[Federal Register Volume 62, Number 177 (Friday, September 12, 1997)]
[Notices]
[Pages 48116-48120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24220]


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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,

[[Page 48117]]

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.<SUP>1</SUP> 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.
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    \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.
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    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.<SUP>2</SUP> In

[[Page 48118]]

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.
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    \2\ This 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 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.
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    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.<SUP>3</SUP> 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.
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    \3\ As of this date, the ALJ has not issued a new Recommended 
Decision.
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    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 safety-conscious work 
environment at FPL's nuclear facilities. The results of the last two 
inspections, conducted in April-May 1996 and June 1997,<SUP>4</SUP> 
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.
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    \4\ NRC 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.
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    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.<SUP>5</SUP> With regard to

[[Page 48119]]

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 Diaz-Robainas 
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.<SUP>6</SUP> 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 Diaz-
Robainas. 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,<SUP>7</SUP> 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.
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    \5\ The 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 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.
    \7\ As noted in footnote 5, the NRC issued a Notice of Violation 
and Proposed Civil Penalty of $100,000 to FPL for this violation.
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    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.<SUP>8</SUP> 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.
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    \8\ The 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.
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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.

[[Page 48120]]

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.<SUP>9</SUP> 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.
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    \9\ Mr. 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.
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    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]
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