ML17354A565

Requests That NRC Take EA to Modify,Suspend or Revoke FPL Operating Licenses for All Four Nuclear Reactors Until Licensee Can Sufficiently Demonstrate to NRC & Public That Employees Encouraged to Freely Raise Safety Concerns

ML17354A565
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	04/23/1997
From:	Saporito T SAPORITO, T.J.
To:	Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM)
Shared Package
ML17354A562	List: ML17354A561 ML17354A563 ML17354A565
References
2.206, DD-97-20, NUDOCS 9707070359
Download: ML17354A565 (9)

Text

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National Litigation Consultants Nuckar Hklstltbtowcr Spcclullsr5 42K Wcct ladtaaenra Road, Salte 7455, Je piter, Ftorlda 33458 Voice: {56t) 622 l667 Facclmllc: (56I) 622 i%I or (561) 7646615 latcract E-Matt Rcccircd at TS4574g BELLSOUTHJVET April 23, 1997 Hon. Shirley Jackson, Chairman US. Nuclear Regulatory Commission White Flint Building Washington, D.C. 20555 RE: PETITION UNDER 10 C.F.R. 2.206 REQUEST FOR AGENCY ACTION

Dear Chairman Jackson:

In accordance with U.S. Nuclear Regulatory Commission ("NRC") regulations t found at Title 10 of the Code of Federal Regulations, the undersigned and National Litigation Consultants

("NLC"), (hereinafter "Petitioners" ) submit this request for action by the NRC with respect to its licensee, Florida Power & Light Company ("FPL") operators of the St. Lucie nuclear station Units 1 and 2 and the Turkey Point nuclear station Units 3 and 4 as fully described below:

that the NRC take enforcement action to modify, suspend, or revoke FPL's operating licenses for all four nuclear reactors until such time as the licensee can sufficiently demonstrate to the NRC and the public that employees at the licensee's nuclear facilities are exposed to a work environment which encourages employees to freely raise safety concerns directly to the NRC without being required to first identify their perceived safety concerns to the licensee; that the NRC take gscala~ enforcement action in accordance with 10 C.F.R. 2.202 and/or in accordance with other NRC regulations due to discriminatory'ractices of the licensee in violation of NRC regulations at 10 C.R.F. 50.7 and/or in accordance with other NRC regulations; and that the enforcement action be escalated retroactive from the initial occurrence of the violation by the licensee; This provision is contained in Subpart B, Section 2.206 of the NRC's regulations.

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Hon. Shirley Jackson, Chairman U.S. Nuclear Regulatory Commission Petititon 2.206 (FPL)

Page 2 of 5

3. that the NRC, through its Agency's Atomic Safety and Licensing Board ("ASLB")

conduct a public hearing and permit Petitioners leave to intervene at said hearing to perfect an evidentiaty record in consideration of whether the licensee has violated NRC ';

requirements and/or regulations with respect to the operating licenses the Agency issued to the licensee to aHow operation of its nuclear facilitics; that the NRC require the licensee to post a written notice along side each NRC Form-3 currently posted at the licensee's nuclear facilitics, which alerts cmployccs that they can dilly, contact the NRC about safety concerns without grat having to identify their safety concerns to the licensee; that the NRC require the licensee to provide a copy the aforementioned posted communications to all employees at the licensee's nuclear facilities and to take necessary measures to insure that all employees are made aware of those communications through the licensee's General Employee Training Program;

6. that the NRC require the licensee to provide the Agency with written documents authored by Mr. James Broadhead, or other office of thc licensee under affirmation that the.

Agency's requit'ements as described above in items 4 and 5 have been fully complied with.

On May 14, 1996, thc NRC issued a policy NMnent "to set forth its expectation that licensees and other employers 'subject to NRC authority will establish and maintain safetywonscious environments in which employees feel See to raise safety concerns, both to their management and to the NRC, without fear of retaliation."

61 Fed. Reg. 24336 (May l4. 1996). The policy statement, inter aDa, stresses, among other things. that management should provide leadership in this regard... 61 FcL Reg. at 24340.

The NRC has authority to penalize its licensees. The NRC can take enforcement action pursuant to 10 C.F.R. 50.7 based on discrinunation by an employer even though the Department of Labor ("DOL") has not made a prior detemination that section 210 of the Energy

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Hon. Shirley Jackson, Chairman U.S. Nuclear Regulatory Commission Petititon 2.206 (FPL)

Page 3 of 5 Reorganization Act2 ("ERA") was violated. Notably, the NRC and DOL have complementary, yet independent authorities and responsibilities in protecting employees &pm discrimination and retaliation for raising matters bearing on nuclear safety. Section 210/211 cmpowcrs DOL to grant remedies directly to cmployccs who have suffere discrimination for engaging in protected activities; it does not limit NRC's authority under the Atomic Energy Act to investigate alleged discrirniriation and take action to combat it Qc,

'IR(4222351 5 d. 2 5, 25(27 (D 5: 554(3, dgd(RER.34537( d I 5 I g money penalty, July 10, 1986).

The NRC has a Congressional mandate to investigate licensees general employment practices to detcrminc whether those practices are having a "chilling effect" on would-be whistleblowcrs. That mandate is quite distinct &om that of the DOL:

"Thc PORC's] investigatory powers and those of the [DOL) under

[5851] neither serve the same purpose nor are invoked in the same manner. They are, rather, complementary, not duplicative...

Under [5851] the [DOLj apparently lacks two remedial powers-which the [NRC) possesses-..'. the right to take important action against the amploycr, and the... authority to do so immediately..'. The [DOL] may order only reinstatcmcnt and back pay-not correction of the dangerous practices themselves."

Union Electric, 9 NX.C. at 138; cf. 42 U.S.C. 5851(j)(2)(a DOL finding that a retaliation claim has no merit "shall not be considered by the [NRC] in its determination of whether a substantial safety hazard exits").

1996 U.S. App. LEXIS 202 (2d Cir. 1995).

On June 3, 1994, the Secretary of Labor ("SOL") found Respondent FPL to have violated the ERA when it discharged an employee who engaged the NRC with safety concerns at the Turkey Point nuclear station. The SOL's findings werc further supported in an Order of Fcbruaty 15, 1995. The matter was remanded to the Administrative Law Judge ("ALJ") for further The ERA was amended by the National Energy Policy Act of 1992 and is now coded as section 211.

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Page4of5 consideration and issuance of a new rcconunended decision and order. Sec, Case Nos. 89-ERA-07 and 17 (consolidated).

The parties in that matter filcd post-hearing briefs on April 22, 1997, in support of their respective positions in that matter. Petitioners have enclosed a copy of Complainant's brief as further construction in support of their basis in this petition.

Subsequent to FPL's illegal termination of the employee in Case Nos. 89-ERA-7/17, the NRC failed to take any. cnforccment action against thc licensee with respect to 10 C.F.R. 50.7, and instead has taken thc posture to await a finding by the DOL notwithstanding several requests for Agency action. ScL (July 7, 1989).

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As a direct result of the NRC's impotcncc and failure to timely implement its mandate in protecting licensee employees and the general public, a "chilling effect" was instilled at FPL's nuclear facilities and has continued to dissuade emp)oyees from raising safety concerns.

Moreover, FPL continues to discriminate against its employees in violation of NRC regulations at 10 C.F.R. 50.7. Again, thc liccnscc's continuing pattern and practice of discriminating against 3 3 N' I . h employees who engage in protected activity is a direct result of the NRC's hx attitude in taking C

1993, slip op. at 22, involving an employee of a contractor of FPL at Turkey Point; Robbing~

N . Py-EEE 33, 3 'y. D . I I ly 92-ERA-10, D&RO Jan. 19, 1996; 96-STA-7 (ALJ Oct. 24, 1997);

Cerning95-ERA-53 (Sec'y Fcb. 21, 1996);

92-ERA-26 (Sec'y June 28, 1993); 91-ERA-50 (ALJ Jan. 7, 1992); 93-ERA-30 (Sec'y July 13, 1995); and 91-ERAA7 (ALJ Dcc. 4, 1992).

Thc Petioners and thc public are cntitlcd to have the NRC take enforcement action against FPL to insure that the channels of information from FPL's employees to the NRC remains open and unfettered by discriminatory practices of FPL, In that vein, Petitioners'equest for a public hearing before the NRC's ASLB is wholly warranted as a matter of public pplicy and should bc granted by the NRC.

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Hon. Shirley Jackson, Chairman U.S. Nuclear Regulatory Commission Petititon 2206 (FPL)

Page 5 of5 For all the above stated reasons, Petitioners seek NRC action in this rnatter.

RESPECTFULLY SUBMITTED, this 23rd day ofApril, 1997.

NATIONALLITIGATIONCONSULTANTS Thomas J. Saponto, Jr.

Executive Director cc: w/o attachment Hon. Bill Clinton, President Carolyn Evans, Esq.

United States of America U.S.N,R.C. Region II The White House 101 Marietta St., NW Suite 2900 1600 Pennsylvania Ave., NW Atlanta, OA 30323 Washington, DC 20500

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Louis Reycs, Administrator Oscar De Miranda, SAC U.S.N.R.C. Region II U.S.N.R.C. Region 0 101 Marietta St., NW, Suite 2900 101 Marietta St., NW Suite 2900 Atlanta GA 30323 Atlanta, GA 30323 General Media Distribution List (NLC)

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Gate: Thursday, April 24, 1997 Tims: 9:57:08 AM 6 Pages To: Hon. Shirley Jackson From: Thomas J. Saporito, Jr.

U.S. Nulcear Regulatory Commission National Litigation Consultants Fax: (301) 415-3200 Fax: (561) 622-1241 Voice: Voice: (561) 622-1667 Comments: