48116 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Notices

the Secretary of the Commission, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001, Attention:

Rulemakings and Adjudications Staff, or

may be delivered to the Commission’s

Public Document Room, the Gelman

Building, 2120 L Street, NW.,

Washington, DC, by the above date. A

copy of the petition should also be sent

to the Office of the General Counsel,

U.S. Nuclear Regulatory Commission,

Washington, DC 20555–0001, and to

John Flynn, Esq., Detroit Edison

Company, 2000 Second Avenue, Detroit,

Michigan, 48226, attorney for the

licensee.

Nontimely filings of petitions for

leave to intervene, amended petitions,

supplemental petitions and/or requests

for hearing will not be entertained

absent a determination by the

Commission, the presiding officer or the

presiding Atomic Safety and Licensing

Board that the petition and/or request

should be granted based upon a

balancing of the factors specified in 10

CFR 2.714(a)(1) (i)–(v) and 2.714(d).

For further details with respect to this

action, see the application for

amendment dated September 5, 1997,

which is available for public inspection

at the Commission’s Public Document

Room, the Gelman Building, 2120 L

Street, NW., Washington, DC, and at the

local public document room, located at

the Monroe County Library System,

3700 South Custer Road, Monroe,

Michigan, 48161.

Dated at Rockville, Maryland, this 9th day

of September 1997.

For the Nuclear Regulatory Commission.

Andrew J. Kugler,

Project Manager, Project Directorate III–1,

Division of Reactor Projects—III/IV, Office of

Nuclear Reactor Regulation.

[FR Doc. 97–24379 Filed 9–11–97; 8:45 am]

BILLING CODE 7590–01–U

NUCLEAR REGULATORY

COMMISSION

[Dockets Nos. 50–250, 50–251, 50–335, and

50–389]

Florida Power & Light Co.; St. Lucie

Plant, Units 1 and 2; Turkey Point

Station, Units 3 and 4; Issuance of

Director’s Decision Under 10 CFR

2.206

Notice is hereby given that the

Director, Office of Nuclear Reactor

Regulation, has taken action with regard

to a Petition dated April 23, 1997, as

supplemented on May 11 and May 17,

1997, filed by Thomas J. Saporito, Jr., on

behalf of himself and the National

Litigation Consultants (Petitioners),

pursuant to Section 2.206 of Title 10 of

the Code of Federal Regulations (10 CFR

2.206). The Petitioners requested that

the U.S. Nuclear Regulatory

Commission (Commission or NRC) take

action with regard to operations at the

Florida Power & Light Company’s (FPL’s

or licensee’s) Turkey Point Station,

Units 3 and 4, and St. Lucie Plant, Units

1 and 2.

The Petitioners requested that the

Commission (1) take enforcement action

to modify, suspend, or revoke FPL’s

operating licenses for these facilities

until FPL can sufficiently demonstrate

that employees at FPL nuclear facilities

are exposed to a work environment that

encourages employees to freely raise

safety concerns directly to the NRC

without being required to first identify

their safety concerns to the licensee; (2)

take escalated enforcement action in

accordance with 10 CFR 2.202 because

of discriminatory practices of the

licensee in violation of NRC regulations

in 10 CFR 50.7 and/or other NRC

regulations and that the enforcement

action be retroactive to the initial

occurrence of the violation by the

licensee; (3) conduct a public hearing

through the Atomic Safety and

Licensing Board and permit Petitioners

leave to intervene to perfect an

evidentiary record in consideration of

whether the licensee has violated NRC

requirements and/or regulations; (4)

require the licensee to post a written

notice alongside each NRC Form 3

currently posted at the licensee’s

nuclear facilities that alerts employees

that they can directly contact the NRC

about nuclear safety concerns without

first identifying the safety concerns to

the licensee; (5) require the licensee to

provide a copy of the posted

communication to all employees and

ensure that all employees are made

aware of those communications through

the licensee’s General Employee

Training Program; and (6) require the

licensee to provide the NRC with

written documents authored by licensee

officers under affirmation that the

requirements described in items (4) and

(5) have been fully complied with.

In the supplement of May 11, 1997,

the Petitioners requested the imposition

of a civil penalty in the amount of

$100,000 against each of three former

FPL managers and that the NRC refer

the matter of the conduct of these

managers to the U.S. Department of

Justice (DOJ) for consideration of

invoking criminal proceedings.

In the supplement of May 17, 1997,

the Petitioners requested imposition of

a civil penalty in the amount of

$100,000 against each of six FPL

employees and restriction of the

licensed activities of these employees

and revocation of their unescorted

access to nuclear facilities; the

imposition of a civil penalty in the

amount of $100,000 against the

International Brotherhood of Electrical

Workers (IBEW) and that the IBEW be

required to inform its members in

writing that they have the right to report

safety concerns directly to the NRC

without fear of retribution and that the

IBEW encourages and supports such

action at the discretion of its members;

and the imposition of a civil penalty in

the amount of $100,000 against two

‘‘agents’’ or ‘‘representatives’’ of the

licensee. The Petitioners also requested

investigations of ‘‘willful falsification’’

of a company business record and the

cause of ‘‘transcripts found missing’’ in

a Department of Labor proceeding, and

the referral of the matter of the conduct

of the individuals and entities to the

DOJ so that it can consider invoking

criminal proceedings. Finally, it was

requested that the NRC conduct an

interview with the Petitioners regarding

the substance of their 10 CFR 2.206

Petition.

The Director of the Office of Nuclear

Reactor Regulation has granted the

Petitioners’ request for an interview in

that, on July 14, 1997, the NRC held a

public meeting with Mr. Saporito to

provide Petitioners with the opportunity

to provide additional information

regarding the substance of their Petition.

The Petitioners’ additional requests

have been denied for reasons that are

explained in the ‘‘Director’s Decision

Pursuant to 10 CFR 2.206’’ (DD–97–20),

the complete text of which follows this

notice and is available for public

inspection at the Commission’s Public

Document Room, the Gelman Building,

2120 L Street, NW., Washington, DC.

A copy of the Decision will be filed

with the Secretary of the Commission

for the Commission’s review in

accordance with 10 CFR 2.206(c) of the

Commission’s regulations. As provided

by this regulation, the Decision will

constitute the final action of the

Commission 25 days after the date of

issuance unless the Commission, on its

own motion, institutes a review of the

Decision within that time.

Dated at Rockville, Maryland, this 8th day

of September 1997.

For the Nuclear Regulatory Commission.

Samuel J. Collins,

Director, Office of Nuclear Reactor

Regulation.

Director’s Decision Under 10 CFR 2.206

I. Introduction

By Petition dated April 23, 1997, (as

supplemented May 11 and May 17,
Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Notices 48117

1 In response to this concern, the staff referred Mr.

Saporito to 10 CFR 50.7 and various NRC policy

statements and other documents that describe the

protection to individuals who raise nuclear safety

concerns to the NRC or to their employers, and

offered to provide Mr. Saporito copies of relevant

documents. The staff provided Mr. Saporito these

documents by letter dated July 28, 1997.

2This proceeding, DOL Case 89–ERA–7 and 89–

ERA–17 (hereafter 89–ERA–7/17), involved two

complaints by Mr. Saporito in which he alleged,

respectively, that he was disciplined and harassed

in retaliation for engaging in protected activity and

that he was discharged for engaging in protected

activity. On June 30, 1989, a DOL ALJ issued a

Recommended Decision and Order Denying

Complaint, which dismissed both cases. Among

other things, the ALJ found that FPL had

legitimately terminated Mr. Saporito for acts of

insubordination, which included Mr. Saporito’s

refusal to reveal safety concerns to the licensee and

his insistence that he raise them to the NRC instead.

In a Decision and Remand Order issued June 3,

1994, the Secretary held that an employee who

refuses to reveal his safety concerns to management

and asserts his right to bypass the ‘‘chain of

command’’ to speak directly with the NRC is

engaging in protected activity and remanded the

case to the ALJ to review the record in light of this

decision and submit a new recommendation to the

Secretary as to whether FPL would have discharged

Mr. Saporito for unprotected aspects of his conduct.

By letter to the Secretary of Labor from then NRC

Chairman Ivan Selin, the NRC expressed concern

about the Secretary’s broad statement, noting that

licensees, not the NRC, are in the best position to

deal effectively with safety concerns. In a

subsequent Order issued February 16, 1995,

denying reconsideration of his June 3 decision, the

Secretary clarified his June 3 decision by stating

that it would not be accurate to interpret the

decision as providing an employee an ‘‘absolute

right’’ to refuse to report safety concerns to the

plant operator. Rather, the Secretary stated that the

right of an employee to protection for bringing

Continued

1997), pursuant to Section 2.206 of Title

10 of the Code of Federal Regulations

(10 CFR 2.206), Thomas J. Saporito, Jr.,

on behalf of himself and the National

Litigation Consultants (Petitioners),

requested that the Nuclear Regulatory

Commission (Commission or NRC) take

action with regard to operations at the

Florida Power & Light Company’s (FPL’s

or licensee’s) Turkey Point Station,

Units 3 and 4, and St. Lucie Plant, Units

1 and 2. Specifically, the Petitioners

requested that the Commission: (1) Take

enforcement action to modify, suspend,

or revoke FPL’s operating licenses for

these facilities until FPL can sufficiently

demonstrate that employees at FPL

nuclear facilities are exposed to a work

environment that encourages employees

to freely raise safety concerns directly to

the NRC without being required to first

identify their safety concerns to the

licensee; (2) take escalated enforcement

action in accordance with 10 CFR 2.202,

because of discriminatory practices of

the licensee in violation of 10 CFR 50.7

and/or other NRC regulations, and that

the enforcement action be retroactive to

the initial occurrence of the violation by

the licensee; (3) conduct a public

hearing through the Atomic Safety and

Licensing Board and permit Petitioners

leave to intervene to perfect an

evidentiary record in consideration of

whether the licensee has violated NRC

requirements and/or regulations; (4)

require the licensee to post a written

notice alongside each NRC Form 3

currently posted at the licensee’s

nuclear facilities that alerts employees

that they can directly contact the NRC

about nuclear safety concerns without

first identifying the safety concerns to

the licensee; (5) require the licensee to

provide a copy of the posted

communication to all employees and

ensure that all employees are made

aware of those communications through

the licensee’s General Employee

Training Program; and (6) require the

licensee to provide the NRC with

written documents authored by licensee

officers under affirmation that the

requirements described in items (4) and

(5) have been fully complied with.

In the supplement of May 11, 1997,

the Petitioners requested the imposition

of a civil penalty in the amount of

$100,000 against each of three former

FPL managers and that the NRC refer

the matter of the conduct of these

managers to the U.S. Department of

Justice (DOJ) for consideration of

invoking criminal proceedings.

In the supplement of May 17, 1997,

the Petitioners requested imposition of

a civil penalty in the amount of

$100,000 against each of six FPL

employees and restriction of the

licensed activities of these employees

and revocation of their unescorted

access to nuclear facilities; the

imposition of a civil penalty in the

amount of $100,000 against the

International Brotherhood of Electrical

Workers (IBEW), and that the IBEW be

required to inform its members in

writing that they have the right to report

safety concerns directly to the NRC

without fear of retribution and that the

IBEW encourages and supports such

action at the discretion of its members;

and the imposition of a civil penalty in

the amount of $100,000 against two

named individuals characterized in the

Petition as licensee agents or

representatives of the licensee. The

Petitioners also requested investigations

of ‘‘willful falsification’’ of a company

business record and the cause of

‘‘transcripts found missing’’ in a

Department of Labor (DOL) proceeding,

and the referral of the matter of the

conduct of the individuals and

‘‘entities’’ to the DOJ so that it can

consider invoking criminal proceedings.

Finally, it was requested that the NRC

conduct an interview with the

Petitioners regarding the substance of

their 10 CFR 2.206 Petition.

By letter dated June 14, 1997, I

informed the Petitioners that, pursuant

to 10 CFR 2.206 of the Commission’s

regulations, the Petition, as

supplemented, had been referred to me

and that action on their requests would

be taken in a reasonable amount of time.

I further informed the Petitioners that

with regard to their request for a

meeting with the NRC staff, they could

call to arrange a suitable day and time

for such a meeting.

On May 27, 1997, FPL responded to

the Petition. In its response, the licensee

maintained that it was strongly

committed to maintaining a work

environment in which employees are

free to raise nuclear safety concerns

directly to the NRC and that the Petition

lacked any factual basis and should be

denied.

In response to the Petitioners’ request

for an ‘‘interview’’ regarding their

Petition, the NRC staff held a public

meeting with Mr. Saporito on July 14,

1997. During the meeting, Mr. Saporito

elaborated upon the bases for the

Petition and stated his concerns about

reporting nuclear safety issues at the St.

Lucie plant should the DOL

Administrative Law Judge (ALJ) order

his reinstatement as an employee of

FPL.1 During the meeting, Mr. Saporito

also raised what he asserted were

certain improprieties which occurred

during the DOL hearing and specifically

requested that the NRC investigate an

additional concern that the licensee or

its attorneys may have ‘‘whited out’’ a

page of a document he had requested

during the DOL proceeding. Mr.

Saporito stated that he was adding this

request to the Petition.

On August 13, 1997, FPL submitted

an additional response to the Petition.

In this response, FPL stated that it was

responding in opposition to the

supplemental petitions filed by the

Petitioners dated May 11 and May 17,

1997, and to assertions made by Mr.

Saporito during the July 14, 1997,

public meeting.

II. Background

As a basis for the requests described

above, the Petitioners asserted in their

Petition of April 23, 1997, that the

NRC’s failure to take enforcement action

against the licensee on the basis of the

Secretary of Labor’s finding that FPL

violated the Energy Reorganization Act

(ERA) when it discharged an employee

(i.e., Mr. Saporito) for raising safety

concerns has resulted in a ‘‘chilling

effect’’ at FPL and continued

discrimination against employees by

FPL in violation of 10 CFR 50.7.2 In
48118 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Notices

information directly to the NRC and his duty to

inform management of safety concerns are

independent and do not conflict but that the

employer’s motivation should be reviewed on a

case-by-case basis, pursuant to a ‘‘dual motive’’

analysis, to ensure that the employer would have

taken the same action regardless of whether an

employee insisted on his right to speak first to the

NRC. The Secretary specifically noted that his June

3 Order had not decided the ultimate question

regarding the appropriate outcome of the dual

motive analysis to the facts of this case.

3As of this date, the ALJ has not issued a new

Recommended Decision.

4NRC Inspection Reports 50–250/96–05, 50–251/

96–05, 50–335/96–07, and 50–389/96–07, dated

May 31, 1996, and 50–335/97–08 and 50–389/97–

08, dated July 16, 1997.

5The other eight cases and their disposition are

as follows:

(1) Pillow v. Bechtel, 87–ERA–35: The Secretary

found that discrimination by Bechtel had occurred

and ordered compensation for damages. The NRC

issued Notices of Violation on February 11, 1994 to

FPL and Bechtel, for violations that occurred in

1987 and that were based on both 87–ERA–35 and

87–ERA–44 (EA 93–199 and EA 93–200).

(2) Diaz-Robainas v. FPL, 92–ERA–10: Although

the Secretary of Labor found that discrimination

occurred, he remanded the case to the ALJ for a

determination of the appropriate remedy, so that

the Secretary’s decision was not a final decision by

DOL. The case settled before the ALJ issued his

decision. The NRC issued a Notice of Violation and

Proposed Civil Penalty of $100,000 against FPL for

the violation, which occurred in 1992 (EA 96–051).

The licensee paid the civil penalty on December 3,

1996.

(3) Phipps v. FPL, 95–ERA–53: The DOL Wage

and Hour Assistant Area Director concluded that

addition, in the Petitioners’ supplement

of May 11, 1997, to their Petition, they

asserted that Mr. Saporito’s ‘‘Damages

Brief’’ in the DOL proceeding

mentioned above established that the

licensee and its managers are liable for

creating a hostile work environment at

Turkey Point and have failed to stop

harassment and discrimination against

Mr. Saporito. The Petitioners further

stated that the record in this case

contains evidence showing direct

participation of Mr. Saporito’s ‘‘chain of

command’’ in the retaliatory actions

taken against Mr. Saporito.

In their supplement of May 17, 1997,

to the Petition, the Petitioners asserted

that certain pleadings and transcripts in

this DOL proceeding set out a

chronology of events surrounding

missing record transcripts and the

falsification of a licensee company

business record and establish that

licensee employees and union members

played a role in discriminating against

Mr. Saporito. The Petitioners further

stated that additional evidence exists

that necessitated a meeting between the

NRC and the Petitioners.

III. Discussion

Because of the numerous requests and

interrelated nature of the issues raised

and the bases provided by the

Petitioners, the requests in the Petition

and supplements previously described

have been considered together and are

categorized as follows: (1) NRC should

take escalated enforcement action

against the licensee and certain

individuals employed by the licensee

and refer this matter to the DOJ; (2) NRC

should take escalated enforcement and

other action against the IBEW; (3) NRC

should initiate investigations into

matters regarding the DOL proceeding,

including willful falsification of a

company business record, willful

falsification of the DOL transcript, and

alleged ‘‘whiting out’’ of a page of a

document by the licensee’s attorneys;

and (4) miscellaneous requests.

1. Petitioners’ Request for Enforcement

Action Against the Licensee and Certain

Employees of the Licensee

As previously stated, the Petitioners

request that the NRC take enforcement

action to modify, suspend, or revoke

FPL’s operating licenses until FPL can

sufficiently demonstrate that employees

at FPL’s nuclear facilities are ‘‘exposed

to a work environment’’ that encourages

these employees to freely raise safety

concerns directly to the NRC without

being required to first identify their

safety concerns to the licensee. In

addition, the Petitioners request that the

NRC take escalated enforcement action

against the licensee because of the

licensee’s discriminatory practices in

violation of 10 CFR 50.7 and that this

enforcement action be retroactive to the

initial occurrence of the violation by the

licensee.

As a basis for this request, the

Petitioners assert that the Secretary of

Labor found in 89–ERA–7/17 that FPL

violated the ERA when it discharged

Mr. Saporito but that the NRC failed to

take any enforcement action against the

licensee for this violation, and that as a

direct result of the NRC’s failure to take

such action, a ‘‘chilling effect’’ was

instilled at the licensee’s facilities that

continues to dissuade employees from

raising safety concerns. The Petitioners

cite numerous cases in support of their

assertion that the licensee has continued

to discriminate against employees who

engage in protected activity.

This request is similar to a request

made by Mr. Saporito in an earlier

Petition, which was addressed in a

Director’s Decision issued on May 11,

1995 (DD–95–7, 41 NRC 339). As

previously described herein, and as

explained in DD–95–7, contrary to the

Petitioners’ assertion, the Secretary of

Labor has not yet made a finding on the

merits in 89–ERA–7/17 as to whether

the licensee violated the ERA in

discharging Mr. Saporito. Rather, in an

Order issued on June 3, 1994, the

Secretary directed the ALJ to submit a

new recommendation on whether FPL

would have discharged Mr. Saporito

absent his engaging in protected

activities. Therefore, the Order of June

3, 1994, does not constitute a final

decision by the Secretary of Labor, and

because there is no DOL finding of

discrimination, there is no basis to

justify enforcement action by the NRC at

this time.3 As further explained in that

Director’s Decision, the NRC will

monitor the DOL proceeding and

determine on the basis of further DOL

findings and rulings whether

enforcement action against the licensee

is warranted.

With regard to the Petitioners’

assertion that the NRC’s failure to take

enforcement action has resulted in a

‘‘chilling effect’’ at the licensee’s

facilities, the Petitioners have offered no

evidence to substantiate this claim. Over

the past two years (July 1995—June

1997), 89 allegations from FPL

employees or contractors have been

submitted to the NRC, of which six have

been allegations related to

discrimination. Of these allegations, the

staff was unable to evaluate two

allegations because the alleger would

not reveal his or her identity. With

regard to the remaining allegations, in

two cases, discrimination was not

substantiated. The remaining two

allegations are still being evaluated.

Should these allegations be

substantiated, the NRC will determine at

that time whether enforcement action

against the licensee is warranted.

Nonetheless, even if these allegations

are substantiated, there is presently no

indication that there has been a

‘‘chilling effect’’ at the licensee’s

facilities. The NRC staff has conducted

inspections of FPL’s Nuclear Safety

Speakout Program (Employees Concerns

Program) and has examined the safetyconscious work environment at FPL’s

nuclear facilities. The results of the last

two inspections, conducted in AprilMay 1996 and June 1997,4 indicate that

the Speakout Program has been effective

in handling and resolving individuals’

concerns. The Speakout Program has

been readily accessible, and employees

are familiar with the various avenues

available by which to express their

concerns.

The Petitioners have relied upon 89–

ERA–7/17 and eight additional cases to

demonstrate both widespread

discrimination by FPL against its

employees and a lack of NRC

enforcement action to deal with this

alleged discrimination.5 With regard to
Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Notices 48119

Mr. Phipps’ engaging in protected activities was a

factor in FPL’s decision to prohibit him from

working during plant outages. FPL appealed the

decision, and a hearing was scheduled before a DOL

ALJ. Before the hearing, the parties entered into a

settlement agreement. A final DOL Order, dated

February 21, 1996, dismissed the case with

prejudice on the basis of a voluntary stipulation by

the parties. There was no finding for discrimination

by DOL.

(4) Dysert v. FPL, 92–ERA–26: The DOL Wage and

Hour Area Director determined that there was no

discrimination. The complainant appealed, but then

requested that the case be dismissed prior to a

determination by an ALJ as to whether

discrimination occurred. A final Order affirming the

dismissal of the complaint was issued by the

Secretary on June 28, 1993.

(5) Kleiman v. FPL, 91–ERA–50: The DOL Wage

and Hour Area Director determined that there was

no discrimination. The complainant appealed, but

then requested that the case be dismissed prior to

a determination by an ALJ as to whether

discrimination occurred. A final Order affirming the

dismissal of the complaint was issued by the

Secretary on February 21, 1992.

(6) Young v. FPL, 93–ERA–30: The DOL Wage

and Hour Area Director determined that there was

no discrimination. The complainant appealed, but

then requested that the case be dismissed prior to

a determination by an ALJ as to whether

discrimination occurred. A final Order affirming the

dismissal of the complaint was issued by the

Secretary on July 13, 1995.

(7) Fry v. Atlantic Construction Fabrics, Inc., 96–

STA–7: This case did not involve FPL or any NRC

licensee, did not involve the raising of nuclear

safety concerns or any other matters under NRC

jurisdiction, and did not arise under the Energy

Reorganization Act, but under the Surface

Transportation Act.

(8) Collins v. FPL, 91–ERA–47 (actually Collins v.

FPC): The Secretary of Labor issued an Order on

May 15, 1995, finding that no discrimination

occurred. In addition, the respondent in this case

was actually Florida Power Corporation, not FPL.

6 In addition, the NRC has taken enforcement

action in the Pillow case. See footnote 5.

7As noted in footnote 5, the NRC issued a Notice

of Violation and Proposed Civil Penalty of $100,000

to FPL for this violation.

8The Petitioners assert as a basis for their request

that enforcement action be taken against licensee

employees and union officials that certain

pleadings they have filed in the DOL case, as well

as transcript records, provide evidence of retaliation

by these individuals. It should be noted that the

pleadings and transcripts in a DOL proceeding are

not, by themselves, conclusive that discrimination

occurred.

89–ERA–7/17, as previously stated, no

final determination that discrimination

occurred has yet been made by DOL. A

close examination of the remaining

cases does not support Petitioners’

assertion that the NRC’s ‘‘lax attitude’’

caused a pattern and practice of

discrimination at FPL’s nuclear

facilities. All of the cases cited by the

Petitioners, except for two cases (Pillow

v. Bechtel, 87–ERA–35, and DiazRobainas v. FPL, 92–ERA–10), were

either settled, voluntarily dismissed at

the request of the Complainant, or

otherwise dismissed by DOL before a

final determination was made by the

Secretary of Labor. Two of the cases

relied upon by the Petitioners did not

involve FPL, but other companies (and

one of these cases did not involve

matters under NRC jurisdiction). With

regard to Pillow, the discrimination that

was the subject of this case occurred

before the case involving Mr. Saporito.

Therefore, such discrimination is

neither indicative of FPL’s current

performance nor could have resulted

from the lack of NRC’s enforcement

action in the present case.6 The only

additional cases cited by the Petitioners

in which any finding was made by DOL

that discrimination occurred were

Phipps v. FPL, 95–ERA–53, and DiazRobainas. In Phipps, the DOL Wage and

Hour Assistant Area Director concluded

that Mr. Phipps’ engaging in protected

activities was a factor in FPL’s decision

to prohibit him from working during

plant outages. FPL appealed the

decision; however the case was

dismissed on the basis of a voluntary

stipulation by the parties prior to a

hearing before an ALJ. The NRC Office

of Investigations investigated this case

and did not substantiate that

discrimination had occurred. In the

Diaz-Robainas case, the Secretary of

Labor did determine that discrimination

had occurred. This one example,

however, for which the NRC took

appropriate enforcement action,7 does

not support the Petitioners’ assertion

that the NRC has a ‘‘lax attitude’’ which

has caused a pattern or practice of

discrimination at FPL’s facilities.

For all of these reasons, the

Petitioners have not set forth a sufficient

basis that would warrant the NRC to

take escalated enforcement action

against the licensee at this time.

Therefore, this request by the Petitioners

is denied.

The Petitioners also request that the

NRC impose a civil penalty in the

amount of $100,000 against each of

three former FPL managers; a civil

penalty in the amount of $100,000

against six current FPL employees and

restriction of the licensed activities of

these employees and revocation of their

unescorted access to nuclear facilities;

and a civil penalty in the amount of

$100,000 against two named individuals

characterized in the Petition as licensee

‘‘agents’’ or ‘‘representatives.’’ As a basis

for this request, the Petitioners allege

that these individuals were involved in

the discrimination against Mr. Saporito,

which is the subject of DOL Case 89–

ERA–7/17. Because a final

determination has not been made by

DOL or NRC that discrimination

occurred against Mr. Saporito, the

requested enforcement action against

these individuals is not warranted at

this time.

In addition, the Petitioners request

that the NRC refer the matter of the

conduct of various FPL managers and

other individuals and ‘‘entities’’ (i.e.,

the licensee and the IBEW) to the DOJ

so that it can consider invoking criminal

proceedings against these persons and

entities.8 As discussed in this section,

DOL has not made a final determination

in this case as to whether discrimination

occurred. Therefore, the Petitioners’

request is denied pending a final

decision by DOL as to whether

discrimination occurred in DOL Case

89–ERA–7/17. The NRC will monitor

the DOL proceeding on remand to the

ALJ and determine on the basis of

further DOL findings and rulings in this

case whether a violation of NRC

requirements has occurred, whether

enforcement action against the licensee

or its employees is warranted, and

whether this matter warrants referral to

the DOJ.

2. Petitioners’ Request for Action

Against the IBEW

The Petitioners request that the NRC

impose a civil penalty in the amount of

$100,000 against the IBEW and that the

IBEW be required to inform its members

in writing that they have the right to

report safety concerns directly to the

NRC without fear of retribution and that

the IBEW encourages and supports such

action at the discretion of its members.

The Petitioners request that the NRC

take such action because they allege that

IBEW officials conspired with FPL

management to have Mr. Saporito’s site

access revoked at Turkey Point Station.

The basis for this request was clarified

at the meeting between Mr. Saporito and

the NRC staff on July 14, 1997. During

that meeting, Mr. Saporito stated that

two licensee officials testified during

the DOL hearing that a comment was

made by union officials to licensee

management that Mr. Saporito could

potentially sabotage the plant, and that,

as a result of that comment, his access

to the site was revoked.

The testimony of these licensee

officials is a part of the record that is

currently before the DOL ALJ. As

previously stated, the NRC will monitor

the DOL proceeding on remand to the

ALJ and determine on the basis of

further DOL findings and rulings in this

case whether any violation of NRC

requirements has occurred that would

warrant enforcement action by the NRC.

For this reason, this request by the

Petitioners is denied.
48120 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Notices

9Mr. Saporito elaborated on these alleged

falsifications at the meeting held on July 14, 1997.

Specifically, Mr. Saporito asserted, with regard to

the missing transcript pages, that 20 pages

containing testimony by the licensee’s vice

president were missing from the initial copy of the

transcript that he was provided (although the record

was eventually amended to contain these pages).

With regard to the falsification of a business record,

he asserted that minutes of a meeting held between

him and licensee officials did not accurately reflect

the real reason that his site access was being

revoked; that is, that union officials had told

licensee management officials that he might

sabotage the plant.

3. Petitioners’ Request for Initiation of

NRC Investigations

The Petitioners request that the NRC

investigate the ‘‘willful falsification’’ of

a company business record and the

cause of ‘‘transcripts found missing’’ in

the DOL proceeding.9 During the

meeting held with the NRC on July 14,

1997, Mr. Saporito also raised what he

asserted were certain improprieties

which occurred during the DOL hearing

and specifically requested that the NRC

investigate an additional concern that

the licensee or its attorneys may have

‘‘whited out’’ a page of a document he

had requested during the DOL

proceeding. Mr. Saporito stated that he

was adding this request to his Petition.

This matter relates solely to the

conduct of a DOL proceeding. The NRC

staff has, therefore, referred these issues

to DOL. The Petitioners’ request that the

NRC investigate these matters is denied.

4. Other Petition Issues

The Petitioners request that the NRC

require the licensee to post a written

notice alongside each NRC Form 3

currently posted at the licensee’s

nuclear facilities that alerts employees

that they can directly contact the NRC

about nuclear safety concerns without

first identifying the safety concerns to

the licensee. In addition, the Petitioners

request that the NRC require the

licensee to provide a copy of this posted

communication to all employees and

ensure that all employees are made

aware of those communications through

the licensee’s General Employee

Training Program. Finally, the

Petitioners request that the NRC require

the licensee to provide the Commission

with documents authored by an officer

of the licensee under affirmation

affirming that the licensee has complied

with these requests.

This request is similar to a request

made by Mr. Saporito in a Petition filed

on March 8, 1995, and responded to in

a Director’s Decision issued on May 25,

1995 (DD–95–8, 41 NRC 346 (1995)). In

that Petition, Mr. Saporito requested

that each licensee be required to report

to the Commission under oath or

affirmation that it had completed a

review of its station operating

procedures to determine whether those

procedures included restrictions that

would prevent an employee from

bringing safety concerns directly to the

NRC and that it had communicated to

its employees that they were free to

bring concerns directly to the NRC

without following the normal chain of

command. As explained in that

Director’s Decision, the Secretary of

Labor did not hold in his decision of

June 3, 1994, that employees have an

‘‘absolute right’’ to refuse to inform

licensee management of public health

and safety concerns and to bypass the

licensee’s management in order to bring

safety concerns directly to the NRC.

Although an employee may not be

discriminated against by the employer

for coming directly to the NRC with

safety concerns, an employee may also

be required by the employer to bring

these same concerns to the employee’s

management. Whether an employee

must bring issues to licensee

management is dependent on the facts

of each specific case.

As further explained in DD–95–8, the

NRC requires in 10 CFR 19.11(c) that all

licensees and applicants for a specific

license post NRC Form 3, ‘‘Notice to

Employees,’’ which describes employee

rights and protections. In addition, 10

CFR 50.7 and associated regulations

were amended in 1990 to prohibit

agreements and/or conditions of

employment that would restrict,

prohibit, or otherwise discourage

employees from engaging in protected

activity. Finally, in November 1996, the

NRC issued a brochure, ‘‘Reporting

Safety Concerns to the NRC’’ (NUREG/

BR–0240), which provided information

to nuclear workers on how to report

safety concerns to the NRC, the degree

of protection that was afforded the

worker’s identity, and the NRC process

for handling a worker’s allegations of

discrimination. These measures are

sufficient to (1) alert employees in the

nuclear industry that they may take

their concerns to the NRC and (2) alert

licensees that they shall not take

adverse action against an employee who

exercises the right to take concerns

directly to the NRC.

The NRC staff believes that these

existing requirements for posting and

making other information available to

workers are adequate. The Petitioners

have not provided a sufficient basis for

requiring their suggested additional

measures. Therefore, Petitioners’

requests related to a supplemental

posting are denied.

As previously stated, a public meeting

was held with Mr. Saporito enabling

him to fully present information

regarding the issues raised in the

Petition. In addition, the NRC will

monitor the DOL proceeding referenced

in the Petition to determine whether

there has been a violation of NRC

regulations. In view of these facts, there

is no basis to hold any hearing at this

time. Therefore, the Petitioners’ requests

related to a public hearing are denied.

III. Conclusion

For the reasons discussed above, no

basis exists for taking the enforcement

actions requested in the Petition and its

supplements. Nonetheless, as

previously described, on July 14, 1997,

a public meeting was held between Mr.

Saporito and representatives of the NRC

staff, the purpose of which was to

provide Mr. Saporito with the

opportunity to provide additional

information regarding the substance of

this Petition. Therefore, to the extent

that the Petitioners have requested that

the NRC conduct an interview with the

Petitioners regarding the substance of

their 10 CFR 2.206 Petition, the Petition

has been granted. With regard to all

other aspects of the Petition, the Petition

has been denied.

A copy of this Decision will be filed

with the Secretary of the Commission

for the Commission to review in

accordance with 10 CFR 2.206(c). As

provided by that regulation, the

Decision will constitute the final action

of the Commission 25 days after

issuance, unless the Commission, on its

own motion, institutes a review of the

decision within that time.

Dated at Rockville, Maryland, this 8th day

of September 1997.

For the Nuclear Regulatory Commission.

Samuel J. Collins,

Director, Office of Nuclear Reactor

Regulation.

[FR Doc. 97–24220 Filed 9–11–97; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

Appointments to Performance Review

Boards for Senior Executive Service

AGENCY: U.S. Nuclear Regulatory

Commission.

ACTION: Appointment to Performance

Review Boards for Senior Executive

Service.

SUMMARY: The U.S. Nuclear Regulatory

Commission (NRC) has announced the

following appointments to the NRC

Performance Review Boards. The

appointments were recently published