. C%e Court finds'no reason to deviate from this position at this puncture.

4.:-3LTZ's TeM~tian of laizent ll 4

- ..Assuming< arguendo, .Mat ATZ is an employer within the meaning of the ERAI .its actions in- terminating Complainant must be that Complaisant ws hired ii scrutinised under the Act's'mandatee. "'5%e facts establi,sh a part-time teacher hy ATX on December 14, 1989 and discharged on May 10> 1990 During his employment at ATX,- several noteworthy events -ocnu~ between

~

Kr. Saporito and the school's a~Lnistration. Sanely, on April 19, l990> Complainant mote a letter ta Eax3c Cutznanng he copied to ATI headcpartezs and. RATS,,outXS]aing areas of concern he had about the school. On April 21, 1990, Complainant authozed a letter to RATTS, at Kr. GutzLann's behest> assuring the agency that his concerns vere being addressed by ATZ.

later, Complainant met with Rr. GutmMxnn and Dr. Peter Dias, the

~ days zecently hired Director of Education, to discuss the letter. kt that time, Mz. Guten extended an offer to Complainant to become a full-time instructor. Notably, this offer was extended well after M . Gutmxnn had received and zeviewed the Butler letters.

Afte meeting with Xr. Saporito, Dr. Diam, who controlled

~

employment decisions within his department@ decided to teMLIlato Complainant. During the teanination, an Kay 10, 1990, Dr. Dias offered to write Complainant letters of recommendation for potential future employers.

Complainant maintains that his texnxinatS.on by ATZ vas motivated by the Butler letters. He alleged that after receipt of that correspondence, he vas <<treated differently'y ATZ, denied teaching supplies, denied a position that became open during his tenure and eventually discharged. Xn support of this allegation, Complainant offered the testimony of A. Saumoll, a former ATI student. Ãr. Saumell test1fied that Complainant'e appearance on television was knovn by the student body and his involvement in legal proceedings with FPI was discussed among ATI students. He further stated that he overhead a discussion between Dr. Diaz and Mr. Withers, the prior Director of Education, regarding PPL correspondence.

y . Saumell's testimony does not establish that ATz violated the Act. Znitially, Kr. Saumell's testimony regarding the alleged conversation between Dr. Di.ac and Mr. Withe s is hearsay, Moreover, ma ter asserted.

it was not offered for the truth of the As this Office is under federal Jurisdiction, it is bound by those evidentiary axles. This testimony,

LCi ~ '

ll CJ ~

J 6 {

therefore, i<<accorded little probativet. iraight. Had Mr. Saumell heard Kr. Wither<<".mention FPL letters< 'his to<<Simony did nat establish that Kr; Withers was referring to the Butler letters.

To the contrarJJ, Kr. Saumell testified that he did not hear dither Mr. %ther<< "or Dr.'iam refer to Coeplainhnt. Both Mr. Witheri and Dr. Diaz testified that they never di<<cussed Er. Saporita, Additionally, if@. Gutmma':testified that neither Y~. Wither<<noz Dr. Diaz vas aware of the Sutler letters.

8

. The timing of Mr. Saparito's termination fram ATZ offer<<no support to 'his claim. 'Ca<<e Xiw has held that-Men an employee is terminated <<hortly=after participating in protected activity, a presumption ari<<es that, the termination %Os the'esult of the employees conduct in engaging in protected activity.~ Hcwevor, this presumption i<<not raised in the in<<tant case. %hLle ATZ vas put on notice af Cpnpliinant's involvement.in legal proceedings with FPL by the Sutler letters and Mx. Gutaumn's notice of deposition, the'evidence has not sheen that these events in any way influenced GATI's decision to d5.scharge Pw, Saporita. Dr. Diaz, iso <<olely possessed authority to discharge within his department., was not employed by &I shen Gutm.mn xeceived the Butler letters. The record does not offer any definite evidence, other than Mr. Sapozito's ewe testimony, that Dr. Dias had knowledge of the exi<<tence of those letters. Additionally, Dr. Diaz testified that. he had decided in April, 1990 to terminate Complainant but did not wish to da so unt,il the end of the <<chaol's carter in May. Dr. Diaz that he terminated Er. Saporito becau<<e ho m<<not a credibly'estified

'team player'~ as evidenced by his poor attitude and letter ta ATX and MATTS, and because he personally di<<XOced Complainant.

The undersigned finds no reason to doubt Dr'. Dias'I veracity.

The letters af recommendat5.an Dr. Diaz mete fax Complainant are consistent with his testimony. Dr. Diam stated that he believed Complainant to be punctual and well-prepared for class. The letters af recccmnendatian reiterated those statements; they did not offer any apinian on Mr. Saporito'<<

performance of his gab duties. Moreover, illogical that Dr. Diaz would offer to mite it i<< not unlQcely or Complainant such letters of recommendation. Although Dr. Diaz did not, <sh ta have Px. Saporito in his employ, there Ixi<<t<< no evidence suggesting that Dx. Diaz wanted to thwart Mr. Saporito's attempts to <<ecure another position. Given the competitive nature of the current fob market, the inability to produce a zeccnnmendation from a former employer could seriou<<ly harm Complainant'<< <<earch for employment. If any inference can be read into the letters of recommendation, toward Kr.

it Saporito can anly be K'I'<<gesture of <<goad v3.11<<

in his search for alternate anployment.

~6 . 816! ., 84 38 {J 11, 1186).

1 l tl l

According1y, ATI's tezminatLon of Camplainant ms not a violation proscribed by the ERA. Zn addition, Complainant has failed to establish that-the Butler-letters played any part in that discharge. '=.The letters Racked my discriminatory intent or retaliatory motive; they=-vere merely an eaployment verification letter and an apology.. They do not constitute an instance of

.hlacklisting. Therefore, Complainant-has not proven his pries facie case under the Act regarding the Sutler letters.

V RELIEP

~ 4 The ev5.dence submitted in connection ~ith this claim has not persuaded the undersigned that this Office has appropriate jurisdiction-:to decide this matter. Assuming the undersigned possesses the requisite jurisdiction, this Court,is still unable to fashion a remedy for Complainant ai he has -failed- to establish a pries facie case against either ATI or PPL= under 42 U.S.C 5 5851. 'TZ did not take any action againat" Conplainant because

~

of the Butler letteri or because of any protected activity in which Complainant engaged. PPL's actions, specifically the Golden Comment and the Butler letters, were not adverse to Kr. Saporito within the meaning of the Jtct. Accordingly, Complainant's claim requires denial.

VI ~ ATTORHEV' FEES COSTS 2LHD fiAHCTIOKS For sanctions to be imposed against an unsuccessful in bad it litigant, must be shown that the individual pursued his claim faith. Bad faith generally implies or involves actual or constructive fiaud, oz a design to mislead or deceive anothe ... not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. The term 'bad bad judgment or negligence, but rather faith'sit not simply implies the conscious doing of a wrong because of dishonest puzpose or moral obliquity... it contemplates a state of mind affirmatively operating with furtive design or ill will.

Black's Law Dictiona (5th Ed. 1983). As applied to legal causes of action, the concept represents a bar against frivolous claims. See, Ped.R.Civ.P. 11.

Zn the case at bar, Respondents have not. established that Complainant's claim was either frivolous or brought in bad faith.

To the contrary, it is apparent from the record that Complainant and his counsel believed a viable claim existed. A ruling adverse to their position does not automatically warrant an award of attorney's fees, costs or sanctions. As the claim was

0 I ~ C a e

I 0

grounded in good faith yet unsuccessfu1, each paitj should bear

.. their expensa-of this litigation.

.MQDRRIO I

.Consistent with the for'ego&g=, Lt Ls hereby- ORDERED that Complainant's complaint is hereby DKNXED.

~ C. A"

,I I

T District Chief 'udge EET/VB/pcc

sgggSt Of course Staff must sct a pass-fail mark at some point. However. Staff is I

I

~ Cite as 30 NRC 73 (1989) 0 DD4IQ-5 not without flexibilityin its a<lministration of this program. Section 55.47 of thc Regulations provides that Staff may waive examination an<1 test rcqoircmcnts UNITED STATES OF AMERICA on<lcr certain circumstances. If, as appears to bc thc case, Mr. I Ilingwo<xl NUCI.EAR REGULATORY COMMISSION has satislicd all o<hcr rcquircmcnts for an SRO's liccnsc, Staff may wish tn consi<tcr whether waiving his 1.4% shortfall woold bc appropriate. D<iing so wouk! not only licnclit Mr. Lllingwood, it would also save Stalf thc cxpcnsc of OFFICE OF NUCLEAR REACTOR REGULATION a<lministcring another SRO's examination tn him.

In consideration of thc I'orcgoing. it is ORDI<RED that:

Thomas E. Murley, Director I. Staff's proposal denial of Mr. Ellingwood's application for an SRO's liccnsc is suslainc<I.

2. Pursuant tn 10 C.F.R. $ /2.1253, 2.1255, 2.762, and 2.763, Mr. Elling- Docket Nos. 50-250 In the Matter of wnod may appeal this Initial Decision to thc Atomic Safety and Licensing Ap- 50-251 peal Hoard hy filing a notice of appeal specifying thc party appealing aml thc decision appealed within IO days following scrvicc of this Initial Decision. If FLORIDA POWER 8 LIGHT Mr. Ellingwo<xl appeals, hc must tile a brief in support ol his appeal within COMPANY 30 days following thc filing of his notice of appeal. Staff may tile a respon-(Turkey Point Nuclear Generating Plant, sive bricl'ithin 40 days following thc expiration of the pcood for thc tiling of Units 3 and 4) July 12, 1989 Mr. Ellingwood's bricl;

3. In thc event that Mr. Ellingwood does not appeal, this Initial Decision shall become thc final action of the Nuclear Regulatory Commission 30 days In this Partiai Decision, the Director of Nuclear Reactor Reguhtion defers after its issuance.

consideration'of two issues raised in a Petition filed by Thomas J. Saporito and dcnics thc remainder of the Petition. Specilically, Mr. Saporito requests that the PRESIDING OFFICER NRC keep 'Atrkey Point Units 3 and 4 shut down until the Licensee completes an internal safety investigation and the NRC complctcs an investigation of John H Frye, III certain allegations, immcdiatcly suspend and revoke the operating licenses for ADMINISTRATIVEJUDGE these units, issue a notice of violation and impose an escalated civil penalty on the Licensee because of discriminatidn and harassment, and immediately Bethesda, Maryland issue an order outlining steps to be taken to correct problems with security, July 31, 1989 operations, maintenance, plant equipment. and training deficiencies. As a basis Ior his requests, he allcgcs that the Licenscc has demonstrated problems with maintenance, leadership, "quality improvement," operator behavior, training, procedural deficicncies, and security; that there has bccn a chilling effect on reporting safety concerns as a result of discrimination and harassment against cmployccs; and that there has been a willi'ul I'alsification and destruction of safety-related plant documents. In thLs Partial DecLsion. the Director defers consideration of thc issues of discrimination and destruction of documents, and dcnics the Pctitioncr's rcqucsts with regard to the: other issues.

72 73

RULFh OF PRACTICE: SIIOW-CAUSE PROCEFDING improvcmcnt,n'4) unprofessional operator bchavlor, (5) poor training, (6)

Thc institution of procccilings pursuant to 10 C.F.R. ti2.202 is appropriate procedural dclicicncics, and (7) security problems. Mr. Saporito also cites a scvcrc chilling effect on reporting safety concerns as a result of discrimination only whcrc sultstantial hcalUi and safety issues have hccn raisctl.

against anil ltaiassmcnt of cmployccs, thc willi'ul I'alsification and destruction of safety-rciatcd plant documents, and thc Liccnscc's inability to address and Tl'.CIINI(:AI.ISSUI'.S DISCUSSED rcsolvc these problems effectively. In addition to thc Petition, numerous aitditiiinal letters werc submitted by Mr. Saporito which urged thc NRC to Systematic Asscssmcnts of Licensee Pcrfofmancc implcmcnt tlic rcqucsts in his Petition.

Repairs anil Maintcnancc In support ol his assertions, Mr. Saporito rcfcrs to numerous documents that,

()pcrator Pcfformancc in his view, have idcntificd problems with thc facility. Many of these docufncnts Organixation aml Management afc simply listed wiUiout I'urthcr explanation as to thc concerns these documents I'focctttffcs anil Tniining have itlcnUlicd. To thc cxtcnt that Mr. Saporito.has stated his purpose for

.

Security Progmm. citing thcsc documents, thc Sta f1'as factored the information provided into this Decision. Ilowcvcr, to thc cxtcnt that Mr. Saporito has not provided the factual.

basis for his request with thc specificity rcquircd by section 2.206, action need PARTIAL DIRECTOR'S DECISION UNDI:R not hc taken with regard to thc allcgcd lindings of these documents. See, c'.g.,

10 C.F.R. g 2.206 Philodrlphia Elccfric Co. (Limerick Gcncfating Station, Units I and 2), DD 11, 22 NRC 149, 154 (1985).

INTRODUCTION By letter dated January 30, 1989, I acknowledged receipt of Mr. Saporito's Petition. In that letter, I explained that a preliminary review of the concerns On Dcccmbcr 21, 1988, Thomas J. Saporito, Jr., submitted a rcqucst pursuant raised in thc Petition did not indicate any immcdiatc need to keep the 'ittfkey to 10 C.I..R. ti 2.206 that thc NRC take certain actions with regard to thc Turkey Point Units 3 and 4 shut down, since the concerns did not identify any ncw Point Nuclear Gcncrating Plant, Units 3 and 4. The rcqucst of Dcccmbcr 21, information that was not already being addressed by thc Licensee and the Staff, 1988, was supplcmcntcd by live later submittals dated January 13 and 30. or of which thc Staff was not aware. A notice was published in the FeChral February 7, April 25 and 26, 1989. Thcsc six documents werc rcfcrrcd to Register on February 6, 1989 (54 Fcd. Rcg. 5708) indicating that the Petitioner's thc Office of Nuclear Reactor Rcguhtion for consideration pursuant to section request was under consideration. By letter dated February I, 1989, thc Licensee 2.206. Thc documents will bc jointly referred to hcrcin as Uic Petition. was asked to respond to thc Petition. In its response, dated March 15, 1989, Thc Petition requests the NRC to (I) kccp Amkey Point Units 3 and 4 shut thc Liccnsec stated that, for the most part, the items referred to in statcmcnts down until Florida Power /Jf. Light Company (FPL, thc Liccnscc) complctcs made by Mr. Saporito involved information already addressed by the NRC and an internal safety investigation and thc NRC complctcs an investigation of FPL, do not raise any safety concerns. are so vague as to preclude mcaningl'ul allegations provided by Mr. Saporito to the NRC Region II oflice on Dcccmbcr rcsponsc, or are demonstrably untrue, and that the rclicfrequcstcd in the Petition 5, 1988; (2) immcdiatcly suspend and revoke the operating licenses for Units 3 should be denied.

and 4; (3) issue a notice of violation and impose an escalated civil penalty on thc With the cxccption of two issues raised in the Petition, thc NRC Staff review Liccnscc bccausc of discrimination and harassment; and (4) immcdiatcly issue an of thc Petition is now complete. Those two issues, which were also submitted order outlining thc steps to bc taken to correct problems with security, operations, as allegations to thc Region ll office, arc still under investigation and allege maintenance, plant cquipmcnt, and cmploycc/operator training dcficicncics.

As a basis for his rcqucsts, thc Pctitioncr makes numerous assertions. Mr. Seporito docs net eeptsbt trhst he tnestn by quality itnptortnuttc. for the putpeee or this eocistcet, Ihe Bmadly summariyed, thcsc are that thc Liccnsce has dcmonsuatcd and/or Ste ff hee crptctcd this teem to netenpaes Mr. Seporito's claims nganjing the Licctuee'e <<fuatity auurance and aescrtiorn that thc tsccneee has failed to conect tend.aending prob'lcme in its ptottam, otuch haa treuhrd in e cxpcricnccd: (I) poor maintcnancc, (2) poor Icadcrship, (3) poor "quality "tmcraliy poor cnfotctrnttn history.

A letter to Ihcmee y. Seporito, yrbern Ihemse E. Mcotcy, Ditector, Omen or Neatest tteectce ttegatetitn, dned ApriI le, 1949. ecknoutcddcd receipt of additional subniuete by Mt. Seporito. In ther lector, Mt. Seperito uee informed thee the ftRC uouid not ecparetdy adtncnelcdac rcccifa of any fututu tcucca he ought submit tcsetding suepcnrion/tceocetion of the Ibrtey Point licensee.

74 75

that thcrc has hccn (I) a chilling effect on reporting safety concerns as a rcs>>lt magnitude ol'ivil penalties also has decreased markedly since 1987.>> Althodg}t of discrimination and harassment and (2) a willful falsification and destruction thc improvcmcnts noted above have been made, and I bclicvc thc phnt uA>>e',safer.';.~'oday ol safety-rclatcd dncumc>>ts. When thc investigation is complete, Uic NIK will than bcl'nrc the improvements werc made, thc NRC is still dissatisfid.with determine wliethcr any action is apprnpriatc tn take with rcganl tn these twn Tuikcy Point's pcrformai)ccThc maqy program, managcmcnt-and Itartitvare iss>>cs. With rcl!>>nl tn thc reinaining issues raised hy thc I'ctitioner. f>>r re;isn>>s changes implcmcntcd at ibrkcy Point have not resulted in plant performance on st;iteil in this I",irtiai l)ccisinn, thc I'etiuoncr's rcq>>csts nrc ile>>icil. a par with NRc cxpcctations..wc intend to continue to monitor Uic opcrauon of thc plant ct<iscly until'it Js clear that thc plant fs operating well and can bc cxt>>xtcd tn continue to do so.

IIACK(IROUND On Dcccmhcr 5, 1988, Mr. Saporito provided the NRC Region II office with a >>under of altcgatioYis Mat he rcfcrs to in support of his subsequent Thc NRC Staff has hccn conccrncd about thc pcrformancc of thc Tbrkcy Point rcqucsts. Nearly all of these allegations werc refepcd to thc L'iccnsce in a plant for a number of years. This has bccn cvidcnccd by an i>>creasing mimhcr lcttcr from thc NRC Staff, dated January 6, 1989>>>The Licenscc responded (and magnit>><lc) of civil pcnaltics that pcakcd in 1986 and 1987, issuance tn thcsc allegations in a letter dated February 24, 1989. An NRC special of scvcral NRC nrdcrs for spccilic imprnvcmcnts, below.avcragc m(ings anil inspection wa's conducted to fnlitiwup on these alicgauons. Thc inspection team iilcntifiicatinn of areas nccding improvement in thc NRC systematic asscssme>>ts rcvicwcd thc Licenscc's rcsponsc in conjunction~with thc followup inspection of liccnscc pcrformancc (SALPs), a high Icvcl of NRC inspection cflnrt, aml thc of thc allegations. - Although forty-three of thc allegations werc substantiated, inclusion of llirkcy Point on thc NRC list of plants to bc monitored morc closely. thc inspection team concluded that thc allegations raised no ncw safety issues Over thc years thc NRC Stafl'as idcntificd and documcntcd specific issues of that had not, been previouslyaddressed. See Inspection Rcport 50-250/89-13 concern. Rx cxamplc, thc most rcccnt SALP rcport idcnuficd maintcnancc and 50-251/89-13, datcdgPlay 8,'1989. X and operations as areas nccding improvcmcnt. In two of thc Ihrcc most rcccnt Subsequently, on Maich 3 and:15, 1989, a second youp of maintenance-.

SALP reports, training has bccn rated below average. In thc conlirmatory relatcd'allcgalions was ~ided to the NRC Region II officc by Mr. Saporito.

order issued by the NRC on October 19, 1987, management concerns werc These werc very similar in substance to Uie earlier maintenance-related allcp-identifie and an indcpcndcnt managcmcnt appraisal was ordered. Also, in that tions. These allegations prcre sent to the Licensee for response on April 12, conlirmatory order, the operator professionalism issue was recognized and a 1989. Thc NRC Staff has ieviewcd these allegations and has concIuded that, management-on-shill (MOS) program was ordered. Thc nccd for improved plant the second group-of allegauons had little safety significance and will>>notify proccdurcs was rccognizM in a conlirmatory order dated July 13, 1984, and thc Mr. Saporito of our findings on them under separate cover.

I.iccnscc initiated a broad-scoped procedures upgrade program. A subscqucnt '

1 confirmatory order dated August 12, 1986, was issued, supcrscding thc order of July 13, 1984, to expand thc scope of requircmcnts to include certain other DISCUSSION 4 r r!

Itcnls.

In response to these concerns, the Licensee has made many improvcmcnts. For th'e purposes of the disc&sion below, the Petitioner's maJor areas of

-'In thc past fcw years, several hundred million dollars worth of improved concern (which were described earlier in thc introduction to this Decision) have facilitics and cquipmcnt have bccn added at Ibrkcy Point, such as a ncw been separated intb thrcc catcgortes~ (I) poor maintcnancc, Icadcrship, quality maintenance facility. a new training building with a plant-specilic simulator, improvement, unprofessional ~avior, and inability of rnanagemcnt to resolve and ncw stcam gcncrators. Thc Liccnscc is cunently in thc process of adding these pr6blcms; (2) procedural dcficicncics and poor training; and (3) poor two ncw safety-rclatcd emcrgcncy electric power generators, a major safety security. As noted above, thc two remaining issues, relating to a chilling cflect cnhanccmcnt, at an additional cost of about 80 million dnllars. Reliability on reporting safety concerns as a result ol'iscrimination and harassment and nf cquipmcnt has bccn enhanced by adding many prcventivc maintcnancc and willful talsification of documents, are still under investigation.

survcillancc procedures for plant equipmcnt. Extensive changes in managcmcnt have bccn made, bringing in ncw experience personnel in kcy positions a>>d adopting an improved managcmcnt philosophy. In 1988, the plant sct site records for continuous operation, with no major operational cvc>>ts. The number and

I. Pnor Maintenance, Leadership, Quality Improvement, Unprofessional programmatic changes. The recent focus at the site on improving the ipare parts lfehnvi<<r, and Inability of Management to Resolve Problems program, combined with other improvcmcnts in the maintenance program such as managcmcnt changes in thc maintenance organixation and a higher lcvcl of Thc Petitioner alicgcs that Nikcy Point Plant has dcmonstratcd p<<<<r maintc- staffing, should assist in improving thc overall reliability of plant equipment.

nancc practices, po<<r Icaifcrship, poor "quality improvcnicnt" (i.c., pixir quality Although a number of maintcnancc-rclatcd allegations werc presented to our c<<nti<<l and a pi<<r cnfnrccmcnt history), unprofessional <<licrator hchavi<<r. all(I Region ll office by thc Pctiuoncr, Inspection Rcport 50-250/89-13; 50-251/89-a lack of suitable management cxpcrtisc to properly adilrcss ainf rcs<<lve these of'hose 13 datrd May 8, 1989, prcscntcd ihc results of a special inspection c<<nccrns. In suppiirt of thcsc assertions, thc Petitioner rrfrrs to thc I.'.ncrcon aifcgatinns. which indicated that no significant safety concerns werc found that Scrviccs lnr. rcp<<rt, which was an indcpcnifcnt management nppniisal that iifcn. would justify shutting down thc plant.

tificd five ro<<t causes of performance dcficicncics to le inadequate Icadrrsfiip, Thc Pctitioncr also cited nn instance oi'maintenance error in performing work inadcquatc srnsc of personal accountability, lack of sufficirnt tcchnical supp<<rt. on thc Unit 3 thimble guiifc tube asscmblics, as noted above, and attributes it iiiadcqiuicics in kcy support systems, and a lack of a str<<ng scnsc of Icailcrshiii to rush work. Our inspection cfforfs indicate thc error occurred bccausc of in thc <<pcrations dcixirtmcnt, which in his view fails to "dcinand cxcclicncc" carclcssncss by a worker. Although the guide tube-to bc rcpaircd was well from other dcfxirtmcnts. Thc Pctitioncr also refers to thc findings of thc SALP marked, and details of thc repair work to bc performed had been discussed with rcport dated February 7, 1985, ior thc period July I, 1983, through October thc worker, hc procccdcd to begin work on the wrong guide tube. The mistake 31, 1984 (50-250/85-01; 50.25 I/85-01), and Ihc most recent SALP rcport datcii was considcrcd to result from an unacceptable implementation of work controls, Scptcmbcr 13, 1988 (50-250/88-15; 50-251/88-15), for thc period Junc I, 1987, and thc worker was dismissed from employment by thc Licensee.

through Junc 30, 1988, which rated tfe maintenance area Category 3 and hrnf With rcspcct to Petitioner's concerns about unprofessional operator behavior, many advcrsc findings that thc Pctitioncr lists. Thc Pctitioncr also asserts that this concern was raised by thc NRC Staff in 1987 and documented in Inspec-bccausc of problem, including maintenance, thc Licensee has bccn unable to tion Rcport 50-250/87M; 50-251/87-44, dated Deccmb=r 9, 1987. Although bring Unit 3 on lire since early Dccembcr 1988. Finally, thc Pctitioncr asserts unprofessional behavior was found not to be pervasive at thc site, there werc that conduct of maintenance pcrformcd on thc Unit 3 thimble guide tube asscm-isolated instances idcntificd and reported in thc inspection report. One'uch blics dcpartcd from safety-related procedures. In his view, thc Licensee's zeal instance involved an unlicensed person manipulating a control under the super-to return these nuclear units to operation rcsultcd in "rush work," and a scvcrc vision of a liccnscd operator, in violation of NRC regulations. This event was .

accident may well have resulted from this maintcnancc activity.

identified by thc Liccnscc, although the Licensee did not respond with action With rcspcct to thc Pcutioncr's concern about poor maintenance, the NRC in a timely manner. Thc NRC responded with high-lcvcl discussions with thc Staff has recognized thc need for improvement in this area as evidenced by a Liccnsec which resulted in NRC conducting continuous control room observa-low SALP rating in three of thc last four SALP periods, including thc most tions over an extended period. Since that concern was raised, the Licensee has recent one. However, a low SALP rating does not mean a plant is unsafe but appointed a new Plant Manager, a ncw Operations Superintendent, and several that thc NRC bclievcs improvcmcnts should bc made by the Liccnsce. Partly ncw operations shift supervisors. In addition, a number of newly trained oper-bccausc of aging plant equipment, a good maintenance program is cspcciaiiy ators have bccn added, while some previous operators have been removed from important to cnsurc a well-run plant. In bimonthly management meetings with on. shift duty. As a result the NRC Staff believes the quality of the operations

-

thc Liccnsce since 1987, the NRC Staff has continually focused on thc nccd for staff has improved. A ncw guidance document for professional behavior was maintenance improvements. The Licensee added a ncw maintcnancc building in prepared for control room operators and committed to by them. Control room 1988, has signilicantfy incrcascd thc ratio of preventive maintcnancc to corrccuvc operators have begun wearing uniforms in, an effort to establish pride in their maintenance activities over the past year, and has markedly rcduccd thc number position and teamwork. As part of tie confirmatory order of October 19, 1987, of grccn tags (signifying maintenance needs) in thc control room. A special a managemcntwn-shift (MOS) program was implemented in late 1987 to mon-NRC maintenance inspection was conducted in Deccmbcr 1988, and Inspection itor operations. This program was conceived by thc Licensee and included a Report 50-250/88-32; 50-251/88-32 was issued on April 4, 1989. This rcport number.of independent managers and personnel, cxpericnccd in control room concfudcd that a satisfactory maintcnancc program had been devclopcd, but that operations, who scrvcd on shift in a monitoring capacity. Because of the op-its implcmcntation is poor. An improving trend was noted, stemming from erational improvcmcnts already implcmentcd and under way, thc NRC granted cfiangcs in managcmcnt's approach to maintcnancc and I'rom newly insututcd approval for thc Liccnscc to tcrminatc thc MOS program on January 20, 1989.

78 79

With respect to thc Petitioner's concerns about managcmcnt issues. such as tie availability of thc nonsafety-grade standby f~~ y 0

to the safety-related nitrogen system, it cannot poor lcadcrship, poor quality improvcmcnt, and thc inability of managcmcnt stated that, with regard ~'urther shift tie liow control valves from to address and resolve concerns, thc NRC Staff rccognizcd thc nccd for im- bc assumed that control room operators would becttusc (I) an accident proved managcmcnt at Turkey Point scvcral years ago. In its confirmatory order automatic to manual mode within 6-7 minutes following minuteis.tb eke had 15 to 20 dated October 19, 1987, thc NRC Staff confirmed thc Liccnscc's commitmcnt operators werc tiaine'd to assume that they

'ome pmccdurcs did not include require*ments to cooperate in an indcpcndcnt managcmcnt appraisal (IMA) of tlic Liccnscc's action. and (2) applicable cmcr'gcncy manual. The Petitioner also corporate aml Thrkcy Point organixatinns. This appraisal was carried out by for thc operators to shift the liow control valves to Encicon Services Inc., and issued as a rcport dated April 18, 19HH. 'Ilic issues asserts that thc Licensee'Iias a well-documented history involving departures.'rom escalated enforcement actions.

noted above werc idcntiticd in thc IMA along with nurncrous rct onimcndations. approved tiroccdurcs that have resulted in basic reasons for such Thc Liccnscc's fornial rcsponsc to thc IMA was dated August 15, 1988. Ilow- With rcspcct'to procedural dclicicncics, there arc two nccd improveincnt, and (2) the pro-cvcr, actions to deal with thc rnanagcrncnt problems began carlicr. Wi<lcsprcad dcficicnci'cs: (I) thc proce'durcs themselves latter problem is a management/training managcmcnt changes werc made throughout thc organization at corporate hcad- ccdurcs are not adhcrcd to strictly. The managcmcnt and training improvements qirirtcrs and at thc llirkcy Point sile, bringing in ncw lcadcrship from outside issue that'Is cxpcctcd'to improve as the thc Liccnscc's organintion in scvcral important positions, including a ncw site The nccd for improved procedures at Tlrrkey Point was continue lo take effect.

1980s. After discussions bctwecn Vice Prcsidcnt in mid-)987, a ncw Operations Supcrintcndcnt in October 1987, rccognirAxI by the NRC Staff in thc early a major performance enhance-a ncw Senior Vice Prcsidcnt-Nuclear in January 1988, a ncw Plant Manager in NRC and thc Liccnsec, tie Licensee proposed Region 11 office, dated April:11, May 1988, and a ncw site Vice Prcsidcnt in May 1989. Also, in carly 1989, a nicnt program (PEP):in a,,letter to the NRC thc Commission on July 13, 1984,'and ncw Maintenance Supcrintcndcnt and a new Security Director werc appointed. 1984. In confirmatory orders issued by requirement. One facet of PEP In thc Liccnscc's rcsponsc to the IMA, numerous actions werc idcntificd to ad- August 12, 1986, the PEP program was made a dress and resolve thc issues idcntificd in the IMA. Many of thcsc actions have was a procedures upgrade program.

major upgrade was niadc to already bccn implcmcntcd. while some are ongoing, including setting goals and As part of the procedures upgrade program, a communicating them to employees, defining job requirements and matching them 'proccdurcs for tcchiiical specification surveillances.

Many added surveillancry/

to morc closely monitor tie;pcr-with skilled people. and establishing performance mcasurcs. Quality improvc- procedures were devclopcd to permit operators surveillance procedures were re-mcnt information, such as trends in radiation exposures and plant pcrformancc I'ormance of tleir'cquipmcnt.Already-existing maintenance procedures were addt9.

indicators, is updated on a monthly basis and provided to top management. vised and improved. Additional preventive effort produced a significant enhancement to Thc NRC Staff is continuing to monitor the Licensee's implementation of thc The NRC Staff believes that. this procedural improvements include: tte adop4ort numerous IMA rccommcndations. Wc believe thc IMAeffort and thc Liccnscc's safetplant operation;~ Other Institute of Nuclear Powc'r rcsponsc so far have resulted in some performance improvements. For example, of thc writers guide for proc'edures prepared by the factors wlen dcvcloping procc-both units have operated in 1988 with few problems, the number and scvcrity Operations (INPO); thc c6nsideration of human where appropriate; and the'im-of civil pcnaltics have decrcascd significantly from the high Icvcls of 1986 and durcs; required walkdowns of ncw proccdurcs, in response to NRC 1987, and an improved and more professional attitude can bc scen at the site, plcmcntation of upgraded emergency operation procedures accident at Three Mile Island The cspccially in operafions. There are still problems to be overcome at thc plant, rcquiremcnts that weri developed after the additional improvements are still needed but progress has bccn and is being made. NRC Staff rccognixes that significant thc plant. However. thc Licenscc has made con-with rcspcct to procedures al an activity expected to sidcrablc progress, and thc procedure upgrade process Is

2. Procedural Deficiencies and Poor %'aining can proceed while thc plant continue for thc life ol.alilant (at all plants) and The Petiuoncr raises concerns with regard to the training of personnel and operates.

Superintendent, who with proccdurcs. 11c claims that these problems also have been part of thc reason With respect to training atllukcy Point, a new'~ning in mid-1987. Thc training staff was that thc Liccnscc has been unable to bring Vnit 3 on line since carly Dcccmbcr is experienced in operations, was appointed contractor personnel who had previously 1988. In support ol'his allegations in Oesc areas, hc rcfcrs to NRC Inspection augrncntcd at that tirnc by about fifteen orpcrator'licenses. In addition, thc nonwperator training Rcport 50-250/85-32; 50-251/85-32. This report had indicated that there were no held sehior reactor.

classroom instruction. The training administrative controls or tcchnical spcciifiication requirements in place to ensure changed from a self-teach program to include 80 81

staff has now incrcascd to nearly eighty personnel from fewer than sixty in carly rity. Whcrc significant violations of regulations have occurred, civil penalties 1987. Thc Liccnscc's increasing recognition of thc importance of training has have been imposed to encourage thc Liccnscc to improve in specific areas. The lcd to larger classes of trainccs than existed a fcw years ago. Ttic addition ol' Liccnscc has continued to increase its security staff, restructure thc manage-ncw training facility in late 1986, including a rcccnily added plant.spccilic ment, and add system improvcmcnts. TIic HRC;Is continuing to require fuithcr simulator, represents nn improved training capability anil is ~~pouted to result improvements. Ilowcvcr, thc security violations cited by thc Pcutioner do not in a stronger opcrauonal staff over thc Iong term. I'vcn with thc improvcmcnts rcprcscnt a breakdown of thc plant security which poses a significant threat to noted, the NRC Staff believes further near-term progress is nccdc<l. csliccialiy thc puhlic health and safety, or that would justify shutting down thc plant. A in thc implcincntation of improvcmcnts already identified hy thc I.iccnscc. plant security system has many redundant and diverse fcaturcs so that security This was cviilcncnl by recent unsatisfactory pcrformancc nn NRC-a<lministcrnl is nnt compmmiscd when onc feature weakens.

rcqualiCication cxiuninations. Following thcsc cxams, cxtcnsivc retraining aml NltC-monitored rccxamination werc administered. Thc Liccnscc luis recently CONCLUSION outlined steps that arc cxpcctcd to lead to a satisfactory training program. Itnr 'I cxamplc, siinulatnr training will bc incrcascd, cmcrgcncy plan criteria will bc Thc Pctitioncr sccks thc suspension and revocatibn of the operating licenses designed into thc simulator scenario guides, and instructors will bc rctiaincd for thc Turkey Point facility pursuant to 10 C.F.R. $ 2.202. In addition thc and cvaluatcd. Thc Staff has bccn closely monitoring thc Liccnscc's progress Pctitioncr asks that Units 3 and 4 not bc permitted to restart until the Liccnscc in this area.

and thc NRC Staff complctc investigations of allegations provided to NRC With rcspcct to certain findings in Inspection Rcport 50-250/85-32; 50-on Dcccmbcr 5, 1988. Thc Petitioner'f~r requests that an escalated civil 251/85-32 cited by thc Pctitioncr, Uicse findings werc published in 1985 and do not rcllcct thc current state of thc plant. Coircctivc actions werc taken years ago. penalty bc imposed upon the Liccnscc for discrimination against and harassment of cmployccs and that NRC immediately issue an order outlining thc steps.

for cxamplc, for thc nonsafcty-grade standby fecdwatcr system, administrative to be taken to correct problems with security, operations, maintenance, plant controls, such as periodic testing and limited allowable outage time for thc equipment, and cmployce/opciator training defic1encies.

pumps, have bccn in place for scvcral years to ensure thc availability on demand Thc insutution of proceedings pursuant to scclion 2.202 is appropriate only of this system. As another example, for thc safcty-related nitrogen system, whcrc substantial health and safety issues havt,".been'raised. See Consolidated thc Liccnscc rcspondcd on October I, 1986, to an NRC notice of vio'Iation.

Edison Co. of hfew York,(indian Point, Units I, g and 3), CLI-75-8, 2 NRC Thc Liccnsce stated that procedures had bccn revised and operators trained for 173, 176 (1975); and It'asQngron Public Power'Syi tern (WPPSS Nuclear Project proper shifung of thc auxiliary fccdwatcr flow control valves from automatic No. 2}, DD-84r7, 19 NRC 899. 923 (1984): This is the standard that has been to manual. This was inspcctcd and closed by thc NRC in inspection Rcport 50-250/88-14; 50-251/88-14, dated July 29, 1988, which found that thcsc items applied to dctcrmine whether the actions req~ in thc Petition arc warranted.

For the reasons discussed above, no substantial basis was found for taking had bccn satisfactorily resolved.

thc actions rcqucstcd in thc Peduon. Rather. based upon thc identification and pursuit of concerns by thc NRC Staff and~the'.progress and improvements

3. Poor Security made by thc Licensee, ln its efforts to resolve these concerns, it is concluded that no substanual health and safety issues:have bccn raised by thc Petition.

Finally, thc Pctitioncr alleges wcakncsscs in thc Licenscc's security program, Accordingly, the Pctiuoner's request for action pursuant to section 2.202, as evidenced by what hc describes as a continuing number of violations in this except for thc remaining two open issues, is denied. As provided in 10 area. In this connccuon, the Pctitioncr rcfcrs to a number of cnforccmcnt actions C.F.R. $ 2.206(c), a copy of this Decision will-'be tiled with the.Secretary for taken against the Licenscc, as well as the SALP rcport for thc period Junc l.

thc Commission's review.

1987, through Junc 30, 1988, which assessed thc Liccnscc's performance in this When thc NRC Staff investigation of the issues of a severe chilling effect on area as a Category 3.

reporting safety conccps as a result of discrimination and harassment and of The Pcutioncr has provided no ncw information regarding security weak- thc willful falsification and destruction of safety-'related documents is complete, nesses. Instead hc cites various reports issued by the NRC or to thc NRC.

Thcsc werc all considered in our pcrformancc assessment process (SALP) and 0 c ~

c formed fxtit of thc basis for a SALP Category 3 rating in thc area of'ccu- ~

82 83

I will I'urthcr rcvicw thc Pctitioncr's section 2.206 request with regard to tlesc two issues and dclcrmine whcthcr any action is appropriate.

FOR Tl IE NUCI.EAR REGULAl'ORY COMMISSION 3'

"~ M Il (4 Thomas E. Murlcy. Director Oflice of Nuclear Reactor Regulation Dated at Rockvillc, Maryland, this l2th day of July 1989.

\

}'>>~ (>>

UNITE 0 ITALs NUCLKAR REGULATORY COMMt@lON vvA4HIH0fog>> o. c. aoeoe January 30, 1989

'5554t Nos. 50-250/251

.Hr. Thomas J, Sapor1to, Jr.

l202 51,oux Street-, =-'

~ '"iS" ~ ',

dup1ter ", i.lor1da..:33458, 6>>

Dear Kre Sapor1to:

"i ~ 0

,'}

7 Th1s letter acknowledges rece1pt of'your Pet1t1on f1led on Oeceeher 2I, g988 and supplemented JanuaQr. 13; 1989.-.The Pet1t1on alleges that the Turkey Po1nt Plant has cont1nuously demonstrated'poor Wa<ntenance Poor leader sh1o pwr qua 11ty 1epeovament,-unprofess1onal:operator--behav1or;"-and the'=)nab13 sty of management to address and resolve these conc>>erns, You have requested that the Flor1da Parer 5 t,<ght Compo~ (the 11censee) not be pera1tted to>>brkng the Un1t 3 or Qn1t Cr reactors cr'1t1cal unt11 the $ $ cengee coc;pletes an 1nternal safety'nvest1gat1on ind. the 'NRG.completes a safety 1nvest1gat1on relating to~the concerns conti1ned 1n the report of Doce4er 5 .

-]9@9 that you f1'lid w1th"-the NRG Reg1on II off1ce. You have further requested that th~ operat1ng, 11censes for the Un1t 3 and 4 reactors be 1st>>41ateg suspended and revoked, You assert=as grounds for your r>>equest that an?nst1tute of Nuclear Plant Opera:t1ons" (tHPO) Report and an Enercon Serv1ces'Report 1dent1f1ed several roblers at the Turkey Po1nt Planta You also refer to th Nuclear Reaulato~

omkss1on's Safety System Funct1onal Inspoct1on Report 50-250/85-32'0-251/

85-323, a nurber of 1dent1f1ed 1nspect1on reports and lfRC Inforceaent act1ons, and HRC Systemat1c Assessment of 'l.1censee Perforeance (SALP) Reports ih1ch found various problers at the Plant.

Yc'r Pet<t1cn has been referred to Ikc pursuant to IO CFR 52e206 of the Cam1sslon's regula:fons. Me have also requested the 11censea tO address your concerns. As prov1ded by 10 GFR i2.206, act1on e111 be taken on your request ~1th1n a reasonable s1ne. Hmaver, a prel1a1nary rev1er of the concerns contained 1n your reoort of December 5, 1988, to the NRC Rcg1on II off1ce and 1teILs conta1ned 1n the bet1tion of Decevter 21, 1966, as supplee}anted January 19 1999 flied u(th the Office of the 2>>scut<vs Director for Operatfons under 10 CPR 92. 06 does not fndlcate any

<rood<ate need to keep the Turkey pofnt plant, Unfts 2 and a reactors shut down.

Our bas1s for th1s pos1t1on 1s that your concerns have not 1dent1f1ed any nw 1nforaat1on eh1ch 1s not already be1ng addressed by the l1censee and the staff, or ~h1ch ve were not already ware of I have enclosed for your )nforgmt1on a copy of the not1ce of rece1pt of your pct1t1on that 1s be1ng f1led w1th the Off1ce of th>> Federal Reg1ster for pub l1cat1on, S1ncerely, homes E. Hurley, 91rector ff1ce of Nuclear Reactor Regulat)on Enclo>ure: As stated cc v(enclosure: See next page

~1 Rfgp c~ 4p0

~4 UNITED STATES 0

NUCLEAR REGULATORY COMMISSION C

0 C IVASHINGTOK, O. C. 20566 Oi, V/

+~ ~O March 6, 1989 tygy4 ~

I I Docket Nos. 50-250 .

and 50-251 .

ty\

g gr.,Thomas J. Saporito, Jr.

, 1202 Sioux Street..

Jupiter, Florida 33458

Dear Mr'.'aporito':

/ II II

" .

) 1 This letter acknowledges receipt of your letters, of. Januis 30 and.February 7,

, 1989, addressed to the Executive Director for, Operations (EDO), which we are "treating as Supplements 2 pnd 3, respectively, to your Petition pursuit ta

, 10 CFR 2.206filed with the Office of the EDO on december 21, 1988. 'We are treating your'etter of January 13, 1989, as Supplement 1. 'Supplements 2 and 3 address the fol,lowing issues:

1. Supplement 2 alleges that the employees at the Turkey Point Plant are experiencing,a severe chilling effect because of reprisals against plant employees who- express concerns about the plant. This supplement also alleges the fai lure of personnel to follow procedures, poorly written pro-cedures, poor personnel training, and maintenance problems. In this supplement, you request that the U.S. Nuclear Regulatory Conrnfssion (NRC) immediately suspend and revoke the operating licenses (DPR-31 and DPR-41)

'for the Turkey Point Plant.

2. Supplement 3 alleges that the Turkey Point Plant is engaged in discrimina-tion and harassment against employees who have been subpoenaed to testify in pending Department of Labor proceedings (89-ERA-07 and 89<<ERA-17). In this supplement, you again request that the NRC suspend and revoke the operating licenses for the Turkey Point Plant. Furthermore, you request that the NRC issue a Notice of Violation and impose an escalated civil penalty on the licensee.

We also note receipt of your letter dated January 19, 1989, addressed to the EDO, that praises the actions of a certain member of the NRC staff at the Region II office and requests that copies of your letter be posted in all nuclear power plants in the country. We further note receipt of your letter dated January 30, 1989, addressed to Hr. Yictor Stello, that discusses several concerns and alleges that the licensee denied you access to certain plant documertation.

e Thomas J. Saporito, Jr, March 6, 19B9 As provided by 10 CFR 2.206, action will be taken on your Petition (as supple-mented) within a reasonable time. However, a preliminary review of the concerns in Supolements 2 and 3 does not indicate anv immediate need tn susoend and revokP the operating licenses of the Turkey Point Plant. Our basis for this finding is that your supplements have not identified any significant new information beyond that already acknowledged by our letter to you dated January 30, 1989.

Sincerely, Thomas E. Nurley, Director Office o f:.Nuc 1 ear Reactor Regu ti on C ~

\ 4'd cc: See next page Licensee

Thomas J. Saporito, Jr.

". '

W,t

'I L r s" a ~ +

Florida Power and Light Company .. Turkey Point Plant A1 CC

-'arold;F. Reis, Esquire Administrator Newman and Holtzfnger, P.C. Department of Environmental 1615 L Street, N.M. Regulation Washington, DC 20036 , Power Plant Siting Section

',.'State of F'lorfda t.

Mr. Jack Shreve 2600 Blair Stone Road Office of the Public Counsel ~Tallahassee, -Florida 32301 Rooin 4, Holland Building Tallahassee, Florida.- .32304 Regfonal,Administrator, Regfon II U.S. Nuclear Regulatory Cotmfssfon John T. Butler, Esquire  ; -.Suite 2900 Steel, Kectcr and Davis 101 Marietta Street 4000 Southeast Financial -Atlanta, Georgia 30323 Center Miami, Florida 33131-2398 ,Attorney General Department of Legal Affairs Mr. J. Odom, Vice President The Capitol Turkey Point Nuclear Plant .Tallahassee, Florida 32304 Florida Po~er and Light Company P.O. Box 029}00 Plant Manager Miami, Florida 33102 Turkey Point Nuclear Plant Florida Power and Light Company P.O. Box 029100 County Manager of Metropolitan Miami, Florida 33102 Dade County Miami, Florida 33130 Mr. M. F. Conway Senior Vice President Resfdeot Inspector 'Nuclear Energy Department U.S. Nuclear Regulatory Comnfssfon Florida Power and Light Company Turkey Point Nuclear Generating Station P. 0. Box 14000 Post Office Box 57-1185 Juno Beach, Florida 33408-0420 Miami, Fl orida 33257-1185 Mr. Jacob Daniel Nash Office of Radiation Control Depa rtment of Heal th and Rehabilitative Services 1317 Minewood Blvd.

Tallahassee, Florida 32399-0700 Intergovernmental Coordination and Review Office of Planning 5 Budget Executive Office of the Governor The Capitol Building Tallahassee, Florida 3230l

~A ~(CQ UNITED STATES.

NUCLEAR REGULATORY COMMISSION

'WASHIMGTOK, b. C. 205SS t

April 14, 1989 I*g44 Docket Ncs. 50-250 and 50-251 e<

<)

4 Mr, Thomas J. Sapori to, Jr.

.1202 Sioux Street

Jupiter; Florida 33458

Dear Mr. Saporito:

.

• F

! r

.This letter-acknowledges reieipt of your letter. dated..March 1, '1989, 'as well as your two letters dated March 2, 1989, your-"-letter 'dated larch 6,-1989, and your letter dated March-22, 1989, regarding the Turkey Poirit plant.

In the letter of March 1 and the two letters of March 2, 1989, 'you allege an exampleof poor, procedures and an example of employee harassment and discrimina-tion resulting in a chilling effect o'n reporting safety concerns. These letters also refer to previous info'rmation given'to our Region -11 office. Your letter of March 6, 19S9, expresses your dissatisfaction with the NRC decision to not immediately suspend or revoke the Turkey Point licenses. Your letter of March 22, 19S9, cites four Licensee Event Reports and one Preliminary Notification of Unusual Occurrence, all of which the NRC had already received and reviewed and which the licensee has evaluated and taken corrective actions.

Hecause nore of the above letters addresses new concerns (beyond those in your letters of December 21, 1988, and January 13, 19, 30 {two letters), and February 7, 1989), or provides information we did not already have, no addi-tional NRC action is necessary.

Please be advised that we do not plan to separately acknowledge receipt of any future letters you might submit regarding suspension/revocation of the Turkey Point licenses.

As provided by 10 CFR 2.206, and as noted in rqy letter to you dated Harch 6, l989, action will be taken on your earlier petition, as supplemented, within a reasonable time.

Sincerely, Thomas E. Hurley, Director Office of Nuclear Reactor Regulation cc: See next page Licensee

, ~

Q hafraen }ffj(hail ST Gorbachev March 6, i%80 1

-

4 Stareya Ploschad oscow Russfa USSR rei,Qnfted States Nuclear Power Generation Safety Concerns'ear Chsfraan Gorbachev<

Cs p)ease be 'advised and of f (cially fnforled as this letter rept esente 4

formal notification to your governient sol fcit fni feiedfate actions by your'. government to fnsure that a nuclear disaster as <<vfdanced hy your

., country'i Chernoble Nuc)ear Stat.fon does not occur in the Unft<<d Stat<<e

of Aserfca and speciffcal)y at the Turkey Point Hucl<<ar Station owned and operated by the Florida Power 8 f.fght Coapany tn Nfaai Florjda, Enclosed in this package are official Sovernaent safety inspection reports which evidence the significant and repetitiv<<safety vfo)atfons

'at the Turkoy,'oint Stat f on. Enforcaa<<nt act fons taken by the Unf ted Statas government in the fora of escalated civil penalti<<s amounting

~ xcess of ON NI TO dollars has 'ailed to insur<< the ea L

sf v 0 t e u c and thus the Un i ted States Nuclear Regulatory Cobmission has failed to sect it's own aandate.

Because xe the people of the Un f ted States l fve f n a free soc f'ety,

'ndopendant, prfvitely awned utilities such as the Florida Power g Light Coapany have very strong fnfluencfal poxqrs through Polftcal Action Coeaftteea'ho can persuade hfgh ranking gov<<rnoent officials jn their vote on cfec f s f one o f lax and Federal Regulat fons as they apply Coeaercial Nuclear Power generation fn this country.

A1(housh tho Turkey Point Nuclear Station utilizes a containment structure around the'eactor's vessel and priaary systeas, sfgnif leant, ma]or event at this foci) fty resulting fn a loss of coolant to the reactor'e core 'exaap?e Cheznoble' could cause the formation of a large hydrogen bubbl ~ within the reactor vessel anlf containment structure. A possible explosion of tha oontafnaent structura would displace an <<nervous amount of afr borne radfation into the environment and depending on the prevaf) inc rinds, thfe Life threatening radioactive cloud has the potential to <<ffect huaan life oven in your country A 'rivate concerned citizens roup 'The Center for Nuclear Responsibility'6 currently petitfoning the United States government to shut down the Turkey Point Nuclear Unit 44 as zelda on the reactors vessel osy be eebrfttled and therefore a potontta) oxfets for a vassal fracture which could result fn a core <<e)t cfown.

e fo s ou er ent in ec n s ow f ~

urka fn H clea R ctors wculd ro o e d'or vi conc r a He d afe ace V.B. President Ceorge Bush 8 i ce e ly, Cong e s s e an Dant e B. t'as co 1)

V.S. NRC h'ashfnton D.C.

U,S, NRC Region ALL NED)A SOURCES Il Atlanta GA . Tholas J, Saporf tot Jr, 1292 Sfoux Street Jup it<<r t'lor ida 83458

0, Cite as 30 NRC 220 (1989) DD-89-8 RUI.FS OF PRACTICE: SIIO/V;CA/)E PROCEEDING Thc institution of proceedings putsuh'nt to 10 c.i .R ti2.202 Is appropriate =

'

UNITED STATES OF AMERICA only when substantial health'hand safety issues have bop'h:raisedt' NUCLEAR REGULATORY COMMISSION I

\ %l=

'I'I'.CIIN I CA I. ISSUI'.8 DISCUS%I'.n OFFICE OF NUCLEAR REACTOR REGULATION Reactor Vessel limhrittlcmcnt; Reactor 4.'sscl Material'Survcillan'cc Progmni, Appendix II 'oT 10 L".F.R.

Thomas E. Murley, Director Prc~snrixnl TIIdhbal Sh6ck %Wning Cr'itcria,'10 'C.F.R! I) 50.61; I rtcturc Touglincss Rcquircrhcnts,'Appcnttix G of 10 C.F.R. Part 50.

In the Malter of Docket Nos. 50-250 ~~a jj- >>I

,e -

joe p'Ji 8 "p 'cc o s I 'it ~

50-251 DIRI'.CTOI('S DI'.CI IION'"'UNDPR'-10 C.PR. II 2.206 1

FLORIDA POWER 5 LIGHT COMPANY 'IIII atu INTRODUCTION a i" '

(Turkey Point Nuclear Generating Plant, Units 3 and 4) September 25, 1989

~ ~ ii 'I <ty, ~ i

~ ei t j,E

~ ~

i 1

-".ass

" i%i w,ip +zi0 r On Junc 20; 1989, Thomas J. Saqorito, Jr., filed q.rcqltdst 4ith thc Executive. ~

Director for Operations pursuant,t+0 C.F.R. 5,2.206 that thc NRC take,certain Thc Director of Nuclear Regulation dcnics 1'tion actions,with regard to>ti!c Turkey Point Nuclear,Gcncrating PJattL Units 3,and a lilcd by 1'homes

4. The rcqucst of,Junc 20, 19&),t~was supptcmen)cd.by,late( Rubmittais, dated J. Saporito rcqucsting immediate action with regard to Turkey Point Nuclear Gcncrating Plant, Units 3 and 4. Spccilically, thc Pctitioncr rcqucstcd that thc Junc 22 as,amended bye,submittal dated August 12,~ and July 3, 1989.

NRC cause thc cold shutdown of thc facility and thc suspension ol iLs operating 1'h'csc documents.werc ref~ to the Oflice ofjl4uclcar Reactor Regulation I'or,.

liccnscs, invcstigatc thc cxtcnt of an allcgcd drug usage problem and rcvicw thc consideration puauant lo section 2.206. Thc ttpct(ments will bc jointlyi,referred ..

Liccnscc's corrcctivc mcasurcs; take actions concerning thc Liccnscc's program to hcrcin. as, "thc Petition." . <<, ..y I'or reactor vcsscl materials survcillancc and analysis, bccausc thc Pctitioncr Spccilically, thc Junc,20 subrfiittal request+>that,,the,'NRC lake.irttmcdiate asserts that thc reactor vcs<<;Is at Units 3 and 4 arc cxpcricncing vcsscl cmhrit-action to cause tile-cold sh)ttdown of Unils 3 Itnd 4, cause thc suspension of tlcmcnt; and modify thc liccnscs to rcquirc that thc Turkey Point Operations Operating Licensees DPR-31 and Di'RAIcause,an~investigation by the NRC Supcrintcndcnt hold a senior reactor operator's liccnsc, bccausc, according to lo ascertain thc extent.,pf thc drug.usage problem at:Ibrkey Plaint.andreview thc Pctitioncr, operation of thc lacility by an Operations Supcrintcndcnt who thc Liccnscc's corrccttvc,.measures, and ordcfI'cmcdia action in accordanfA:

is not thc holder of such a liccnsc would involve a signilicant incrcasc in thc with thc ncw Fitncss for Duty, rulc. As a basis for,thcsc cquests, thc skmittal, allcgcs that thc Fcdcral Burca7i,of Investigation,(FBI). cstcd an operator,at probability aml conscqucnccs ol' nuclear accident.

thc neighboring Turkey Pointgpssil p1qnt who slated that Turkey. Point "ran on cocaine" and, as thc FBI's.invcstigatipn is not.yct concluded,thatlthe NRC RVI.FS OF PRACTICE: SIIOW-CAUSE PROCFEDING cannot bc fully a'ware of titc.cltcfit of gC drug problem ht thc facilit)t: I Thc Junc 22 suhlnitlal rcqdcsts, in.aAIition, that thc NRC take IJttmcdiatc Thc principle is lirmly cstablishcd that parties must bc prevented from using action to (I) test arclIivc weld metal test samples gcrmanc lq Unit 4,in accordance 10 C.F.R. ti 2.206 proccdurcs as a vchiclc I'or rcconsidcration of issues previously with Charpy test- paranj'ctcrs; (2) dvaludte Charpy test data ob'taincd to Qjcrtain decided, or for avoiding an existing forum in which they morc logically should thc dcgrcc of cmbrittlcmcht of thc Unit 4 reactor vcsscl'(3) evaluate tl>c lm prcscntc<l.

cmhrittlcmcnt and dctcrminc whcthcr continued opcndon of the reactor can hc safely achicvcd witidn thc criterion of 10 C.F.R. Pari 50, Appendix G; (4) 220 221

-

~

ensure that flic Lircnscc will test archive weld metal in thc future to cnsurc a close nuinitnring of thc cilusc thc tcrlilin;ltiun of Ihc intcgratnl surveillance samples at regular intcrv;ils iicgrcc of cinhrittlcnicnt: (5) testing Iirograin currently hy Uic FBI. '."-':: w - "" : 3

's pcoplc arrcstcd, a tiitmNt of pcoIIlc ift thc geographic'll area wei'e IntCrviewed NRc stafl lh:clos'8y monitorNg Ulc L'Icchh~ Itctions in rcsponsc t8 the

~

s'lic licing utilixcil hy thc Liccnscc, whcrchy Unit 3 archive wcltl metal test s;ttttiilcs arrest and Ilic ongoing FBI investigation.. ThC actions Iakcn'by thc Licchscc 'rill arc cvaltnttni anil fit tc'rinincil to lic rcltrcscntativc of cmhrittlcincnt ctinilitio>>s iii response to thc FBI in98tig)tidn happ'chr to.bc profhpt'iQd'appropriate. These gcflllsallc to Ulllt 4; ililil((>) cause an NRC cvaliiatinn ol'hc rcfcrcncc tcniPcratiiic :ictions incluiic immcdiatc testing of aII'man'spars, supervisors, antI personnel" criterion of 3(X) tlcgiccs cst;ihlishcil lor thc safe oi)cration iif:i Itrcssurizctl water in positions signilicant tb safely, 'tttstin'g',of,',)ll.other Mrgaining unit reactor to consiifcr wlicthcr thc criterion sluiulil hc lowcrcd pcSO'nticl"'ho to offset flic effects voluntccrcd <<nd subjccUIig all:ycrsontit:I ttutltbrizcd uncscoitcd acct'sh to ol prcssurixcil thermal sliock. As a basis for thcsc rcqucsts, flic suhniittal;illcgcs tlic. Turkey Point'tlcMkl" Gcncritihg Plant 'ilh"rnan06Iory taiit08fh 'testing I'or flint Units 3 anil 4 arc cxpcricncing reactor prcssure vcsscl sulipnrt of this, various documentation is rclicd upon.

cinhrittkinciit. In sullstancc'abuse, cf le:&C Junb, 28,"1989. > -. -

UiC Crest 'of ihc fossil plant 'cliitifbIfce'6n $ 6n'c.'14; 1989,'rid as of llic July 3 submittal rcqucsb that thc NRC take immciliatc action to moilify

'Since Augttst 7, li)89, appkoximatcly 19/0 pcrsIind with author tied, access to Turkey Operating Liccnscs DPR-31 and DPR-41 Io rcquirc tliat thc Turkey Point point have hccn tcstctt <oi'ohstan'ce ahhse Plls rhpthkhls a(jr'os triia tery ra%

Oltcrations Supcrintcnifcnt hc rcquircd to holil a senior reactor operator's liccnsc ol'he persons wititt ailthoriycd acct le'MrIIey hrintf tIs oi,'hat date.

on Uic prcssurixcd water reactors gcrmanc to thc facility. Of'hc As a basis lur this approxihbtcly 1950 pcr'so'ns Ics&f; six'wpk icjxiftcd as having'onfirmed request, thc siihmiltal allcgcs Uiat operation of thc facility hy an Operations lest results! AIIthioriycN a&cbss fop"thigh of the Six'rs'ons who'Icstcd 'ositive Supcrintcndcnt who is not Uic holder ol'such a liccnsc would involve a s igni ticant positive was suspcridCd. for 45 days: During thc 4'5-d5) suspchBoh, thcsc thrc'e incrcasc in thc probability anil conscqucnccs of a nuclear accident, anil involve pcoplc can,bc rcfcstcd fop'ubstaMc" Iitjus8'-,@II"If Iht:y ass acceSs will be a significant reduction in thc margin of sal'cty.

rcstbrM and they vyilI cntcr Into a frcqucnt ftf~llo44p tbting program I'or 'I'year.

If Uicy faiI't'o bb YdinBitcd tiuririq"they 458%/'SuSPcnsibn,,they will not be.

DISCUSSION allowed access~to furkcfPdint aifd ftlrtitci'disc'IpfIna?j>atilt lvtll bc Iakcn by thc Liccnscc..Employmcnt for the.Icrnaininhg IIIrcc'topic who I~ted potiIive A. Substance Abuse was tcrminatcd..; +'-

<yn ihc oasis d< the diBpeclvcd ls dtto.thIieii nt r Ihett on o a wrdcsprea Thc Junc 20 submittal rcqucsts immcdiatc acUon to cause thc cohl shutdown problem qf suIII;tancc abuse at t~lgikcy:1otni Auclcar tscncra(lng Plant.,'The, of Turkey Point Nuclear Gcncrating Plant, Units 3 and 4, and thc suspension NRC Sta f1'illCOhlfhue 7O'AbttitdP>t'tsC t.iCCtiSCC'SaCUbnS &flqCfning thiS mattCr of thc associated Operating Liccnscs DPR-31 and DPR-41. In addition, thc 'tO ChSure tRat'publiC health and jafII)~are nibs fithahtgekedy HO furthCr aCtiOtiS, submittal rcqucsts that thc Commission cause an immcdiatc investigation ascertain thc cxtcnt of thc drug usage problem and to rcvicw thc mcasurcs taken at Rrkcy Point and order rcmcdiaJ action in thc ncw Fitncss for Duty rulc, which authorixcs such action potentially affcctcd bccausc an individual is unlit for duty.

On Junc 14, 1989, a Turkey Point plant empioycc was onc corrcctivc accordance with whcrc safety is of thrcc pcoplc to beyond AhII is currcnUy b'dIng'donb B. 'cacto'r

~ i 'l y A

Ve'sseI Mat'ifr'fafs Sur'veiIfanA'+

9ccmdf warrdliFcdd by'tIic NRC at thjs,.

lime.'fhcrcforc,&C?Cf'iuc]t in th('iphd20 submi@iciatcd Jo substance abuse

'i s

"'hc arrcstcd in connection with a widcsprcad, ongoing FBI narcotics investigation >uric 22 sulktttal 'rcquhsti'1fftinMia)i;kctidh" to cau)c the suspension in South Rorida. Thc arrcstcd cmploycc was a I'ossil plant operator. As lhc of Operating LihcfIscs DPR-31 IIkif'PRAf'ahd to take immcdIate a'ctions protcctcd area for thc Nrkcy Point nuclear plant also cncompasscs thc fossil concerning thc L'Iccnsctt"s'pro/5m for kcacto6csscl materia~is survcillancc and plants, thc arrcstcd cmploycc had access to thc protcctcd area. This access analysis. Thc 1'ctitioncr asserts,'as a finals fof IIhrcqucst. that'thc, reactor vessels authority was subscqucnUy suspcndcd. Howcvcr, this cmploycc did not have access to vital areas of thc nuclear plants which contain cquipmcnt rcquircd for 'On M y 2d. f9%9,.be pcsnmis'Iifttttsaued the fioat rute, "FstnesaIror Ditty pto9rrsms" ISd Fcd. Rea. 24,46$ ),,

safety. Thc other two people arrcstcd by thc FBI werc not cmploycd at thc This rulc mandatee bc estsMishmesn of a proc<am to dctcr snd detect innanccs of substance abuse on be pan of 1brkcy Point plant and did not have authorized access. In addition persons aubonyed unesconcd access to nuclear power plants. Thc effceuoe date for ltyrpltsncntauon of bc nt:w to Uic thrcc ndc by licensees as January 3. l990. Thus, the Pctiuoner's reiisnee on thc rute as ~ basis for immcdisu: action is mispiaccd.

'r 222 223

~ aaaato is~tet 2.206 proccdurcs as a vehicle for at Turkey Point Units 3:ind 4, are cxpcricncing vcsscl cnihritilcmcnt. ln support parties must bc prcvcntcd from using section for'avoiding an existing forum of this assertion, nunicrous documents arc reconsideration of issues previously decided, or ihp p<<rpnscs of this ttiscussion, thc Petitioner's cited.'itr rcqucsts liavc tÃen in wltit..h they morc logically shouhl bc prcscntcd.

E.g.general Public Utilities Units 1 and 2; Oyster Crcck selt;tratnl into thc followinl!categories: lttuclear Corp. (Thrcc Itlilc lslaml Nuclear Station, 561, 563 (f985).

(I) 'lt:rtttinatc thc inicgratcd survcill:nice pfugfani for Turkey laoini Units Nuclear Grcnrrating Statinn), CL1-854, 21 NRC that would cause thc NRC Staff 3 and 4 v hcfchy Unit 3 archive wclil test saniplcs afc cv;iluatctl:iikl 11tc Pctitioncr has not provided ncw cvidcncc, Survcillancc samples will bc ilctcrmincil io bc rcprcscniativc of cnihriitlci>>cnt conilitiiins gcrma>>c to rccnnsitlcr its approval-'of thc subject program. accordance with 3.and 4 and,tested in lo tlnit 4, rcquirc thc testing aml evaluation of weld iiiel;il lest sllllliiles removed from thc reactor.vc'sscls in Units and thc results will bc cvaluatcd by gcrmanc to Unit 4 in accortlancc wilt) Chaqiy test Iiaritmctcrs anil thc approved inicgntcZsurvcillancc program rcquircd No immediate action is criteria, anil an;ilyzc thc test results to ascertain thc ilcgrcc of Unit (lie Liccnscc anil separately by thc NRC Staff.

4 rc:fetor vcsscl cmbritilcmcnt. In this connection, Ihc Petitioner to test samples gcrmanc to Unit 4.

suhjcct of,reactor vcsscl cmbrittlcmcntcin

'hc

't f Unit 4 was rcccntly reviewed by asserts, among oilier matters, that rnsonahlc doubt exists that thc ol'Amcndmcnt 134 to Operating fracture toughncss rcquircmcnts of Appendix 6 to 10 C.I .R. P'tft 50 thc NRC Stal'I'ri conjunction wilh thc issuance Liccnsc DPRP I. In a Icttcr for upper-shelf cncrgy have bccn mct. Liccnsc DPR-31 and Amcndmcnt 128 to Operating arncndmcnts that thc subject (2) Ensure tliat future archive weld mci;ll samples will bc tested by dated Scptcmbcr 21, 1988, thc Liccnscc rcqucstcd prcssure-temperature limit curves that thc Liccnscc at regular intervals to cnsurc a close monitoring ol incorpnritc'revised hcatup and coohlown to(20'cffcctive full-power years (EFPYs) of scrvicc cmhrittlcmcnt and safe opcrdtion pursuant to 10 C.F.R. Part SO, wouhl bc applicable up at4he timC.Of thC requCSt WerC Appcntlix G. lifC. 'fhC CurvCS in thC TCChhiCal SpCCiliCatiOnS Bmcndf6cnts was published applicable up to 10 EFP Ys..Notice of thc rcqucstcd.

(3) Analyze thc rcfcrcncc tcmpcraturc criterion of 300'F established by Fcd. Rcg. 40,988). Thc subject thc Commission for safe operation to consider whcthcr it should bc in thc Federal Regi.<ter dp October 19, 1988 (53 Siaf1'n January 10, 1989. As discussed lowcrcd. amcndincnts wcftc issued by thc NRC thc NRC Staff found that With respect to Category (I), above, the Liccnscc rcqucsicd, in lcttcrs dated in thc Safety Fvaluation issued for thc arne@ments, Iimi8 werc in'compliance with thc fracture February 8 aml March 6, 1985, a liccnsc amcndmcnt io combine thc existing (1) thc rcviscd prcssure-tcnipcraturc the integrated to:102C3F:R. Part. SO; (2) reactor materials survcillancc program at thc fbrkcy Point units into a single ioughncss rcquircmcnts Of Appendix G A'piibndiy Ig,to IO C.F.R. Part 50; and intcgratcd progrdm that conforms to thc rcquircmcnts of 10 C.F.R. Part 50, survcillancc program coinplics with critt+I'materi'als at $ lnits 3 Iandt4 will remain below Appendix II. Notice of thc rcqucstcd amcndmcnt was published in thc Federal (3) thc reactor vcsscl life in screening 3ritcria for their licensed Register on March 12, 1985 (50 Fcd. Rcg. 9919). On April 22, 1985, thc NRC thc prcssurizcd'thermal shock (PTS) 50.61.:

Stal'f issued Amcndmcnt 112 to Operating Liccnsc DPR-31 and Amcndmcnt 106 compliance with the requircmcnts of 10 C.F,.R. (t Register notice dated OcEober 19, 1988, concerning to Operating Liccnsc DPRA I, which authorized, in accordance with section II.C In rcspoiisc to the Federal of 10 C.F.R. Part 50, Appendix H, thc usc of thc intcgratcd survcillancc program the issuance of Amcndmcnt le to Operating,L'icense~DPR-31 to and Amendment Intcrvcnc, dated 128 to Operating,L/cense,,DPR41, a Peti(ion for L'cave at Turkey Point.

Nuclear'Responsibility, Inc.,

Novcmbcr 17, 1988, was tiled by thc Ccntcr for

'f Thc Pctitioncr, in raising this issue, is sccking to use section 2.206 proccdurcs to reopen a matter that was thc subject ol'n amcndmcnt that was noticed in and Jocttc Lorion, which raised conte(lioral,ieiating fo thc Petitioner's June 22 Contentions), LBP-89-15.

thc Federal Register and I'ully considcrcd. Thc Pclitioncr had thc opportunity submittal. Iris'emoratitlum hand Order (Ruling upon to request a hearing and failed to do so. Thc principle is firmly cstablishcd that 29 NRC 493, dated June 8t'1989, two Safety and Licensing Board, as folJows:

conlentions

'. wcr'e

,

admitted by the Atomic material in Unit 3 has bccn

a. Cqntcntion 2 asscrtcd that,capsule 2 irradiated for "a.,si'gnilicantly shorter time,than capsule material in By fetter dated August i 2, l9$ 9, the rbutioncr submiucd a tisung rI bittyht doctencnts which hc rcrprestcd -

admitted, Iiinited to thc rclcvancc of thc be considered ss an "amcndmcnP to his June 22 submiusl, to bc considered as aaddiuonali 'on cvic dcn ce in suppnn o f Unit 4. %is contention was c sis m justi tcauon for the tune 22 submittal. 'tlus "amcstdmcm" ecatsists snleiy of ~ listing of documcr>>s. bctwccn Units 3 and 4.

without sny csplsnation as to how these docurncnts support the ftcutiener's esse>>iona. As the pet>>inner has 'dilTcrcnce.in'operating time 'r not prrwidcd any specific information with regard to these deca>>sr>>s. funhcr scunn with rcttsrd to hts Auttuct l2 submittal is unwsnsnted. Srr. a.g, phfodrlphio Flrcrric Co, (tdmcricit Ciotcrating Station. units i and 2h l)O XS I I, 22 tik(: 149, IS4 (l9RS).

224 225

0

b. Contention 3 was admitted, limited to whcthcr thc cent'>gc was used in predicting thc rcfcrcncc tlic critical hcltlinc materials for setting corrcc ten ppc r I >cr-'

tcmpcraturc (//'/'Nt,s) of

%$ strrs t

>s>sssw ass'a'sess Thc information rcqucstcd in NRC's lcttcr ol'ay 31, 1988, was needed As statcil in tlic Atomic Safety anil prcssure-temper:>turc liinits. to cvaliiatc thc Liccnscc's conscrvativc analysis (contained in its Icttcrs of Licensing it>>arrl i>rilcr, hc;irings <<ni thc March 3, 1984, anJ March 25,'I98I>} which was submiucd to justify continued ailniittcil cimicntit>ns arc schcilulcd to coniincncc on 1)ct:n>>l>cr 12, It>II'>. All operation up to 40 EFPYs. C>&c>>tly, thc lbrkcy Point units have opcratcd dociu>>cntation asst>ciatctl with thc hearings will I>c pl;>up>I in thc Lt>cal I't>l>iic fi>r approximately 10 El'PYS. Amcndincnts 134 and 128 to Operating Liccnscs Ducunicnt it>>on> aiul will bc availahlc fur thc I't:titii>ncr's review.> DPR-31 anil Dl'R-41, rcspcctlvtcIy, authorized operation only,up to 20 EFPYs.

As dcscril>ciI 'ihovc, tlic NRC Staff cvalu;>ted in Unit 4 in conjiinction with Amcndmcnts reactor vessel cmhrittlcmcnt Operation beyond 20.FFPYs will rcquirc thc submittal of another amcndmcnt 134 and I2II to Opcratiiig Liccnscs aml further cv;>Iuatii>ri by thc NRC Staff. As discussed previously, thcrc arc DPR-31 and DPR.41, respectively, and dctcrmincd that there arc no piihlic no public hc;ilth or safety Concerns associated with operation up to 20 EFPYs:

health or safety concerns associated with the continucil operation of Unit 4. Thcrcforc, thc information requested in the&ay 31, 1988 Icttcr to justify 40 concerns raised in thc hearing arc dctcrmincd Il'ny to I>c valid, thc Staff will take EFPYs ol operation is not:rcquircd >mmcdia'tcly and no actiori by thc NRC is thc appropriate action at that time.

Morcovcr, all of thc documentation rclicil on necessary at this,time.

by thc Pctitioncr was consiilcrcd when thc amcndmcnts werc issued. Thcrcforc, IVith rcspcct to Category (2}, above, the rcquircmcnts for future testing further action on this concern is not war>ante<I.

supra, 21 NRC at 563.

/%rce hei/c /3/ur>rl, CLI-II5.4, of archive wcl<l metal samples arc spccificd in thc intcgratcd surveillance program thaI-is:contained in thc Turkey Point TcchniCbl Spccilications, $ 4.20.

Thc submittal also asserts that rcasonablc doubt exists that thc fracture Co>npliancc.with thc. Tcchnicatr.Spccif>cations is rcquircd as a condiuon of toughncss rcquircmcnts of Appcnilix G to 10 C.I..R.

Part50 for thc Cit:tri>y ()pcr;iiing Liccnscs DPR-31 and DPR-41 for,~Turkey Point<Units 3 and 4, upper-shelf cncrgy have bccn incL Thc basis for this statci>>cnt is a letter lroin cost>cctivcty. As such, compliance with thc Axhnical spccilications is suhjcct thc SL>fl to thc Liccnscc, dated May 31, 1988, which indicates that additional to verif>cation by thc.NRC throuIrh pcriodiceudits.and>review. Thcrcforc, no data and analysis arc necessary for thc Staff to complctc its rcvicw of tI>c fracture further action is:warranted regarding'this co/>ec>n.

toughncss analysis of thc bcltlinc wclds for thc Turkey Point rcactt>r vcsscls. respect to Category (3), ac>ovc, thc rpfcrcncc temperature value of 300'F

'ith I'hc Liccnscc's fracture toughncss analysis was submitted in lcucrs dated Mity (lor'circumfcrcntial weld materials)'wh>ch is used in BTS scrccning is spccilicd 3, 1984, and March 25, I9IIG, to comply with thc rcquircmcnts in section V.C in section 50>GI. The Pctitioncr's rcqucst is, in effect, a rcqucst to change the of Appendix G to 10 C.F.R. Part 50. Thc rcquircmcnts of this rcquircmcI>ts, ol'cclion, 50.61,:arid, as such, >fs not appropriate for consideration section apply to reactor vcsscls that have had their Charpy upper-shelf cncrgy reduced below 50 under stet>on 2.206.':Rather, it map constitute a petition I'or rulcmaking that foot-pounds by neutron irradiation. This section rcquircs submiucd in accordance with 10 C.F.R. I> 2.802. Under section 2.802, ould becsu that thc L'iccnscc (I) s Iiou pcrlorm a volumetric examination of 100% of thc bcltlinc materials that do nol any intcrestcd person may petition thc Commission to',issue, amend, or rescin cind satisl'y thc rcquircmcnts of section V.B; (2) provide an analysis to dcmonstratc any regulation. Thc Petitioner may wish to review thc rcqyircments I'or a petition cquivalcnt margins of safety Ior continued operation; and for rulcmaking contained in scctjon 2.802 and consider submittal of the request (3) provide test data from supplcmcntaiy I'racturc toughncss tests.

lo rcvisc thc.reference tcmpcraturc criterion of 300'F under section 2.802.

Thc Liccnscc has satislicd these rcquircmcnts by (I) performing ultrasonic examinations ol'cltlinc wclds in Unit 3 and Unit 4 during July 1981 and Novcmbcr 1982, rcspcctivcly; (2) submitting fracture C. 'Operations Superintendent Qualification mechanics analyses in ay t Icttcis dated May 3, 1984, and March 25, 1986; and (3) providing supplcmcntary Thc Jtily'3 submitlal requests immediate action to modify thc Licensee s I'racturc toughncss data from thc Hcavy-Sectional Stccl Technology program in Operating Liccnscs DPR-31 and DPRAI to require that thc Nrkcy Point its Icttcr of March 25, 1986.

Operations Supcrintcndcnt hold a senior reactor operator's (SROs) liccnsc on thc prcssur'Izc4 yt>atcr reactors gcrmanc'to thc facility.

In a Icucr dated Scptcmbcr g, l9V8, thc Liccnscc rcqucsted that the Technical 13re Petitioner has fiicd a pcuuon herore the Atrun>e Safety and Uccnsinl fioani to male ~ limited dunng the hearin. in ~ document cnutlcd "Amended lhuurat fcu appcarancc Spccif>cations'c 'cha>1gcd,tot'permit thc holding of an SRO license from a a Umitcd A~rance Statnncn" fi!cd

30. 19R9. the Nuclear Farcr>ty Accrnrntahi>iry project has Au>curt indicated that it wilt rcprcscnt thc >ccriYicarcr's unercats similar plant (i.canother prcssurizcd water reactor) to scrvc as an acceptable in the proceeding.

qualification for thc Operations Supcrintcndcnt at Turkey Point. Notice of consiilcration of issuance of thc rcilubstcd amcndmcnts was published in thc r>

226 227

is for thc Commission A copy ol'his Decision willbc filed with the Sccrctary Frdrrnl l(rgisrcr on Novcmbcr 2, 1988 (53 Fcd. Rcg. 44,250). No rcqucsts for C.F.R..I't2.206(cf.

hearing or petitions for fcavc to intcrvcnc werc filed. Oil M;Irrll 27, I')8'), rcvicw in accordance with 10 "I (v thc Cominission issucil Amcnilmcnt 135 to Opcriting License I)l'R-31 anil FOR THE NUC(.EAR Anicnihncnt 129 to Operating Liccnsc I)l'R-41, approving tlic rcitucstcd cliangc REOULATORY COMM1SSION in ipialilication rciluircnicnts for thc Operations Suiicrintcni tent. i

()n May 16. 198v), thc Pctitioncr submitted a Rcqucst for 1lcaring and Petition

'<<I ,, v rll" for Lcavc to lntcrvcnc (ainendcd May 18) with rcspcct to those aincnilnicnts. Thomas F, Murlcy Director ln tlic Commission's Orilcr Denying ltc(iucst for llc:iring, datril May 30. I')8'), Oflice 1if Nuclear Reactor ic I ctitioncr s rcqucst was dcnicd as untimely, inilicating tliat no gooil cause Rcg6lation was sluiwn I'or sucli untimclincss. 'v v

Tlic July 3 submittal appears to bc an attempt to circumvent thc rules for Dated at Roekvillc, Maryland,

'I v Iimclincss. Tlic siihmit tal riiiscs thc same issues riiscd in Ihc Rcipicst for I tcariiit; 1989,.

tliis 25th d;iy nf Scptcmbcr anil Petition for Lc;ivc to lntcrvcnc, dated May 16, 1989, which was dcm.il hy v ~

thc Commission on May 30, 1989. Furthcrmorc, thc submiual <locs not raise any ncw issues not previously considcrcd by thc Commission in thc issuance of thc os ~ '1 amcndnicnts. llicrcforc, I'urthcr action regarding this concern is not warranted. ivT CON CLUS1ON gP Thc institution of procccdings pursuant to section 2.202 is appropriate only v<V Edison Co. of Nciv York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2 NRC v v

173, 176 (1975), and IVoshingron Public Poiier Supply System (WPPSS Nuclear Project No. 2), DD-84-7, 19 NRC 899, 923 (1984). This is thc standard that has bccn applied to dctcrminc whcthcr thc actions rcqucstcd in thc Petition arc warranted. FPor thc reasons discussed above, no basis exists for taking thc actions rcqucstcd in thc Petition, since no substantial health and safety issues have bccn raised by thc Petition. Accordingly, thc Pcutioncr's rcqucst for action pursuant to section 2.206 is dcnicd.

il

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NUCLEAR ENERGY ACCOUNTABILITYPROJECT 1202 Sioux Street ~ Supiter, Florida 3345B'407) 743-0770

.Environmental Protection ~ lnvolvem'ent ~ 'Litigation 'tnforttiation "'i o =- m

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, VOLUHE:,II ISSUE: 1."" '

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JANOARY 2f t990 A

,Directors', fop co sni jferatlpn.'NEAP OrganiZatiOn 'nCOrPOrated', Within

's corporate Epolicy change was brought befot,e the NEAp Boa'rd of

'the

'a npn'(prof it 'knV1ronm'ental

+gate Otf , Fl'Or.idar fOr. the

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primary pi'urpose of "ensuring tha't 'ali".'nucle'ar'power .pl.ants -ind

'uClear faCi 1'itieS =in the 'State'Of FlOf'isa are OperI at'e(d"Ski"hl y and tha -he does riot- sustain- permanent harm "ai adverse effects as environment.

a direct or" indi'iect result of nuclear powei"rgener a- ton

. or nuc iear'ueli storage, usage or transport.'

r After exhaustive res)arch and review of voluminous gov'ernment Cccu...en:s and reports germane to nucl'bar ener'gy a'nd nucle'ar waste disp" sal, it is quite e'vid4nt that the everytfay operation of nuclear

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pc. er plants and nuclear weapons plants in the United States results in s"-,.e release of radiation into our environment. Recently the Rccky Fla=s nuclear waste faci1 ity was 'discovered to have lea'e" ra"ia=ion into the environment.

'="iti "ral 'iy, no matter how small the amount of radioactive lea'-=e .."".. nuclear power plants into the environment, the leakage is - -.. la=ive and therefore permanent,ly harms the environment. Of c" s=, ~e can not, real istical ly expect to secure the shutdown of e~e y r. clear plant in the country, however, we will initia-e as= e'=aive actions to prohibit the licensing of any new nuclear pie".=s in FloriCa until such time as the U.S. government resolves the "rc"'.em cf nuclear waste. Finally, we will 'initiate actions to se-'- e ..".e shu-down of nuc lear f ac i i ties, such as Turkey Point, 1

a-e I.nsafely operated and poorly maintained.

We are gravely concerned about the lack of effective regulation a"C c~e sight demonstrated by the Nuclear Regulatory Commission in liure to shutdown the dangerous Turkey Point nuclear plants.

has miserably failed to ensure public health and safety their own neglect of duty. If the public can not be assured a s=~c".g government, regulator, then public confidence in nuclear po"<< gene-a:ion will not occur in this country. The NRC is pushing c .e s:ep licensing of new nuclear plants instead of initiating cng e .ective regulation on the very poorly operat,ing plants in

e S-a:es today. It just doesn't make good sense to move more nuclear power plants until the government. resolves

=raie -Issue of nuclear waste.

0 For all=. the foregoing 'ieasons, ';and because NEAP" s articles 'of incorporation provide " for" the.: pretection 'of the environment as a

whole, it, is therefore'by'.j'na6'imobs yote,of,'the Boast d of Directors, the de i.sion o.f the ,r Bo'ard., t'o."imp.lemdnt %We -policy change that:

it "The Nucleal'r' ner '"A c untabili Pro ec i an Anti!-Nucl'ear ":Env'i Fonmenta'l."'-10r'rR; a io~. with'e ri'mar

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ur ose - of r.otect.in .the.'vir n n 'ns rin ~:h afe o eration'wf all 'nuclear fadili ie . in he- e f Fl ri a

'oldi

'""='ccountable

',

for overKment i'tt'an ".v =i 1.it

. th ir. 8' n re r

'i i n n r ati~ s rnid~

issu s.Light's

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'-'ucl'ear ener Florida Power .and r Turkey. 4?oi'nt nyclear. plants units "3 and 4 were ".Cotà shutctuwn '"@dryingthe"..Chr'istmas blackout of 1989 beca se of -pour maint'enance', and, re'suiting.,equipment. failure.

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AQa e.".-.ly, '.water. had entered 'an electrical conduit box and shortec-sore ~iring causing a power "fuse to blow. As a,result, one of the Turkeys a -orna-i"cally, shutdown and FPL mariual.ly phytdowh the other l e2 h r r w ~ !!r r

NEAP has filed a Petition under NRC regulations'

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equesting the sus"e. sicn of FPL's operating .licences because reaspfiable assurance fcr t~e con-ipued safe operation of the Turkeys does not exist. The hRC is c rrently investigating the events. According to NRC reg .a:'"ns, FPL could be sujected to an escalated civil penalty if

"e  !,s

ce=er.-.,ines that. the event rras cue tc a maintenance pr cc1e m

~his.". == 1d have been prevented.

was nct able to supply power to all of its customers on Ch-is=-,as Day, and then had the arrogance to blame its cus=omers for the biackcu- ! FPL should realize that its customers ha.e a right

.c ex"c=: continuous safe and reliable. energy even when c =s ce. It would appear that our Public Service Commission has it gets cold fai'ec :" ensure that these utilities have enough reserve generating cacac>:y to handle the needs of Florida. Indeed, is there even a s a 6 296. cy which inspects the utilities non-nuclear plants for crcccr .-..air.tenance to ensure their operation and availability '7 WMWW WWWWMWMMWM&M WMMWWMWM F-."'equested permission from the NRC to relax their safety margirs by amending their operating licenses to allow"them to adopt a re set of plant technical specifications. The plant technical s"e=i. ca:iors are the plant parameters which FPL has to operate the cia~.t unoer such as pressure and temperature limits. NEAP has cetiticnea the NRC for' public hearing to address this issue te=aise we believe that it is unsafe to allow FPL to operate Turkey Fcir.t un"er generic technical specifications based on the operat,ing his:cry of other plants. To expense the costs involved with this hearin=, We wOuld appreCiate all dOnatiOnS tO thiS CauSe.

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• 15, -. 1989.,;, Publ-.ic;,; Ci tizen'0" gy1 ph,-=-Nader On organization 'n December

'Wash'i@@on, O.C.'sent a letter,.to FPL.'s Pres'ident, ~

Robert E. Talion. kn.their'eggier, pLrb3,ip Citizen requested -that

>be.'.turkey 'point gqc3eap-".p]irits~r ermanintlg because'they FpL-'hutdown ay.e '7, .=yeaiw.'. o14 -2nd -.'ar~, n5 -Hing,mcpjomicaf to",operate.Publ ~c G5.tizen.: w.ill, '.1 so =5dgFgsq,fgese; ~n~gps ,

to the .Florida Publ ic Service.."'-.CoiMQsio6'.FPL-'antis-;>o-e~pegs~iOO.-mi,1 lion dollars to install 'two diesel.generators at turkey..point~..a cost -which "Public.

Citizen'oes nof, rbconFnen5.. is -,' .",->>

I c ~ . ~ ~ << ~i

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<<e zr-c".r"..

p ',I

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~ --"-we have "i eviewed:s'evera). Publ jcrcit1zen reports which- are. base" on '~NRC< g'ov'ernment 'documents. These reports evidence -that wthcr nuclear plants which weie rshu>59vgn foi "extenciacf:.p'er io'ds ef dime 'for""

pn e<t,upgrades, '-performed 'w'or ='~, af te'rearms. hfe yon'r',vr with=:

-= 'qui Public CiOiZeri in that,-:+PL ShOuld.per~qnently. SgutdOwp the Turkey Point -pl ar'its,f'r eco6omi'6a'1 -req-sons .. Turkey:%oint' budget for 1988 was '2. 5 mi lion dol lars 1 plus a .20K .over'run which 'resdlted. in opera:ir.g and "Maintenance " c'ost's,',.of 'aha'ut pl11 ~all-ion'ollars--in Turkey 'po'int=,." has O'exceeded'its operating and maintenance 'ota'1.

bude.s for the last five consecutive 'yea.rs..TuJ',key .Point's operating and r..aintenance costs escaTate eveg.y year. because these plants are .

17 gaea. s old 'ano'ery poorly maintained.

Jt Cc.".-.,"n sense would tel you that .i f.,you paid $ 10,000 dol lars for a r.ew ca., you would not spend another $ 50,000 to keep it 1

o"eratir.g. Now FPL has some mighty smart business boys on, their Boars cf Directors who realize that it makes good business sense to kee ~ing rrcney into the Turkey so long as FPL can continue to pass t. ese costs on to the ratepayers. Sure, FPL only paid 235 mi11'.cn to bu>)d both Turkeys, and sure FPL will say that the Turke: s have oaid for themselves 3 times over u h 1 ns t.",a == ha~ never rpvided an one with documents evidencin these Claa'S ." O r knpwledae npr dpeS FPL addreSS the eSCalat>ng oce a=. = a-d rra~ntenance costs of the Turke s. P ant equ>pment at the T r e.. n'cn was supposeo to as- < years, has already been re"ia-=-': the ratepayers expense. I m talking about $ 500 mill>on dc'liars =o re"lace the Turkey Point steam generators. I'm talking a"=-- leaky seal tables which the manufactor, Westinghouse, has recc.-...-.e-"ed re"lacing. Just how much of the ratepayer's money does er.c "o c ycur hard earned money,'hen write a letter to the Florida Pu I e vsce Commission asking them to initiate measures to sh w. the Turkey for economical reasons and that your tired of thro '.r,-" a ay your money.

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Your letter'should be addressed to: e 4

Hr=. Swaf ford, Executive Director Flo) ida'Public Service Commission Fletcher Building 101 E.":Gaines Street e,i~

"'Talr" ahassee, Florida,32399.-08)0 .

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~ sr O Tel 1 them I sent you and that you "demand safe'"hnd =-rel iabl e energy ,at a fair ind reasonable price and that'hen Christmas comes around ,next fear, that youeexpect,po pave"";electricity to"cook your Christmas .Turkey '-with. -

I .;,wondet.>>,if Aoibert 'Talion'ade a hot ghr i s t r.;a s d i n'ne r "??

'P WEAP has petitioned the Florida Public Servibe Commission for permission. to participate in, the scheduled public hearings on We "uary 21, 1990 in Tal 1ahassee concerning 'fuel cost recovery for the Ter key 'Point plants. We need your support in the form of so that *we can convince the PSC to ORDER FPL to refund 'cnatic'ns some of your money back to you. Last summer, we participated at the FP'a e hearings and protested the costs associated with the FPL

.De."...".ng award and" the PSC ORDERED a refund to us the customers. So pie se help if you can.

Be"ause of the problems at the Rocky Flats nuclear waste s erase facility, our government is negotiating with the energy Ce."art.-.,ent officials in an effort to store plutonium on various milita y bases. YES, your read it correctly, PLUTONIUM, to be stored cn r;,lit ~y bases...This facility will reach the permitted max~mum s-=ra=e of 1,601 cubic yards of nuclear waste in March or April of th;s year. The U.S. Energy Secretary, James Watkins told Congress t",a= the New Mexico facility - a cavern known as the Waste Isola-ion Filo Pian-, that, lies 2,150 feet beneath the desert near Carsbad, cannct c en before )ul.y 1. Well, it would appear that our government is ~ust going to throw this PLU'fONIUM waste into a big hole in the 9 "- d so tha. it will be around for our grandchildren to worry above ~

Tre Fernald uranium processing plant near Cincinnati apparently lea'ed radioactive materials into the environment resulting in a class action lawsuit against the Hobil Hining and Hinerals Company.

U.S. Dis-rict Judge Carl Rubin ruled that the 14, 000 residents and b" sinesses within f ive mi les of the plant could engage in legal actions against the U.S. Department of Energy to recover clean-up ccs:s of the radioactive pollution,....Not a nice place to visit and

~ho wculd want to live there now...

An'ts, "aie'now dredgi'ng"-Qp radioactive material at; nvclear waste disposal sites in the desert Southwe'st and using'that material as part of their anthills.. The 'discovec is bein down la ed b scientists --'=. saying that, the radioactivit measured on the anthills is re ative ow..i-Sounds simile'r '"to==.FPL--'s: .statemenWabovt tne radiation released b the Turke Point lants...

Four whistleblowers who worked'at military nuclear plants and complained 'of environmental and safety problems at the p".lants were subjected to hacassment by being..ocdered to submit to psychiatric nuclear plant 'n examinations.'dwin Bricker one'- of the workers at the Hanford Washington state said his sess,ions with psychologists included questions like "how do you feel. about,your fellow workers, your employer, and"'do 'certain things tick "you off?"

"How do you feel about your mother ? Do you kick the cfog ?"

Thomas Carpenter, a lawyec cepresenting the workers said .the tac:ic was intended. to damage the employees'..careers and "sense of self-wor.h,"

The Russian newspaper Izvestia reported that the Soviet gcve. nment iss ed strict curbs on reporting of accidents at nuclear power plants. Severe limitations designate as classified nearly all recr:s cn nuclear and conventional powec accidents,'reakdowns or contamination of any severity....Z ,guess if ex'lc"e" and just leaked badly, nobody would have been the, wiser, Chernobyl had not

~vst a li:-le sicker, maybe like radiation poisoning.

Yes, it's true, two years after the Nuclear Regulatory Cc-..-...'ssic.". shutdown the Peach Bottom nuclear plant in Pennsylvania be=a se 3". control room operators slept on the job, they have ce":ce" :o g. ant permission for the plant to operate again. Of ccv. se the NRC warned that they will be watching the utility very clcse.y...just like Turkey Point... At Peach, Bottom, fouc control e..":cyees responsible for r'unning the plant were asleep at the sa'e time...Several operators were found 'huddled around a personal cc".,"uter playing video games...To end naps by operators, plant, of ~ '.c.a'.s replaced comfortable, high backed chairs in the contcol rcc.-.. ~ th chairs in which sharp nails protrude into the backs of the cpe a=". s...no just kidding about the nails...

Did you ever dream about winning the Florida Lottery and Ie e.v.n g maybe $ 50 million dollars or so...Seems like a tremendous a----n= cf money doesn't it...Well did you know that ONE BILLION GO ARS has already been spent, over the last, ten years to clean-uo the Three Mile Island melt-down accident and that the clean-uo centi es to go on and on and on...Congress, some years ago, passed the Price Anderson Act which limits a utilities liability in the e~e"t c. a nvc1ear accident...What would it, cost FpL to replace the ex=e.".sive l.omes in the siami area should Turkey Point, melt-down

and contaminate the area ? You can be reasonably sure that the Price 5 Anderson Act would 1imit their liability...Better check your homeowners insurance policy for nuclear accident coverage...

Hell, maybe you really don't believe that Turkey Point could ever melt-down... I mean after all, .nobody expected Chernobyl to explode or, Three Mile Island to melt-down .either...Let's take a general overview of just the significant events which occurred at the Turkey Point nuclear plants in 1989 only and not consider the previous years totally ove'r ONE MILLION in fines. '

January 1989...Turkey Point starts off with a $ >00,000 doll,ar fine by the NRC for a significant security violation...a reoccuring pro" iem for years at Turkey Point.

h James L. Broadhead i's appointed as FPL's chief operating of'ficel Leaks on the Turkey Point reactor seal tables are discovered to be leaking radioactive water due to corrosion of the pipes in the seal -a" les.

A plant operator mistakenly opened the wrong valve, (poor training), resulting in a leak of about 300 gallons of radioactive

~ater...FP'as required by State and 'and Federal Law to notify Dade Co-.".-y E.-..ergency Management officials the Nuclear Regulatory Q C=.-..- ssicn of the serious event within 15 minutes. FPL deciaed not anyone about the event until about the next day.

Ma c i 1 989... Joette Lor i on, Director of the Center for Nuc ear 1 Res"=".sibi lity presents argument before the NRC Safety Board at a "lic co." erence in Miami. The arguments center around the racia=ion damaged reactor vessels.

7:".e NRC sent a Confirmatory Action letter to FPL effec.ively c-ce -'.n-" the shutdown of both Turkey Point units because 50%, thats r- =".=, hal f of the 1 i censed pl ar . operators fai led a NRC a='. nis ere'equalification exam... ',akes you feel real safe cces~'t it,...Sure, I s '.". or Che rnoby 1 it can't me1t-down...neither could Three Mile NRC 1 is.s Turkey Point among the nation's ten worst nuclear pl a..:s in the country.

April 1959...Seal table leaks force the shutdown of Turkey Pci;.: a-"ain...same problem which occurred in January...Hestinghouse recc."..."ends the replacement of both seal table units, but FPL just wan:e" .o do a "quick f ix" and keep sucking in the r.c.".ey...De. initely the mark of a Deming Prize company...

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Landry, hired to do repairs at the Turkey Point nuclear

'ELI'obert plant as a contractor with the Bechtel Construction Co. f i led a lawsuit against FPL claiming that FPL knowingly exposed him to r'a'diation at the plant. Apparently, FPL refused to provide the man w'ith a respirator oh the 'job and he breathed in a little radiation..".'maybe causing him to glow at, night...keeping the wife and kids up..'.

April 1989...FPL Nuclear Chief, William F. Conway quits and leaves for. Ari.zona,, far. away from Turkey Point...of, course many Turkey Point executl.j'e manager's haVe come and gone over'the years at

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Turkey Point...its just a,matter <l~ 1 of,how long they, can last a

Sohn Odom the Turkey "Point Site Vice President ..."lasting about a year at the Turkey..'.'is replaced'by Ken Harris the Vice'resident from the St. Lucie nuclear plant...I told you these managers don' las- too long 'around. the Turkey...Now Mr. Harris, a former Turkey Point manager will make an endurance run and Who knows...maybe he will establish a new record'for stay time of an executive manager... I II May 1989...Dade County Commissioner Barbara Carey backed an e.for. calling for a federal hearing on safety issues at the Turkey Poin. nuclear plants. Carey sponsored a resolution urging the U.S.

Atomic Sa.ety and Licensing Board to hold a formal hearing on the claim =.".a- the nuclear reactors at FPL's Turkey Point, plant are dangerc sly brittle.

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P "lic Ci.izen, a Ralph Nader national organization named the Tu"ke> Feint unit 3 as the worst and most unsafe plant in the United S-a=es. Turkey Point unit 4 was ranked 10th. "These are the plants tra: are most likely to experience a severe accident [thatj would have tne mos: severe consequences in the event of an accident, a.".c/or are the most expensive to operate," the report stated. The re"crt c.ficially classified Turkey Point unit 3 as the Number 1 le.-.."n in:he USA.

",.e 1989...FPL was notified by the NRC, that Turkey Point wi 1 1 co-itin e un"er increased scutiny for at least the next six months.

The t =." "created a watch list of troubled nuclear plants in 1986 and FPL's urkey Point plants have been on this watch list since its creaticn, Also, thd NRC places 3 NRC site inspector constantly at Turkey Point because it is a dangerously problemed plant. Usually only c.".e NRC inspector is assigned to a nuclear plant.

'u".e 1969...The Center for Nuclear Responsibility was granted a formal public hearing on pressure vessel concerns at Turkey Point.

The Director for the Center stated that "We don't expect to win these hearings, but like a policeman on the corner, we just want to maKe ...hcs safer. We would like to win this particular hearing, ho e~er, beca se we feel Unit 4 should not be operating because of

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+ tA ell its ceteriorating condition."...NEAP agrees with the Center and has reques--ed permission to particj,pate at the public hearing now

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scheduled for .Febuary 2-7, 1990...We sure 'cou'ld use some -funds to help obtain expert witnesses,and pay,for,.legal, fees'...so plea'se 'help us out a li't'tie if.you can;-..

June '0 989... FBIic:Busts c~Turkey Poi.,nt .drug. ring... FBI agents cracked a cocaine ring..';that may involve= as'many as 30 FPL Turkey

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point nucl'ear -workers s'ays the, FBI .. A Turkey point 'supervisor,

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Vernon: 'Rice, was,'""charged with distribut jon .of almost a pound of

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COCaine ina fOur"Cdunt indiCtment., RiCer WaS quOt'ed ay Stating that Turkey"'Po'i'nt runs oncocaine"i..;.

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The NRC warns that Turkey Point jnight.be sgugdown by,the"end of the yeir...NRC Chairman Lando Zech stated that FPL "should-recognize that the commission's patience ;=-is wearing .,very thin,"..."We'e looking

~ ~ r foc cesults.and

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we want to.:se'e them.."

p FPL initiates drug testing of Turkey point sup'ervisors.

Ten years after the Three Hi le Island melt-down, Turkey Point has faile" to upgrade safety equipment designed to prevent a nuclear mel tcown. Accoro'ng to a NRC report,: safety relief valves, which ven. cf. excess pcessure, may not work during accident or earthquake conditions, July >eat...aoette torion, Director for the Center for Nuclear (

Res" nsibility charges FPL with a poorly operated Turkey Point plan:, Lorion s:ates that "We should not have to pay for Florida Po ec an" Light's nucleac problem, they should pay for not cnly ccnsumecs who are losing when it comes to problems at it,...it' Ticke> Point; stockholders are also suffering." It is interesting to n".e tha FPL Group net earnings fell 23K in the first quarter of 19-"= anC the loss is blamed on maintenance costs at FPL's four nuclear uni-s 2 a Turkey Point and 2 at St. Lucie.

s 1989...FPL executive resigns after 38 years...John J.

HudiL rg brew in the towel after hiring on with FPL in 1951. At the ripe old age of 61, Hudiburg quit soon after James Broadhead was a.""c n=ed as CEO...gee, maybe John was expecting the job...

FPL goes to Texas to find a replacement for Conway who quit and tu.-.."e" ship for Arizona. Well, FPL found themselves a Texan..Jerome H. G" lcberg...a 58 year old fellow from the South Texas Nuclear projec: with a nine year career with the Houston Lighting and power Cc'."any. When questioned about the Turkey...Jerry stated that tnink I can help get it back on track. That's where I get my kicks."... Well, Jerry old boy, we'l just see how long you last at tie FP'xecutive graveyard known as Turkey Point...

4 QO The Public Service Commission questions FPL's costs involved with the~r quality programs and FPL's zeal to win the Deming Prize.

Cos.s from the quality improvement program include $ 793,000 for FPL managem'ent. trips to Japan. Also'PL paid $ 892,000 to Japanese guality 'consultants last year.

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1989...FPL may ban .swearing -'on the job at Turkey d ~

September Point,... FPL is considering implementlPg a ne'w';"employee policy which

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prohibits swearing and can discip'line an employee" for failing to

.'f i le a 'tax - return, sodomy, carnal 'knowledge, pacfcing tickets and other -terrible thihgs according to FPL..~I'l bet the employee moral really picked r,up after this announcement'.,','.," -'" "

w In Tallahassee at the PSC hearings concer'niKg FPL and Turkey

,Point, the Center for Nuclear Respon'sib'il'it)~%Ad the:Nuclear Energy Accov. abi i ty Project petitioned against the consumers having to 1

pay for Turkey Point-'s problems. Thomas'aporito, Executive Director of t~e Nuclear Energy Accountability'roject'alled Turkey Poin- a "money pit" and stated as the plant has'"aged,'ts cos4's have soared to ar..cng the highest in the indvstry...The PSC was given about 2,000 signe' petitions for the commission's consideration....Well, so let's all do it again wo, kec pet cns and I'l in Febuary 1990...Send me the certainly be more than happy to present them to the F:-" commissioners in person for you...

signi.icant event occvrs at Turkey Point...an oil leak on a r";re valve caused the valve to slam shut...this failure should have a ".".-..a=ical ly shvtoown the nuclear reactor, "but instead, the re =-.=r ~ovid not shvt, itsel f down...the plant operators in a last ei=ch ef. o.. managed to shvtdown the reactor by pushing the "panic called the scram button which cavses control rods to drop ir.=" .ne reactor and hopeful ly shut it down. An NRC investi gation of

-.",e e'e,",t revealed that numerous equipment failures occurred during tn's event. Emergency equipment which should have started a =="=-:ically, failed to operate. A comparator circuit was found not.

c <a .2 been ca ibrated for about 3 years... a critical piece of 1

sa=e:q e" i pment...yet the NRC failed to ORDER the shvtdown of Tvrrcey Point. , ~

Se ember 1989...Ralph Nader 's Grovp. .Pvbl ic Citizen ranked

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Flcri=a rr< in the nation in the amount of nuclear ~aste generated.

Ac- ".r.g to the report, Turkey Point 3 came in at, 282 mi1 lion c " es,

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Turkey point 4 at 264 mi lion curies, St. Lucie rr '. 1 < 'n 1 1

cur i es, St. Lucie 2 at 15 mi ion curies and Crystal R i ver 1 1 1 at, 260 at 2:-8 million curies...The curie is the unit scientists use to rneas 'e radioactivity....Dan Soroson, analysist for Public Citizen, s=a:e" that t.he problem is that the country doesn't know what to do

~itn 5"2ht nuclear fuel rods. Host are lying in 40 foot deep pools

c. a=e. on nuclear plant sites....NEAP notes here that, in Sept.

T 'rkey Point leaked 3,300 gallons of radioactive water into

'I the environment through the canals around Turkey Point...Gee, every go fishing in those canals...Its especially easy to fish did'ou at night... just .look for .the fish that glow and are unusual 1 lar e

-'and deformed and swim fast....

Just kidding about the- fish swimming fast...

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September 1989...A Turkey .Po~ gtlent. electric'iarr3'ancfed in the hospital -when a valve literally 'blew apart and drove-a steel shaft through the. mans face. The steel sha'ft smashed through'he workers and up through his mouth and; now area. The force;was so great 'aw that the workei was knocked off his feet backwards strikirig his head on a steel beem...A NRC investigation of the accident revealed that FPL had an, improper equipment .

clearance and failed to isolate pressure from the valve.'..One of 'the very same 'problems this whistleblower.,identified to the NRC and;/ was fired for..-.

October, 1989...NRC issues a report on Turkey Point indicating improvements....this 'eport comes in the wake of a possible. shutdown order in December...what a coincident...or maybe .a.whitewashed government report...or maybe collusion..:

l d November J.989...FPL even closer to the NRC shutdown order, decides in November to'nnounce that 1990 it will voluntarily 'shutdown both Turkeys for l1 months to replace 2 d' ener ators...Gee...do you think FPL'ight try to fool around with in an effort not to be ordered shutdown;..no it couldn't ,

g the NRC possibly be so...could it...

FPL decides to wall off the Nuclear units from the fossil units at Turkey Point...yes...a Berlin Wall here in the USA...Gee, I guess the wall will surely stop any drug usage or maybe its to prevent non-nuclear workers from talking with nuclear workers...or maybe its in case, another radioactive leak occurs...

Power from FPL is found to cost 5X more .than the average rate charged by Florida's investor owned electric utilities.

December 1989...Yes...the Christmas Blackout...A cold snap h t Florida and FPL could not meet the power needs of the customers.

Indeed FPL blamed us, the customers, for the blackout. Well, what were we supposed Cb do, run around the house to keep warm...Hell, FPL went cold Turkey for Christmas as both of the Turkey Point nuclear reactors were shutdown for equipment failure '

re aagain... ow wait a darnn minute...you don t mean the nuclear reactors tripped 1

off-line again...yep they did...by our estimate, this totals 6 reactor trips for 1989...

We here at NEAP headquarters, unlike the NRC folks, try to use a little common sense when evaluating the performance of a nuclear plant such as Turkey Point. We have researched the capacity factors

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C for Turkey POint nuClear-;unitS 'he far the periOd dating frOm 19.;

to 488.1 The results are'isted'elow and direc ly evidence the poo.

pel formance of the Turkey Point- units:

fe Year Tur'k e Po i n t Turkev Point 1974 62. 1X l 74. 1X 1-975 75.0x 68.-4x

. '1976 73.8x 64.5x 1977:~ 76.6X 62.8X

'1978'- 77.1x 64.9x

'(979; 49.3X 65.9X

'1980 77.3x 61 MX

16. 1X 78.5X

'1 981

.1 982, 66.5X 67.9X "l 983 75.0X 51. 7X

1 984 81 Q3X 52.6X 1985 57.4X 88.0x NRC PLACES TURKEY POINT '.ON THE WATCH LIST 1985 75 9X 29.7X 1987 15.3x 45.1x 1988 58.9X 55.0x ie 's average the performance since 1986 when the Turkey waS ." = On the NRC watCh liSC...Unit 3 COmeS in at, 50X and Unit c ~ es n a 43.26x...Gbvlovsly these nuclear plants only opera:e at ces= 5".x or less per year...Now, are they real ly economica to i c"e-=-=e cr snoulc'PL retire these old, aged, clunkers...

n;s ccnclvoes our January newsletter...due to the costs ex=e".se" f"r these newsletters, and considering we operate soley on cc...a:'cns, we are fcrced to continue these newsletters only on a s "s=-'==-.cn bases. (Does not apply to the media or Public Cltl"en

'=."-). There.Ore, if yOV wlSh tO COntinue CO reCieve Our ne>>s e==e. s in he fvtvre, please complete and mail the applica.ion "e - . We look forward to your svbscriptlon as these funds are

~

neece" -o provide the means to for litigation concerning Turkey P" >n= through the NRC and the Public Service Commission.

j . wish to subscribe to the NEAP newsletters and I have enclosed a cnec~ lr the amount, of $ 12.00 for a one year subscription.

Na...e: Address:

Please make yovr check payable to the Nuclear Energy Accountability NC=e: yOv dO nOt haVe tO be a member Of NEAP tO reCeiVe Our n.e <<'5

m g gm1 1iCtr C.u fg I ~hh 'o a ~

~

ee

~r e ~ 1 UNITED STATES I NUCLEAR REGULATORY COMMISSION c, vVASHINGTON, o. C. 20555 ""

0 "'7>> i "7 ~e

+~ ~O January 23, 1990 mm ~ mm Hr. Thomas J. Saporito, Jr.

- Executive Director r Nuclear Energy Accountability Project

" :-1202 Sioux Streeit lupi'ter, Florida 3ls58 h

f t' m

Cear"n'Hr'. Saporito:

• " ca letter 3s ie response to yoIJr Petition filed on December 29, 1989, with the

': This Executive Director for Operations'; 'In your Petition, you rei;.uest, that the NRC:

(I),imlnec'.iately 4tnveigate and determine."the root cause of. the'eecent tr'ips ef Turkey Point Units g And 4 on or about December 25, 1989; g2') iimpose an

-. "esca'.ated civil penal'f the investigation reveals that the rsactbrs tripped due to poor ma-'ntenance practices nr incorrect operation of the plant; and (3)

,iamedia.e'y sqpend Turkey Point-'-s operating licenses (DPR-31 and DPR-41) .if the irvestigat-icn reveals that these reactor -trips could have been, prever!ted throuch correct ma'.r tenance -practices or proper&peration of the plant. -.As the basis for your request, y'ou allege that reasonable assurance for the continued safe cperatior. of Turkey Pcint Units 3 and 4 does not exist due to: (I) loss of adl"r',strative controls and significant plant events resulting in reactor trips which eviderce deficiencies in the licensde's programmatic overall main.ercrce of the plysical plants; and (2) the licensee's failure to establish a sag.is'-actory operator training program that meets the.NRC criteria for such

} ~ a Your prog~an;,

Pe.'tion has been referred to n,e for response pursuant to 10 C.F.R. 52.206 0 t~c CGrrii ss ion ' regulations. Me have reviewed your Petition and find that you tave presented ro specific facts in support of your allegations, and have noi ra'sed any new information which is mt already beinq reviewed by the NRC.

Sirce you have nct set forth the factual basis for your request with the speci'ic', y required by 10 C.F.R. $ 2.206, further action need not be taken on ycuT'equest. See Phi ladel hia Electric Co. (Limerick Generatinq Station, Ur.its I and 2), 1IT'- .85). Nevertheless, let s.e'clarify the everts that occurred at Turkey Point Ur.its 3 and 4 to which you refer. On December 23, 1989, Turkey Point Unit 4 experienced a reactor trip due to the closure of a n:ain steam isolation valve (NSIV) caused by water intrusion and corrosior w',thin the NSIY's terminal box. As a result, Florida Power and Light Company (FPL) inspected the other tdSIY terminal boxes at the site and found two other boxes associated with Unit 3 NSIYs that had also experienced water intrusion and corrosion. FPL declared these NSIYs inoperable arid shut down Unit 3 to make the necessary repairs. Therefore, only Unit 4 experienced a reac'or trip due to this event. However, the issue of water intrusion and corrosion within terminal boxes is a concern for both Turkey Point Units 3 and 4.

FPL is performing a detailed inspection of terminal boxes at the plant for this problem and is preparing a root-cause aralysis.

Ir your Petit.ion you request that the NRC imaediately investigate the trips at Turkey Point actually only one trip) and determine the root cause. The IIPC is snare of the circumstances of the event and is currently monitoring FPL's inspections and root cause analysis as part of its onooing inspection prograr. at the site. If the NRC determines that a violation of its regulations or the conditions of FPL's licenses has occurred, the NRC wi ll consider taking

~ s Hr. Thomas J. Saporito - .

.- 2 January 23, 1990 J l appropriate enforcement action.- The documentation associated with NRC inspection and enforcement actions will be filed ar d available to you in the Local Public Document Room at the Fnvironment+l and Urban Affairs Library, Florida international",University; miami, Florida.

With regard to ycur allegations concerping deficiencies 0n- the licensee's mainterance and operator training programs; the adequacy of the -.licensee's maintenance, operation, and training activhies was raised by.you in vour =

Petifion.submitted pursuant to 10 C.F.R 52,706 dated December 21;. i988 (as supp'lemented). In my Partial Direct'or's Decision DD-'89-'b5, dated .July; 12; 1989, I responded to these 'issues 'and found .that ~o substantial'bas3.s was pr'ovided for taking the actions requested in jour December 2l,'988,--Petition. You have not provided any new,.evidence. which w5uld cause me to reconsider this conclusion.

In addition, the issues you raise are the subject of NRC inspection activities at Turkey Point and are also evaluated as part of the NRC's Systematic Assessmeiit of Licensee Peiformance @ALP). As state8 abo~e, should the NRC identi'y any violations in these areas, the NRC-willconsider'aking such .

enforcement action as may be appropriate. =

Pased on the above, I have concluded that you have 'pres'ented yo new information concerning this event that is not already being considered by the NRC; Therefore, there is no basis at this time to take the actions you request in your Petition.

Sincerely, Pi PP~ Thomas E. Hurley, Dsreetor Office of Nuclear Reactor Renulation cc: See next page florida Power and Light

. Hr. Thomas J. Saporito

-

-,:,Florida Power and Light Company Turkey Point Plant CC: C. ~

Harold F. Reis, Esquire Admi ni s tra tor tlewman and'oltzinger," P.C." Department of Env'idonmental L Street, X>M. '615 Regulation .

Mayhington, DC 20036 ..- Power-baht chitin'g 'Section State of Florida

. Nr. Jack S)reve 2600 Blair Stone Road Office of the Public Cnunsel Tallahassee, Flnrida 32301 Room 4, Holland Building Tallahassee, F'for ida. 32304 Regional Adminis5ra'tor, Region l l U.S. Nuclear Regulatory Commission

.- John T. But'ler, Esquire Steel, Hector ard"Davis

101 Mar)etta Street, H.M:-Suite 2900

.:;- Atlanta, Georgie 30323

-. 4000 Soutt east Financial I Cer ter V Miami, Florida 33131'-2398 ~

Attorney General Department of Legal Affairs Mr. t:. tl. Harris, Vice 'President The Capitol

- Turkey Point Huclear Plant ~ Tallahassee, Florida Florida r:rwer and Light Company 32304'lant P.O. Box 0291M Manager Niarri, Florida 23102 Turkey Point Nuclear Plant Florida Power and Light Company P.O. Box 029100 County t'aracer of Metrcpolitan Miami, Florida II ~ ill Dade County H~'st S:rect, 29th Floor Nr. J. H. Goldberg 33102 t'iami, Flcrida 33128 Executive Vice President Florida Power and Light Company Senior Pesident 1nspector P.O. Box 14000 Turkey Feint truclear Generating Station Juno Beach, Florida 33408-0420 U.S. t'uclear Regulatory Cnmmission Post 0 fice Box 57-1185 Ni ami, F lorida 33257-1185 Fr. Jacob Daniel Yash Office of Padiation Control Department cf Health and Rehabilitative Services 1317 Mirewood Blvd.

Tallahassee, Florida 32399-0700 lnteroovernmental Coordination and Review Office cf Planning 5 Budget Executive Office o the Goverr or The Capitol Building Tallahassee, F lorida 32301

0 4'

Cite as 31 NRC 509 (1990)- I 0: " -. LBP-90-1B .

UNITED S VATES OF "kIIIERICA ',

NUCLEAR REGULATORY COMMISSION nil '<r ~ ~$

ATOMIC SAFETY AND UCENSING BOARD I

Before Admlnlstratlve Judges:

-, ~

a (

lt ' f' Peter B. Bloch, Chair D Dr. George C. Anderson- 'X Elizabeth B. Johnson I

. 'i

~

ry In the Matter ol Docket Nos.'0-250-OLA-5 50-251-OLA-5

~

~; ".,i,i "(ASl.BP No. 90402%1-OLA-5)

(Technical Specifications

.--* ~ '~. - Replacement) ---

Oper'sting Lkenses.

'" -'FaclIIty Nos. DPR-31, DPR-41)

FLORIDA PONER AND LIGHT COMPANY (Turkey Point Nuclear Generating.

Plant, Units 3 and 4) 15 1990 i'une

'P". i' folic Licensing Board admits an,intervenor alter detailed consideration of issues of standing, timeliness, aef thc admisSa(iility of contentions. Five of fifty-six contentions are admitted. The admission of safety issues is based on genuine issues of fact arising because of Applicant's admission that a particular cfiangc in tcchnical specifications is a "relaxation" and because of'n error or omission in thc accompanying analysis. Thc admission of'nyironmcntal issues is based on genuine issues of fact raised with respect to safety issues that might ul tirnatcly result in a finding that thc change in specifications is "a major federal action."

509

~

OF I'RA(."I'ICE: STANDING

'tULES TFCIINICALISSVES'DISCUSSED" '.,

An nrganizatinn may gain standing based on thc stan(ling of a "mcmttcr." R3r a pre'ssurfrM wats react(3r.. riI(ks during but(of-service.time; combmed pr(ivi(linl', (liat ilic mcnilicr is morc than just a passive cnntril>>iinr witlinut aiiy limit for thermal po(ah:r, presser(cr p(cssu'inc; and 'thC highest operating loop cnntrnl over its nlicrntinn. Ii((them(orc, tlic "member" on wlnmi inn>>ltcrshiii coolant tcmpcniturc; change. in mode reduction rcquircmc'nts; RCS boron'" con-is lx(scd must hc a ntc(tilter for hcrsclf and nnt f(>r;t(totllcf (t(g llll/'Itl(tllwll()sc centration; BAT boron concentration surveillance;! putagc time fdr onc channel st;(tiding I(as nnt Ii('cn (lent(instr;(tcd. nl'eal tracing; rnd drop time:.,r: -:;." - t<<..

RULES OF I'RAC'I'ICI'.: DFFAMATOIIYALLI'.GATIONS

' NIEMOff'ANDUM Allegations of harassment and intimidation must bc documcntc(I. After Cot(ference 6rder:

ANDARDER'Prehearing Part(es and Conteritions) an opportunity I'or docurncntatinn has bccn afforded, unsupported (fcfamatory allegations (nay bc struck from thc record.

NfeI<<nqrgridum

.r ~

..

1>> ~

>>

RULES OF PRACTICFi WITIIDRAWALOF BASIS FOR Thc purpose'bf 'Uiis Iitt3ceedlng i3 to.dcierminct whether (fr tiot Horida power STANDING; NONLAWYER and Light Cognpky (Applicant) njay arne'(id thc tkehnlcal spet! IIIcatior(s for its plant pursuant tq "tlic HRC an8 industry initijbve fo standardiie and imIxeve A nonlawyer rcprcscnting an organization stated as part of a filing that ailcgcd harassment and intimidatinn that hc no longer authorized that tcchnical specifications. for;rtuctcar plantI r Sec,)4;gg., Rcg., at,502)51~, S.

1989j." Applicant's'purpbsc;in seeking to chajyeaits.technical specif(catiqns is organization to rcprcscnt him. Ncvcrthclcss, since no other basis for st~(ling to bcncfit frb(it Industsy'xperience with tcchticahpecif(cations and t(3 facilitate exists and his withdrawal would dcprivc thc organization of sL+iding, it is a "uniform undcrstahding ol'iIcquiiemchts.~ Hd((rever,' pctltIon has been filed appropriate to give thc nonlawyer a second chance to consider thc implications that asserts that thc change in tcchnical sgificatiNif is unsafe.

of his withdrawal.

During,the Iitiga't(on of this case, the Staff may decide to permit'the projescd change in tcchnical spccificatibI(5 tlftcr,c5mmcnts have seen'rteciV(ed RVLFS OF PRACTICF.: ADMISSION OF CONTFNTIONS; on th(;"prop>>oscd (Ictcrnmih'atIoIt of thc Rtafi'of ljic Ht(clehr"'ke'g'uIatory and'onsidcrcd 10 C.F.R. $ 2.714(b)(2) COmmiSSipn (Staft) thai,"the>amendmertt requCSilnVOIvCS,I(O,SIgniRCantgaiardS considcrauons." 55 Fql peg.,2b,218, 20.25-8 (May 1519M).

In applying thc Commission's newly adopted standard for thc admission of On Friday, March,2f, 1990,-wc held a prettearing confeIence in tide case contentions, thc Board finds that a pctitioncr must identify an error or omission in Miami for the pu>>rp>>oseo[ dctcrinming whcthcr',,qitIicr of the petitioners-in Applicant's analysis in order to gain admission for its contention. Mcrcly Mr. Thomas J. Saporito and the Nuclear Energy Accountability project (NEAp) stating, in rcliancc on an admission of Applicant, that a change in its tcchnical spccif(cations is a "relaxation" is not suff(cicnt to gain admission for a contention should be admitted as a party. A purpose of this memorandum is to dctcrminc whether party status should be granted. To reach, that determination, we must when Applicant's analysis accompanies its admission. Pctitioncr must also decide whether-Or nttt a Pttitieier u (1).haS Slai(lhng, ttnd $ 2) haS Submitt(XI identify an error or omission in thc accompanying analysis to create a gcnuinc at least onc admisrsibie cbntcntJon. '5ftk.p~gS q)(%Bled'touskr R m'et'for tt issue of fact and gain admission I'or its contention.

petitioner to'be panted pa(tty sttttte With rcspcct to cnvironmcntal issues, the Board admitted two contentions W(th respect'O 1he !itandtitg'hsug"ther f~NpiifVpled'at thb t3rehearlnII confer-because gcnuinc issues of Iact with respect to safety contentions could ultimately cncc that it would accept the position of Applicants.the Staff /hat Ml, Saphi-result in a finding that this case entails "a major fcdcral action."

ito had staitdjiIg> and" ihg tilts(!rd bt'3 h+~djnj NE(ttP not

~ which Mr Sapori rcrscct<<>> 'tq'~~ ~ "trff'r rr(>>r>> (t

~ o g>>(n <(',' aa ra rrtr l(oa>>er>>m r>>r $

3>>>>

'

Q ~

'rt c t +(

i "Arp6cant's Response to Amended 1(ctiucst to nteracnt:" II(p'ptrcant's ittfiponse), Mars(i 16, 1990, s&z 3 h(r Srponto wor(>>s ores 40 hoors ~ >>aedt as ~ tea*a at the ATI Career Traintns Center, i N.K t(hti Street, Miami. liorida 33 I 32. and this is>>acu mthin the 30mile xcoyaphical zone er interest. -" ~

510 511

am 0

~ o, scrvcs as a director also wouhl have standing. Thc validity ol'his niling y g for birn to have s(nt ~ copy of u>> kiter to II>> employer and was, howcvcr, placed under fresh doubt wlicn Mr. Saporito liicd a "Notice of light of Mr. Sspo(iio's ca(tier complaint 'Mr. Bauer migh< cisily have aniidpated that '. <<

Mr. Sapoiito'could have fair coc(cc4 btf ttiik pnsfcdenr: M(. Butte('could have avoided With<lrawal fmni I'r<x:ccdittg" on April I. 199fk ln that pctiti<in. hc alleged <liat ihc '

<~rance of coercion by not copying tl>> employer. Ilowever, hd may also have fdl that Applicant had intiini<latcd and harassed him; and hc thcrcf<>rc asked to witlulraw iha Icucr,would icassuic ihc employe( about there being no coc(cive intent and Ii<tth as an itulivi<lu;<I parly and as thc basis on which NLAP might hc saiil to wc find <hat ihc naiime c(pying of <bat leuc( docs n(g, by itself, dem(sist(atc coc(cion to this Boa(d.

have stan(ling. On April 24, 1990, wc cstahlishcd a st:hni<tlc for resolving this Ancr Mr. Sap(siio.comptaincd in a A(ing of March 9 1990, that <be March 7 kucr niotion through tlic issuance of an unpulilishcd mci>>oruuliim anil order c<ui- was intimidating, wc bad an in<cinal Boa(d discuss(<vi about ibc alkgadon, but we did iiot communicate to anyone our conclusion,tb'a'I no miimidaiion fikd Scat demonsuagc8:to ccrning thc Motion tn Wilh<lraw. us

. snd <hat Ihe(e was, Ihc(efo(e, no need for '4 Io six. oN Mt. skpo<ttoti fitinII, v(ttidt di(L'not Thc lirst part of this Mcmofandum will address thc mcrilq of thc Motion to *

(cquest any spcciiic action on our part. At the P(chearing Conference Ibai we beld Withdraw and thc sutnding issue. Thc second part nf this Mcnior;mdum will in Miami on March 23, 1990, Mr. Saporito sppa(en<iy abo was in possession of.a copy of ihc March address thc question ot'hclhcr any contentions arc a<lmissihlc. 19 lcucr.'ct, M(. Sspori<o did n>>o'I raise thc question g~(cion at that time,.and.we did is<an

'Sttbtcquen<fy, we have &Incd fiVtn'Appbcan< (footnote in o(igbklj that Iv)F; Sipori<o I. MOTION TO WITIIDRAWAND STANDING <lied L" complaint widi'II(si~nmcnttef Iabo<,pa<ac(ning the March 7 letter, and <liat bis has bcbn dinnissdd: ai -:, ni zv.

a> lua ~ ' 'v>> !I ~ I>>

"'omplaint Jt is iinpo(tantito tbc Licensing Board to .Io. the, ibquom of,t)i(s.majtcr.

In ow April 24 memorandum, wc discussed in detail Mr. Saporito's charge of It-'is not accep<abt(! for <vie psny toiooe(ea another in a pmcecding of Ibis intimidation and wc invited him to rcsolvc that charge, which hc has not d<mc. imponance. 1( also is nat r't;. ': '(i,"

'ccsptabtd for (spa(iy Ia accuse ana(her af cacrea(( on our record ivi(bout suppa((ing facts Our discussion, which now contains our rcmons for denying Mr. Saporito's I icmtdiastt(sgpplkdlc" ti 0 "

.!, ',

motion to withdraw as thc person on whom NEAP relics I'or standing, I'ollows: i We also admii to being~as)ed Jryshargcs 9f bttintjfauioi bI,II<'s insist, fNQt~Sapor-ito's fear of intimidsti<as <toes Iiot keep him f(<xn:,; (I) oonu! Ning Ip make public accusations Il Unp(oven Allegations and Ambiguities against Applicant, (2) filing charges before,g>> Depqtlst>>nt,of, Labor.against

'3) continuing tb IeptescntiNEAP <bough,~(ent)y, in a(xne."n<aipcrsonal",manner Appbcant, or, that A Un p(oven Alkgauons causes him tb want not to be Ihe'sou(aciuf standing f<n NEAl'..

Mr. Sapo(i<o stated in his motion <hat he was wiihd(awing boih as an individual Petitioner and as a person on whan NEAP relics for standing because bc lett intimidated by actions j; On lAay 5, I<)90, lkbV5ttthfs Sapoflto', 9l'.t filed "NEAP's kesponse to of the Applicant. Ilo<<ever, he has not pe(suadcd Ibe Board <hat there is any valid reason thc ALSB's Memorandum phd (Mcr." "bt"0%t Piling; 'Mr.(Saporito had an for his seriou cha(ge of in<imidauon.s IPoo<note in original.) opportun'ity to a'ddlKss,the aboard's serious conEerij that one party Should not An allegedly intimidating event of which <<e have been informed is a later of March accuse another ol'octcion without'supporttng facts. AF dtnd not address 7, 1990, sent by Mr. John T. Butler, counsel for Applicant, to Mr. Sapo(ito's employer. that '.

We have examined <bat Ict<cs and have condudcd that it was a simple factual inquiiy for concern.g Hc also did not address thc following question asked by the Board:

the purpose of conficming facts concerning Mr. Saporito's e(nployment. Ibc(e is nothing

(" i-in ihe leuc( <bat we consider io bc intimidating. Indeed, atl ibe lctlct may have done with on-qi ~ i

<aspect to Mr. Sspo(i<o's employmcnt (claiionship is io bring to ibe employer's aucniion. in

~ neutral manner, a faa that i ~ canmon knowkdge and that Mr. Sapo(ito (caionabty must

'i have expected his employe( to keen during the c<x((se of this liugation: that Mr. Sapoiito is

~'g

,

involved in a case affecting Rorida Power and Light, a custancr of Mr. Sspo(ito's anploycr.

~(y

<irtt(>>'ppliaan<'s Rcepasc to Naiicc of Wi<hd(a<<at f(am In addition to the March 7 Icucr, Mr. Sspo(ito's employer also received a copy of a <a Arpuaa(a, M'. Sapari(u mades'c4!Iitata< <<iih the

)tprit j3 I990 Bk k3

~<ance< of Lib@linda <ha "Whisiuss>>>>" S<s letter sent by Mr. Butler to Mr. Sapo(ito on March 19. In that letter, Mr. BuUcr assu(cd 'acuan 2IO of ihc Enagy'aa(gsnias<iati Act (42 VXC 5 Sgsi)'basef an the Ma(ah 7 )cacr;Vifs canpiaue

<<aa,dinnisscd by ~ Later of Apil 2, 1990, !win Jaige Rlvau, 'Aaha1a< Iyi(ac<a(,

4 Mr. Sapo(ito tbst "neither Florida Power Ugbt Company nor I bad any hostile or coe(cive Adminisiadan, Wage and ltau(Divtnai, IJ.S, aci fnnsntoC'Laliac. i e i E(apfayt(iaa'<andsnh

~

motives in making thc inquiry (of March 7)." Since thc contents of M(. Butler's letter was

~

"Arplicaevs'Reply la I<EApa Rapanac, lo +ASLB'<<Manasn+~ OnkC'm not di(ectly rc)avant to any inta(cst of Mr. Ssporito's employer, the(c does not appear to and the 'NRC Stall's Reply <a<

Qcd'May,tl, l990,

~ Rapannl <a Liaastng Board s M(nia(andu(e and Onkr af Apn7 2A,,

99<r <<is fdad May 2g. I 990. Ifa(h pad<d ch(sNo tgtilae" psNucna's sf(age of u(un<idsuan and (ud na< addnes

<<hnha (s na< <<c shauQ gss(g au a( ps(< cf Mr. Sspariie's msuanio <<t<hd(a<<..~ is, d Wc do na< find that "ta(avana's Ans<<er io Appuane's April I 3, I 990 pamiuibta Rapasa...." April 20. I 990, h ~

Filing baaausc it is ~ npiy ia hrpliaan<'s ans<<a and is nai pmvidad for aIda <ha (uia. funhamora,

<<a do nai find any gaad en((a ra( panniuing Pauuana io (apIy baaaasc ii lss na< danann(a<ad <h<< ihaa <<ss M(. Sspari(p's, <<iihd(s<<at is asaaht,<a Arpticea's and Sian' a+max dida(ngiiig NEAP's

~ naiha "manba" <<ho chins io be a bans f<k <<s(i(tip.'t~evan, << ~ an(

snd <o piavun manipaisuan ar ihh Baa(d pa(a<eat

.ui adibaa Sa appnai< auamti by ~ pany ia Is~ ~ p(acadaril hnia rrivatauiiy. <<haha a nai ana(ha pany <<aatd have us da nx

~ k< the ~

eau(ac, tlal aau(s(>> nai nuprinag

<<anding baaad on ar ja<<iaa,.

anything in iha ais<<a( ihii cauld bc can(idaad a suiprisc.

~ 'll (Coistae(itt 512 513

0 If he IMr. Sspotitoi is a member lof Nt hP). then why is he not willing to authorise himself e~ ~

acting hn NEAP to represent himsrlf7 Il. 'CONTENTIONS Legal Setting Ilascd on this failure to supply information, wc conclude that Mr. Saporitn was not st>bjcct to any cocrcit>n aml wc order tltat all material alleging coercion sh:Ill 'nits case rcl cscnt onc of thc first In w wh >c h 0, c Commission's recently Iec considered to hc struck from our record. Wc also caution Mr. Saporito tutt n one rcqutrcmcnt >s appl>cable Cons ucn to make defamatory cl>urges in this procccding unless hc is prepared to prove Ic u .contentions rcquircmcnt'as 'it Appears IA IO C.F.R.

them. Further unsubstantiated attacks could constitute grounds ft>r barring hin>

from participation.

In light of our linding that Mr. Saporito was not cocrccd and in light ol'is F~dt contcnti contention snust ccnsist of a spccittc ststanent of the issue o I <<

cont tuvctted. In addition. tile ' titi failure to explain why hc is not willing lo authoriye himself to rcprcscnt himscll; pe 'oner s ha ll ptesvide the fd lowing, to each contention: information with respect wc consider his motion to withdraw himself as thc basis for NEAP's standing to bc frivolous and wc deny that motion whose cffcct would bc to place

') A brie explanation (i) of the bases of the contention

(-! A concise statement ofcthe attcgcd

'

..

'ii!

fact ot'cipctt opinion on which in controversy a procedural issue concerning whcthcr another person could bc intends.to.rely n in proving the cont contention tion at the heatin uon hea g,""tog ~~ ~t <<1th sefetcnccs to those thc basis for NEAP's standing.'Werc Mr. Saporito a lawyer, fully informed cnts of whtch the peutione'r is 'a<<ate and on whf of thc possible conscqucnccs oi'is motion to withdraw, wc might grant his intends to scty to establish those se foe~

ac exftcttIt opinio'n. "

motion and rulc that NEAP is no longer a party. Howcvcr, given Mr. Saporito's (b)(2)(i) and (eii) of this section) to show that lay status, our denial of'is motion will give him a chance to consider thc full

~ genuine dis e pp" conscqucnccs of his rcqucst.)

Ilowcvcr, Mr. Saporito's motion to withdraw as an individual is granted tlicvts thai lhc apphca)ionfails n ai lo o contain conla infottnalion bccausc it docs not crcatc any ncw issues I'or us to dccidc. Wc caution by law, lhc icfcnlcfccalion of each failcts enf on a scfcuan> matter Icr Mr. Saporito not to cngagc in procedural mancuvcrs whose principal purpose appears to be thc creation ol'cw issues for decision in this case.

f bt/ On f theN d ctsc a nd lhc secppotlc al up seasons, f

II'r. Saporito continues to withdraw himself as thc basis I'or NEAP's standing, hc may do so. Ilowcvcr, he is thc sole basis on which NEAP relics cn new contentipos if Ihae. are data Impact statancnt,.environmental

.

~

osi~luiions assessment; or

' "

in the NRCdsah or thcceto. that.diffcs signi>icon>>y from su I and NEAP has already had all thc opportunity it needs to establish standing; it thee data ata or conclusions in the 'om appticant's documesdct may not Iilc any further documents alleging a ncw basis for standing. Hcncc, il'r.

~ n ti~ .". 'lee Saporito fails to assure us of his willingness to have NEAP rcprcscnt him toll" "I u (by complying with $ 2 of our order, below) thc entire basis for standing for 0. General Description of'Contentions NEAP fails and this case will bc dismissed. Although Petitioner submitted lengthy co tc ti Iha with thc confcnt>6'n rcquircments h' en n'OW,>li effect, ff On ceXan)in 'On We they consist 'prima'ily of aifgationi* baseds on,, 8 pplicant's on Ii own admissions m some insta>Ices relaxed We nota that (wem Mr. Ssporito's mouon granted) we sse inclined to dmy stsnding based on thc e>>rged rcquiremcnts in thc c amending its tcchnical specif>cation s..

standing of Shuley I>rexenoll whom we Find: (I) hss no conuo>, eitha forms> or ttuoush hes membcsc>cip seuviues (which ebc did net discuss in ha affidavit despite ous bwiteuon to do so) oves NFAP. and (2) become indcpcndcnt basis for any of its co n tc 'ons. y, G cnera ll, Petitioner failed to ad s manbes 'Ten (toed Gty Cctissns for Nuclear Anus Cenuo>" end not fot haec>f. (Stt hes eesulcestc or on allcgcd omissions in Applicant's n ti Jns,

. I tcad Petitioner relied membasbip ) 'tbeiefoie, she Iec)s thc indicia or mimbeeship sec>uisite to provide s basis Ios NFAP' standing. anal lltol& Restate>c tytocee v. Ktcvctdy $ 2 F R D. 2 I (D D C >9>9); Sett to Chdi v. Motrcrcc, 4OS V5. '>27, 739 (I 972):

llcccct v. Wasaiccleccce Scott ctpp>t Advtttcscccg Co vncssccre,432 VS. 333,343 (>9777 Clootata, lnr. v. Rcvcktl. 722 F. Supp. >442. >45> (F D. Mich. >9$ 9); eocccpart Coccso>idactd Ection Co. o/¹cv york gndiecc Point. Vnit 2),

U>P.$ 2.25. I 5 NRC 7> S. 736 (I 9$ 2). ytica At thc bekonnin$ of the pcebeoring cocdcienec. Mir. Seponto eevce>ed his strevig foe>inss thst his own stone>cng wes not nceesseiy for NFAP's standing. Tt. 5 6. At that time, hc ec)now>edged thee thc Issue wso moca. Te 6.

I>owever, he hes since ts)cee supe ee>su>tied to esisc the Issue dut we s>I cetic>dered mooc 7be I>used is not p>essed by this srpecau>y ccsiuived euempt to cause us to eonuda sn Issue thee ~ >I sareod wss mone 514 t.te.

0 Tile question this prcscntcd to us was: could an allegation, based solely on analyses, wc discus the r5iionale advdfic6i by'sft'glicant fdr dctcrmlning Mt

m admission of Applic;uit, that some of its tcchnical spccilications alc being each "relaxation" docs not have signilicant 'saicty conscqucriM. Bccausc~tIiree "relaxed" while others arc being matte miirc rigorous form thc Itasis of a of flic Aiiplicant'0 cxplaiiations with rcspcct t6'safety cohfcn6ons 'are unsatis-

'

contention that sltouhl hc admitted under tlic newly applicable rtilts7 Wc liavc f;ictory, wc admit three salcty contentions and two environmental contentions.

rc concluded that there is no simple answer to this question hut that wc must look r>>if r~

l further and cxaminc Applicant's explanations for why a Ixlrticu1ar relaxation is not hajardnus. If Aplllicant provi<lcs a clear cxplaiiatinn that is not directly TXBLF, 1 cltallcngcd by Pctitioncr thmugh cvidcncc or cit;itions to sources or rcasoni>>g UNIFORM FORMAT FOR CONTFYAONS tlicn Applicant's admission of a "relaxation" is not by itself suflicicnt to iri 'i c " '

admit a contention. Il; howcvcr, Applicant's "analysis" is merely conclusional NOTE: Pctitioncr's adding I'ot the coritcntion we analyye is: Contention 32 and thcrcforc fails to provide any assurance that its "relaxation" is safe, then wc Statement of the issue of law or fact to be raised or controverted...

accept Pctitioncr's rcliancc on Applicant's admission as sufficient grounds 1'or tlic admission of a contention.

Applying this standard, Pctitioncr NEAP has prcscntcd contentions that arc properly admitted. Since NEAP provisionally has standing,'ased on Descriptive Title (Provided by Board) and Text of Conlenlion.3, . ', ...Board Comments PURPOSE STATEMENT Mr. Saporito's mcmbcrship, NEAP may bc a party and may bc rcfcrrcd to as " *

"Intcrvcnor." (a) The liccnsc amcndmcnts This statcmcnt is "Pctitioncrs Amcndcd Petition for Inlervcnfion and Brief in Support Thcrcof (Amcndcd Petition)," March 5, 1990, contains fifty-six proposed contentions.

Thc first two contentions arc cnvironmcntal and shall bc rcscrvcd for lalcr rcqucstcd by the Applicant to the 3,,

Turkey Point operating liccnscs DPk-"3'f +'

and DPRAI for 1brkcy Point, Units true. Howcvcr, it

'de hot'provide thc basis for-a,

'.

<<nd 4 rcspcctivcly, wouhI authorize contention. t rti discussion. Thc twenty-fifth contention rclatcs to facts that arc not related to rcphccmcnt ol'hc current plant, tile change in tcchnical spccilicauons, as wc shall discuss below. Thc other Custom Tcchnical Specifications (CTS),

contentions (3-24 and 26-56) follow a unil'orm format that wc shall procccd to with a sct of,tcchnica) spcctficationst~ ...l, t,."

analyze, for thc purpose of communicating accurately thc issue with which wc werc based on lhc Westinghouse Standard 'ri't. ',

Tcchnical Specifications (STS).. t faced.'n Table I wc sct forth Pctitioncr's third contention verbatim. Wc have added to thc contention our titles, which we insert in all capital lcttcrs, for thc purpose of indicating the apparent purpose of each section of the contention. Then, in tile right margin, wc have inscrtcd our comments on thc individual sections of ihc contention.

We note that Contention 3 rclales to a change in wording of the tcchnical FEAR OF CONSEQUEI~ICkS by the Applicant, (o revise the 14rkey Point (CPS) with the Westinghouse (STS) will cause thc plant to bc opcratcd

.,

(b) Thc license amcndmcnts sought...Qtsostatcmcnt, S

-.

contains general fears that arc not grounded on specifications and is in this rcspcct dilfcrcnt from some of thc olher thc basic approach is thc same for alt contenlions.

contentions.'lowcvcr, unsafely because of the reiared.sfffety,, ~

margins contained in the Westinghouse ., ., any technical

~; concerns about In thc succccding portion of this memorandum, we will anaiym each sec- (STS), resulting in a rclcasc ol'adiaticii " the proposed tion of thc transcript of the prchcaring conlcrcnce and the related documents to and fission products into the cnvironmcnt . 'bhangCs in tcchnicaI" dctcrminc whcthcr thc criteria for admission of contentions are mcL In those which will ehttir thc food chain causing ~ " - ', spcciCications.

loss of life, duc to cancer and other related illnesses, to thc gcncraI public Srr Ordains 1 2, i~.

e Wc consider it rsrr obligatiret to sca fonh our reaaordnX fully both because this facilitates revic<<of our and radioactively contaminate hundreds,,

Ictamination and the use of our dccisrasr by fume paruce <<ho <<iih to be guided by prior casa. of miles of land and privately owned AU thc paruicipants agreed <<idi the Board that thc proper plaoc to eraluate the effect of thc omission of lclinitions is <<ith respect to those suhatanure sections in <<hirh thc omission of a dclinition thsnttrs the rrriuired property and homes, solely dcpcndcnt,qn ituon. Tr. 22 22.

516 -517

TABI.I'. I Continued TAIILR'1'tontlnue'd tl}c prevailing:lir currci}ts. IEmphasis .

}titlnl.t NAME OF WITNESS}o (b) Pctitiorrcis will rely on the ' 'etitioners

~

}

name a DESCRII "PION OF Cl IANGIIS expert opinion of 'n}omaS J. Saporito, '

'itness without Jr., Iixccutivc Dircctnr of thc Nuclear '

(c) Specifically. tl}c aincmh>>cnts Staten}cnt of a pmviding any idea woultl cl}l}I}gcthe Cl S at spec}i}cat}oil cl}ange fran} thc lincrgy Aaountnbility Project (NEAP), about what hc may 1.0 and Table 4.1-1 on}itting thc CrS to tl}c 8 is. in support of Contention 3. See Affidavit say.

fi}llowingTcchnical Spcciiication No statement of of 7'homas J. Saporito, Jr.

.t t} a~a, definitions: I. SAFLvl'Y LIMITS, thc basis for a CROSS-EXAMINATION 3..

2. LIMITINGSAFETY SYSTEM contention. Note: '

SETTINGS, 3. LIMITINGCONDITIONS this is thc only (c) Pctitioncrs will ately on 'ctittoners lail cross-examination of Applicant's to state any IrOR OPERATION, 4. PROTECTIVE part of thc uniform witncsscs to support Contention analytical basis, INSTRUMENTATION LOGIC, format that cl}angcs T '

f'lt c ~

'for'ross-examination.,

5. DESIGN POWER, 6. REACIOR from contention to GENERAL*REFERENCES COOLANT PUMPS, 7. ENGINEERED contention. Often References to tho'sc'.r'pcci%c documents SAFETY FEATURLS, 8. REACTOR this part allcgcs on which the'etitioner intends I'ROTECTION SYSTEM, 9. SAFETY a "relaxation." rely to estdb1ish those fa'cts

'o RELATED SYSTEMS AND COMPONENTS,

10. PER ANNUM, 11. REACIOR COOLANT SYSTEM PRESSURE BOUNDARY INTEGRITY, 12. COOLANT opinion:

(I) Applicant's ~)

(2) Applicant's Safety Evaluatiolt'for or'xpert and (KIN)', 'here specilic are no Nd Significant Harmds 'Cons}dcratihI}," ' . citations, LOOPS, 13. IIEAVYLOADS.

(3) Applicant's Undated Final Safety'nalysis Rcporis, (4) Federal Register Note: thc next portion of thc discussion of Contention 3 is prcccdcd by thc 48, No. 67 at 14870, (5) Other 'olumes following title: Concise statement of the'lleged facts or expert opinion on documents which Pctitioncrs may Iind which the Petitioner intends to rely in proving the contention at the hearing. through further rcscarch or which SERIOUSNESS OF NUCLEAR ACCIDENT Petitioners may obtain through discovery (a) Pctitioncrs would state here Petitioners state in tl}csc procccdings.

that thc allcgcd facts supporting Contention their feats. They W 3 arc that any release of radiation and do not state how ~ "'$i lission products from a nuclear power Applicant's STS plant advcrscly affect human life and will contribute to Irr. mSCUSSION ()F SPFCIFIC Ct)NTFNaTIONS thc cnvironmcnt as a whole and that the those fern. In A. withdrawn Contentlorif '

rclaxcd safety margins evidcnccd in thc other words, "thc "tv}

Applicant's (RTS) provide thc means and means and method" Thc following corltcntions were withdrawn by,thc Petitioner at thc prckczHng method for such a rclcase of radiation are not speci%cd. conference and arc no longer at issue: ~ " ~

and lission products into thc environmcnL Petitioners cite ttn Applicant's word: t <, ~ sit" t< ~ p, "rchxcd."

10 1& same tritttesa, i}tasttaa J. Saporito. Jr.. ia apeeirtet} for all rite conarsttiore.

518 519

T

~

e su ponions of Contention 3 other than those related to Ihe de(initinns o( "safety Pctitioncr did not offer any facts and cited no expert soun3es on this subject limits" snd limiting sa(ety system settings. (Tr. 22. 29 (Staff statement, uncont<a-and prcscpted no reasoned stateifhnt dp w(t'y'h(s'vs<a unaccel)table (Ike 'R. 33-dirtc J by Pc<<I<<>or<),I

~ the p>>ni<v> o( C<><<tention 3 srbting tn the <vni<si<s< of th< ik(initi<>ns of "safety 41, 43 [discussion bf'Judge B(i7&i'and fuff, Frantz)" K 44 [Prantz f(t limits" anil limiting safety system setting< (Tr. 27.29, 30. 31-32(, w<th the undrs- fdlly t)aincd); compare %; 4445); hence, thc admission of thiS AppllcanL'()erat()rs'ruc staniling that thcic u<nis<ii>ns may bc co<t<idc<cd with <esp+.t tu ps<tie<<br po<tim>s contention is dcn(6I. Thcrc is no genuine ihuc of fact raised ptf(suant to 10 n( thc tc<), (:.I..R. Ii 2.714 (b)(2)(ii) and ((ii)"

'.

I <1>rcilirsti<<<ns whc<e it is alleged <list thr <hsngr hs< an elfr<.t.

~ (.on<roti<a< Ii) ( Ir. Ii)2(. 'Ill .. I!>r i > ~

'<(- ~

~

~

All of ( site<sion 12 but that ps<I that deals with Ihe (Icqu<s<cy of RCS boron concentration surveilbnrc.

C<><<ten<i<>n 13 I'Ir. 13I) 31(.

~

>

Contention 5n-S

'

>,i >ar ~ <m"

~;;:: v "e I .

.

~ (;Itt< r>> >>

"

>I'i'r

"

'-:: i "

.: ', I'.

>" .-- ~

~ (:tention 14 csrept for the pot<irma stating: (I) that thc boric acid pump nccd contention )5<<states,"without fuithc'r'speci(ication, that "Klf,'able 4.3-only bc avaibblc when its sssociat<xl flow path is <equi<cd to be npctsblc. and (2) I, scctioii 3/4 at page 3-8'e(a)(cs certain survci((ance prrmitting hot standby fo< 108 bouts after loss of <<<pc<ability of a charging pump. cerements fwithout, flr. 131.43.( speci(ying wh(th rcqu((t'ai)en(s).; ."'At'PlF(rc~$g confc'rcn(A!'Pct)uoncr

~ Contentions 15, 17, 19, 20, 22, 23, 24, 26, 27, 28, 29, 31, 32, 34. 36. 37, 38. 39. cl Ikiii4I that Rc,is concQNdthak g) the power'ange.ncuIron lux dctcctors 40, 41. 42, 43 44, 45, 46. 47, 48, 49. 50. 52, 53, 54, 55, 56 (n 144. 150. 154.

~ may bc cxcludcd frbm Charm; I calibration boUI for thc high setpoint and Re 158 163 It 168 175 181( low sctpoInt gY. 4699); (g), the,test frcquctu;y for,ovkrtcymperature Delta T is I(ccrcascd from biweekly to cv'cry 31 fhys gt. 49); 'g) Pic test frequency for oycrpowcr.Dc(ta T-is dccgscdgro(p, b()veckJy,. to>evciy XI-days (D'9);. an)

11. Contention 4 (4) thcrc ik no test for "under vo(age 4.16 kilO volts" (K 49). Petitioner also Pctitioncr's proposed Contention 4 states: provides thc following statcm'cntt of rea's6hk:

i ~ t()i, Spcciiically, thc amendmcnts would change the CIS at specification 1.0 and 1sble 4.1-1. I'd sbo like to point out<<that ty>)er.tcs(<pc<atu(e'OH(s"f an<( orvcp~r Delu(T and tstder-Surveillance tsMcs pages 3 8 Io 3.10 of Ihe R1S utiliye f<equency codes which s<e deiined volbge 4.16 KV have bt>cn ssiatymd inuII<c'ttnenftcstinielI I~i<a)kM&y')ta(ys(s ot's.

in Table I. I in section I at page 1.7 of thc RlS. the plant, so to chango these ftcsturtley,!ps)>ciUanhp;tait(efttt(tety',(I(anglo affc<x the hcilth lhe<cfore, plant opc<stots will eaperience inc<cased and g<catet difiirulty using the su<vcillance tables at pages 3 8 Io 3.10 of thc R1S since the opc<ato<s will have to refer back to thc frequency code table in Section I, ai page 1.7.

and safety of Ihc pubhc bees()se <t's g p<oilucts lo Ihc c<)V<<onlllcnl. *

'I' t') >I>rp(<<<< i>ir

> ...

nr>()(p

' ip tir

'

i<<

jest>g toptov<dq! mans an4! methbd to tdcssc fissiott I; rt .. ~ <, ~ << i rv lVis change inco<po<stcd in Ihe RTS as comps<ed to the CIS which p<ovidcs s frequency code table with the su<veillance Table 4.1-1 inc<ca<ca the probability of operator c<<or which could result in missed sutveilbnces and unsafe p'lant operation.

Tl; 5L. << -i ~ ~

)>y I) '>)

t<<,v,a

'<<

.;

>>-,1li 1-"<"vcr(><<<<O

<.

- <<<

-.

Thcsc concerns arc addressed ih,the No<<Sigijificant Hazards a>r S i>> "pit

!II < "<<ir:Q.r. i >u<(t>ra ~~ ".<< ',I gvaIuation~.

<<

Appc'ndix A'5/4 at 3- 1, which discuss@ tbe 'changg j(II,test frequency in defi(.

In parlicufar, it relics on'a Wc'stI(lghouse Owner'q.,61(tup study,.%CAI This contention rclatcs to an editorial change in thc current tcchnical spec-scrics. In light ()f this rc(a(ence, we find that Petition'cr has not show us how

)bN I i(ications. In thc current tcchnical specifications, the definition for certain frc-qucncy codes used in Table 4.1-1 was contained at thc cnd of that table. In Applicaht'8 analyses are in cHor or l1iat icy have made a significant omission.

thc rcviscd tcchnical specifications, thcsc codes arc dc(incd in Section I, Table ConscqucnUyl thc contcntioit is not kd(ni(tcd.;,y, -;~,,

1.1 which provides morc speci(ic definitions than do thc current tcchnical r~ I,'* ~

speci(ications. That is, dc(initions have bccn transferred from footnote status << ~ -" <<<<

r r

i i ~

to an carlicr section of thc Technical SpccificaUons, whcrc they arc morc fully d'i

• I .:>b' defined. '<<s<< ~ V r. ~

'<<

ilr '

< ~ ~ ~

vF

<<rr ls Ous m<mo<sndom der!<a the fs!Iura to d<anonsusto a g<no!na Issue of fast as a rail<so to faovtds any fsetus(

II A(<hough Pe<iYioncs sp<4<c of Cent<nil<a< he add<essed evidence or svpponing docvm<n! ~ <hst p<odo<o soma doobt shoot tha s<kquscy of a specified post)<a< or A(puca<a's 3I, the substance or Costa><ion 33 snd I<poseiy ski(1<<<d documents or <hst p<omdcs sppponing <esss that tsnd to sho>v Oat theta b s<<me over Con<<ntions 3) snd 32. Sss TI. 165. speci(>cd omisdon fiom Apphcs<s' doc<<min<a. Sss IO C.I',8, g2.7I4(b)(2)(ii) snd (iii).

520 521

I). Contention 6 Thc Rcviscd T~hnical Spcci6cation has adopted, this Staff suggestioiI. It Proposed Coiilcntivn 6 states: obviously docs rcprcscnt a ".rqJaxation," as Applicant admils:I iprcviously two sources of power had to bc availablc for a safety-related system or the system had qpcci6caily, the amcndmcnts would change thc ( I'5 at spccinrcation 1.17. In the R'Ih the Io lic dcclarcd inopcrablc and now conditions are specified where a system with ih liniiiimtd Ol'I'.RAIIll.l'IYrequires "clctsricaI power- hx system >rahility, anil Oic A only orle power soulcc can bc opcratcd temporarily. However, Petitioner docs source rcquiiisncntc arc ikrincd hy thc A (: srxrrcca Tcchnical Xpctitn ~ iirm.

('ower not provide any tcchnical opinion or reasons to bclicvc that thc change is unsafe; Whcrc onc ot Ihc A (: sources it intq>>rahIc and a cornpimcnt in Ihc vppnsite tr ~ in ol' rcdunilant system is inta>>rablc, thc CIS require that hixh of Ihc redundant trains hc declared in particuhr, it is not shown to bc in violation ol'hc single-failure criterion."

integrable. 1he R15 permit Ihc AC11ON restrictions of the A C source Io g<wcrn.

Tr. 55-63, 65. Hcncc. Pctitioncr has not given us a reason to dctcrmine that

'Ihc CIS would typically require MODI'. reduction within 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> pursuant Iu'I'5. 3.0.1. thcrc is agcnuinc issue of fact with aspect to this contention and it, shaH not lhe R15 requires MOIIli rcductiim within 14 houu when one Diesel Generator and an bc admit(cd.

opposite train compiment are inoperable. WC nOtC Ihat thiS:Changer in<TeChnieaI SpeeifICatiOBS algO inCreaSeS the time 1his rckaation of Ihe safety margins discussed above is unacceptable because it provides allowed for mode,reduction (while opciating in Modes I through 4) from'7 to for an incrcasc in thc time pcrmittcd for MODE teduction from 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> to 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br />.

Additionally, this relasstion of Ihe safety margins would provide for one Irain of a two train l4 hours. No Significant Hazards Evaluation, Appendix A at. 1-5. Confpore safety system being inoperahlc at the same time Ihat onc of the two A C sources powcring Rcviscd ',fcchnical Spccificatio'ns af 3/4 O-l, $ 3.0,3 which appears to differ thc opposite train componcnis is inoperable. from thc No Signilicant, Hayards Evaluation. this tifiic allowance exceeds the Model,Tcchnical Specifications attached to the April 10, 1980, Staff letter on Contention 6 deals with a "relaxation" in tcchnical spccilications pursuant which Applicant relics I'or ils tcchnical spccilicatioh'change. Section 3.03 of to an NRC Icttcr dated April 10, 1980, to all power reactor liccnsccs from Ihc thc Model Tcchnical Spccifteatibns requires that the unit be placed in, at least Division of Operating Reactors. The purpose of thc lcttcr was to clarify "thc flOT STANDBY'ithin I hour, and at least IlOT SHUTDOWN in the next 6 usc of thc term OPERABLE as it applies to thc single-failure criterion I'or safety r

systems." Thc Icttcr states that: Had the Petitioner cited this source, we would have required Applicant to respond. None of Applicant's analyses CIMy states!he risk 'n the.fohn of By and large, Ihe single failure criterio is preserved by specifying Limiting Conditions for Operation (tLQs) that require all redundant component ~ of safety related systems to

possible accident sequences that is tkfng avoided by mode red&tion.- pence, be OPF3tABLE When the required redundancy is not maintained, eiO=r due io equipmeru it is impossible for us, to cvaluatc the approprntatc duration of time before mode failure or maintenance outage. action is required, within ~ spccincd time, to change the reduction is required.

operating mode of the plant and to place it in a safe condiuon. Ihe specified umc to It is obvious that permitting opcradon during an equipmcnt outwit-service take actitxt, usually called Ihe equipmcnt outwf.service time, is a temporary rcfaaation of time is a potentially dangerous practice .Because the time of outwf-service the single failure criterion, which, consistent with overall system reliability ctxtsidcratirxts, opcfatiori'is limited, thcrc is little total risk, during this time.and therefore little provides a limited time to fta cquipmcnt or otherwise make it OPERABLE If equipmcnt can chance that cmpincal evidence will bccomc available with which to evaluate the be returned to OPIA(ABLE status within the specilied time, plant shutdown is not required.

wi ~ I rP '

Lcttcr at 1. 1$

1hc esplu>>Oon of the%a'ais fix the Staff,kucr is net wheuy siusfying to 0>> Board. ~lhcre k no disci>>shat, Thc gist of the letter is that there must be full redundancy ol'ystems. for caample. of whet ncw risks occur for reactors bccaiue of Oui'thange ncr ct wf>>t analyses have been dens Howcvcr, onc system may lose a source of power (either on site or off site to provide asnuanec that it is appropriate to permit lush new risks lo pccur during tbc limited out-or service umc. Ivor is this maucr ckircd up by Applicara's Ito Sigrugcara Ikzaid Bvstuatjert at 1,17. It is nec ckar why but not both)" providing "all of ils redundant systems, subsystems, trains, Appiicaia I>>s ecncludcd that these risks sre accusable. If they have net 'a(ready dine so, we" urge Afplicsra and components and dcviccs are OPERABLE, or likewise satisfy thc rcquircmcnts Staff to pay drtsikd sucntkn to,possibk ricky Sas Tr. 116 (Stair counsel egress with O>> Boud O>>f Applicant ahold have thea>sic Oueugh what ~ qucncce they are imiYing through the,telssaucn of rtquhrsncrss).

of this specification." Enclosure 1 at 3.0.5. Ifowcvcr, we cull ccaictedc that Pctitionrk'aged to state ail admissable ccntouicn. 1heugh the ieqoon fix an amcndmaa deca not apptar to bc sa sieu anstyecd u we <<tadd lilc, piYitkncr faifid to addrcw thc Stag s tcchnical lcucr at all and failed to Irate ~ rcucnod, ltocwnrrscd stasis fcc believing that thk change wu tauafe, I I &is na>> it did nci mais ihc ginuine issue nqirucminl of 10 CF.R. I 2.714(bX2Xii7 and (iu7.

appears to be ~ citstkn to the RTS. Wc nore O>>t 10 C.FJt, 6 $ 0.63 states that operators naut dani>>strata O>>i their altcrnsdve AC power so<<scca I At the prdiminary bearing. Judge Bioch asked ~ qucatkn that showed that hc did ncc property ndrcrtand "vnil cenrut ice acoqxsbic capalitity to wiii>>tsnd vtsCicn blackout." pica>>a>>bIy under adverse cprrsdng centlYkns thc natwe ol Ous change in Icihiicl spccifrcatians. Ik believed that th>> spccigcadivi pcrmiucd onc ct two su* as might occw dunng thc limiiad mt.ot service Erne Ilowcvix. Appticaru is nis yct roquimd to ceinpiy ahcrnstive siaucce of olfsite power to be taisvaiisble but O>>t this *ingc had naming to do with cmcrgmcy with Ous rrgulsticn, which goes into rtfcct according to ~ schcduic filed by AppUcaru. 10 C.F.R. g $0.63(cX4) oi>>itc power. Ttus sppannily Inconcct view wu, i>>waver, eoaebcntcd by counsel fix Afptkanr. Tr. $ 6.63. Tr 206.

522

1>

cxtcnt of Ihc risk occurring during implcmcntation of this practice. So it seems In this contention, Petitioner challenges a portion of. Applicant's proposed to thc IIoard that it is particularly important that risks during out-of-service time tcchnical'spccilications that appears to bc morc restrictive than lhc prior version.

hc carefully tlclimitcd by analysis. As no such analysis appears to have been ln Uic proposed spccilications, Applicant has'dclctcd thc rcquircmcnts for onc-tlonc,'c ask thc Applicant anil thc Staff to carefully sctulintyc thcsc provisitius and two-loop power operation. Iltcy have done this bccausc power operation aml, in particular. to anticipate possible acciilcnt scqucnccs Iliat are heing rift ctl wiUI less.Uian thrcc loops has not bccn analygcd in thc safety analysis and, and to take appropriate stclis including reducing thc risk cxposurc -- il'ie thcrcforc, sliouM not bc pcrmittcd in thc tcchnical specifications. Proposed analysis indicates some ncw grountls for caution. Scc Tr. 1(N-I7. Tcchnical Spccilication 2.1.1, Appendix A at 2-1. Since Pctitioncr docs not show In this instance, howcvcr, Pctidoncr's assertions tliat thcrc is increased how this apparent tightening of thc tcchnical specifications is less rcstrictivc, wc risk Irom this tcchnical spccilication change is based cntircly on Applicant's find no gcnuinc issue with respect to that part of Ihc contention. Sec I?. 68-72.

admission that thcrc is a relaxation of rcquircmcnts herc; and wc do nut Uiink IIIcrc is another potential issue here concerning whcthcr or not there has that thc admission, without morc, is enough to provide a basis for this contcntitin been a change. in the time required for mode reduction. Applicant claims Ihat in light of thc Staff Icttcr supporting thc Applicant's position. I'ctiUoncr brouglit "[a Jn ACI'ION statcmcnt is added for consistency'with the Standard Technical no cxpcrt opinion to bear to show what risks arc being taken and only thc Dmrd Spccilication." The Action slatcmcnt'Itrmits I hour for Inode reduction for and not Pctitioncr has advanced reasons to bc conccrncd about Applicant's cxcccding a combined t)imit I'or'hcrmal Qwcr, prcssunzcr pressure and thc ncw proccdurc." Sce I?. 65. Conscqucntly, wc find that Pctitioncr did not show highest operating loop coolant tcmpcraturc. Proposed Technical Specification thc cxistcncc of a gcnuinc issue of fact and this contention is not to bc admitted. 2.1.1 at A 2-1.

F.. Contention 7 Proposed Contention 7 states:

~

We note that Applicant'docs not discuss what action was appropriate under thc current tcchnical specifications, prior to the addition, of this aclion statcmcnt iu ul tl~

so wc,do not know,precisely.'witat change in practice has occurred'. However, the rcviscd proccdurcs have a separate. section,dealing w'ith th'er reactor trip system, which produces faster, shutdowils than thc I hour required by $ 2.I.I.

Specificall, the amcndmcras would change the CIS at specificaucn 2.I.I. Ihc CIS require. ,Ivnhcrmorc, they contain;j,clear statement that thc, plant mug}be in hot at the related seaisxs l.t, Ihat ir any safely limit is <<acceded, thc associated reactor shall shutdown within an hour (II 2.1.1), that, the NRC must bc notitted "as soon bc shut down until the AEC authorizes resumption of operauon. 'Ih>> CfS at section 2.I provides Cor fuel dadding intcgnty ae indicated at 82.1 with a design prcssure of 2485 psig , as practical",(ti 6.7.l.a) and that critical operation.phall not bc resumed without for safely valve sct points. Additionally the CTS include sequirancnte for TWO and ONE permission of the NRC (56.7.l.d). IIIis appears to comport fully with 10 loop operation, and natural circulaticss. C.F.R. g 50.72 and, since Pclitioncr hay given us no reason to dctcrminc that

'Ibe RTS sre less restrictive because they do not incIude requirements for TWO and ONE ,there is any uncovcrcd situation. for which" faster shutdown 'than 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> is loop operation. and natwal circulation. The RTS relax cxisung safety margins in thc CTS rcquircd, wc find that there is no genuine issue of fact and do n'ot admit this by permittusg a (one hour) time requirement for mode reduction in the ACIlON statement.

poruon of thc contention. Sec also I?. 73 (representation of counsel concerning In the RTS at Figure 2.I-I, the tesctor core safety limits a~r to be outside of the safety current practice).

margins described in Ihe CIS.

=

Still another potenUia1 issue with respect to Contention V.relates to Petitioner's argument; at 1?:84-85,'Uet.,'"',"",,'

i es Il>> Applicsra's No S'siYicsra Itsssrds Kvshsetsan docs msr analyze this sisustiaL Instead, it wcs the raVawbsg ITihe }cactus core safety limits appear to be ouuide the safety margins descttlsed in the phrases to suppisra analysis: gincrsily high rdiebiTity, msrgmsi reduction in ovasV eyeum rdiebiiiiy, siight current technical spccsficautN. Arid in that tovised tedmical specificatitat Rguie 2.l-l, the incsasec in time. gcnarsVy hiigh rcfisbilisy, snd crtnmeiy ramate. No considarsuas hes bain given to spacilic

~ ccidaa eceneoos and no psabsbiTisics have been estimated. 'risc ruu "analysis,"

RTS ai I IO Ipcicen!I power Qs.af,Ddta T I(T.average = II2 9'-hot + T~M)I... ai in Appendix A at I.5, ie:

The pouniisi rdeseticn discussed above is eaccrssbie because oi the gincreUy high vciisbilisy of thc A C ... 2385 psig, Iofl... approximately 620 degrees fahrenheit. And that has.tq refer to

~ ausccs. the msrginei scducuan in ovcreil system rsliebiTiiy duc so the sampoasry unsveusbiliiy of one their figure 2.I-I. That is compared to the cunent tedt specs ai I IO perccra... a 23g5 of shc two A C sources md thc slight inacsec in umc aUowad for tha mode vaduaucn P so i4 boun). prig... Iofi'appsoximsidy 627 degrees F. ~ 'w Aieo, ihva to the gcncrsVy high sdiibTiisy of the ufcsy systems in sha pisnl, iha litdibaad of ona train ~ I I or ~ two train safety system being inapasbla st ths same time thee cue or thc two A C sau save pawaiag i~a vl -= i - Ili "vsvv' the etVusdse uein caapanceas is bsapasblc, is causmdy nmaic. However, both thc Applicant and Staff stated that there was no change in this IT Aiihiegh wc miX}a declare ~ suo spears issue on the gsaund shet this issue is bnpassnt to safety, we trust tha particular figurc from thc current tccliiiical spcciftcationf."Having checked both Stiff lo rapand sympeshcucsUy lo aur euggasian snd wc do nas. ihaafae. shinh it naaauiy io mete stus e rnatter sa fa hearing. thc current and rcviscd specifications wc a'Iso arc not aware of any change.

524 525

iltcrcforc, it appears as Mr. Saporito stated at thc prchcaring confcrcncc that there is no change in the referenced portion of the technical specifications at Tr. 87 that Mr. Saporito was misled by thc documentation hc use<<i Ilcncc, into tltis

utd no gcnuific iEEGc olact. Thd contention shall not'bc'admitted.

I l.

Iix'licving tltat a problem cxistcd when in fact no problem did exist. ~ h lioriion of Ihc contcttiinn shall not bc atlmiitcd. I I. Contention I I Thc proposed contention states:

Y. Contention II Contention 8 states<<a:

Spccincaiiy, thc amcndhiicnts w<<arid change the CIS lcunent specification 2.1.2. Ihc (.IS require Adhnini<<trative Controls in sc<<tivn 6.3l:1... page immediate pbnt 6.3.l shut contains tcchnical spccifhcetilvhsl at dhlwn the and clenphencc with reporting requirements.

'Ihe RlS relaxes the CIS because MODE Applicability is explicitly dcrtncd for each Surveiiiancc Rcqpitcrncnt. and forced MODE reductions, Iequited by Action statcmcnta will, fur thc most patt, stop with the first Modcbcyatd thc, la' ~

ln oral argument at the prchcaring ." conference, Pctitioncr stated,'

requitement.

t

', l r speci%catiatsl, in an ACIlON statement, require plan( shutdown lhc R IS lreviscd tc<<hnicai if the safely h (h ~

within I hour and compliance with Administrative Contn>ls in Sc<<xi<<hn 6.7.1 The Applicant in theit safety evaluation admits m some cases that there will be a relilxadon therefore, thc R'I'S represent a rdaxstion of safety metgins climparcd lo thc current requirements. They even cite an example that the revised tc<<h specs limit is not mct in MOI)li I or 2.

existing in thc CIS. for the emergency core cooiant system. the ECCS, the mode appiicabTiiry for modes I, 2, and 3 and thc'iction statement mode stops at mo<<ic 4, while thc current ted<< specs tequites portion of our mode reduction to mode 5. So Ihc cuncnl lech specs requite them to imp!anent a mode Thc lack of admissibility of this contention is govcrncd by thc discussion of Contention 7 in which wc discussed 52.1.1 in thc rcviscd tcchnical prcssure, and odr changd+ Mode 4 .I l ., ~ -:,, tl ~ ..

reduction to Mode 5,'and tile'n thE ievised tech specs are 'not as restrictive. They only 'iequite

~

l .. ~

spccilications (with rcspcct to TIIERMAL POWER, prcssurirsr that rcquircs plant shutdown thc highest operating loop coolant temperature) Tr. 103. Petitioner then has criticized Applicant for failing to document or to within I hour and compliance with thc Administrative Controls in Wc find that the same proccdurc, when applied by System prcssure, 1'ully compiics with 10 C.F.R.

52.1.2 550.73 to and section 6.7.1.

Reactor that concern. Ilcncc, this Coolant Pctitioncr prcscnt supporting rcfcrcnccs for ils slatcmcnl that "in Mode 4 the probability and consequcnccs from a.design basis guptitre is reduced..".,:I?..104:

Applicant'SianSWer tO thiS quCStiOn Of:.hCk Of. analySiS iiS

"

"r t that the Chatige'1S "

.

has not dcmonstratctl tlrat there is any significant safety consistent with.thc standard technical-'spccitications:for Westinghouse plants.xo contention is not admitted. Tr. 105. Applicant conccdcs that there is some risk I'rom being in Mode 4 rather:

titan in Mode 5. Statcmcnt of Counsel, I?. 106. Applicant'als'o conccdcs that it .

did not provide a systematic review of possible accident sequences that might

g. Contention 9 occur in Mode 4. ld., l?. I08. Nor has thc Board or thc public been provided Proposed Contention 9 states that "[t]he RTS relaxes lhe CTS by providing with supporting analyses from the Stafl's acceptance df 08rsQnthrd technidkl for channel drift in thc reactor trip sct point table 2.2-1 at page 24 in thc RTS." specifications. Stalf Counsel, 'R. 113. 'xtt llowcvcr, the table in thc RTS docs not contain any values for channel drift and Under the circumstances, we conclude that Petitioner has created a genuine in prior operation. In addition, thcrcfore docs not make any substantive change issue of fact concerning Applicant's omission from its analysis of consideration ncw amcndmcnt to wc have bccn assured by Applicant that it would require a of thc risks rclatcd to the change in mode rcductionnfcq'uircments. Hence, this insert a value into thc blank column on this table. 12. 92." Hcncc, wc conclude shall bc admitted with respect to this'genuine issue of Iact. 'ontention At the prharihhg conference, we invited Pctiuorhcr to specify arras or omissions in Appticera'e euppoting ~ 'ei . ~1 'hlh "

lhi, th<<hee Ieeuca fof wfech PcuYhlelcf hee eucnliacd to tthow Ir itu:t ~,"

~ hhetysca. Itl ovf nlonorendwll, we hive addressed cnly wi<<hdrewn. rchr exemple, in Cahtcnuon g, Pctiuiehcr hed ctmhe a anieeiahs end have ucetcd ether pottiahs es 2.1.2 end... I<<he 'vcphtulhg nquircrncnu" ell elaucd that 'uhc emcndmceas would <<hengc... epccitice<<ehn <<the cornea tclhniai ee Afplicerht ate<<id. <<hate ie no l2.1.2 in 16 S lheve born teieeedi." Conunuon g, 11<<hwcva, tpcciClceuons and 963 is ittclcvehhu Letter cf Apdi 4, 1990.

'lhcee poblons appear to herc ra<<died from 20 At~ah we m no ewete of any eneiyea eccanPenying the stahhderdiscd te<<hnhceI CPc<<ag u~ end Ihh<<iti<<shee'e uec of ah<<de<<cd dhhcumcth<<e.

thcrcfae have e v<<ed on <<ehr tcconl we suspect <<het there mey bc very Iiuie Ckffcecncc in rieth occuning SWc ithtctptcs the convcteeu<<et in the transcript to ccnstitute an assurance to ue, If it ie not. Applicant rh<<chid bccehhec of ~ 150'iff<<to<<co in umpcrellee brew<<en ha end cotd shutdown," ocxurnthg ht ~ sye<<em designed for c<<tlcnhciy high pceeuta end acrhhpcteuhtce.

n<<hufy us pompdy of our cnor.

~

'27 526

1. Contention 12 0 Petitioner objects to rehxing requirements so that!he boric acid pumps only ln oral argument, Pctitinncr nanowcd Contention 12 to deal cxclusivcly with required to bc opcrablc when its,associated liow pattf lg required to bc operable.

its concern II)at thc Ircqucncy of survciliancc ior thc RCS huron c<inccntmtiun in Applicant points out in its Np Significant Hoards Evaluation, Appendix A 3/4 opcmting Modes I an(l 2 is rcduccd from twice per wcck to once in 31 clfcctivc :it 1-16, that thc boric acid pump is not assumed.to bc opcrablc- in, the safety full.power days. analysis. I'ctitioncr asserts,,withoul authority, that if:safety injection fails, "thc 1I)c No Signiticant llaimds Evaluation which also constitutes Applicant's only thing you have left is.inscrtipfi,of boron to dccrcasc thc reactor's reactivity Safety Evaluation" in Appendix A 3/4 at 1-3, justificq this change hccausc: to bring it to safe shutdown margi(sr'F 131'. s on;-. ~-

Sincc Pctitioncr dpcs not offer qualitied facts, pursuant to the regulations, the RCS boccns conccntrsiion is noi dicecily related io Slit)INTOWN htARGIN in MOD)IS or cite a rclcvaiit source on this point, wc accept Applicant's rcprcscntation.

I and 2. Thc SII(FIT)OWN MAR(IIN in Modes I and 2 is cnsuced by survciiiancc ol the conuo) sod hank position and vcrilying ihai the rod bank wiihdcawal is wiihin the allowable wilhdcawat timiu ailmit ted.... ~ c- . -v:h <<; ~ ":

1'herc is no gcnuinc issue of, fact and this portion of.thc contention shall.nol bc Pctitioncr also allcgcd thht'lt vn8 improper'(o pet'mit hot standby for" 102 liours after loss of operability of a charging pump. Petitioner is addressing a Thc principal argument Pctiuoncr prcsentcd was thc unsupported assertion,that mode change whcrc Applicant will go to hot standby with boration for 102 thc probability for change in boron concentration is grcatcr in Modes I and hours instead of'cold shutdown. Thc full slatctnenf concerning Ihis "relaxaIIon"

2. Tr. 121-22. By infcrcnce, Petitioner thcrcforc argues that morc frcqucnt in current rcquircmcnts is scl torO in thc No Significant iiazards EvaIEtffonc; surveillance is required to maintain constant boron conccnIJation. Howcvcr, Appendix A 3/4 at '1-14, 0 A.2;C.3; and statck: " "'-

Pctitioncr docs not respond to thc principal argument: that thc boron is not nccdcd I'or shutdown margin in thcsc modes.~ ilcncc, this contention shall not bc admitted.

lhc cequiren)en( For sestoring opciability sT the biorid%8d't)dmp"Q ihb SosNgcid Ifow ~

is nol iciurned to service sriihin ihc iniYist lime period is changed fram ptacmg thc'ptas ib,;-

coid shutdown within an addjucacal 48 houss io placing ibe plant, hs bos standby and bocaung to 1% dchi.kA at 2(O'p within 6>> neai 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> and cesioring iho plant to opesablo siaius J. Contention 14 within the neat 72 houii or be in uoth shutdown wiiicln she neat 30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br />.

Proposed Contention 14 states: Thc logic ol'his siycti5n secmi"Impccca'bie".-'olic prini+ functioli"of acid pump aM'Aow palh in'to'f staiulby isit'o prI)vide cnou'gh boratlon to ihc'oric Spccilica)ly, the amendmcms would change the CIS at specificauon 3/4.1.2.2. (I) 'Ihc RTS attain'hc bomn ncc'dcd foi'old'hNu)down margin (I.e., borating to 1% dclta-co)sacs sbe sarcty margins eaisiing in ihe CTS whereas in she RTS a boric acid pump is only required to bc operable when its associated (tow path is required io be opcsablc. k/k). Hcncc, if you borate to that standard, it sccms acccptablc to stay In hot (2) The allowed ouiagc umc for a boric acid pcanp is relaxed from 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> io 72 hocus. shutdown for some period of time.

(3) The KIS do noi sequice cold shutdown ol she plant for a period or 102 house after This would have coded our inquiry but for hnguagc in thc No Signiiicant loss of the boric acid pump or ih>> boric aad flow path. HayudS EValuatiO)I,"APPCildiXcA-3/4 at 1-17 that We dO nOt fully underStand.

(4) Ihe RTS include an esplich Aaion lime for restoring opcsaMiiy ol ihe boric sad 'IT)c language that wc do not understand states:

11ow path which u)iimaicly can result in a lapse of 174 hours0.00201 days <br />0.0483 hours <br />2.876984e-4 weeks <br />6.6207e-5 months <br /> bcloce the plant is required to bc placed in cold shutdown.

(5) The KIS provide for an explicit Action restrictio whi* addresses an event where After bursting IO c6Id'shutdycvh'DM,'(hd'(Nly borgiIots Q~ fimcifon Is make~for loss in volume due'o if(<ink: Isi ihd evert( that this capability is tost in ibis time inicsvaI, boih she boric acid source and thc normal Flow paih ituough she segcnesauvc hcai exchanger she plans's ability so reduce modes css rccluircd is lost, bui the safety aspect of main(sining is inoperable.

the SDM is pcescsved. Sobeatqsdmg,the Ibno~od io Iessocpopcsabilily io ihe pumps or::

flow path docs noi result in an incsease in ihc pspbability of or impact oci the oonsequcncca, ol an accidcni previously evalusicd. IEmphssis added.i I ~ ~ s, i ~

e scgiy Our'onccrrci is that it seems to'bc pos/if'; Furings thee"additio'niilctimec"In "Ta 17P. to lose thc ability to Vctfucc modes;*thee Ijbkslble safety Impli6at (Ns of hot'tandby.

Scs l0 C.F3L )$ 0.62, <<hich is onsiccnc <<icb the poiYion of Scarf snd Applicsce bcesuse h ceqcdces sn indcpandenc sue)lissy (ce ccnccacsccy) Food<<seer sysccsn fa PWRs (subsoccion (c)(l)) cocher eben ~ scsndby liquid this loss hf ability require explanation. Accordingly, wc Ilnd the Ap'plicant's" conccol sysccsn. <<hich u noised for BWRs (subsocucsc (c)(4)). explanation inakcquate and a'ibnit this contention for this onc purpos(4.

,529

'3t

K. Contention 16 Appendix A 374 at 1-22), Petitioner seemed to have an@ressed an omission fn the analysis. However, thc Staff addressed this at:I?. 150 by stating "the tcchnical Proposed Contention 16 states:

specification at issue herc appears. to be rclatcd.toishutdown, which would be -.

Speci%cally, thc amrndmcnts wouId change thc CfS ai specification 3/4.1.2.4. (I) lhc RTS tlic modes Utat werc discuss'n Ihc safety analysis in Ihc accompanying no wouhi telax existing safety margins in thc CI'S whereas thc RI'S change the Ilh'I'nrun significant. hayes analysis," ln this -assertion,,which,was not controverted by,-

concentration survctllancc Inan tw'icc werkly to wcc'kly. I'ctilioncr, slal( appears to bc correct. Hcncc, lhc(e is no gcnuinc issue of, fact-(2) 'lhe R'IS wou'id telax existing safety margins in thc CIS wheteas thc R'I'S dclctc thc hcrc and this, portion of.thc contention, is not ging admiUcd.

IIAT Icvd instnunent weekly Channd Check. 1'ctitioncr continues to say:

Pctitioncr objects to a relaxation in BAT boron concentration survcillancc from twice wcckly to wcckly, thc dclcuon of a minimum volume rcquircmcnt on thc primary water storage tank, and lhc provision of some spccilicd delays in mode changes rcquircd bccausc of thc inoperability of thc Boric Acid Storage System. Applicant explains thc basis for Ihcsc provisions in Utc Proposed Tcchnical Specifications, Appendix B 3/4 at 1-2 lo 4; it also hantllcs this subject 1l; it's not needed because they do a weddy sutveil...

even U>> insttument that's local at the umk 900 gallons remaining in there.

l~

~ '.

~a

r,; eoi

xg sit 147. This wc find to bc an incorrect reading of Applicants position. tAp-"

:

You knots, they sQ that tftkt cftannefkf>>ds'tluvetlfance they want to ddeie. and they ssy they do a weekly d>>ck on it and ifit indicated xcm in these, that U>>te's always v"-,, i.; ',nl~!

pt A

~ ~ ttt in its No Significant ffa7ards Evalualion, Appendix A 3/4 at 1-27. plicant does not assume that*900 gallons always rem'ains in OR~BAT regardless As Slaff points oui:

of thc reading of the indicator: What it says is that the indicator never shows less than 900 gallons and Ihat they Iherclorc rely on a wcckly surveillance of In the application Applicant states thc boron concentration does not vary very much over thc BAT liquid volume itself to determine whclhcr thc instrument readings are a week. thus making weekly surveillance of U>> concentration adequate. and thai there arc accurate. No Signiftcanf'Hazards Evafuatio(, Appendix A 3/4'Itt 1-24. (Appli-additional surveillance requirements which ctanprnsatc fot thc ddcted rhannrI check. App. A cant also states that "thc BAT is'I)Ot;required'to be OPERABLE for accident at 3/4 l-23 to 24. Itetitionct has not addtessed Applicant's discussion of these chanttcs at mitigation by thc reactor trip or ESP actuation system." Pelitioner does not address this ground for asseqcd safety.)

wc chncfude, thcrel'ore, that tftis poriion of oc contention ., dealing 'with, Wc agrcc with Ihc Staff. Pctitioncr has failed to show that Applicant is in error or has omitted somclhing from its analysis. See 1). 146-50 (note that lhc BAT level instrument weekly Cftanncf Cjtcck docs not contain a genuine ..

issue of fact and is not being admitted.

Applicant repeats its assurance that a wcckly boric acid tank volume survcillancc s is planned). ffcncc, there is no gcnuinc issue of fact and this contention is not being admitted. L. Contention 18 f" s*-t,t' '" ."".' ~

'." " ~ -. sat ~: .

Pctitioncr states that:

Proposed Contention .18.,slates: .,

a their position in the safety evaluation Is that ence a week is adequate lsutveillsncef because ~ ~

thc boron concentrations don't significsnuy change in Modes S and 6. Our position is Specificall, 0>> amendments would dta'nge th'c'CfS at st>>eihcstion 3/4.).2.6 (I) 1be R1S the safety analysis is incomplete because U>>y should have considered boson concentration would rdax cxisung saffly nlatgfns fn the C8 <<heteas tlute NS inctease Q>> allowaMc outage time for onc dlnnd of heat tracing from 24 hoots th 30 days.

in all modes of operation because that's the wsy it's established in thc cunent tcchnical specification.

fl Applicant would increase the allowable outage time for one channel of heat I); 146. Petitioner is correct that the safety analysis prcscntcd in thc No tracing I'rom 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to 30 days. No Significant,Hay~ Evaluation, Appendix Significant Hayes Evaluation, Appendix A 3/4 at 1-23 omits any discussion of A 3/4 at 1-30. However, lhe incrcascd outage time is allowed only because thc dclction of survcillancc rcquircmcnts for Modes 1 through 4. Since thc boron thcrc is an 8-hour tcmpciature surveillance to ensure that a proper temperature conccntralion survcillancc is reduced for all modes (sec 3/4.1.2.4,'5A.2.c.l, is being maintained in lhc portion of the system that is traced. Id. at 1-31.

Pctilioner's principal challcngc is to question how a temperature sutvcilfancc can bc appropriately pcrfoimcd i(t 'order to cnsurc that, proper tcmpctaluie is Staff Response st 40. maintained.~Jr. 151; No Signilicant ffayards Evaluation, Appendix A 3/4 at

'

530 531

1-31, (i 8.3.a. Although this argument is not directly answcrcd on thc transcript has not been analyzed. No Significant'aihids-Evaiua'(ion,'2'.1.l 2.b.2. We,'"

(Tr. 152-54), Petitioner is not an cxpcrt in methods ol'performing survcillancc nf conclude Ihat this contention shall be ddmittcd.'-

piping sys(cms anil wc arc unpersuaded hy his unsupporlcd assertion tktt (herc Applicant's cxplanatidn is far'from'complete:

is some diAictilty herc.~ ln addition, wc note that Applicant has stated without 1 P u xe a

~

contradiction by Pctitioncr that thc boric acid is not rcquircd to hc opcrahlc for Relaxing the time limit to be in lgct irt(op IIOT, STANDBY Imm one to ala hours wdl allcnv ihe plant ad(litional ume to restore thc loop or perform a normal shutdown. Increasing accident mitiga(ion (Tr. 153), and Pctitioncr has not statctl any ntitcr pttrixtsc this ACR(ON statcnrcnt time limit will have A rrunimcrl impact. on ~ previously evaluated for wliich it ncctfs to hc availablc. Ilcncc, Ilicrc is no gcnuinc issue of I:ict anil ~ >>>>ident because thc AC110N sist>>ment only applies in thc unlikrly event of a singIc RCS (Ills cotitctilioll is llot hclllg admiuctl. locp being toit during MODP. I or 2. With'pow>>I'a1xme the p-8 sctpoint, second pIani i accident transient.during'thc time.'intt'rva('of thc ACflON statdncnt is unlikely.'1he Rea'csor Trip System continues to monitor plsht'crrnditions ddnng th'e ACnON ((me lntcrva( and tnp bt. Contention 21 functions such ac ctvcrtcmpcsalurqldf(ta-Tc pr loIs of Bow are avai(ab(c to provide protection" duiing the AC(10'mc interval. Innil(y, adopting thc propqscd ACllON time has the Contention 21 states: poicnual benefit or reducing the number of reactor trip transients imposed on the plant.~

IAII emphasis.iddcd east s'il.caps. I" Sp>>circ>>ally, the arncndmcnts would change the CIS at speci(ication 3/4.(.3.4. (I) the R1$

measures rod drop time from the "beginning of decay of stationary gripper coil voltage to dashpot entry".

Pctitioncr challenge Applicant's jftstificatiori 8 tttik'hange (TI; 160):

Increasing this ACI10N stat>>mern &ne limit yrill have'Ia'iQnrmal impact'on a prevfously This contention deals with rod drop time. Pclitioncr allcgcs that Applicant evaluated accident brcuusc, ihc ACOON statement on(ysrpplics in the un(ihr(y cwnt of o admits that thc rncasurcmcnt is a relaxation of rcquircmcnts. Tr. 154. Howcvcr, single RCS loop bring lcrrl during h(ODE or 2. I Applicant makes no such admission. Indeed, it is clear that Ihc ncw mcasurcmcnt is morc conscrvativc. Thc prior mcasurcmcnt ol'od drop lime is I'rom thc No Significant Hazards Evaluatibn, Appendix k 3/4 It( "4'-2 (emphasis added).

beginning of rod motion to dash pot entry. Thc ncw mcasurcmcnt commcnccs Thc Board agrccs with Pctitioncr that this particular justification is lacking. An b%re thcrc is any rod motion. It begins 'rom thc beginning of decay of ACTION statcmcnt should not'tk justified'sin(ply'bccausc if wouId bc used only stationary gripper coil voltage" and ends at thc same time as previously: with '

rarely. Thc question's whether it is safe whch'll isrdscd.

dash pot entry. Since Ihc ncw mcasurcmcnt begins earlier and ends at thc also challenges this new outa'gc Inovision'ec'ause Appficant bias "

'ctitioncr same time and since thc limit on thc allowed rod drop time remains thc same, dclctcd thc tcchnical specifications governing'OII(':4(16ns wttli "(vk Ioops,'tating .

it is clear to thc Board that Ihc ncw rcquiicmcnt is actually morc conscrvativc and that thC SafCty analySiS fOr'h6rplahf4taS'ndVanhIyZC'd thC Safety 6f"Operating that thcrc is no gcnuinc issue of fact herc. No Significant Hazards Evaluation, just two loops. K '160-61",Proposed Tcchnical Specification"2.1.1,

"'ith Appendix A 3/4 at 142; K 157-58. Thc contcnlion is not being admitted. Appendix A at 2-1 ( power opera(ion'(MODES Idand 2) wilh less than thrcc lOOpS ig nOt analyZCd in ther SafCty analySiS"):V In'anrattemttt tO eXplain thiS problem, Applicant erroneously s(a(ed lhat Sis'tecftnical specification permits N. Contention 30 "hot s(andby" and not operation and that there'is no nccd ddt a guideline "-

Proposed Contention 30 states: govcrning opera(iott.with two fIIMIps .when all that wilt bc attempted is hot standby with two loops. 'R. 162. Howcvcr, Proposed Tcchnical Specifications Specifically, the amcndmcnts would change the CfS at speci(icaticat 3/4.4.1.1. Ilic R7S 3/4.4.1.1 A.2.cs Appendix A 3/4 al'4'-I,'ta(8 (hat'"'(t)hc a/lowed outage time rc(axes thc a11owed outage time for a Rcaaor Coolant Loop in Mode I fran one hour to sia for a REACIR COOL'ANT LOOP in MOUE I is,relaxed from one hour.to hours.

six hours" (emphasis added).

Petitioner objects to a relaxation of thc outage time for a Reactor Coolant Loop in Mode I, I'rom I hour to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br />, because operation with two loops

+ proposed Tcchnical Specifications 3td 4,1.I A.Z>>, Appcndis A 3/4 ai 4.1 ~ scares that "(rih>> athnvcd oursgo rim ss RIÃ7QR COOLAItrI.os)P in MOOG I (Il is retaacd rrocn one hour io sis hours."

W>>>>speci ihsi ihc Stair hss asccnaincd, duning iis review of chc KIS, that usnpeniure surveillance m>>asurcs ror ~

~ re adequate. pro SianiCicani I tsisrdc Bvsluauon, Appcndia A 3/4 ai 4.2. C>>v 532 533

Since thc loss of a coolant loop rcduccs heat removal capacity, it is important 3.4.9.3 at 3/4 4-36 and 3.4.2.1 at 3/4 4-7 require that In Modes 4 and 5 there tliat operation in this mode cvcn for 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> bc analyxcd. Ifowcvcr, that must bc adcquatc pressurizer relief capacity. Sec %B'6, 73. Hence, Petjtfoner's apparently has not Ix.cn done. Nor arc wc pleased with thc Applicant's usc objection is not well taken. htcle is'no genultk'4suc of fact and this contention~ +I co of thc ndjcctivcs "ininimal inipact," "unlikely cvcnt," and "unlikely," in place is not being admitted.

4c of analysis. While it may hc true that this change increases plant safety throtigli

. lt rulucing thc nuinlicr of reactor trip tritnsicnts, tluit depciitls on wlietlier tliis '

p;irticular cluingc is safe and can bc justified. Q. Contention 51 s c

Proposed Contention 51 states'~d vi ~ ~titctt'. ll /, ' .,r,>l.,.t a,, )) = tL'I ~ I O. Cnntention 33is Spccifteatly, the ametatmettts would tftlsngc the~ at spccllication 3/4.LI.I. (I) Ibc, KIS ~

relax existing, safety margins fsy requiring that if both stast.up ttansfocmcts are inopcrabtc, Proposed Contention 33 states: th'e diesel.gcnetatots'be: demonstrated operable within;pght bouts unless the diesel both restored lo generators are already operating, and'lf one of thc start.up transformers is not Spcciiically, the amcndmcnts would change the CIS at speci!ication 3/4.4.2.I. (I) lbe operable status within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> then both units be shul down.

RlS pnwidcs for an Action statement modiiicd so thai an cpershIe code safety valve is not gencratots are (2) Ibc RIS telax cxisung safety margins by sequiting that if:both diesqt required if thc: RCS is vented though an equivalent site vent pathway. be demonstrated,opcrabtc wititin ate 5ovr and if one ntepcssble, bottx stan-up transfocmets (2) Ibe RIS relaxes thc cunent tequircmcnt io test all safety valves each tefucling to of the diesel gcnctatots is not testaed to operable status wlthiiitwo bouts then both units only testing ~ fradiat of the safely valves. ."tts .'

bc sequentially shut down~." cot tn ~ ~ ~ tin (3) lbc RTS dctctc ihe sequhcmcnt of Mode and operability of safety valves. Ibc RIS relax extiting'xfpty matguts by dctetfng'the 'pter. voltage, scquiiemcnt (3) imtncdiatcly following ~ compliie diesel gcnciitor load sejection test.

(4) Ibe RlS relax exing safety margins by atty /equiring a check of Pctitioncr objects that Applicant is moving from tcchnical specifications that diesct fuet inventory when thc diesel is demonstsatcd operable.

rcquirc morc frcqucnt survcillancc of safety valves to thc frcqucncy spccificd in dfesct generator(s) be tlic American Society of Mechanical Enginccis (ASME) Code, which has Iiccn (5)ctlbc RTS relax existing safety margins by specifying thai the stancd only and not synchsopixcd and loaded.

acccptcd in 10 C.I .R. 5 50.55a(g)(4) as an adcquatc assurance ol'safety. Ilcncc, (6) Ibe RIS, tetix'xtsltng'naffle'fn'lt'giit'I'I/kfb4itlp ft)i Itcifotmancc of 1 fastcstan Petitioner (which did not rcvicw thc ASME code provisions see lI. 167) only at least once pei 184 days sftct'at( other stans to be p'seceded by watmup ~tes.

lbe KIS relax existing saf+ masgins by seducing the diesel gcnctator sutveittance

~

appears to bc challenging a Commission regulation, which it may not do. Thcrc f/) ' cl>, r is, thcreforc, no gcnuinc issue ol'act and thc contention shall not bc admitted. tesi frequency to atleast fsicf once per 31 days. I ~>

'.'P, I','fs,lPR Irf'I s< r,u . v ~

peijtioncr's principal concern in this contention is that Applicant has allegedly P. Contention 35 failed to analyze thc ehts of a loss of oIIsite power.

'R 182-203. However, Proposed Contention 35 states: dcspitc thc Board's explicit invitation (Ilt 191), Petitioner, never spccificd what c/tartge in a technical spccilication raised.the quesljon- Mr. Saporito Specifically. thc amendmcnts would change thc CIS at specitlcatiat 3/4.4.4. (I) The RIS was addressing. Indccd, we are pcrsuadcd by Applicant's argument that thc dclctcs thc PORV's fromm specificauon. (2) Ibe KIS telaxes the block valve, mode Proposed Tcchnical Specifications 3/4.8c2 ($ b.,!2) are more co/tscrvritivd because reduction fran Mode 5 to Ivtode 4.

they have added a ncw ACTION statement that Squires the demonstrdtfon of

-

operability of thc cranking diescls when a'stamp transformer is inoperable.

Petitioner's objection to this change in tcchnical spccilications docs not Tr. 204-b5. %c aisff'agree'ith thc Staff that Petitioner's arguments address challenge Applicant's conclusion that "no credit is taken in thc safety analysis compliance with a station blackout rule that docs not yct cover applicant, that I'or PORV operation in MODES I, 2, or 3." 11. 170. ffowcvcr, as Applicant they arc not relevant to thc subparts of this contention, and that they. do not has asscrtcd without contradiction (A; 171-73), thc challcngcd section of the show how a particular proposed change would in fact reduce a safety margin.

tcchnical speci%cations deals only with Modes I, 2, or 3. No Significant ffayards 'll'. 206. ffcncc, this contention isnot being admitted, Evaluation, Appendix A 3/4 at 4-22 to -23. Proposed Tcchnical Spccilications vI lI c

At Ts. l63. PctiYioncs ststcs thst it is addressing Ccntcntion 3I, hot he misspotc. Sss Tr. l6$ .

535

r R. Contention 25~ lhc scope of a Nsuonal Environmcraal Polio)yrAct.(NEPA) rrtvlroeuntsaal review of a license amendment is mote limited than one Performed prio to initial licensing. Florida Tliis lengthy contcnlinn rclatcs to Ihc effect of reactor vcsscl hcalup nnd f ower and LigN Co. (rvritey Point Nuclear Generating Station, Urtitsp ~d 4), LBPAI.14, cot>hhiwn and surveillance on lhc strength of tlic prcssure vcssrl. In Uiis con- I. NkC'677, 684 g5 (1981): Conreeinr4 Prrwrr Co". (Big Rock Nuclear Plant), ALAB4136-.,

tention, Pctitioncr first znttliht to argue Viat thcrc was a change in a gnph in Ihc 13 NRC 312, 319 (I9gl). A NBPA review for a license anendmcnt requires an evaluation tccllillcal spccilic'lllniis lllill sets f(NUi prcssure/tclllpcralurc ctll res, pfcstllll ilily of only those envininmcntal impacts beyond those cvaluatcd previously which will result lnr Ihc reactor prcssure vessel, Ifowcvcr, after a conference, I't lilinncr al.iced frcvn il>> prtiposed atxitrr. Id.... e e *

' i i ~ i wiUi Applicant that tlicrc was in fact no change made in Uicsc curves as a result A petiuoner fatting a Nl'.PA claim ts required to show a dispute exists between it and-

~ ~

of thc pcmling amcndmcnls. Tr. 210-11. ihe spfdicara or the Staff on a material issue'of fact or law. 10 CFR. $ 2714(b)(2Xiii); 54 Thereafter, Vic Board made rcpcatcd attempts to have thc Pctilioncr specify Frd. keg. at 33172.... "J

~ v ~ ~ 'i what particular changes in Uic lcchnical specifications werc being objected tn:

Under the Commissitrt's cyulat(ons,,ar(enviiorttuentai,tmpact,statement is nca autanati'-'I hut thc Pctitioncr I'Iiilcd to specify any particular change. Tr. 211-18. In addition, as wc read Contention 25, wc fail to ascertain any specified change. Furthcrmorc, f

cally required for 6e proposed acuate). $ fc,10 CfR 51.20.,(the Staff determines whether an cnvirr'iiimcntat assessment is required or whether t)>> action ts a categorical exclusion Ifoot-Applicant stated at thc prchcaring conference that "(t]herc arc no changes of note in original) for which no cnvircrtmenfal document is rc'quired. Scc 10 CFI( $ $ 51.2li n

'

substance bctwccn thc current tcchs and thc proposed tech specs." Tr. 219. Staff 51.22(h), 51.22( )(9) d (10). 51.14( ).y IRootnot dded.)

also stated that "thcrc arc no changes." Tr. 221. Since thc only "relaxation" ht. -r in 53/4.4.9.1 is dclclion of Figurc 3.1-2 and since Pctitioncr has not addressed the significance of that dclclion (No Significant Hazards Evaluation, Appendix

2. Analysis of Contenfians I and 2 A 3/4 at 4AI), we conclude that Applicant's and thc Staff's mutual assertion Petitioner asks in these two contentions that an'environmcnlal impact state-of no signilicant "hangc is indccd coffee(.2y ment and an cnvironmcntal asscssmcnt be prepared. Petitioner's Amended Pe-ConscqucnVy, thcrc is no gcnuinc issue of fact with rcspcct to this contention tition at 2426 Thc cilcd ground, in both ins aqccs ispaf the amcndmcnt of-and it is not being admitted. tlic tcchnical spccilications is "a major Fcdcral~tton,y,'d, Within the body of these contentions, ihcrc are no facts sct I'orlh that estabIish that this is a major fcdcral action. In paftiCuhr, there is no basis for bclicving S. Contentions 1 and 2 'I that lhc amendmcnt of thc tcchnical specifications has some ovCra11 effect other Contentions I and 2 are both environmental conlentions. Contention I allcgcs than thc cffcct of each of the paris. However, all the other cogtcnVons,allege.

that an Environmental Impact Statement (EIS) must be prcparcd; and Contention that thcrc is an incfeascd hazard rcsuMng ffom lhc proposed amendmcnL We 2 that an Environmental Asscssmcnt musl be prepared. think that Petitioner intends that by proving lhesc alicgaVons,it will establish

~ Ca ~

1. Legal Background Staff Raponse at 21-23.

y "'Cetcgvriceicaclueion'mesne ~ eetcgoryofarsivruwtuchdonctkidivfduallyorcumvleunlyhaveasig'nlficoit Wc agree with thc Staff concerning the appropriate legal context in which to effect on thc 1>>men nvvirvevnaa snd which the Canmiedetti;hss found to have no svch cifeag tasrumf prvcrduica ect ovt ln $ 51.22, <<nd for which, thacfoie, neither an nviroevnaael eeecumaa nor en envircnmoasl rcvicw these conlentions. The applicable regulation is 10 C.F.R. g 51.20, which bnpect sutanaa Is require&" 10 C.F.R. $ 51.14(e), tydinitiau.

rcquircs that an environmental impact statcmcnt bc prepared if the proposed Sccuon 51.25 pruvidcst,. ~ t r .S .

• Qcfoev uhing a plopoecd ecua) svbyecl to the povflnena of,tive aubpen,.the eppoprista NRC Staff action (lhe proposed tcchnical specification amcndmcnts) is a major fcdcral director erilI daermine on the basis of the cntcrie and chssif>>eucns of types of saions ht $ 151.20, action signilicantly affecting thc quality of the environmcnL We endorse thc 51.21 and 51.22 of this subpart whether ths pvporcd salas is vf iha type listed in $ 51.22(e) as a following portion of thc Staff's brief: cstcgoricst eaclveiat or <<haha an arvlravncnul iinpea suumcnt a an cnvtmnnurasI aseraemaa ehc>>M be pcpere&...

y Wc have reviewed 6e tcgutetlcns govcrrv'ng cstcgoricst cactvsloeu fmn the need to pepem an envtrcnmenut

~ isreemaa and rmd gut for the meet pert the sucgauon of "major fcdaal ecuat" is sufr>>iaa,to ovacou>>.

This contaalot Is out ef orda in pesiYioncr's fihng. It can be found et p. 104. csclveions. For cesmpIc, changes In inipccuetn or yurvauencc reqviianrnu av ceemta.if thae are no significeia Miucna also argued thai thae <<es some inpnpriay or i0cge!ity in Applicant separating ovt enc change in hverds ccnsiifaeunne and no changes in otfeitc cftiwnu rr occvpeuenet hsssrdr (10 GF R. 151.22(c)(9)k iu tahrvceI speciticstioie end filing it prior to its filing of ite cvnaa reviriai. Tr. 225 24. Wc dv net egrvc with ~ nd we interpret the elicgetivn of major federal ecuoe to imply ~ significsra Iutsni. Iiowcva, I>>ravens to 10 this ergvmoa Applicant is free to Ale ammdmoas to its licence in any order ihet it desires to hie ttuuc changes. C F R. $ 5I.22(c)(10), changes in edminisueuvc procedures eic csav pt,

'r Wc inow of no Iinuution ai that discrcticn. Wc also nate that Appbceia hu nba prepared en envirvrvncnul rcpon in svfpoet of iu emrndmoa 536 537-,

Board's tliat thc change in tcchnical sIIccifications is a major fcdcral action. Thcrcforc, 6. Litigation of Contentions 1 and 2 Is deferred, pending the

'conclusion on whcthcr litigation of Contentions II, 14, and 30 it is appropriate to consider Contentions 1 and 2 in this context. 11c:titioncr establishes werc to cstabllsll ln otic of Its otllcf contclluoIls that tf)crc Is a serious crrcct on of thc tcchnical specifications is a major federal tltat thc proposed rnodificauon safety, tlicn it mig1it sustain these first two contentions based on thc others. action.

Our conclusion is that Contentions 1 and 2 shvuld, thcrcfnrc, bc admitted.

Ilowcvcr, their consitfcrition including discovery Ixist'tl solely on thc cn-vironmcntal balance shall bc deferred. Only if'hc litigation of thc other Schedule for Case with contentions cstablishcs that thcrc is enough of an impact on safety" for this 7. Discovery and thc filing of motions for summary disposition anicmlmcnt to bc a major fcdcrII action, will it bc ncccssary to litigate thcsc rcspcct to Contentions 11, 14, and 30 shall bc concluded by thc end of August two cnvironmcntal contentions scparatcly. Othcrwisc, thcsc dcfcrrcd contentions 1990.

niay bc dismissed based on consideration of thc other admitted contcn(ions. 8. A hearing on Contentions ll, 14, and 30, if ncccssary, shall bc schcdulcd carly in October 1990.

Order Alleged llarassment Por all thc foregoing reasons and upon consideration of thc cntirc record in this matter, it is, this 15th day ol'unc 1990, ORDERED, that: 9. All material in our record that contains allegations of intimidation or harassment of Mr. Saporito shall bc considered to bc struck from our record.

Contingent Admission of Party Appeal

1. Ac Nuclear Energy Accountability Project (NEAP} is admitted as a party to this procccding, based solely on its rcprcscntauon of its mcmbcr, 10. Applicant and the Staff may, pursuant to section 2.714a(c), appeal contingent on Mr. Thomas Saporito. thc portion of this order granting the petition to intcrvcnc, Thc time for instituting an appeal shall, however,

2. NEAP's continued participation in this proceeding is dcpcmlcnt on Mr. Saporito's rcsponsc.

until after Mr. Saporito shall file his response to $ 2 of this order.

Mr. Saporito serving on this Board. on or before the 19th day ol'unc 1990, . bc suspcndcd order from which a pleading in which hc personally states his willingncss to be rcprcscntcd by I l. Except for $ 10 of this order, this is an interlocutory NEAP. thcrc is no appeal at this time.

3. Should Mr. Saporito fail to res pond as ordered in $ 2, this case shall bc THE ATOMIC SAFETY AND dismissed.

LICENSING BOARD Contentions Dr George C Anderson (by PBB)

4. Thc contentions that are admitted in the following paragraph are admit- ADMINISTRATIVEJUDGE ted only with respect to thc genuine issues ol'act discussed in thc accompanying memorandum.

5. Only the following five contentions or portions of contentions arc Elizabeth B. Johnson (by PBB) admitted: I, 2, I I (risk rclatcd to.change in mode reduction rcquircmcnts);

ADMINISTRATIVEJUDGE 14 (possible loss of ability to change mode}; and 30 (operation without onc reactor coolant loop). Peter B. Bloch, Chair ADMINISTRATIVEJUDGE Is I is tstlikdy, bit ccnccirsblc, that the Beard srctdd dctcsrninc that an arncsidntcrs is pcstnisibIc tstdcr the lt ~

rcguisucns btit crcatca se riaich addiYionsl risk that it is a tnsjcr federal action. Bcthcsda, Maryland 539

Cite as 32 NRC 12 (1990) LBP-9O-24 i

RULES OF. I'IIACTICE: P'A/DING; DISMISSAL In UNITED STATES OF AMERICA When an organization suffers a change of circumstances such that Its standing NUCLEAR f ILGULATORYCOMMISSION is affix'.tcd, ordinhrTiy.it may demonstrate an alternative,ground for standing.

Ilowcvcr, wlicn thc organimtion Qicady had thc opportunity to demonstrate an a IIc r na ti v c g rq u n d fo r s II Iin g an d fa i Icd to, d o s o, i I w i I I re t be a ffo rdcd a

>

.

ATOMIC SAFETY AND LICENSING BOARD second opportunity. =('Illis rulc rtiay not.apply,. hov cvcr,.fo thc later stages of a proceeding after cxtcnsivc litigation has already occurred.)

Before Administrative Judges:

RULES OF PRACTICK1;DISMISSAL; SUA SPONTE ISSUE Peter B. Bloch, Chair (10 C.F.R. (i 2.760a)

Dr. George C. Anderson When thc only participating intervenor, is dismissed, a Baird may retain Elizabeth B. Johnson 'jurisdiction to dctcrminc whcthcr 'or'uot to exercise IS authority to make one or morc of thc pending contentions a sua sponte issue because it is an issue important to safety or thc cnvironmcnL 10 C.F.R. 52.760a. It may ask for a In the Matter of Docket Nos. 50-250-OLA-5 brief'n tiid issu6 from'he rcfiiaklng partics;-"' '

>>r 50-251-0 LA-5 (ASLBP No. 90402%1-OLA-5)

(Technfcaf Specifications ~ - M@MQRANDUMhbfPQRDER Replacement) ~

(Motion to Dismiss) -  !: ~

(Facffffy Operating License Nos. DPR-31, DPR-41)

This Slcmorandum addresses a motibn to 'dismiss the.sole rcsmaining Intcr-FLORIDA POWER 5 LIGHT vcnor because a cha~ge in circ>umstana3 fias deprive it of th'. basis I'or stand-COMPANY ing. Wc have dccidcd to grant thc motion to dismiss, for masons we will discuss (Turkey Point Nuclear Generating in this Mc'morandum, and to rcqucst further information frofn thc Staff Of the Plant, Units 3 and 4) Nuclear Rcgufatory Commission (Staff) and from Fsfonrida Power and Light Com-July 18, 1990 pany (Applicant) before deciding whcthcr to dcchre y qua sponle issue pursuant to 10 C.F.R. I) filed,a "MotioLt for Rcconsidcration and Dismissal,", (Motion) on 2.760'pplicant Thc Board dismisses thc sole fntcrvcnor as a party based on changed circumstances. St;inding for thc intcrvcnor was based on onc mcmbcr, who June 22, 1990, to which tntcrvcnor, Nuclear Energy> Accountability project was cmploycd within ihc zone of intcrcst of Ihc plant, but who was dismissed ,(';p/EAp ) filed its "Response of Nuclear Energy Accountability project"

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from his job. Given thc prior history of thc case, in which thc sole Intcrvcnor (Rcsponsc) on July ll, 1990. 'Rc Staff filed thc "NRC Staff Rcsponsc to already had thc opportunity to show that it had bases for standing additional Io Applicant's Motion for Reconsideration" (Staff Response) on July 12, 1990.

that of this onc mcmbcr, thc Board did not afford any fwthcr opportunity to show ncw bases for standing. Thc decision was without prcjudicc to a motion a>>sc r. >m>> . 'rd -r

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>>> '>>>c to rcopcn should thc mcmbcr dcmonstratc in his pending Dcpartmcnt of Labor >>1 a>'r action in which tfiat Applicant was rcsponsiblc I'or his wrongful discharge I'rom "vr>fy r.l>>>

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cmploymcnt. ~ >

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i i sate 'rd>o i>sd bosn ~ ccnioncr tn +s case, sunni>ced lo Join rn she Response. Ilo>>ores, i>e ass Uip.9e.}$, 3i yacc si jid. wc insdrcncrely lsalcd to o>d>>dc an erdcrmg pstsgepi>

on d>i ~ s'-~i>ca snd rriil do so in >i>is O>dcc.

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I. STANDING AS OF RIGIIT alleged harassment and aboul, the standing of NEAP.c Then, aIIcr having re-

Applicant's Motion is based on a material change of circumstances that has occurred since thc March 23, l990 prchcaring confcrcncc and which affects thc basis for LBP-90-16, 31 NRC 509 (1990) (Standing Decision). In our Standing its standing could'bc ~

ccivcd NEAP's filing which included an affidavit that attempted to show that on'an individual othe lhan Mr. Saporito that NEAP's standingtwas based solely on Mr. Saporito's standing and stating we ruled Utat "NEAP has already had all thc opportunity it needs to establish standing; Decision, wc dctcrmincd that tlic sole ground for Uic adinission of NI:Al's it may not lilc any further documents alleging q,ncw basis for standing.~

a party was thc stalling of its oflicer, Thomas J. Saporito. His standing w ts Wc adhcrc to our prior rulings. We note Uiat urltil this time Mr. Ihomas J.

based on his cmploymcnt in thc gcographicd zone of intcrcst ol'thc ibfkcy Point Saporito, who is not a lawyer, has appcarcd.on, behalf of, NEAP, as is his right facility, at thc ATI Carccr Training Ccntcr (ATI) in Miami, Floritla. Howcvcr, under thc procedural regulations. 10 C.F.R. ti2.1215(a). As the fepiesentativc Mr. Saporito was discharged by ATI on May 10, 1990, and has not prcscntcd of NEAp, Mr. Saporito had,lhetfull authority-,and responsibility do represent any other claim to activity that could bc a basis for standing. it, on both tcchnical and procedural matters. He could wilt or lose thc case on In its rcsponsc, NEAP admits that thcrc arc changed circumstances that complex issues of scicncc, engineering, and law.*,Hc also could make arguments climinatc thc basis of standing for NEAP.'hc Rcsponsc asserts that Mr. that impose thc,costs ol'response on. opposing parties and the costs of decision on Saporito is sccking cmploymcnt whcrcvcr hc can find it, including within thc thc Nuclear Regulatory Comfnission: While ye;have been paticht and protective Miami area; but thcrc is insuflicient information with which to consider Uic of his nccds as a nonhwycr, he has now had all the protection he can properly job-sccking activity a basis for bc afforded.

NEAP differs from Applicant in its asscssmcnt ol'hc conscqucnccs standing.'owcvcr, NEAP has had ample dtypoftunity tO dcmonstfattt'hat it has 8&ding indc-of Ulis clanged circumstance. It sccks permission to submit additional facts pcndciIi bf Mr: Sapbritb, anU'it has not'done so.

and legal argument that could establish its standing on oUlcr grounds.'n thc altcrnativc, it asks that wc hold the hearing in abeyance pending a dctcrminauon t'.

in an allcgcdly rclatcd Dcpartmcnt of Labor Action as to whcthcr or not PERMISSIVE STANDING

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Applicant was rcsponsiblc for Mr. Saporito's dismissal by ATI.5 r wit Q $

Howcvcr, wc find that thc facts NEAP would have us address have already In revibwing-the records we have phd that wc ncvcr made a clear bccn I'ully litigated, resulting in our denying Mr. Saporito's motion to withdraw ruling concerning whether or not NEAP was entiUcd to discretionary standing, as thc basis for NEAP's standing. His motion was based on an allegation pursuant to.ils argument that it bc permitted discretionary IntcrvcnU6n pursuant ol'ntimidation that we considcrcd frivolous and we considcrcd as struck all to Porf land Geftcral Elc'cfrlc Co. (Pebble Sprin'gs Nucica'r'-Plant, UfUts =1 and 2),

allegations of intimidation. LBP-90-16, 31 NRC at 538. r<<CLI-76-27, 4 NRC 610, 612", 614-17 (1976)'ll VA'ginia Eiccfric fyytffPfywcr Co.

Mr. Saporito lilcd a "NoUcc ol'ithdrawal from Proceeding" on April I, (North 'Anna Power'tatioh; Units I and 2), ALAB-363, 4 NRc 631 (1976);

1990. We read thc notice of withdrawal, which included Mr. Saporito's notice Public Scrtticc Co. of Oidaho'ma (Black Ryx Station, Units I and 2), ALAB-397, that he was withdrawing as thc basis I'or NEAP's standing. Thc allcgcd reason 5 NRC 1143, 1145 (1977); Tcnytcsscc Valley Aufhorify(Watts Bar Nuclear Plant, for withdrawal was that he was harassed by Applicant. But we were not Units I and 2), ALABAI3,5 NRC 1418, 1422 (1977).'hc satislicd with the factual basis for the allcgcd harassment and wc also werc test for discretionary intervention is sct forth in Pebble Springs, supra, conccrncd that should the motion be granted NEAP would bc dcprivcd of its 4 NRC at 616, and in the following significant passage, at 617:

standing. Out of solicitousness I'or Mr. Saporito, who is not a lawyer, wc issued t

J a Mcmomndum and Order in which we requested further information about thc ~ As a gcncril tn'atter, hosreevrer~wse would espccg ptacuce to dcrrcjop, not through preccdcsg, but thnargh attention to thc concrete facts of parucular situations. Fettnission to itccvvcne should propre more readily available where pctitioncrr show signirtcsra ability lo corgritnge on substantial rssucs of law or fact which will not othcrwisc bc properly raised or prescntcd,

-r Rcaponsc st 2. ~

C i i IZ In ihc crntcat of rhi ~ case, we are ccnaidaing rhc dfca of these changed cucransranccs at an carly stage of liYigaticn. before discoray has ersnrnarccd. Wc do na address in this opinion whahcr a not ~ *ange of I rcsidrncc in s morc fuuy liYigstcd case would dcsuoy standing.

aurVarhtiahcd Manccandum of Apnt 2S, Id. at 3.

Occision. Iftp tO 16, 3 I NRC st 5 Id.

IRK'tanding 5ld. at 4-7. s pruYicncr' Amadcd prsirion for lraervcnriar and Brief in Srrpport thaeof, Manh ti, l99Q, at 2I.22.

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sct forth these msucrs with suitahlc specificity to allow evaluation, and danonstrate their 'spcciftcation was based,on careful scrutiny and reasy,but did not show importance and inimcdiacy, justifying the time necessary to crarsider than. cxpcrtisc,,As wc,said in LBP-90-I6, 3I NRC at 515:- any'ndcpcndcnt 0\

In applying that standard to this case, thc principal cvillcncc that NEAP offers Althrargh pcsrYioner submiued knglhy conteraons thee purfroltcd to ccrnply with thc that it can make a valuable contribution is thc Aflidavit of lltomas Saporito, contarurat requirements now in effect, on examination we rrnd that they carsist primarily of Jr.'c principal factor weighing in lavor of tltc atlmission of Mr. Saporito is allcgatione based on iftipticiht's own arlmissIcni that Appticant has in aexne instance!

relaxed requirements in the course of amending iixhnical s'pceifications. Ocr>>rally, his statcmcnt of concern about "rclaxcd safety margins in thc rcviscd tcchnical Pet iuoner failed to advance an independent basis for any of its coteentions.- Instcadr Pctitrona specifications." 1'his concern, as cvidcnccd by thc voluminous contentions relied cnurcly on a11cgcd omissions in,Applicant's analyses and said it intended ro support filed by him, has thc potential I'or creating thc inccntivcs for thc Staff and tltc its proposed contentions by Mr. Saportto's expert opinion, by interrogauoet of Applicants's "rl, Applicant to take a closer look than they previously had done. witnesses, artd by r6scovery, without any indicauott of the inalytical basis foe'further inquiry.

) lowcvcr, Mr. Saporito also discloses that hc nccds to bc cmploycd full time 1bese'allegatibni'of'.ornissicAVQk sways boiled on aMxticn, without my spccihc source and that hc docs his research primarily on Fridays, Saturdays, and is no indication that any other mcmbcr of NEAP plans to help him or Sundays.'here r ~..., r, of cvidcnce concerning thct rmpoitance of'l>> alleged'niissiotr.

er. ~ 1- -,1 ro,ita. o,"4 in li w .n that NEAP has any financial rcsoulccs with which to hire tcchnical or legal When wc evaluate'thc natiiie"ot'NEAP's coRtribtItfon,t81ing the'.s+dard for assistance." Mr. Saporito appcarcd at thc prehearing confcrcncc cntircly by pcrmislivd'intervention, we find that it ka not eIlOII'cd lij'permissive interven-himself.

tion.<<We arerparticdlarly concerns that"NM Iias.riot brought to bear Mr. Saporito's expcrtisc is "in the tcchnical field ol'nalog and digital any substantial expcrtisc tO dctnt3ngtiatc, thc importance and Immediacy of its concerns or to justify thc ncccssigt,of cohsldcring them. Because of, the way clcctronics rchtcd to instrument repair arsd caiibraiiors for a period of about in which thc case has been Ixesch/cd, it has,bccn jclltto the Board to analyze scvcntccn (l7) years.w" Hc has 7 years'xpcricnce in Applicant's plant in tile record and use'ts own expertise to dctcrmiItc, thc importance,qf,PKAP's repairing and calibrating a wide variety of systems.t3 In addition. hc has an Associates Degree in Electronics Technology and has attcndcd various tcchnical Hchce, w'e'co'ncludc tttat on balance it is not appropriate to use our discretion tnining seminars." Hc is an instructor in digital clcctronics and microprocessor to admit NEAP'as a party,.

technology and has a patent for a Renal Dialysis Concentrate Dclivcry System, ~~

I which hc dcsigncd and built.ts ~, ~~~ rrtiv.lt 'tr u Crrtr rrtrLSItt(ftp r 1( 'e m rQ',

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Wc know Mr. Saporito, l'rom our brief expcricncc, as reasonable and intclli- Hh= -"SUA"SP'ONTEQU~ONS ~

gcnt. Furthermore, hc has shown substantial integrity in withdrawing many of his contentions after we asked him to identify elvors or omissions in Applicant's A. Legal

Background:

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.. -", ';ntt" analysis that hc thought crcatcd a safety concern.

Ncvcrthclcss, and dcspitc thcsc positive factors, Mr, Saporito has brought to: 10 C.Fg;=-,$ '2.760a, 'ulsuant little tcchnical cxpcrtisc to his prcscntation of his contentions. Ilis primary Irtaaera nos put sntocontrovch)by 0>> parties willbe eaalttincrj and decided by the trlcsiding contribution has been to rcvicw Applicant's tcchnical specification changes and ofhcer onIy where he or shb determines that a seriou safety, crItrllonmentai, or ctxnmon to idcntily those in which Applicant said that some "rchxationw has occurred. defense and security'matter exists.

When he has spcciticd that thcrc arc omissions in Applicant's anafysis, thc r)

'Ris aUthority to raise mhttcd t311'ottr own ol'slN sponle" 'give rise to thc responsibility to dctcrmine whcthcr or not to use the authority.

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pea'rrlana'e Amended rbririrxr et 21, reached arrrdevit.

Afrrderit et 2, 17.

ll Alrhrerah Me. Bilrre Garde hee now intend an epparairrn with reepax to eranrtiirg end rraimirterirer issues. her crerrmirmrnt e ppcen to be limited to this portion of rhc cere

<<rrh <<hirh Me. Gerdc etio is ccncanerL

<<hich is related to the Dcperrmaa or Labor cere la w beve ag eh rerrore tiered hr Irebbte ~j I' NRC St 61 K'f dicse, the Kret trreithe modaetdy br favor er edmlreloia 3he second eeld third have eery llule peeled dfrct ebrrer lVaAp's lreirrr'ae have nra drmoiretiered ihel they have nrbereralet 1rareorrs <<irhirr the sons or brrenet ror this powre pterrr. rrrctore roor Argderit et 2, 1 10 (emphasis added).

throutth eia have rrrue effrca. Thae is now an riraeeeed ewennree br rhe Stall of Npixp's ceeroarw end they Id et 3. 11 I I, 12. mey thaerore to some extaa protons petrYrona'e brtaar. bur shet ie ~ 'Iweye true cl the Staff errd hae rrrtte arrest ld 11 13. 14. on thc be tenet %ae ere no orha pe rtia to reerect PrtrYrona'e intense Vere ie lirde rreern to betjcve ther the lsld. 1113.1$ . "bioedrning" cr rruYietrrrg of thre proreedirra is in any we~ inerpiopriere, eo that fester hee tiak weight.

In dismissing NEAP al'tcr having rcachcd a dctcrmination that some of its J. Saporito dismissed from'his prcscnt job and thcrcforc causing thc loss of contentions werc litigahlc, wc have a responsibility to consider whctltcr or not standing for NEAP. Thcrc is nothing in our record to support that allegation, and to retain jurisdiction of onc or morc of its contentions as a tua.tponfe matter. In Mr. Salxlrito had adcqualc opportunity to support thc allegation had hc chosen reaching this dctcrminatitnl, wc must consider thc scritxisncss of each contcntintl. ttl tlo so. So wc have no reason to grant NEAP's rcqucst to hold our hearing in I lowcvcf: altcyancc pending thc DOL determination of this case.

On thc other hand, wc have not I'ully adjudicated thc facts of thc allegations 1hc mere acceptance of a contention docs not justify a Ixiard to assume that a senous safety, lacing litigated in thc DOL case. Should that agency dctcrminc that Mr. Saporito cnvircatmcntal, or common dcfcnse or security maucr <<aists or ot)>>rvvise relieve it of the was wrongfully dismissal, at Applicant's hands, then it would sccm improper.

obligation under IO (:ll( 2.76ua to affirmauvely dctcnnine that such a maucr that through that wrongful action Applicant would have succccdcd in having this case dismissed. Ilcncc, wc wish to state that this case is being dismissed eaists.'urthcrmorc, if thc matter has already bccn spo0ightcd for serious consideration by thc Staff, apart from thc hearing process, then thc scriousncss of tile issue is without prcjudicc to a motion to reopen should thc DOL uphold Mr. Saporito's mitigated and a Board nccd not declare it to bc a sua sponfe issue.ts allegation of wrongful discharge at thc hands of Applicant.

Based on our record, wc have no reason to suspect Applicant in any way. We have cvcn ruled that allegations of harassment or intimidation against Applicant B. Consideration of the Admitted Contentions should bc stricken from our record. Ncvcrthclcss, we would not close thc NRC's After rcvicwing thc admit(cd contentions in light of our prcscnt knowlcdgc, doors should thc DOL uphold Mr. Saporito's allegation."

some might be considcrcd serious safety or cnvironmcntal issues." Thcrcforc, wc rcqucst thc comments of Ihc Staff ol'hc Nuclear Regulatory Commission and Order of thc Applicant concerning whcthcr any ol'hc admi(tcd contentions raise issues requiring admission by thc Board as sffa sponfe issues. Wc provide 20 business all thc foregoing reasons and upon consideration of thc cntirc record in days from this opinion's date of issuance for thc StalT to respond to our rcqucst and we provide thc Applicant 10 additional business days to comment on thc this matter, it is, this 18th day of July 1990, ORDERED, that:

1. .Thc Nuclear Energy Accountability Project (NEAP) is dismissed as a Staff rcsponsc. StalT and Applicant afe invited to discuss thc Board's reasons for admit(jng thcsc contentions and each of thc criteria wc have discussed above party.

2. NEAPts dismissal is without prcjudicc to a motion to rcopcn our record as rclcvant to thc admission of a sur2 sponfe issue.

should Mr. Thomas J. Saporito obtain a linal judgment in a Dcpartmcnt of Labor procccding that hc was wrongfully dismissed from his job at ATI Carccr IV. POSSIBLE FFFECT OF Training Ccntcr at thc hands of Florida Power and Light Company.

DEPARTMENT OF LABOR PROCEFDING 3. Thc Slaff of thc Commission is rcqucstcd to comment, within 20busincss days from thc issuance of this decision, on whcthcr thc admitted contentions Wc have bccn informed of thc pcndcncy of a Dcpaftmcnt of Labor Plocccding contain any serious issues that should bc admitted into this proceeding sutf concerning whcthcr or not Applicant was responsible for having Mr. Thomas sponfe. Applicant may have 10 additional business days within which to comment on thc StalT's liling.

ts Trsor Utifitiar Crarroring Co. (Coman*e peat Stcam Ekcuic Station.

Units I and 2). CLI gl.36. I ~ NRC

4. Mr. Thomas J. Saporito is dismissed as a party'.

I I I I, 1114 (19gl). 5. Bccausc NEAP and Mr. Saporito are dismissed as parties, this is an Ciccciivcori 17or and Electric Co. (ItfilliemIL Zimmcr Nucksr ptnva Ststiac, Unit I). CU g2 20. 16 NRC 109.

initial decision pursuant to 10 C.F.R. ('I 2.760. NEAP may appeal its dismissal 110 (19$ 2). As Ccmrnissioncr Auclsunc points can in his dissan in that csee, at 116. evm che serif agreed Out thc psnicular iuue mct O>> or(tais fa edmiuion u ~ sun rpoarr issue bocsusc it <<ss ~ most eaioue iuuc."

Alchceigh thc Canmiuion iced I appears not to offa s redion ale for hoer it could tete Oic ecticri it did. in face of thc rcguleucn and Ocairmen pelledino made it clear et 112 rhet hc did na inured to revote O>> rvo rpoau euihoriiy

~ Response at 4.7.

ue believe Out our eeplsnetica in thc teat of this decision provides an appropriate reuaielc sympeihaic to O>> gt Staff egress, in Sum Response st 2 n.l ~ ther NEAp msy fde a mcaion bcfcnc the Commisnat to reopm O>>

intent of thc Comnussioca proceeding should Mr. Ss pocico prevail bcfae O>> Dcpenmcnt of Labor. (Staff hes argued ther uc cannot tate up Iloucva, in this cere ue ue urunformed of thc Staff' eve)ustice of the impocunce cf O>> iuucs before us or a meucr involving intimideucn because of ~ Manocendum of Understanding Bcscvccn NRC and O>> Dcpenman of the estcnt of iu folloviup of these issues, so the pcopa eppliceuat of O>> 7sevnrr rule is not efpecact. of I>bor, Fmptoyoe pocecion (47 Fcd. Rcg. S4.SgS (Dcc. 3, 19g2)1 Wc do not sddreu this poirn ss it is no Srr UIP.9016, 31 NRC et 526 27. S2jt 29. 532.34; NURI!U 1410."I ant of ViW At: Puvvr snd the Residual longer a live issue in Ous pmcccding )

Iieet Removal Syetan Dunng Mid loop Opcrsucns et Yogde Urus I on March 20. 1990" (luna 1990).

+ Srr note I, shove.

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as a party pursuant to 10 C.F.R. 52.762, which provides I'or a notice of appeal within IO days after scrvicc of an initial decision and for thc appellant's brief to bc filed within 10 days after tie filing of thc notice of appeal.

TIIE ATOMIC SAFETY AND LICENSING BOARD Dr. Gcorgc C. Anderson (by PDB)

ADMIN ISTRATIVE JUDGE Elizabeth B. Johnson (by PBB)

ADMINISTRATIVEJUDGE Pctcr B. Bloch, Chair ADMINISTRATIVEJUDGE Bcthcsda. Maryland

Cite as 33 NRC 42 (1991)

UNITED STATCS OF AMERICA LBP-91-2 RULES OF PRACTICE INTERVENTION

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As a general proposition, a pc@on whose base of tlorma1, everyday activities cIP is wi(Itin.25 mites of thc site Can Iairly bc prcsumcd 'to have an interest which NUCLEAR REGULATORY COMMISSION 4i:

might hc affcctcd by reactor construction and/or opera(ton, Ithus.Satisfying thc

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"injury, in fact" test. Gf/I/ States Utilifids,,Co.,{River Bend Station, Units I and ATOMIC SAFETY AND LICENSING BOARD 2), hl.h 8- II(3, 7 ALC 222, 226 {1974); Florjfia PotIver,annd Light Co. {St. Lucic Nuclear Power Plant,,Units I and 2), Cl,f.-89-21, 30 NRC 325 (1989).

>> >> ~ >>>> II I Before Admlnlstratlve Judges:

RVI.ES OF PRACTICF.: INTERVENTION'.

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John H Frye, llf, Chairman Rc burden rests with thc pc(itioncr uj,demonstrate that he,or-shc satisfies Dr. Charles N. Kelber thc rcquircmcnts o{.10 C.F.R.,t'I,2.g,l4(a).,Metropolitan Edison Co. {Three Mile Dr. David R. Schfnk island Nuclear Station, Unit I), CLI-83-2$, 18 NRC 327,,3),I>> {1983).

I I 4 ef-In the Matter of Docket Nos. 50-250-OLA4 MEMORANDUM AND ORDER . ,,

50-251-0 LA%. il. (Ruling-on Petition to Intervene)

(ASLBP No. 9142542-OLA-6)

(Emergency Power In July and Scptcmbcr, 1990, Florida Power and Light Company {FPL)

System Enhencement) proposed a number of design changes I'or its Krkeyt Poiift Phnt located in Dade County, Florida, Thcsc changes, part of ifs Emergency Power System FLORIDA POWER AND LIGHT cnhanccmcnt project, wouM add two cmcrgcncy diesel generators, two battery COMPANY chargers, a battery bank, and associated,support arid clcctrical distribution (Turkey Point Nuclear Generating cquipmcnL FPL also sccks permission to modify thc ltchnical Specifications Plant, Units 3 and 4) January 23, to rcflcct these changes, .

Following receipt of FPL's application, thc Commission's Staff published 1991'hc a notice indicating that this application was under consideration.'his notice Licensing Board denies a petition to intervene bccausc Petitioner failed to offcrcd an opportunity for interested persons to petition for a hearing with regard dcmonstmtc that hc rcsidcs and/or works in thc vicinity of thc plant in question to thcsc changes. Thomas J. Saporito, Jr., filed a timely request for hearing and and thus has standing. petition for lcavc to intcrvcnc in response to thc notice.2 Both FPL and Staff oppose thc pctiuon on the ground that Mr. Saporito has not demonstrated that RULES OF PRACTICE: INTERVFNTION hc has standing to intcrvenc.

Section 2.714(a) of IOC.F.R. requires that a pctitioncr state his or her in(crest with particularity and how that intcrcst may be affcctcd by thc proceeding.

Judicial conccpls of standing are applicablc. *s 55 Fcd. Rea. 3935l (Sept. 26, (9'. 1he Itecfco also un(teated that,t)te'~csfpropcdcd inahlne ~

"no sidnifrcant hscards" dcumunation under le C FR. I 5092 ohidi, pursuard to le C PR, I 50 9l(egd), uauld the issuance of the (Ice>>lec erncndnlcnt o>>puated by FPL I>>I bdrencd'cr the ccstrptctsm of>> iny hearsay ekcacreod tsnusry 25. l99 I.

roprcNcd ernndlncrtt.

1 1ha Nuckar F~y I I>>

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hdd es ~ resuh of,a rcxprcsc fried In rcoponid to the Ncitce. Un Cccrtbcr 22, i990, the Cornntusirat issued the

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Accouraabitity Ptojeca (NEAP) oae also Included arith hfr. Sepcr(to ea a ptsldoncr, but

~ uhe>>p>>cntty neo>>cd to oithdreo its paYion. 1he cecum scpnscracd shet HPAP uould be diesolecd cn 2I. (990. This Inoticst nes arentcd m Ccccrnbcr ll. Cmsoqucraiy, ftPA'I Pcciticn is nca funhcr coruidcrcd in this htcrnr>>rendu>>a and thdcr.

42 )rt 43

Further, FPL notes that the representation that Mr. Saporlto lives In Miami Thc Commission's rcquiremcnts with regard to standing are sct out in 10 docs not cxcludc other places of abode. It obscrvcs that in a related Commission C.F.R. ti2.714(s). This provision rcquircs that a petit ". ~ r state his or her procccdi>>F concerning thc Turkey Point Plant (the OLA-5 procccding), a brief i>>iercst with particularity, lxsw that i>>icrcst r>>ay Isc aikxtcd hy Osc pn>ccctii>>g, Iitcsl on Mr. Saixirito's behalf on Scptcmbcr 5 stated that his residence was in

>>>>I wlsy Isc nr Slee slxruld l>c pcr>>>ittcd to inicrvcnc. 'I'lsc Co>>n>>issiun I as hchl iitat jutlicial co>>ccpts of standing arc to hc utililnl in iis proccceli>>gs. I'rsr ri s>>d Jupiter.'ollowing submission of iis rcsponsc to the petition, FPL brought to thc Gener>>i I;Iccrric'Co. (I'clshlc Springs Nuclc;u'-I'I;uii, Units I and 2), Cl.l Board's attention thc fact that it had received two change-of-address notices 27, 4 NRC 610 (1976). 1'hus, in order to bc successful, a pctitioncr must allcgc from Mr. Saporito. Thc lirst of thcsc, rcccivcd on Novcmbcr 29, indicated that an injury in fact to his or her interests and that that injury is within thc zo>>c of Mr. Saporito's mailing address was changed lo 8135 S.W. 62nd Place, Miami, in(crests protected hy an applicablc statute. It is well scolcd that "as a gc>>eral Ilnrida 33143. FPL represents that this notice recited that it became cffectivc in proposition, a person whose base of normal, cvcryday activities is within 25 July and notes that if this is so, it coniiicts with Mr. Saporito's sworn testimony miles of Ole Site can I'airly bc prcsumcd to have an intcrcst which miJ,hr hc given in August in ihc Dcpartmcnt of Labor procccding to thc effect that his affcctcd by reactor construction antVor operation," thus satisfying thc "injury address was in Jupiter, Florida. Rc second, reccivcd on Dccembcr 2, stated that on fact" tcsL Gulf Stoics Utilities Co. (River Bend Station, Units I and 2),

thc mailing address was changed to P.O. Box 129, Jupiter, Florida 33468-0129.a ALAI3-183, 7 AEC 222, 226 (1974) (emphasis in original). In Florido Poser.r FPL notes that thc apparent inconsistency in Mr. Saporito's representations raises and Liglu Co. (SL Lucic Nuclear Power Plant, Units I and 2), CLI-89-21, 30 serious questions concerning thc location of his NRC 325 (1989), thc Commission affirmed this proposition, noted that living abode.'taff also asserts that Mr. Saporito has failed to demonstrate that hc has within a specific distance from thc plant would confer standing on individuals in standing, noting that hc has given insuflicient information concerning both his procccdings on major amcndmcnts to a power plant liccnsc. Thc Commission rcsidcncc and employmcnt. Staff notes that Mr. Saporito did not state in his has held that thc burden rests with thc pctitioncr to dcmonstratc that hc or petition whcrc hc rcsidcs in Miami. Nor did he provide suNcicnt elaboration shc sadsfics Oe rcquircmcnts of 10 C.FR. $ 2.714(a). hfcrropolirrsn Lsdison of thc extent of his work activities in that Ca (Gree Mile Island Nuclear Station, Unit I), CLI 83-25, 18 NRC 327, 331 city.'n Dcccrnbcr 5, wc afforded Mr. Saporito an opportunity to respond to (1983). the answers filed by FPL and Staff, including FPL's response to the notices Mr. Saporito's petition recites that hc of change of address. llousrors Lighting and Power Co. (Allcns Creek Nuclear lives and works in and about the City of Miami, Florida as the Esecsnive Iyisecsor of NEAP Generating Station, Unit I), ALAB-565, 10 NRC 521 (1979). On Dccembcr 26, and as ~ sctf~ptoycd individual with 0>> Aisttow Service Corposadon. Ihe interests or Mr. Saporito lilcd his reply. Although that reply stated that hc had been directed Mr. Saporito could be advcsscty sffecsed if a serious nuclear acct*en occusscd at the Turkey to respond both to thc answers opposing his peotion and to FPL's comments Poins nuclear plant as a direct ot indirect sesuh of the Igsasuing of the hccnse amendmcns prompted by the noOccs of change of address, Mr. Saporito addressed only the

~d~ co>>std musml.'hc latter.'be substance of Mr. Saporito's reply is:

petition makes no other reprcscntations with regard to thc standing of'r.

Saporito to request a hearing and to intcrvcnc in ihc procccding.

FPL asserts that the meaning of thc quoted statcmcnt is unclear. It notes that thc statement that Mr. Saporito works for NEAP and AirAow Service Corp. 5 "in and about" Miami docs not address thc extent to which his work occurs Mr. Seporiso docs nca stesseion FPL's and Ssatr's ssecNhm shat Jopisor is coo eseoceo tsom the Vatey Pbbs Sudan so sonson ssaodina. Srs Stall' Anaocc as g; FPL's Answer ec L In hs espresso. FPL ocacs shee Mr.

in Miami as opposed to some other place.a Moreover, FPL notes that rcccntly Se poriso icpecrcd shee Jopiscs is absan g3 mites fsom shc Turkey Paint Ssssicn in an emended pcciYion Qcd in shc scJescd VJLA 5 Socoodsng.

it was brought out in Mr. Saporito's deposition taken in connection with an s3hc msaicn io vishdsaw NEAP'e CaasYion. ghat on Dcccmbcs g, indscssod that Mr. Seporiso'e matting addscw unrclatcd procccding bel'ore thc Dcpartmcnt of Labor thai, in thc course of iis oes SI35 S.W. 63nd Fbcc S. Miami. Roride 33la3.

~

3-year cxistcncc, Airflow Scrvicc had generated rcvcnucs of about $ fs00-$ 700.

Thus this work could not bc cxtcnsivc.

Pssi1isss as Aervmina shet 2.

NFL has noa been disrobed. oosk for thai oraenisssicn <<ossM no hmasc caia.

aSuneg~tig~caoh suic an adnrisriblc 9 The

~

Srr FPL's November 9 Rceporoc so pisiYion u II ld, end iss response so shc occiccc or Jeeccmbcr 5. FPL also sakes shc poeiYiies ihes Mr. Seposiso hes ncc essscd an admisriMc cosacecicn.

disci.9.Smd terna p

.&

bcsvccss shc rpeceessveuooe made in this Pmcoadioa end in the ncpenmaa sd Labor'e Pmccodina.

u or sddscss of IM.S p .mh r~so reply nosed in pere inc shee FPL's amocr so the psahhss hsd atro soaacescd shat shcso was assoc inoomiescncy 45

I Mr. Seporitu's mailing address remained at l202 Sioua Street, Jupiter. Horida at that iime Dcccmbcr 8 Motion withdrawing Direct mail to and did rurt change until steno time after July l 990 and well hefort tht: lime that I'rtttioner NEAP's petition 8135 S.W. 62nd Place, filed ~ kequett for llearing and trave to Intervene in this proeeed<ng Mlanl I.

Mr. Saporito a<hfrcsscs nunc nf thc other arguments raised hy FPL aml Staff. Dcccn<ltcr 26 Reply to FPL and.Staff g -'= a Mailing address Ilcrc stinlc <l>><<lit exists as tn wllcfc Mr. Sap<<lit<< lives. Il<c pctili<in recites did not change tlult IIC "lives an>i." b>>t i>>dic;itcd nn to Miami from n<l<lrcss in Jupilcr, llorida, as <lid a brief tile<1 on his tacit:tlf in tlic ()I.A-5 Jupiter until proceeding on Scptcmhcr 5. A notice of a change of Mr. Sapnrito's niniling after July arid .

a<ltlfcss receive<I hy 11'L on Novcmbcr 29 aml effective in July It)90. imlicatc<I bcforc October 25.

that mail was to bc send to him at a Miami a<l<lrcss. 11iis was followc<l by 0 second notice rrccivcd by FPL on Dcccmbcr 2 changing thc mailing a<ldfcss In thcsc cilcumstanccs, a rcprcscntation that Mr. Saporito "lives and works back to Jupiter. 11ic motion to withdraw NEAP's petition, Iilcd 3 days following in a>>d about" Miami not far from thc plant in question is insuflicient to support FPL's rcsponsc to thc notices of address change, indicated that all future fili>>gs standing. When confronted with objections that hc had not adequately sct forth shouhl bc dircctcd to Mr. Saporito at thc Miami address. When FPL Iiointc<l a basis for standing by clearly Ipdicating',where hc works and lives, MrSaporito out that thc lirst notice changing thc mailing address to Miami was inconsistent rcspondcd only that at thc time of thc filing of his petition, his mailing address with Mr. Saporito's sworn testimony in thc Dcpaftmcnt of Labnr pfocccding was in Miami. While wc would ordinarily assume thaf an individual petiuoner in<licating his rcsidcncc in Jupiter, Mr. Saporito's rcsponsc was tliat his mailing rcccivcs mail at his rcsidcncc, in this case such an assumption is not wanantcd.

address "did not change until some time after July 1990 and well bcfurc thc Thc I'rcqucnt changes of that address in a short period of time underscore thc time" hc lilcd his petition. questions concerning Mr. Safiorito's standing ra1sed by FPL and Staff. It was Mr. Saporito's rcprcscntations as to his address may bc summarized as incumbent on, Mr. Saporito to affirmatively state whcfehe resides and the, extent follows: to which his work takes place in pfoximity to thc plant;" Abshht such a statement, wc cannot conclude that his "base of normal, everyday activities" is close enough Date Document Representation to the plant to support standing.;

Scptcmbcr'5 Brief in OLA-5 Mr. Saporito's failure to have affirm'atively responded to'hc questions raised Rcsidcs in Jupiter.

regarding his standing, when coutJIcd with his rcprcscntations made over a October 25 Petition in this procccding "Lives and works period ol'bout 2 weeks in late November and carly December that his mailing in and about thc address changed thrcc times in a period of less than,4 months, prevents us from City of Miami." concluding that hc resides at the Miami mailing address and thus has standing.

Address indicated in This is particularly so in light of thc fact that the last change'followed hard upon signature block is FPL's comments on thc earlier two J<otices.

P.O. Box 129, Jupiter. Accordingly, Mr. Saporito's petition filed in this. proceeding is denied.<<

Rcccivcd by FPL Change of address cffcctivc Direct mail to Pursuant to 10 CF.R. g 2.714a(a), within-10 days aAcr its service, Mr. Sapor-Novcmbcr 29 July 1990 8135 S.W 62nd Place, ito may appeal this M'cmorandum and Order by filing a Notice of Appeal and Miami.

Rcccivcd by FPL Change of address Direct mail to Dcccmbcr 2 P.O. Box 129, Jupiter. 7 I

C '<2 s ef h ru Reply ~ t d. 2hc ate<centra that Mr. Seporito'e mailing addnae mneincd in Jupiter "at gut time" pnuwnetdy rcfcre to July l<ro0, In the rereading paragraph of the rrply. Mr. Seponto tutee shet Nfihp'e change of eddreee ii ln light of due teauh. wc do not cceteidcr whether Mr. Saporito haa aatiariod the other requireeneaua or 10 CFJ<.

to Miami fmm Jupiter became effecuvc in July ltSOO.

$ 2.2<a.

47

e, accompanying brief with thc Commission. See 10 C.F.R. Ii2.785 as amcndcd Octohcr III, l99() (S5 Fcd. Rcg. 42,944, Oct. 24, l990).

It is so ORDI:.RI!l>.

TI IE ATOMIC SA!rETY AND LICL'NSING llOARD Dr. David R. Schink" ADMINISTRATIVEJUDGE Dr. Charles N. Kclhcr ADMINIS1'RATIVE JUDGE John II Fryc, III, Chairman ADMINIS1'RATIVE JUDGE tn Dcthcsda, Maryland a, tu ~ r January 23, 199 l Q

r~ e.

~ r

~ t

~ lt

'I 5P 11 Dr. Sdunk cnntute ut ttua Mnnotanttum stul Onttu. bu< net ncu ntilobk tn ~ tgn u.

Cite as 33 NRC 238 (t99() CU-91-5 RULFS OF PRACTICF.: APPELLATE RFVIEW Filings beyond thc 10-day period prcscribcd lor appeals ln 10 C.F.R. (i 2.714a UNITED STATES OF AMERICA arc justiliabic only if thcrc is a showing of good cause for thc failure to have NUCLEAR fIEGULATORYCOMMISSION filed on (imc.

f.

COMMISSIONERS: RUl.l"i OF PRACTlCE: APPFLLATE REVIFW That a pctiuoncr is a layman and thus possibly may be unfamiliar with Kenneth M. Carr, Chairman NRC's Rules of Practice is not sufficient excuse for late or incomplete filings, Kenneth C. Rogers particularly whcrc thc older that is being challcngcd expressly advised the James R. Curtlss pctitioncr of his appcllatc rights, of, thc time within which those rights have Forrest J. Remlck to bc cxcrciscd, and of thc manner in which an appeal is to bc taken.

ln the Matter of Docket Nos. 50-250-OLAW MEMORANDUM AND ORDER 50-25t-oLA4 FLORIDA PONER 5 LIGHT On Scptcmbcr 26, 1990, the NRC published a notice indicating that it had COMPANY under consideration an application for amendments to the operating liccnscs for (Turkey Point Nuclear Generating Units 3 and 4 ol'the Florida Power & Light Company's lb(key Point station.'he Plant, Units 3 and 4) notice provided an opportunity for interested mcmbcrs of the public to request a April 3, 199t hearing. See 55 Fcd. Rcg. 39,331. Thc Nuclear Energy Accountability Project (NEAP) and Thomas J. Saporito, Jr., liled a "Request for Hearing and Petition Thc Commission considers peti(ioncr Thomas J. Saporito, Jr.'s for Leave to Intcrvenc," but NEAP subscqucntly flied a motion to withdraw appeal from a Licensing Board decision denying his pc(ition to intcrvcnc in an operating from thc procccding, which was granted by the Licensing Board.'his left liccnsc amcndmcnt procccding. Thc Commission dismisses thc Mr. Saporito as thc sole petitioner in thc plocccding. On January 23, 1991, appeal bccausc Mr. Saporito has riot filed a timely brief supporting his notice of thc Licensing Board denied Mr. Saporito's petition to intervene on thc ground appeal.

that he had not satisfactorily demonstrated that hc had thc requisite standing to intcrvcnc. LBP-91-2, 33 NRC 42.

RIJLFS OF PRACTICE: APPELLATE REVIEW The Licensing Board's decision. focused on the standing requuements of Under thc NRC's lntcrim Proccdurcs for Agency Appellate Review, NRC's Rules of Practice (10 C.F.R. Part 2). Section 2.714 of thc regulations 55 Fed.

Rcg. 42,944 (OcL 24, 1990), thc Commission, rather than an provides, in subsection (a)(2), that the "petition shall set forth with particularity Appeal Board, will provide agency appcllatc rcvicw for ncw appcllatc matters. 10 C.F.R. the intcrcst of thc pcutioner in the proceeding, how that intcleSt may bc affcctcd I) 2.785(b).

by thc results of thc procccding,... tandj why petitioner should be pcrmittcd to intervene....n This means that the petitioner must dcmonstratc that he RULFS OF PRACTICF.: APPELLATE REVIFW satisfies the requirements of subsection Thc NRC Appeal Panel lacks jurisdiclion to hear (a)(2).'%he appeals on ncw appcllatc matters. NRC Interim Proccdurcs I'or Agency Appcllatc Rcvicw, 55 Fcd. Rcg.

42,944 (Oct. 24, 1990). erncndmcrcc refcto to the mccxccncy Power Srttrcn fro these rndtL l)a&tr nithdren en the $ rtcrnd thct it tredd be rhccdred diectire Ccccnrdrco3l, 199D.

)Srr Fknrro Porwr N li$Ar Co. (St. Lnde Ncc)ccr )tooer )tort. Unite l end 2). CU $ 9.2l. 3D NRC 323 (l 9$ 97, Dorron Fdire Co. (hl$ rin Nocletr itowcr Stcticn), Lal'$3 24, 22 NRC 9), rt) do orhor $ nrrotdr, AlAB $ ldI 22 NRC 46l (l9$ $ ),

>>v I

mvvwnn Stoa<teal ttaattnn Mr. Saporito attcmptcd to show that hc mct thc standing rcquircmcnts by which an appeal is to be taken. See llousfon Lighflng and Power Co. (Allcns reciting in his petition for leave to intcrvcnc that hc "lives and works" in and Cicck Nuclear Gcncrating Station, Unit I), ALAB-547, 9 NRC 638, 639 (1979).

about Uic (ity of Miami, Rorida. Ilowcvcr, other Cilings hc ha<I submitted in A pctitioncr's failure to file a supporting brief when filing a timely notice of thc proceeding (as well as statcmcnts hc ma<le in an unrcl:t<nl 13epartntcnt of appeal fium the denial of an intcrvcntion petition was addrcsscd by thc 'Appeal Lahor proceciling) cast doubt on this asser(ion. To cnsurc Uiat Iic ha<1 a<lcqu;<tc ltoard in hfiscishippi Power and Light Co. (Grand.'Gulf Nuclear StaUof)", Units opportunity to explain his position, Uic B<xlr<l invited Mr. Salxirito hi anqilily I an<I 2), ALAB-'140, 6 AEC 5p (1973). In that procccding, thc 'Appeal Board his st:<temp<its, but his response was uncle;ir. As a result, thc i(nard foun<I tliat took inui account thc t)ossihility. that thc failure'.to file a brief was occasioned by i( could not coiicludc (liat hc rcsidcs or works at an a<ldrcss that woold confer thc pctitioncr's unlamiliarity w<th<lhc rcquircmcnts ol'ection 2.714a, and sua f,r slamling, a<hi it denied his petition to intcrvcnc in thc proecediiig. tponfe cntcrcd an order that cxtcnaCd thc time I'or.doing so by 2tworkipg days.

At thc en<1 ol it~ or<lcr, thc Licensing Boar<I state<i: "Pursuant to 10 C.I .R. When thc pctiti<)ncr still failed (o lilc a brief, the appeal was dismissed.'<c I) 2.7I4a(a), within 10 days after its scrvicc, Mr. Saporito may appeal this lloard stated that, while it may make some allowance for thc fact that a party Memorandum aml Order by Ciling a Notice of Appeal and acc<impanying brief bcforc it is procccding pro se, "considerations'of.fairncss to other litigants, as with thc Commission. See 10 C.F.R. () 2.785 as amcndcd October IH. 1990 (55 well as of Uic orderly administration ol'hc adjudicatory process, prccludc thc Fcd. Rcg. 42,944, Oct. 24, 1990)." LBP-91-2, 33 NRC at 47<8. Thc latter granting to any appellant of'a waiver of as I'undamcntal a rcquircmcnt of thc ciuition is to thc NRC Interim Procedures for Agency Appcllatc Rcvicw, which Rules as that relating to thc submission of a bricl'etailing thc'basis for his provi<lc that (with cxccptions not relevant herc) thc Commission. rather Uian appeal." Wc arc ol'he same view.

an appeal board, will hcnccl'orth provide agency appcllatc rcvicw for appcllatc Accordingly, Mr. Saporito's appeal from thc Licensing Board decision deny-matters. Thc Intcnm Procedures also provide that. until a Cinal appcllatc rcvicw ing his petition to intcrvcne is dismissed.

rulc is issued. Commission rcvicw will follow existing proccdurcs. IT IS SO ORDERED.

But, rather than going dirccUy to thc Commission, as dircctcd by thc Licensing Board Order, Mr. Saporito filed an nAppcal Rcqucst," dated February For thc 4, 1991, with thc Appeal Panel. Bccausc it correctly concluded that it did not Commission,'AMUEL have jurisdiclion to hear the appeal under NRC's Interim Procedures for Agency Appcllatc Rcvicw, the Appeal Board, on February 11, 1991, issued an Order J. CHILK rcfcrring thc Appeal Rcqucst to thc Commission. Secretary of (he Commission The Commission must, at the outset, dctcrminc whcthcr it is appropriate for it to consider Mr. Saporito's appeal. Section 2.714a of NRC's Rules of Practice Dated at Rockvillc, Maryland, allows an interlocutory appeal I'rom a licensing board order on a petition for this 3d day of April 1991.

Icavc to intcrvcnc. Subsection (a) of that section requires a licensing board ruling on a pctiuon for leave to intcrvcnc to bc appcalcd by the liling of a notice ol'ppeal and accompanying supporting bric t'ithin IO days after scrv ice of thc Board's order. Mr. Saporito's two-scntcncc Appeal Rcqucst can in no way bc considcrcd to bc a supporting brief.

It may well bc (hat thc appeal period provided in section 2.714a is not jurisdictional in thc scnsc that an appeal absolutely may not bc cntcrtaincd if it is not filed within 10 days al'tcr scrvicc of thc order in question, but lilings beyond thc prwcribcd period arc only justiliable if thcrc is a showing of good Smiaorly, on oppcst on sn usus <hot is rea sddnssod bt sn sppcusto brier is eornhfcrod to be woivcd. Pnb<r'c Service F<rciric end Cnr Co. (Satan Niclcsr Garcrsung Sation, Vnit l), AIAB:630. Id NRC d3, 49 50 09<<)).

cause for thc failure to have lilcd on time. Morcovcr, thc fact that thc Petitioner in eny evan, <<bile Mr. Seporito u ~ leymen sound pro rr. it cervtea bc ssnnned <hot he is totfsniTier with NRC's is a layman and thus possibly may bc unfamiliar with NRC's Rules of Practice is Rola of Procure ~ ince he hes bccn ective in pcesaenunl himself snd csha oouidc peruse in NRC procoedinds not suflicicnt cxcusc for late or incomplctc Cilings, particularly whcrc thc order j

in nccnt ycsre. Srr. for cssvrp<r. Sr reecir, Cl J9.2), srvrrn note 3: Fiends Power 4 Ur)a Co. (rurbcy Point Nwlcer Crnaeuna Plera, t)niu 3 snd 4), U)p 90 3, 31 NRC 23 (l990), end Tre)ry Poise. (3<P.90 l6. 3I NRC that is being challcngcd cxprcssly advised thc Petitioner of his appcllatc rights, S<y) (1990).

of thc time within which those rights had to bc cxcrciscd, and of thc manner in <tuinnsn Csrr wos obsess for thc formol oirrnnouat of this Order. if he hod boon prcsaa he wmJd h'sve i<proved it.

l 240 .241

Florida Power & Light Turkey Point Nuclear Plant foal Ho"mes'tead, F'imari d'a'3030

~~-.,NARRATIVE REPORT This i,nvestigation,was scheduled,on the. basisof m camplaint by Thorn'as J. ka~porYta, Jr., of 1202 Sioux Street, Vupiter, Fl. 33458, who alleged that,, in violation of the Energy Reorganization Act,,

Section 210, Flor>da Power &, Light had Aiscriminated against him by placikg'is'ame ,on" a "NO LIST" 6'eccause of his previous

'communicat,ions wit'h the Nuclear Regulatorv Cammission on behalf of Florida Power &; Light The. alleged discriminatjon was charactrized

~

as un 0'f fodt 't.'a'rev'ent '"him '-fr'om woi h j'ng . in-'he industry anv longer.'.See exhibits A-l(a)'hrough A-3.

See the complaint. statement dated 8/28/90 and attachment..

4 4 4 l

Sapori to wor ked as an Instrument Control Specialist for Florida P

Power & Light. for.,seven vears He worked>at the Turkey Point Plant

~

siniri 4/25/88.

This is the. latest in a series of complaints received from Hr.

Saporito alleging vio]ation af the same statute. The first invcsr.igat.ion wss concluded on November 18, 1988, with a finding of no iialat.ion and notification in accordance with FOH procedure wss nt to Nr. Saporito on that date.

COVERAGE Jurisdiction is conferred by the Energv Reorganization Act at Section 210 (a), Employee Protections Coverage was implicitly stipulated by counsel for the FPL, James S. Bramnick, af the firm of Nui ler Nint.z. His letter of representation is at Exhibit D-l.

&.

TIHELIMESS Hr. Saporito's complaint, through his attornev, of 8/28/90 was based an what he felt. to have been mansr.ement's reaction to his numerous cnmmunicatinns wit.h t'e NRC. The complaint, was timely f')1ed. See exhibits A-1 through A-3 ~

PROTECTFD ACT1VITY Nr. Saporito hss been and remains a persistent. and articulate cri t.ic before the Nuclear Regulatory Commission of Florida Power Light's nuclear operations at Turkey Pnint. Near .Homestead.

1'hi 1 e ~ri emp) ovee of Florida Power 4 Light, he engaged in protected r r:t.ivi ties, he was fired, he was ..found bv this office to have suffered discrimination, an administrative law .judge reversed this finding. tir. Ssporito's appeal from the administrative law .judge'

finding,js presently.,before Secretary Doi~. As mentioned above, he continued irt. these. act.ivi ties after, leaving the emplov of Florida Power &,Light. Engagement in,protects.act.ivi ties was not disputed, then or,~piow, by Fins-"-ida Po~er-& Light.'s labor counsel, Mr.

Bramnirk.-

~

P'q aa ~ ~

STATUS OF COMPLIANCE N

A Tl

~ ~~ t a-The rompliance action started Qith",an effort at conciliation, On Sept. ember 24,-1,990, 5fg:~ Saporito stated that iy order to satisfv him, he would like F~rida Power h Light. togpay all expenses to z eeducate. him in another field:such -as .law school and pay all legal expenses incurred for..t,heir act.ions. The request was made known to the firm's attorney ~ho categoricallv refused to even consider Mr.,

Saporito's request.

I The investigation conclusion is that. Mr.. Saporito was not the vict.im of di scriminat,ion. ,There was no "document" blacklisting Mr.

Sapori to or any other employee, current or former. It is the opinion of this Mage & .Hour Investigator that the "document" in question is not legitimate. It should also be noted that Mr.

Saporito's attorney never claimed that the "document" was legitimst.e. As a matter of fact, the "document" was to have been presented as evidence in the last hearing . However, for lack of substantiation, Mr. Saporito's attorney withdrew the "document" as evidence. If the "NO LIST" was not credible to be used as evidence t.hen, Vhy is it being brought. up now.

It is also the opinion of this Investigator that Mr. Saporito wil) continue to level charges at Florida Power Ec Light until he receives monetarv compensation one wav or the other+

Yo evidence was found to substantiate that a "NO LIST" (blacklist) is maintained by any organization or Dept. within the FPL Nuclear Division. Further credence to support that the document" is not authent.ic is gained in view of the fact that. seven of the employees listed are eligible for and recommended for rehire, according to personnel records. The "document" indicates all those listed "are not ejigible for re-employment or recommendation".

According to the Nuclear Safety Speakout Investigation Report

1. No individual interviewed was familiar with the term NO L1 ST.

2. No individual interviewed was aware of or had seen a f'ormer emplovee blacklist maintained bv FPL.

3. the "document" is not consistent or similar to the type of correspondence issued bv Industrial Relations (IR) on that type of FPL form ~

4. Only limited 'information is provided to individuals or

~r 0

a.~.i or gani zationsexclude La ~ ~

outside 'FPL,. about former emplovees. The information does not i the 'emp) os es eligi.bi 1j,ty for rerhire or a r ecomme nds t i on tn hi i'e

'4

~

5. Seven of )he f ormpr, employees,,papgd,on tive .".document" are el i gible Jkor "r'ecommendeh.for rehire ~ith FPL..:

'

r g,,

6. T~o names on the "document" are not speg.led correctly.

7.'=One nam'e on the "document" listed the first name and last ini tia.l of'.the f'ormer emplovees Jon; R., (should be Rahn, Jon D. ).

8. One name oP, the'ist ,.<Rice .D. ) cannot be-verified as employed at FPL, as a'-contractor HP.

fi rst, initial of II

9. Only the tPe former employee ~as used on the list.

10. The "document." contained no date,.-signature, or pre-headed IR address.

11 ' "Stamp" DO NOT CIRCULATE appearing on the list> is not used by FPL IR, Personnel or Human Resources.

12. The stamp is used at the FIU Library, Park Avenue, Miami, Florida.

DISPOSITION All the credibility remains on FPL's .side. Once again, a case could be made that Mr. SAporito was using the statute to terrorize the companv rather tha.i being 'a victim.

Emn,sriUe 1 G. Nore]

4'AGE 6 HOUR INVESTIGATOR X'

10/30/90

. ~

. U.S. Department of Labor Office of Administrative Law Judges 101 N.E. Third Avenue. Suite 500 Ft. Lauderdale. FL 33301 DATE: NOVEMBER 12, 1993, CASE NO: . 93-ERA-0023

.In The'Matter q.f

'THOMAS Z. SAPORITO, JR-Complainant .

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'FLORIDA POWER & LIGHT'OIGANY, Respondent Appearances".

THOMAS J. SAPORITO Pro Se JAMES S. BRAMNICK, ESQ.

PAUL C. HEIDMANN, ESQ.

For Respondent Before: E. EARL THOMAS District Chief Judge RECOMMENDED DECISION AND ORDER This proceeding arose under the Energy Reorganization Act of 1974, as amended, (hereinafter "Act") 42 U.S.C. $ 5851, and the implementing regulations found in 29 Code of Federal Regulations, Part 24. These provisions, commonly known as part of the environmental "whistleblower" provisions, protect employees-against discrimination in employment for attempting to implement the purposes of the Energy Reorganization Act and the Atomic Energy Act, as amended, found at 42 U.S.C. $ 2011 et seq'. A hearing was held in Miami, Florida on September 7, 1993. All parties were afforded full opportunity to present evidence and legal argument. The evidentiary record, as finally comprised, consists of the transcript (Tr.), Complainant's exhibits 1-9 (EX), and Respondent's exhibits 1-3 (RX).

STATEMENT OF THE CASE This case stems from a complaint dated October 21, 1992 by Thomas J. Saporito, Jr. in which he alleges that a telephone call by an unidentified caller from Respondent, Florida Power & Light Co. (hereinafter "FP&L"), was made to warn the Vice President for Nuclear Operations at Arizona Public Service Company (hereinafter

<<ApSC<<) that Saporito,was working -there. This, "one specific act<<

is alleged to constitute'Fblackli:sting'!'and to'e responsible for the termination of his employment at APSC. See Saporito Complaint, p.8.

The corn'plaint recites Saporito's .employment history 1 1 ~ w b'eginning:with FP&L in 1982 as, an Instrument Control -(I&C) .

technician. His termination from that position on December 22, 1988 was the subject of discriminpti,on cases heard by administrative.Law JudgeAnthony J. Iacobo,(Case Noq;~ 89-EpA-7, pp-ERA-8, pppe 30,'989), now pending before the Secretary, of, I',abor. RX 1. 'Thereafter, he.continued to be involved in, various activities regarding the operation of FP&L's Turkey Point Nuclear Plant. He petitioned to intervene both individually and through his non-profit organization, Nuclear Energy Accountability Project, in proceedings before the Nuclear Regulatory Commission (hereinafter <<NRC").

Saporito became an electronics instructor at the ATI Career Training Center in Miami in December, 1989. A letter of inquiry to ATI by FP&L counsel sent in order to verify Saporito's employment as a basis for eligibility in an FP&L licensing proceeding before the NRC was alleged to have been a factor in his termination at ATI on May 10, 1990. The circumstances surrounding that termination were the subject of a proceeding before the undersigned. (Case Nos. 90-ERA-27, 90-ERA-47, November 6, 1990). RX 2. Those matters currently are pending before the Secretary.

Following brief periods of self-employment, Saporito obtained a position as an I&C technician at the APSC Palo Verde nuclear plant through a contract with the Atlanta Group on September 29, 1991. His termination as a contract worker on December 31, 1991 was the subject of a complaint and subsequent hearing before Administrative Law Judge Michael P. Lesniak (Case No. 92-ERA-30, May 10, 1993). CX 2. That matter is pending before the Secretary.

The Wage and Hour Division of the Employment Standards Division of the Department of Labor conducted an investigation of the facts alleged in the complaint. Complainant was advised by the District Director on February 17, 1993 that the investigation did not substantiate that an official of FP&L actually made the call to APSC or that the intent of the call was to discriminate against him because of his engagement in protected activities.

RX 3.

At the beginning of this proceeding, Respondent filed a motion for summary decision. Ruling on the motion was deferred until Complainant could be given an .opportunity to present evidence. In view of the recommended nature of any ruling by the

/

undersigned, Respondent agreed to withdraw the motion and proceed on the merits. t FZNDXNQS "OP 'PACT The following fgctd among 'ot'.hers, were stipu'lated not to be in dispute:

1. Respondent is an employer within the meaning of the Energy Reorganization Act;

2. 'Complainant work@1 for Respondent from,'March of 1982 until December 22, 1988 as an 1RC Speciali Turkey Point Nuclear Power Plant; t at R spondent's 4

3." W.F. Conway was employed by Respondent as Senior Vice President-Nuclear from January 31, 1988 until .May 6, 1989, and then became -Senior Executive Vice President for Nuclear Operations at APSC's Palo Verde Nuclear Plant;

4. Conway had authority over Respondent's nuc1ear power plants at Turkey Point and St. Lucie; and

5. FP&L and APSC are not affiliated organizations.

Following his discharge from FPGL on December 22, 1988, which he believed was in retaliation for his whistleblowing activities while employed at the Turkey Point Nuclear Plant, Thomas Saporito was self-employed until he was hired as an Atlanta Group contract employee by APSC on September 29, 1991.

Tr. 20-22. At the end of that contracted work, Saporito filed a Section 210 complaint against the Atlanta Group and APSC, alleging that he was not offered employment by them for the next scheduled outage in February, 1992 due to retaliation for having engaged in protected activity while working there. Zd. CX 2.

The nature of the protected activity in which Saporito was engaged while at APSC Palo Verde is not particularly relevant to this proceeding, but is set forth fully in Judge Lesniak's decision in Saporito v. Arizona Public Service Company, Case No. 92-ERA-30, ALJ Dec. May 10, 1993. CX 2. What is relevant is the testimony in that hearing, primarily of three witnesses, James Levine, William Simko, and William Conway, which became the genesis of this litigation.

The decision in Saporito v. Arizona Public Service Company was offered as evidence by Complainant and admitted without objection. Judge Lesniak's findings, numbered 338-340, set forth below, are consistent with the other evidence provided in this case and except for a small discrepancy in Levine's version of "the call", are adopted for purposes of this decision. His references to other paragraphs i:n his decision have been deleted.

l 339. .James Levine, Vice President of Nuclear

.Production at.PVNGS, who answers only to Bill

-Conway, .Executive Vice -President for--Nuclear Operations, received a telephone call which had come in for Mr. Conway prior to the

,Uni,t 4"outage in the fall of 1991 ,or, Apparently when the person calling. foun+~ut.:;

that Conway .was not there; he asked to speak

,.to,.Levine. The, jpdividual stated that"he was-with:Florida- Power and Light and,.told -Levine

, he ppnted to inform Conway thathe und~sgood,=

Saporito>was wooing at, palo Vqz4e

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<... Mr:>Tom

+evzone .was,aware that,,~..Conway. ias a former

.empt.oyee of. Florida Powerqand Light (as Executive Vice President for Nuclear

-.Operations) and when Mr. Conway came back to town, g evine gave, him the message. :Atone point,-'Levine 'asked through the maintenance organization Tom if they had'"an employee named Saporito. He believed he called Bill Simko who was the maintenance manager for Unit 2. After Levine asked Simko to find out if Tom Saporito was working at APS, Simko told Levine that there was someone under contract with that name. Levine's direction to Simko was to treat Saporito like every other employee. When Levine talked to Conway about Saporito, he probably asked the significance of the call from the individual.

Levine believed that they had a short discussion that Saporito had voiced concerns at Florida Power. Levine had about two or three conversations with Conway about Saporito.

340. William Simko actually reported to Ron Flood who reported to Jim Levine. Simko had conversations about Saporito being previously employed by Florida Power and Light with Jim Levine and Steve Grove. In approximately September 1991, Simko received a telephone call from Levine who wanted to know if they had hired Saporito. Simko checked with Steven Grove and determined that Saporito had been hired. After advising Levine of Saporito ' employment, Levine then asked Saporito had worked at Florida Power and if Light. Simko did not know, so he went back to Steve Grove and found out that Saporito had worked at Florida Power and relayed the I'l information to Levine. Levine said, "Okay, call you back." Several days later,

Levine advised Simko that there had been roblems .at "Flox'ida '.Powerith'aporito and that'he'w'a'nted to make 'sur'e'that'Saporito did

""'a good job fear them 'ag Palo Verde'..Simko

-'said, <<" okay." Duiing Cimko's c'areer at Palo Verde, (over ten years) he did not remember Mr. Levine ever.chilling before and asking him to check on someone'sbackground.

to call It was not normal for Levine directly,. Simko "since there was a.'person in, between, Mr. Flood.

341. William Conway, Executive Vice President for Nuclear Operations at APS, was .

also employed by Florida Power and Light Company as Senior Vice President Nuclear in early February of 1988 and terminated. there in early May of 1989. While Conway,'was employed at Florida Power and .Light, he learned that Saporito's employment was terminated at their Turkey Point Nuclear Station. Conway also knew that Saporito identified safety concerns to NCR and recalled a radio broadcast in March or April of 1989 on the West Palm Beach, Florida, radio station wherein Saporito was interviewed and identified various concerns relative to Turkey Point. Saporito's termination and his safety concerns at Turkey Point were high, visibility issues with the news media. Sometime in August or September of 1991, Conway discussed Saporito with James Levine. Levine informed Conway that Saporito was working as an I6C technician for the Unit 2 refueling outage and that Saporito previously worked at Florida Power. Conway acknowledged to Levine that he was aware of Saporito's past employment and may have discussed Saporito's firing from Florida Power. Conway's instructions to Levine were that Saporito was to be treated like anyone else. Conway expected his wishes to more or less trickle down to all employees and believed that Levine would tell other people to treat Saporito the same as everyone else.

Conway expected Frank Warriner to receive the communication that Mr. Saporito was to be treated no different from anyone else.

Conway wanted this communicated to the lowest level of management, the foreman level. The message was that Saporito had problems at Florida Power and he was terminated and now

0 qg ~ r he's"hereeyn4 Gonway wanted him tabbe treated

,.. like everyone e3,se. CX ?..

t, The rationale behind Judge Lesniak's decision did not ekphasize ~the 'Ce3;epho'ne call'..~receivedlbytLe'vine; apparently because he.found..that -there..was .sufficient-.other .opportunity for the-'ag.leged.K?SC-discriiainating>atficiak~taeiearn'f>protected activity j.n.which,.Saporito.had-engaged., Kowever,,because-that Celephone'gall forms the basis for Saporito's.charge of

,~blacklisting,-it

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gll) vill jf c'>~1 be.~xaminedgi.n.more detach~

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.>j;.~ Although'Levin'e'. says he received -the. call intended for Conway in-August of September, 1991, he'~die" not provide a precise date. -Regardl'ess, pp. 68, it was,after Saporito.>ad been hired,. CX 2, 69.:".=.Levine"->believes the caller'wa's fz'om>out of:.-:town: but

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does,not remember-~his name. -The cal1er><want'ed to.-inform~Conway that it= gas his understanding that-Saporito~was;working at .Palo Verde.'. Levine did;:not say Why-;he believed the'caller was from and did not know his position. CX 3, -pp.1002-1008. Levine

'P'&L told DOL investigators that the caller.did not mention:Saporito's activities. at FP&L and did not attempt to "blacklist" Saporito.

CX 9.

II William Conway was a Senior Nuclear Vice President at FP&L when Saporito was terminated there in 1988. He was aware of Saporito's whistleblowing activities. Tr. 130 and CX 2, p.23.

Conway was interviewed at APSC by DOL Wage and Hour investigators. He provided a statement that, to his knowledge, no one at FP&L had ever tried to blacklist Saporito. CX 8.

Saporito's whistleblowing activities at FP&L were well known by many employees at APSC who knew nothing about the phone call.

A number of APSC employees had worked with Saporito at FP&L and either knew him or knew of him there. CX 2. APSC Supervisor Groeneveld knew Saporito was fired at FP&L and knew his reputation as a trouble maker. CX 2, p.5. Grceneveld hai conversations with ten to fifteen APSC workers about Saporito.

Rex Smith had worked with Saporito at FP&L and knew twenty other technicians at APSC who knew Saporito. CX 2, p.6.

Saporito has been interviewed on public television, radio and the print media numerous times about his whistleblowing activities. CX 2, p.37. Complainant exhibit 1 is a collection of over 80 newspaper articles about Saporito. He has written letters to the Presidents of the United States and Russia complaining about the Turkey Point FP&L operation and the U. S. Nuclear Regulatory Commission. While at Turkey Point, he filed some 50 labor grievances. CX 2, p.37.

The only testimony at this hearing was provided by Saporito and Jerome Goldberg, who has been President of the Nuclear Division at FP&L since September, 1989. Tr. 30. The Nuclear

Division,has 2,500 employees.'. Tr,- 83. Goldberg's and Saporito's names sometimes appeared together in the media at the time Saporito was raising concerns at FP&L. Tr. 45.

c-:;Goldberg knew Conway. before the latter came to work for

'ZPEL-; but~*his familiarity was purely business and contacts kfetween lthe two .were. limited to industry meetings. Tr. 43.

During =the"time %aporito was employed by APSC, Goldberg never discussed. or'Mentioned Saporito to Conway. Actually, he'did not recall Saporito's name ever being mentioned between them.

Tr.'6. He has no knowledge of any FP&L official ever contacting APSC and mentioning Saporito's name.

Saporito- testified that during his career in the nuclear industry,:~he has identified concerns to -the Nuclear Regulatory Commission about FP&L, APSC and other nuclear plants in the Unites States. Tr. 98. He bel'eved that it was well known by Palo Verde employees that he had been fired at Turkey Point.

Tr. 123. As a result, he was isolated by his coworkers. They would not sit with him at lunch and asked not to be assigned to work with him. One employee told Saporito that he had seen him on the CNN Network News. During a confrontation, another APSC employee, Bill McCullough pushed Saporito into a security fence.

l'd .

Saporito felt that management at APSC became hostile when he continued to raise safety concerns, but he was not able to link this alleged hostility to any communication from FP&L. Tr. 124.

He admitted that he has no evidence as to the identity of the FP&L caller. Nor does he have any evidence that the caller actually worked for FP&L or what the caller's motive was.

Tr. 129. Although Saporito alleged that FP&L employees such as Russell Holdren called APSC employee friends, Rex Smith and Mike Farrigan, he does not know what the intent of the calls was.

Tr. 136. Saporito did not identify any FP&L manager or supervisor who called anyone at APSC about him.

Frank Warriner was the APSC Unit I Instrument and Control Technician Supervisor who rejected Saporito's resume and application for contract employment for the Unit I outage at APSC. CX 2, p.41. Although there was no direct evidence in Saporito v. Arizona Public Service Company as to Warriner's knowledge of Saporito, Judge Lesniak found that prior to his determinations not to select Saporito, the opportunity existed for Warriner to have received information that Saporito had on engaged in protected activity. CX 2, p.67. After the trial, August 10, 1993, Conway wrote a letter to Nuclear Regulatory Commission Chief Bobby H. Faulkenberry stating that on August 8, 1993, Warriner admitted to APSC legal counsel that his testimony regarding his knowledge of Saporito's past activities and the reasons he gave for not selecting Saporito were not truthful. He had learned of Saporito's protected activity from the Unit II

supervisor. However,, Warginer jndicat~d,that his misconduct was his sole decision and that. no",one pt APSC- influenced him not to select Saporito,> C$ i

,.7.

Although Waxriner:!s disqriminatory. conduct,was the -basis for Judge Lesniak's-decision,.-.;i4 Xs-not-.evi4ence Chat. anyone at FP&L had anything to,do~ vith Saporito!s termination at.APSC. Other than the very limited information provided by Levine's testimony in the Saporito hearing, nothing submitted from that record or anything,,i;n:.,this one provides;.any. information;;-in addition to Conway, .the purpose.of, which for APSC.

!

~

Levine!s-.~reppllectien that he.geceived ~phone ca@ .intended for

to~pdvxse Chat Saporito worked I 1v' I

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..Because neither Levine's prior-testimony nor anything in this record identifies the caller, I cannot find that the caller was in fact..an.~FP&L employee or representative. Consequently, I do not find that the caller was an FP&L supervisor, manager, or agent. .Horeoyer-. there -is no,evidence of the caller's motive, except to alert;Conway. that 9PSC had an employee named Saporito.

r ~p CONCLUSIONS OP LAW This case was brought under the Employee Protection Provision of 42 U.S.C. 55851. The statute provides:

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) ..

(1) commenced, cause to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. $ 2011 et seq.], or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended; (2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any

, other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. $ 2011 et seq.].

To sustain a discrimination claim under the Nhistleblower Protection Provision of the Energy Reorganization Act, the Complainant must prove, by a preponderance of the evidence, that:

(1) the party charged with discrimination is an employer subject to the Act; (2) the complainant was an employee under the Act; (3) the complaining employee was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions, or privileges of employment;'4) the employee engaged in protected activity; (5) the employer knew or had knowledge that the employee engaged in protected activity; and (6) the retaliation against the employee was motivated, at least in part, by the employee's engaging in protected activity.

Once the complainant establishes a prima facie case, the burden of proof. shifts to the respondent to'prove affirmatively that the same decision would have been made even if the employee had not engaged in protected activity.

As mentioned above, Respondent stipulated that it is an employer within the meaning of the Act, and that Saporito was an FP6L employee from March of 1982 until December 22, 1988. Even though Saporito would continue to meet the definition of DeFord v. Secretary of Iahor, 700 F.2d 281, 286 (6th Cir.

1983); Mackoviak v. University Nuclear Systems, Inc., 735 F.2d 1'59, 1162 (9th Cir. 1984); Iedford v. Baltimore Gas 6 Electric Co., 83 ERA 9, slip op. ALJ at 9 (Nov. 29, 1983), adopted by SOL.

Ashcraft v. University of Cincinnati, 83 ERA 7, slip op. of SOL at 12-13 (Nov. 1, 1984); Mackoviak v. University Nuclear Systems, Inc., 735 F. 2d 1159, 1164 (9th Cir. 1984); Consolidated Edison of N.Y., Inc. v. Donovan, 673 F:2d 61, 62 (2nd Cir. 1982) .

<<

<<l 4 <<<<<<

I 1 0<turkey Point end Palos Verde'i-'r. 48.

FP&L was aware, through its managers and previous 1itigation',

."that Saporito engaged iz protected activity'.

In order to complete the requirements for 'a prima facie case, Saporito must show, in addition Co the above elements, that he was somehow the victim of discrimination or "retaliation,'".as he

=alleged in this case.'- In-the leading case'f Howard v.'"Tenn'essee

, Valley Authority, 90-ERA-24" (Sec'y, July 3, 1991), aff'd sub a nom., Hovard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992), the Secretary cited Black's Law Dictionary 154 (5th ed. 1979) for the following definition of "blacklist:"

I ~ Blacklist. A list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate; as where a trades-union "blacklists" workman who refuse to conform to its rules, or where a list of insolvent or untrustworthy persons is published by a commercial agency or mercantile association.

It is not necessary in this case to determine whether or not a call in which a complainant's name is mentioned, single telephone without more, would fall within the above definition. Nor is necessary to speculate as to the motive of the caller or whether it or not it could have been a form of retaliation. The Complainant here has not been able to identify the caller or connect him or her to the Respondent. Levine's recollection that the caller was someone from FP&L is not sufficient identification to charge a 3Greenwald v. The City of North Miami Beach, 78-SDW-1 (Sec'y, Apr. 3, 1978), aff'd, Greenwald v. North Miami Beach, 587 F.2d 779 (5th Cir. 1979) cert. denied, 44 U.S. 826 (1979).

4Although the decisions of the administrative law judges are not final, the findings contained therein have been submitted by the parties as evidence and were admitted without objection. See CX 2, RX 1.

4 company with misconduct. ':The'elephone call could have been made by any one of the plant's 2,500 employees or even a non-employee who may have known or knew of Saporito. For this reason, conclude that a prima facie case, against Complainant was not proven. C' ~ ~

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lerv I- "1':LO

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> q <<ri r!; >nwer " '.~.ght i RECOMMENDED ORDER Consistent with the foregoing, the complaint of Thomas J. Saporito, Jr. be dismissed.

it is hereby recommended that E. Earl homas District Chief Judge EET/pc Ft. Lauderdale, FL I ~

f a SERVICE SHEET Case Name: Thomas J. Saporito, Jr., ~

Case No.: =

93-ERA>>0023 Title of--Document RECOMMENDED~DECISIOgy AND PRDER, A

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copy

~t>> 4 Administrator *-

Employment 'St'andards Administration

'Wage,and Hour Division

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• of -'the above-entitled . d ocument was 'sent,. to the,i'ollowing:

Director.; .Of fice -of...

.Enforcement-U.S. Nuclear Regulatory

'ommission "~,.

(

'w U.S. Department of Labor-  : 4fashin+on,,DC 29555.

oom S 350'2 I FPB

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iC . I'f spit 'ka

$ 00 Constitution Avenue,'.W.~ Deputy Assistant, General Washington, -DC 2023;0 'Counsel Cor Enforcement

• -'Office- of the General Counsel;,".

Jorge J. Rivero V.S." Nuclear Regulatory

.District Director Commission U.S.-Department of Labor, ESA Washihgtom, DC 20555 Wage and Hour Division S

1150 S.W. 1st Street, Room 202 Regional 'Solicitor Miami, FL 33130 U.S. Department of Labor Room 339 Deputy Associate Solicitor 1371 Peachtree Street, NE Division of Fair Labor Atlanta, GA 30367 Standards Office of the Solicitor Donald R. McCoy, Esq.

U.S. Department of Labor Associate Regional Solicitor Room N-2716 U.S. Department of Labor 200 Constit;ution Avenue, N.W. 299 E. Broward Blvd., Rm 408 Washington, DC 20210 Ft. Lauderdale, FL 33301 Office of Enforcement'. James S. Bramnick, Esq..

& Compliance Monitoring Paul C. Heidmann, Esq.

Environmental Protection Muller, Mintz, Kornreich, Agency Caldwell, Casey, Crosland 401 M Street, S.W. & Bramnick, P.A.

Washington, DC 20460 200 S. Biscayne Blvd.

Suite 3600 Director Miami, FL 33131-2338 Enforcement and Investigation Coordination Staff, Region U.S. Nuclear Regulatory II Thomas J. Saporito, P.O. Box 3082 Jr.

Commission Boynton Beach, FL 33424-3082 101 Marietta Street, N.W.

Suite 2900 David K. Colapinto, Esq.

Atlanta, GA 30323 Kohn, Kohn, & Colapinto 517 Florida Ave., N.W.

Washington, DC 20001

13 SERVICE SHEET CONTINUED (93-ERA-0023):

m Jerome H. Goldberg, President Nuclear Energy Division of Florida Pover 6 Light Company 700 Universe Blvd.

Juno Beach, FL 33408 Paula C. Cuba Legal Technician

t