ML100630413

G20090107/EDATS: OEDO-2009-0091 - 2.206 Proposed Director'S Decision Re Request for Enforcement Action and Confirmatory Order Under 10 CFR 2.206 Against Florida Power and Light Company

ML100630413
Person / Time
Site:	Turkey Point
Issue date:	04/28/2010
From:	Giitter J Division of Operating Reactor Licensing
To:	Saporito T - No Known Affiliation
paige, Jason, NRR/DORL,301-415-5888
References
2.206, G20090107, OEDO-2009-0091, TAC ME3021
Download: ML100630413 (18)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 April 28, 2010 Mr. Thomas Saporito Post Office Box 8413 Jupiter, FL 33468-8413

Dear Mr. Saporito,

The U.S. Nuclear Regulatory Commission (NRC) staff has reviewed (1) your petition dated January 11, 2009, as amended on July 10, 2009, and (2) your petition dated January 5, 2010.

I have enclosed the NRC staff's proposed director's decision under Title 10, of the Code of Federal Regulations, Section 2.206, "Requests for Action Under this Subpart."

I request that you provide comments to me on any portions of the decision that you believe involve errors or on any issues in the petition that you believe have not been fully addressed.

The staff is making a similar request of the licensee. The staff will then review comments provided by you and the licensee and consider them in the final version of the director's decision with no further opportunity to comment.

Please provide your comments within 30 days of the date of this letter.

Sincerely, Joseph G. Giitter, Director givision of Operating Reactor Licensing Office of Nuclear Reactor Regulation Docket Nos. 50-250 and 50-251

Enclosure:

Proposed Director's Decision cc: Listserv

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 April 28, 2010 Mr. Mano Nazar Executive Vice President and Chief Nuclear Officer Florida Power and Light Company P.O. Box 14000 Juno Beach, Florida 33408-0420

Dear Mr. Nazar:

The U.S. Nuclear Regulatory Commission (NRC) staff has reviewed (1) Mr. Thomas Saporito's petition dated January 11, 2009, as amended on July 10, 2009, and (2) Mr. Saporito's petition dated January 5, 2010. I have enclosed the NRC staff's proposed director's decision under Title 10, of the Code of Federal Regulations, Section 2.206, "Requests for Action Under this SUbpart."

I request that you provide comments to me on any portions of the decision that you believe involve errors or on any issues in the petition that you believe have not been fully addressed.

The staff is making a similar request of the Petitioner. The staff will then review comments provided by you and the Petitioner and consider them in the final version of the director's decision with no further opportunity to comment.

Please provide your comments within 30 days of the date of this letter.

Sincerely,

~

~:AJAf:*

J seph G. Giitte~t:r"'-

ivision of Operator Reactor Licensing Office of Nuclear Reactor Regulation Docket Nos. 50-250 and 50-251

Enclosure:

Proposed Director's Decision cc: Listserv

DD-10-XX UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Eric J. Leeds, Director In the Matter of ) Docket Nos. 50-250 and 50-251

)

FLORIDA POWER & LIGHT ) License Nos. DPR-31 and DPR-41

)

)

Turkey Point Plant, Units 3 and 4 )

PROPOSED DIRECTOR'S DECISION UNDER 10 CFR 2.206 I. Introduction By letter dated January 11, 2009, and amended on July 10, 2009, Mr. Thomas Saporito filed a petition pursuant to Section 2.206 of Title 10 of the Code of Federal Regulations (10 CFR 2.206), to the Executive Director for Operations of the U.S. Nuclear Regulatory Commission (NRC). This petition concerned Turkey Point nuclear power plant, Units 3 and 4.

The Petitioner also filed a separate petition pursuant to 10 CFR 2.206 to NRC Chairman Gregory B. Jaczko on January 5, 2010. The NRC has combined this second petition with the original petition and amendment. The Petitioner requested that the NRC take enforcement action.

Action Requested In the original petition, the Petitioner states that Florida Power & Light Company (FPL, the licensee), the licensed operator for the Turkey Point facilities, has over the last 20 years ENCLOSURE

-2 continually engaged in retaliatory actions against its own employees who have raised safety concerns at Turkey Point. The Petitioner requests that the NRC take the following actions:

(1) Issue a "Notice of Violation and Imposition of Civil Penalty" in the amount of $1 ,000,000.

(2) Issue a confirmatory order modifying FPL License Nos. DPR-31 and DPR-41 as follows:

(a) Effective February 1, 2009, FPL will integrate into its overall program for enhancing the work environment and safety culture at Turkey Point a "Cultural Assessment" conducted by an independent contractor. The Cultural Assessment shall include both a written survey of employees, including supervision and management, and baseline contractors, and confidential interviews of selected individuals. The first assessment shall be completed no later than the second quarter of 2009 and will be performed at least three more times at intervals of 18 to 24 months. In addition, annual surveys will be conducted and shall include, but not be limited to, annual surveys through at least the year 2020. Prior to conducting each annual survey, the licensee shall identify to the NRC Regional Administrator the departments and divisions to be surveyed. The licensee shall submit to the NRC for review all Cultural Assessment results, including all intermediate annual surveys. In addition, within 60 days of receipt of any survey results, the licensee shall provide to the NRC Regional Administrator any plans to address issues raised by the survey results.

(b) FPL shall conduct annual ratings of supervisors and managers by employees through a written assessment tool and provide the same to the NRC through the year 2020.

-3 (c) FPL shall conduct a mandatory continuing training program for all supervisors and managers which shall include:

1. Scheduled training on building positive relationships. The training program shall incorporate the objective of reinforcing the importance of maintaining a safety conscious work environment and assisting managers and supervisors in dealing with conflicts in the work place in the context of safely conscious work environment. The training program shall also include a course entitled "Safely Talking to Each Other" which shall explain how to properly deal with safety concerns raised at Turkey Point.

2. Annual training on the requirements of 10 CFR 50.7 and Title 42 of the United States Code Annotated, Section 5851 (42 USCA 5851), through the year 2020, including, but not limited to, what constitutes "protected activity" and what constitutes "discrimination" within the meaning of 10 CFR 50.7 and 42 USCA 5851, and appropriate responses to the raising of safety concerns by employees. Moreover, the training shall stress the freedom of employees in the nuclear industry to raise safety concerns without fear of retaliation by their supervisors or managers.

(d) The licensee shall issue a site-wide publication informing all employees and contractor employees of this Confirmatory Order as well as their rights to raise safety concerns to the NRC and to their management without fear of retaliation.

In addition, by a teleconference dated July 10,2009, the Petitioner amended the original petition asking the NRC to issue a civil penalty to FPL to instead asking the NRC to require FPL to create a monetary fund. This fund would be used to enhance FPL's employee concerns

- 4 program (ECP) by generating cash awards to employees who raise safety concerns; providing wages and benefits to workers who have made retaliation complaints until their complaints have been reviewed; providing training to plant workers on the ECP and discrimination review process; and upgrading the ECP office facilities.

Finally, by letter to Chairman Gregory B. Jaczko dated January 5, 2010, the Petitioner filed a separate petition referencing a January 4,2010, Florida Public Service Commission document. This document alleges wrongdoing by executive management at the very highest levels of FPL over the protests of several employees. Mr. Saporito stated in his petition that he has complained to the NRC for the better part of 20 years about the chilled environment, which discourages employees from voicing safety concerns, that currently exists at Turkey Point and has spread to St. Lucie over the years. The Petitioner requested that the NRC issue a confirmatory order requiring FPL to immediately place the Turkey Point and St. Lucie facilities in cold shutdown until such time as the NRC can make a full assessment of the work environments at those facilities and credibly determine whether employees at those facilities are free, and feel free, to raise nuclear safety concerns to FPL management or directly to the NRC without fear of retaliation for so doing.

The NRC's acknowledgement letter to the Petitioner, dated November 19, 2009 (Agencywide Documents Access and Management System (ADAMS) Accession Number ML091880900), addressed the original petition dated January 11, 2009, and its amendment dated July 10, 2009. In this letter, the NRC accepted for review pursuant to 10 CFR 2.206, concerns regarding the following nine issues raised by the Petitioner:

-5 (1) Management attention to the ECP did not meet expectations; management's awareness of the ECP was superficial, and management had not emphasized program values to employees.

(2) The ECP was of low quality and did not give the impression of being important to management.

(3) There is a perception problem with the ECP in the areas of confidentiality and potential retribution. The perception remains as evidenced by surveys, interviews, and the high percentage of anonymous concerns. Previous surveys and assessments identified this perception, but little or no progress has been made in reversing this perception.

(4) The ECP was most frequently thought to be a mechanism to use in addition to discussing concerns with the NRC and not as the first alternative to the Correction Action Program (CAP).

(5) While meeting most of the program requirements and having a technically qualified individual in the ECP coordinator position, the overall effectiveness of the program was marginal.

(6) The ECP representative has very low visibility or recognition in the plant and has not been integrated into the management team or plant activities.

(7) The large percentage of concerns submitted anonymously hampers feedback to concerned individuals. The written feedback process to identified individuals is impersonal and lacks feedback mechanisms for the ECP coordinator to judge the program's effectiveness.

-6 (8) The ECP process also does not provide assurance that conditions adverse to quality identified in the ECP review process would get entered into CAP, creating potential to miss correction and trending opportunities.

(9) An employee retention bonus agreement used by FPL contains language that violates 10 CFR 50.7(f).

Furthermore, the NRC also consolidated with the January 11, 2009, petition the Petitioner's concern raised in a separate petition dated January 5, 2010, that the chilled environment, which discourages employees from voicing safety concerns, that currently exists at Turkey Point has spread to St. Lucie. The agency took this step for the following two reasons:

(1) The issues are similar.

(2) Mr. Saporito was the principal external stakeholder for both petitions.

Petitioner's Basis for the Requested Actions The Petitioner explained that the licensee completed a self-assessment of the Turkey Point facility and also performed an assessment of the ECP at Turkey Point. The purpose of the assessment was for the licensee to understand and address weaknesses in the ECP. The assessment identified eight weaknesses. The Petitioner believes that there are weaknesses in the ECP due to fear of retaliation when a safety issue is raised to FPL management. The Petitioner concluded that at least three FPL employees allege that they have been retaliated against for having raised safety concerns at one or more of FPL's nuclear power plants in the last 12-month period. The Petitioner noted the following chronology of events:

-7 (1) On July 16, 1996, the NRC issued a Notice of Violation and Proposed Imposition of Civil Penalty for $100,000 to FPL for retaliating against one of its employees for raising safety concerns at Turkey Point.

(2) On June 5, 2003, the NRC issued a Notice of Violation to FPL for retaliating against one of its employees for raising safety concerns at Turkey Point.

(3) On July 6,2007, the NRC issued the NRC Problem Identification and Resolution inspection report that stated that inspectors noted reluctance by several departments to utilize the ECP because licensee employees felt that the program only represented management's interest.

(4) On January 7,2009, the Florida Public Service Commission issued Order No.

PSC-09-0024-FOF-EI which concluded that at least one other FPL contractor employee was aware of the "hole drilling" incident at Turkey Point but failed to report the incident in a timely manner. The Petitioner noted that this issue was not reported by the employee due to fear of retaliation from FPL management.

(5) On January 4, 2010, three concerned employees of NextEra Energy Resources wrote a letter to the Florida Public Service Commission stating that "the culture of cover up and intimidating employees into being quiet still persists here at the FPL Group of companies and retaliation is a real fear."

NRC Petition Review Board's Meeting with the Petitioner On March 19 (ADAMS Accession No. ML090840318), May 7 (ADAMS Accession No. ML092860275), and July 10, 2009 (ADAMS Accession No. ML092860099), the NRC Office of Nuclear Reactor Regulation's Petition Review Board and the Petitioner held conference calls to clarify the basis for the petition.

-8 The NRC staff consider transcripts of these meetings to be supplements to the petition.

These transcripts are also available for inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records are also accessible from ADAMS in the Public Electronic Reading Room on the NRC Web site http://www.nrc.gov/reading rm/adams.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR Reference staff by telephone at 1-800-397-4209, or 301-415-4737, or bye-mail to PDR.Resource@nrc.gov.

By letter dated April 22, 2009 (ADAMS Accession No. ML091100274), the NRC staff requested that FPL provide information related to the petition, more specifically, a copy of a blank retention bonus agreement referenced by Mr. Saporito. This information was needed for the NRC staff to complete its review of item nine, as stated in the November 19, 2009, acknowledgement letter. FPL responded on April 28, 2009 (ADAMS Accession No. ML100640252), and the information provided was considered by the staff in its evaluation of the petition.

II. Discussion Issues 1-8 concern the effectiveness of the Turkey Point ECP and the licensee's response to issues identified through the ECP and CAP. Operating reactor licensees are not required to implement an ECP, but are required by 10 CFR Part 50, Appendix B, Criterion XVI to establish and implement an effective CAP. The NRC performs Problem Identification and Resolution biennial team inspections with annual follow-up of selected issues at licensed facilities. The goal of these inspections is to establish confidence that each licensee is effectively detecting, correcting, and preventing problems that could impact public health and

- 9 safety. As part of the Problem Identification and Resolution inspections, the NRC reviews a sample of employee concerns that were raised through the CAP and ECP as part of its assessment of the licensee's compliance with NRC regulations, regardless of which program the employee uses.

In the latter half of 2008, the licensee conducted a 20 - to 30 - question survey of the safety conscious work environment (SCWE) fleet-wide. More than 400 employees responded at each site. Through these surveys FPL identified weaknesses in its program for identifying and correcting issues raised by employees, which included dissatisfaction with the three primary avenues for raising concerns internally (management, CAP, and ECP). With regard to the ECP, the results showed nuclear plant employees are familiar with the ECP, however approximately 20-25 percent of the survey respondents indicated that they lack confidence the ECP will address their concerns or maintain their confidentiality. A similar percentage of employees also believes that management does not support the ECP.

Based on conversations between the NRC's Region II office and the licensee, FPL has taken a number of appropriate actions to address these ECP issues at both Turkey Point and St. Lucie, including appointment of a new FPL corporate Nuclear Safety Culture Project Lead, relocation of the offices to address accessibility concerns, implementation of monthly meetings with the new Chief Nuclear Officer, and revision of the program procedures to ensure concerns are addressed appropriately and feedback is obtained from stakeholders. Notably, the process was revised to perform three-month follow-up reviews of corrective actions for nuclear safety concerns brought to the ECP to assess the effectiveness.

The NRC held a public meeting on October 20, 2009 (ADAMS Accession No. ML093090274), at the Region II Office in Atlanta, Georgia to discuss FPL's processes for

- 10 addressing employee concerns and planned, fleet-wide corrective actions for addressing FPL-identified weaknesses. The licensee plans to implement 86 corrective actions to address the weaknesses.

As stated in Problem Identification and Resolution inspection reports 05000335/2010006 and 05000389/2010006 for St. Lucie dated April 19, 2010, the NRC concluded that based on discussions and interviews with plant employees from various departments, individuals remained aware of the processes for raising concerns, were not reluctant to raise safety concerns to management or the NRC, had initiated CAP items, and participated in the safety culture surveys. These interviews also revealed that plant workers were knowledgeable of the various available methods for raising nuclear safety concerns. Furthermore, the workers communicated recent improvements in station supervision's support of the workers raising issues. None of the workers indicated that they were aware of any examples of being retaliated against for raising safety concerns.

The Problem Identification and Resolution inspection reports also summarized the corrective actions presented to the NRC on October 20, 2009, and the results of those corrective actions. The NRC concluded that FPL initiated a comprehensive plan to improve its safety culture, starting with a root cause evaluation of safety culture issues identified in corporate surveys. From this evaluation, a number of actions were addressed to improve corporate culture, including formalizing the management of employee concerns, taking actions to focus more attention on industrial safety work orders, and improving management oversight of station backlogs and preventive maintenance change requests. At a higher level, FPL is initiating a review of nuclear safety culture issues by the corporate nuclear review board, benchmarking SCWE at other facilities, and planning for effectiveness reviews. The inspections

- 11 confirmed that FPL scheduled actions had been completed, including the training of senior managers on SCWE and the initiation of routine management reviews on safety culture issues.

The inspectors also met with the newly-appointed station ECP coordinator and the ECP manager. The ECP coordinator indicated activities that would facilitate more awareness and understanding of the ECP including introducing the program with on-site staff and contractor groups at departmental meetings. Furthermore, the ECP office had been recently relocated within the plant protected area and procedures had been developed for uptake of concerns and management of concern resolution. The new process required close-out of the concern with the concerned individual, typically in a face-to-face meeting.

On April 20,2010, a public meeting was conducted at the Region II Office in Atlanta, Georgia to discuss FPL's progress. Currently, the licensee has implemented 71 of the 86 corrective actions and is completing all actions on schedule. The NRC will provide a summary of this public meeting, which will be made publicly available in ADAMS.

Although the licensee has identified weaknesses in the ECP at Turkey Point and S1.

Lucie, the NRC has not identified a substantive issue relating to SCWE or the CAP. Therefore, the NRC does not believe Mr. Saporito's proposed enforcement action is appropriate at this time. The licensee is taking action to improve the effectiveness of the ECP. The NRC's Region II office is scheduled to complete its next Problem Identification and Resolution inspection at Turkey Point in May 2010. The NRC's Region II office will continue to monitor the Turkey Point and S1. Lucie CAPs, including the eight items identified by the Petitioner and the actions the licensee is taking to address the FPL-identified weaknesses in the ECP. The NRC's conclusions will be recorded in the next Problem Identification and Resolution inspection

- 12 reports, which will be made available on the NRC Web site http://www.nrc.gov/reactors/operating/oversight.html.

Regarding item 9, Mr. Saporito raised concerns about an FPL employee retention bonus agreement that contains a clause that states: "The Employee shall not, at any time in the future and in any way, disparage the Company ... or make any statements that may be derogatory or detrimental to the Company's good name or business reputation ..." Mr. Saporito asserts that this clause violates 10 CFR 50.7(f).

The purpose of 10 CFR 50.7(f) is to ensure that licensees do not enter into employment agreements that would prohibit, restrict, or otherwise discourage an employee or former employee from providing the NRC with information of regulatory significance.

"Non-disparagement" clauses similar to the one in FPL's retention bonus agreement are common in employment agreements. As a general matter, employers and their employees are free to formulate agreements in the context of their employment relationship and within the parameters of the lawful right of parties to contract with each other. For this reason, the NRC should not interfere with these agreements unless it finds such a clause violates 10 CFR 50.7(f),

or a clause that does not violate 10 CFR 50.7(f) on its face is applied in a fashion that prevents or retaliates against an employee for engaging in protected activities such as communicating with the NRC.

The NRC has reviewed the FPL employee retention bonus agreement referenced by Mr.

Saporito. The language of the agreement makes no mention of providing information to, or cooperating with, NRC or any other governmental agency. Similarly, it makes no reference to engaging in activity that is protected by NRC enabling statutes. For these reasons, the NRC has determined that the agreement does not violate 10 CFR 50.7(f). However, the agreement

- 13 strays from the guidance the NRC has provided licensees for drafting employment and settlement agreements, available on the NRC Office of Enforcement website at http://www.nrc.qov/about-nrc/req ulatory/enforcemenUexam pies-of-restrictive-terms. pdf, because it does not include specific language making clear that employees can freely engage in protected activities. While not required by 10 CFR 50.7(f), settlement agreements that contain language reinforcing employees' rights to raise safety concerns and communicate with the NRC avoid the possibility of being construed in a way that could violate 10 CFR 50.7(f). The NRC has learned that FPL has discontinued use of the bonus agreement referenced by Mr. Saporito, and that future FPL employment agreements will contain language specifically addressing employees' rights under 10 CFR 50.7 in order to avoid any perception that employees are prohibited, restricted, or discouraged from raising safety concerns.

III. Conclusion The Petitioner raised issues related to weaknesses in the ECP and "chilling effects" that exist at Turkey Point and are spreading to St. Lucie where employees are dissuaded from freely raising nuclear safety concerns to the NRC or within FPL for fear of retaliation by FPL management.

The NRC has performed Problem Identification and Resolution inspections at Turkey Point and St. Lucie nuclear power plants. The inspections concluded that the CAP processes and procedures were effective; thresholds for identifying issues were appropriately low; and problems were properly evaluated and corrected within the CAP. Therefore, the NRC concludes that public health and safety have not been affected by licensee-identified weaknesses in the ECP. The NRC has also reviewed FPL's retention bonus agreement and has concluded that it does not violate 10 CFR 50.7(f).

- 14 Based on the above, the Director of the Office of Nuclear Reactor Regulation has decided to deny the Petitioner's request to issue a Notice of Violation and Imposition of Civil Penalty and the Petitioner's request to issue a confirmatory order modifying FPL License Nos.

DPR-31 and DPR-41. The actions the licensee is taking make enforcement action unnecessary.

In addition, the Petitioner's request to immediately place the Turkey Point and the 81.

Lucie facilities in cold shutdown until such time as the NRC can make a full assessment of the work environments at those facilities and credibly determine whether employees at those facilities are free, and feel free, to raise nuclear safety concerns to FPL management or directly to the NRC without fear of retaliation for so doing, is denied. As explained above, there were no findings of significance and no threat to public health and safety associated with the identified weaknesses of the ECP at Turkey Point or 81. Lucie. Furthermore, the NRC is aware of the actions that the licensee is taking to address the FPL identified weaknesses, and the NRC will assess the effectiveness of these actions during the next Problem Identification and Resolution inspection.

- 15 As provided in 10 CFR 2.206(c), a copy of this director's decision will be filed with the Secretary of the Commission for the Commission to review. As provided for by t~lis regulation, the decision will constitute the final action of the Commission 25 days after the date of the decision unless the Commission, on its own motion, institutes a review of the decision within that time.

Dated at Rockville, Maryland, this day of 2010.

FOR THE NUCLEAR REGULATORY COMMISSION Eric J. Leeds, Director Office of Nuclear Reactor Regulation

Package: ML100630474 Incoming: ML090630564 Letter & Notice' ML100630413 *via email DORLlLPL2 DORLlLPL2 DORULPL2 OFFICE 2/PM 2/LA 2/BC(A) Tech Editor DPR DPR/DD NAME JPaige BClayton DBroaddus CHsu* TMensah* TBlount*

DATE 04/14/10 04/14/10 04/23/10 03/05/10 4/15/10 04/15/10 OFFICE OE Region 2/BC OGC DORLID NRR/D DORUD NAME LJarriel* MSykes* MBarkman JGiitter ELeeds JGiitter DATE 04/26/10 03/10/10 04/26/10 04/26/10 4/26/10 4/28/10