[Federal Register Volume 63, Number 207 (Tuesday, October 27, 1998)]
[Notices]
[Pages 57325-57331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28745]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-335, 50-389, 50-250, and 50-251]
Florida Power & Light Co.; St. Lucie Plant, Units 1 and 2; Turkey
Point Plant, 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 February
26, and 27 and March 6, 1998, (as supplemented March 15 and 17, 1998)
and March 29, and 30, and April 4, 1998, filed by Thomas J. Saporito,
Jr., on behalf of himself and the National Litigation Consultants (NLC)
(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's (FPL's or
licensee's) St. Lucie Plant, Units 1 and 2, and Turkey Point Plant,
Units 3 and 4.
The Petitioners requested that the Commission take numerous
actions, including certain immediate actions, with regard to FPL's St.
Lucie and Turkey Point Plants. The Petition requested that the NRC (1)
take escalated enforcement action, including modifying, suspending, or
revoking FPL's operating licenses until it demonstrates that there is a
work environment that encourages employees to raise safety concerns
directly to the NRC, and issuing civil penalties for violations of the
NRC's requirements; (2) permit the Petitioners to intervene in a public
hearing regarding whether FPL has violated the NRC's employee
protection regulations and require FPL to allow NLC to assist FPL's
employees in understanding and exercising their rights under these
regulations; (3) conduct investigations and require FPL to obtain
appraisals and third-party oversight in order to determine whether its
work environment encourages employees to freely raise nuclear safety
concerns; (4) inform all employees of their rights under the Energy
Reorganization Act and NRC's regulations to raise such concerns; and
(5) establish a website on the Internet to allow employees to raise
concerns directly to the NRC. As grounds for these requests, the
Petitioners assert that there is a widespread hostile work environment
at FPL's facilities and that certain employees have been subjected to
discrimination for raising nuclear
[[Page 57326]]
safety concerns, and that the NRC's process for handling allegations
and responding to concerns of discrimination has been ineffective. In
addition, the Petition requested that the NRC immediately investigate
concerns that contamination occurred and remains uncorrected because of
the flow of water from radiologically controlled area at St. Lucie into
an unlined pond, that FPL is improperly grouping work orders in order
to reduce the number of open orders, that an excessive number of
outside contract laborers remains on site, and that because NRC
Resident Inspectors are only assigned to the day shift, many employees
do not have access to the Resident Inspectors and they cannot monitor
safety-related work functions outside the day shift. As grounds for
this request, the Petitioners assert that the storm drains from FPL's
radioactive contaminated area flow into the pond and that FPL is aware
of the problem but has failed to identify or correct this and directs
its Health Physics personnel to survey the pond by sampling only
surface water.
As described in the Director's Decision, the NRC has already
undertaken certain of the actions that the Petitioners have requested.
Specifically, the NRC has conducted numerous inspections evaluating the
circumstances of many of the issues that the Petitioners have raised,
and has reviewed the settlement agreement referred to by the
Petitioners in order to determine whether it contains any restrictive
provisions that may ``chill'' the workforce. Thus, to the extent that
Petitioners have requested that the NRC investigate these issues and
review the settlement agreement, the Director of the Office of Nuclear
Reactor Regulation has granted the Petition. In all ther respects, the
Petition is denied. The reasons for this denial are explained in the
``Director's Decision Pursuant to 10 CFR 2.206'' (DD-98-10), 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
and will be reviewed in accordance with 10 CFR 2.206(c) of the
Commission's regulations. As provided for by this regulation, the
Decision will constitute the final action of the Commission 25 days
after the date of issuance of this Decision unless the Commission, on
its own motion, institutes a review of the Decision within that time.
Dated at Rockville, Maryland, this 21st day of October 1998.
For the Nuclear Regulatory Commission.
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation.
Director's Decision Pursuant to 10 CFR 2.206
I. Introduction
By Petitions dated February 26 and 27, March 6, 1998 (as
supplemented March 15 and 17, 1998), and Petitions dated March 29 and
30, and April 4, 1998, submitted pursuant to Section 2.206 of Title 10
of the Code of Federal Regulations (Petition), Mr. Thomas J. Saporito,
Jr., and the National Litigation Consultants (NLC) (Petitioners)
requested that the U.S. Nuclear Regulatory Commission (NRC or
Commission) take numerous actions with regard to operations at Florida
Power and Light Company's (FPL's or licensee's) St. Lucie and Turkey
Point Plants. Briefly summarized, the Petitioners requested that the
Commission: (1) take escalated enforcement action, including modifying,
suspending, or revoking FPL's operating licenses until FPL demonstrates
that there is a work environment which encourages employees to raise
safety concerns directly to the NRC, and issue civil penalties for
violations of the NRC's requirements; (2) permit Petitioners to
intervene in a public hearing regarding whether FPL has violated the
NRC's employee protection regulations and require FPL to allow NLC to
assist its employees in understanding and exercising their rights under
these regulations; (3) conduct investigations and require FPL to obtain
appraisals and third-party oversight of its performance; (4) require
the licensee to inform all employees of their rights under the Energy
Reorganization Act and NRC's regulations to raise nuclear safety
concerns; and (5) establish a website on the Internet to allow
employees to raise concerns to the NRC.
On May 4, 1998, I acknowledged receipt of the Petition and informed
the Petitioners that the Petition had been assigned to me pursuant to
10 CFR 2.206 of the Commission's regulations. In my acknowledgment
letter, the Petitioners were informed that their request for immediate
action was denied. I also informed the Petitioners that certain of
their requests did not meet the criteria for treatment under 10 CFR
2.206 (in particular, the request that the NRC establish a website for
the raising of nuclear safety concerns and the request to intervene in
a public hearing), and that these requests would be addressed in
separate correspondence.1 The Petitioners were further
advised that their assertions of inadequate NRC action had been
referred to the Office of the Inspector General (OIG), and that action
would be taken on the Petitioners' remaining requests within a
reasonable time.
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\1\ These requests were addressed in correspondence to Mr.
Saporito dated July 15, 1998.
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On August 6, 1998, the licensee filed its response to the Petition.
In its response, the licensee maintained that the Petitioners had not
raised any substantial health or safety issues, and that the Petition
should therefore be denied.
II. Discussion
The Petitioners have raised numerous issues as bases for their
requests for various actions by the NRC. In order to facilitate
consideration of the Petitioners' requests, they have been grouped
together in the following categories: (1) requests related to
assertions of licensee discrimination, ``chilling effect'' on the
raising of nuclear safety concerns, and a hostile work environment; (2)
requests related to assertions of licensee failure to establish or
implement procedures or meet technical specifications; and (3) requests
related to investigation of radioactive contamination and additional
safety concerns. The issues raised by the Petitioners in support of
each of these requests, and the NRC's evaluation of these issues, are
summarized below.
A. Requests Related to Assertions of Licensee Discrimination,
``Chilling Effect'' on the Raising of Nuclear Safety Concerns, and a
Hostile Work Environment
The Petitioners have made numerous and repetitive requests in
connection with their claim that the licensee has discriminated against
employees and that the work environment at both St. Lucie and Turkey
Point discourages the raising of nuclear safety concerns. In their
February 26, 1998, submittal, they request that the NRC: (1) take
escalated enforcement action, including action to modify, suspend or
revoke FPL's operating licenses, until the licensee demonstrates that
there is a work environment which encourages employees to raise safety
concerns directly to the NRC; (2) require the licensee to post and
provide notice to employees and ensure through its training program
that employees are aware that they may raise safety concerns to the
NRC, and provide
[[Page 57327]]
written documentation to the NRC affirming that the licensee has
complied with these requirements; (3) investigate the circumstances
surrounding adverse actions taken against a certain named employee and
other employees to determine if a hostile work environment or
``chilling effect'' exists, if FPL's Employee Concerns Program (ECP) is
effectively utilized, and whether management needs further training in
developing skills to encourage utilization of the ECP; and (4)
establish an Augmented Maintenance Inspection Team to investigate
Petitioners' concerns regarding asserted deterioration of licensee
performance, inadequate work force, and strained resources. As grounds
for these requests, Petitioners assert that as a result of the NRC's
failure to protect employees, a ``chilling effect'' has been instilled,
that FPL has discriminated against employees including one specifically
named employee, and that FPL has engaged in ``punitive suspensions''
which one can infer are intended to prevent the work force from
engaging in protected activity. The Petitioners make similar requests
and assertions in their February 27, 1998, submittal. For example, they
repeat their request that the NRC initiate an Augmented Maintenance
Inspection Team to determine if licensee layoff ``restructuring'' has
resulted in an inadequate work force. In addition, they request that
the NRC initiate actions to investigate recent allegedly discriminatory
actions taken by the licensee against another named employee. As
grounds for these requests, the Petitioners assert that this named
employee and other employees are concerned about retaliation against
them for raising safety concerns, and that FPL has announced intentions
to significantly cut its work force.
With regard to the Petitioners' assertions regarding alleged
discrimination against specifically named individuals, the Petitioners
have not provided sufficient information to indicate that these
individuals suffered any adverse action for having engaged in protected
activity. Therefore, no action by the NRC is warranted based upon these
assertions. With regard to the Petitioners' assertions concerning a
``chilling effect'' at the licensee's facilities, the Petitioners have
offered no evidence to substantiate this claim. The results of the two
most recent NRC inspections of FPL's ECP, conducted in April-May 1996
and June 1997, indicate that FPL's ECP has been effective in handling
and resolving individual concerns. The inspections also determined that
the ECP has been readily accessible, and employees are familiar with
the various available avenues by which they can express their concerns.
The results of these inspections are documented in Inspection Report
Nos. 50-250/96-05, 50-251/96-05, 50-335/96-07, and 50-389/96-07, dated
May 31, 1996, and Inspection Report Nos. 50-335/97-08 and 50-389/97-08,
dated July 16, 1997. Although some weaknesses were noted during the
April-May 1996 inspection, the June 1997 inspection determined that
improvements had been made. In addition, during this inspection, all of
the employees interviewed by the NRC inspectors indicated that they
would be willing to raise perceived safety concerns to licensee
management. In addition, senior NRC regional management has met with
FPL on several occasions to ensure the continued sensitivity to this
matter.
In addition, FPL has taken various actions since the weaknesses in
its program were identified in 1996, to ensure that employees feel free
to raise safety concerns. These actions included conducting specific
training for managers and supervisors in handling safety concerns, the
inclusion of a discussion on the rights and responsibilities of
employees in general employee training; the posting of ECP information
in the plants, and the issuance of various site communications on the
topic of raising safety concerns. Most recently, in April 1998, the
licensee issued a communication to all employees emphasizing their
right to raise safety concerns to their supervisors, to the ECP, or to
the NRC. The licensee included as an attachment to this communication a
copy of the NRC Policy Statement, ``Freedom of Employees in the Nuclear
Industry to Raise Safety Concerns Without Fear of Retaliation.''
With regard to the Petitioners' assertion that the licensee has
engaged in ``punitive suspensions'' to prevent the work force from
engaging in protected activity, although the licensee established a
more stringent disciplinary action program in mid-1997, including
suspensions of employees, this program was established in response to
continued non-compliances. Contrary to the Petitioners' assertion, the
NRC has not found any indication that FPL has engaged in ``punitive
suspensions'' intended to prevent the work force from engaging in
protected activity nor have the Petitioners provided any information in
support of this assertion. The NRC's assessment is based on the staff's
continued involvement in monitoring licensee performance by way of the
Resident Inspector Program and management meetings regarding the
effectiveness of FPL's ECP. Based on the above, there is no basis for
initiation of any of the actions that the Petitioners have requested in
these submittals.
In their March 15 submittal, Petitioners request that the NRC order
FPL to: (1) provide, through its training program, and by written
communication to employees, information about the Energy Reorganization
Act (ERA) and Department of Labor (DOL) process; and (2) permit NLC to
address its employees as to their rights under the ERA, assist them in
resolving complaints of retaliation, and act as a ``conduit'' for
employees providing concerns confidentially to the NRC. As grounds for
these requests, Petitioners have submitted a newspaper article which
they assert documents FPL's employees' fear of raising safety concerns
to the NRC. In this connection, in their March 17 submittal,
Petitioners additionally request that the NRC order FPL to immediately
inform a specifically-named employee in writing that FPL encourages him
to raise safety concerns directly to the NRC and will not retaliate
against him for this conduct. As grounds for this request, the
Petitioners assert that this individual fears retaliation as a result
of the NRC having released his identity to the licensee with respect to
safety concerns that he provided.
As fully explained in Director's Decisions issued on May 11, 1995
(DD-95-7, 41 NRC 339) and September 8, 1997 (DD-97-20, 62 NRC 177) in
response to earlier Petitions filed by Mr. Saporito, the NRC has in
place numerous measures that ensure that employees will be aware of
their right to raise nuclear safety concerns and of their rights under
the ERA. These measures include the requirement in 10 CFR 19.11(c) that
all licensees 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
employees on how to report safety concerns to the NRC, the degree of
protection that was afforded the employee's identity, and the NRC
process for handling an employee's allegations of discrimination. These
measures are
[[Page 57328]]
sufficient to alert employees in the nuclear industry that they may
take their concerns to the NRC, and alert licensees that they shall not
take adverse action against an employee who exercises the right to take
concerns directly to the NRC.
The newspaper article submitted by the Petitioners in support of
their requests 2 claims that, because the NRC inadvertently
released names of some employees who filed confidential reports of
safety concerns about the St. Lucie plant, employees are afraid to
continue to raise concerns to the NRC or FPL. By way of background, in
January, 1998, the NRC was made aware that, in response to two
inquiries under the Freedom of Information Act (FOIA), it had released
numerous documents in December 1997 and January 1998 to a local
newspaper which inadvertently included the names of employees who had
filed allegations with NRC, and information which could be used to
identify certain other allegers. Although, to the NRC's knowledge, the
names of these employees were not released by the newspaper, FPL
obtained some of the documents which provided sufficient information
such that there may have been a possibility that the employees'
identities could have been determined by the licensee.3
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\2\ Neither the source nor date of the article have been
provided.
\3\ In its response to the Petition, dated August 6, 1998, FPL
maintained that it was not aware of the identities of these
employees until the Petitioners themselves identified an alleger by
name in a letter to the President of the United States, dated
February 9, 1998, and provided a copy of the letter to FPL.
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In response to this occurrence, NRC Region II staff performed a
review of previous responses to FOIA requests, to determine if there
had been additional instances in which information may have been
inappropriately released to the public. As a result of this review, it
was determined that in response to two additional FOIA requests
involving the St. Lucie facility, names of allegers and certain
information which could be used to identify allegers had been
inadvertently released.
The NRC took numerous actions in response to these events. For
example, on February 27, 1998, the Regional Administrator, Region II,
sent a letter to FPL documenting the inappropriate release of
information and stressing the need for FPL and its managers to
emphasize awareness of the Commission's Employee Protection regulations
and policies so as to maintain an environment where individuals are not
subject to retaliatory discrimination for raising safety
concerns.4 In addition, telephone and written notifications
were made to the allegers affected by the release of information,
apologizing for the inadvertent release of this information.
Furthermore, the NRC initiated extensive corrective actions to ensure
that there would not be a recurrence of such an incident.5
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\4\ By letter dated April 3, 1998, FPL responded to the NRC
Region II Regional Administrator's letter. In its response, FPL
emphasized its agreement with the importance of maintaining a
safety-conscious work environment, and outlined numerous steps that
it has taken to assure that such an environment exists at its
facilities.
\5\ This matter has also been referred to the NRC OIG.
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With regard to the Petitioners' assertions regarding the
specifically named employee's fear of retaliation as a result of the
release of the individual's identity, the NRC Region II staff contacted
this employee orally and in writing soon after the release of this
information was discovered and apologized for the error. The staff
assured the employee that the Regional Administrator had emphasized to
the licensee the need for maintaining an environment where employees
are free from retaliatory discrimination for raising safety concerns.
As contained in this Decision, the licensee has taken numerous
actions to ensure that there is a safety-conscious work environment at
its facilities in which employees are encouraged to raise such
concerns. These actions have included incorporating into its training
program for supervisors instructions regarding the handling of safety
concerns, incorporating into its general training of employees
information regarding the right of employees to raise such concerns
without fear of retaliation, and issuing numerous communications to
employees regarding this subject.
The Petitioners have not provided any specific information
demonstrating that these measures are inadequate to ensure that
employees will continue to raise nuclear safety concerns to the
licensee and the NRC. Therefore, there is no need for the NRC to take
the additional actions that they have requested.
Finally, as described in this Decision, FPL has incorporated into
its training program for supervisors instructions regarding the
handling of safety concerns and into its general training of employees
information regarding the rights of employees to raise such concerns
without fear of retaliation, and has issued numerous communications to
employees regarding this subject. The NRC has carefully evaluated each
of the issues raised by the Petitioners. However, for reasons discussed
previously, the Petitioners have failed to demonstrate that there is
any need for NRC to take the additional actions requested.
In their March 29 submittal, the Petitioners repeat their request
for an NRC investigation of whether ``a violation of NRC requirements
occurred'' with regard to the individuals already named in their
earlier submittals, as well as ``seven instrument control specialists''
and Mr. Saporito. In addition, Petitioners request that the NRC
determine whether FPL's settlement of a complaint filed with DOL
pursuant to Section 211 contains a confidentiality provision that may
``chill'' the licensee's workforce and determine what actions by the
NRC provided any measure of protection to employees against retaliation
for raising safety concerns. The Petitioners' grounds for these
requests can be summarized as follows: (1) there appears to be a
hostile work environment at St. Lucie, (2) the confidentiality
provision prevents employees from gaining sufficient knowledge about
the settlement agreement to determine if they may be afforded a ``make-
whole'' remedy if they elect to exercise their rights under Section
211, and the ``secret nature of sealed settlement agreements undermines
the effectiveness'' of that statute, and (3) the NRC has failed to take
enforcement action based upon decisions of DOL Administrative Law
Judges in a case involving Mr. Saporito at Turkey Point which was
litigated before DOL, and in cases involving other employees and other
licensees.
With regard to their assertion that a violation of NRC requirements
may have occurred involving ``seven instrument control specialists,''
as the Petitioners have provided no further information regarding these
individuals or the alleged violation that may have occurred, further
action on this matter is not warranted. With regard to Petitioners'
assertion that there may have been a violation involving Mr. Saporito
and that the NRC failed to take enforcement action for this violation
based upon a decision by a DOL Administrative Law Judge (ALJ), this
matter was fully addressed in earlier Director's Decisions responding
to Petitions filed by Mr. Saporito (DD-95-7 and DD-97-20). In DD-97-20,
which was issued on September 8, 1997, I explained that there had been
no final determination by the Secretary of Labor in Mr. Saporito's DOL
case (89-ERA-7/17) that discrimination had occurred. Rather, the
Secretary of Labor had remanded the case to the ALJ to submit
[[Page 57329]]
a new recommendation on whether FPL would have discharged Mr. Saporito
absent his engaging in protected activities. I also stated in that
Decision that NRC would monitor the DOL proceeding and determine on the
basis of further DOL findings and rulings whether enforcement action
against the licensee was warranted. In that connection, on October 15,
1997, the ALJ issued a Recommended Decision and Order on Remand finding
that FPL had proven that Mr. Saporito's unprotected conduct would have
led to his termination absent his protected activity. In a Final
Decision and Order issued on August 11, 1998, the Administrative Review
Board 6 issued a final decision affirming the ALJ's
Recommended Decision and dismissing Mr. Saporito's complaint. Based
upon this final determination by DOL, the NRC has determined that
enforcement action against FPL is not warranted in this matter.
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\6\ The Administrative Review Board (ARB) now reviews decisions
of ALJs on behalf of the Secretary of Labor. 63 FR 6614 (February
9,1998).
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As noted above, Petitioners also assert that the NRC should take
the action they have requested because the NRC has failed to take
enforcement action based upon decisions of DOL ALJs in cases involving
other licensees. The Petitioners have not offered any explanation as to
why their assertions regarding the NRC's alleged failure to take
enforcement action against other licensees should have any bearing upon
the disposition of Petitioners' requests regarding this licensee.
Nonetheless, Petitioners' assertions of NRC's failure to take
appropriate enforcement action have been referred to the OIG.
The Petitioners also assert that a confidentiality provision in a
particular settlement agreement may ``chill'' the work force, and that
such provisions in general undermine the effectiveness of Section 211
because employees are unable to ascertain whether they can obtain a
sufficient remedy for raising safety concerns. Although Section 211
does not address this matter, settlement agreements may not contain any
provision which would prohibit, restrict, or otherwise discourage an
employee from participating in protected activity. See, e.g., 10 CFR
50.7(f). The NRC has reviewed the settlement agreement referred to by
the Petitioners and determined that it does not contain any restrictive
provisions which would violate the Commission's regulations in this
regard. In addition, contrary to the Petitioners' assertion that
employees are unable to determine the content of settlement agreements,
DOL has made clear that such agreements may be obtained under the
Freedom of Information Act, 5 U.S.C. 552 (1988) (FOIA). See Coffman v.
Alyeska Pipeline Services Co. and Arctic Slope Inspection Services, ARB
Case No. 96-141, Final Order Approving Settlement and Dismissing
Complaint, June 24, 1996, slip op. at 2-3. Therefore, Petitioners'
assertion that settlement agreements such as the one at issue are
``secretive'' is without merit. Nonetheless, the Commission emphasizes
that all employees have a right to raise nuclear safety concerns to
their management and/or the NRC and that such employees may not be
retaliated against for doing so.
In their March 30 submittal, Petitioners requested the NRC to
immediately issue an order requiring FPL to conduct an independent
third-party oversight of FPL's nuclear energy department's resolution
of employees' safety concerns. As grounds for this request, Petitioners
assert that the licensee does not maintain a comprehensive plan for
handling safety concerns raised by employees and for assuring a
discrimination-free environment, that FPL has not tolerated dissenting
views or been effective in reviewing and addressing safety issues, and
that the NRC's process for handling allegations at FPL appears
inadequate.
The Petitioners' assertions are without merit. As previously
described, the NRC has determined that FPL's ECP has been effective in
handling and resolving employees' concerns. The assertion that the
NRC's process for handling allegations at FPL appears inadequate has
been referred to the OIG.
In sum, for all of the reasons discussed above, the Petitioners
have not provided support for their assertions that FPL has
discriminated against particular employees for raising nuclear safety
concerns, that there has been a ``chilling effect'' upon the raising of
such concerns, or that there is a hostile work environment at the
licensees's facilities that would provide a basis for the NRC to take
the actions which they have requested. Therefore, no further action by
the NRC is warranted based upon these assertions.
B. Requests Related to Assertions of Licensee Failure To Establish or
Implement Procedures or Meet Technical Specifications
In their March 6 submittal, the Petitioners request that: (1) the
NRC order FPL to submit a plan within 30 days for an independent
written appraisal of St. Lucie site and corporate organizations and
activities to develop recommendations for improvement in management
controls and oversight and assure compliance with required procedures;
(2) the licensee implement an oversight program to monitor safety
pending completion of NRC review of the appraisal results; (3) the
licensee implement and complete the recommendations within six months
of NRC approval; and (4) the NRC issue a Notice of Violation and
Proposed Imposition of Civil Penalty in the amount of $500,000 for
repetitive violations at St. Lucie. As grounds for these requests,
Petitioners assert that the licensee has failed to establish or
implement procedures at St. Lucie to assure configuration control over
safety related systems; has repeatedly failed to meet Technical
Specifications which has resulted in repetitive NRC enforcement
actions; and has been ineffective in assuring lasting improvements as a
result of leadership deficiencies. In further support of their
requests, Petitioners have included, as attachments to their submittal,
newspaper articles documenting similar concerns.
Petitioners are correct that during the 1995-1996 time frame, the
NRC identified certain violations involving configuration control for
which escalated enforcement action was taken, that certain violations
have also been identified since 1996 associated with equipment
clearance problems, and that there have been instances in which certain
technical specification requirements were not met. However, the
licensee has initiated extensive corrective actions in regard to
violations of technical specifications and the NRC has concluded that
these corrective actions are acceptable. In addition, overall
configuration control of safety-related equipment has been adequately
implemented, and the licensee's performance in connection with
configuration control of safety-related equipment has improved. For
example, the SALP report issued in August 1998 for the St. Lucie Plant
specifically noted marked improvement in the identification of
equipment deficiencies. For the SALP period of January 1996 to March
1997, the St. Lucie Plant received scores of ``Good'' for the
categories of Operations, Maintenance, Engineering and Plant Support,
and ``Superior'' for Engineering and Maintenance for the period of
April 1997 to June 1998.
Furthermore, the newspaper articles provided by the Petitioners do
not include any information not already known to the NRC. The
information 7
[[Page 57330]]
was previously considered by the NRC. In fact, much of the information
was taken from NRC inspection reports and other NRC documents. For
these reasons, the Petitioners have not provided a sufficient basis for
the NRC to take the actions that they have requested in this submittal.
Nonetheless, NRC inspectors continue to monitor the licensee's
performance in areas such as equipment clearances.
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\7\ A number of the articles are based upon a Florida Public
Service Commission report on the decline in FPL's distribution
system (i.e. customer service) and provide no information that would
indicate this decline had any impact upon the safety performance of
the licensee's facilities.
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C. Request for Investigation of Radioactive Contamination and
Additional Safety Concerns
In their April 4, 1998, submittal, Petitioners request that the NRC
immediately investigate certain additional safety concerns. Briefly
summarized, these concerns are that: (1) A violation occurred and
remains uncorrected involving the flow of water from an area
contaminated with radioactivity at the St. Lucie facility into an
unlined pond and that the licensee directs personnel to sample only the
surface water and not to survey or sample sediment from the pond; (2)
the licensee is ``discriminating'' by not allowing certain employees to
be interviewed by evaluators of the Institute of Nuclear Power
Operations (INPO) on site conducting investigations; (3) the licensee's
``Work It Now'' (WIN) team is improperly grouping work orders in order
to reduce the number of open orders; (4) an excessive amount of outside
contract labor remains on site due to under staffing resulting from
restructuring; and (5) NRC Resident Inspectors (RIs) are only assigned
to work the day shift, so that many employees do not have access to the
NRC on site, and the three inspectors on site are insufficient to
monitor many safety-related work functions outside the day shift.
Regarding the Petitioners' assertions of radioactive contamination
from the flow of water from storm drains, this matter was initially
evaluated during an inspection conducted April 26-29, 1977 (Inspection
Report No. 50-335/77-6).8 The inspection determined that, as
a result of an overflow of the refueling water tank on April 6, 1977,
water contaminated with radioactivity was released from the
radiologically-controlled area to a storm water basin within the site
boundary. The layout of the storm water basin was such that, under
routine operating conditions, liquids collected in the system could not
drain from the site and, after evaluating alternative means of removal,
the licensee elected to pump the water from the storm basin to the
discharge canal. However, there was no indication that the release of
the water to the discharge canal resulted in any violations of the
licensee technical specifications or that the limits established in 10
CFR Part 20 had been exceeded.
---------------------------------------------------------------------------
\8\ NRC's May 4, 1998 acknowledgment letter to the Petitioners
incorrectly referenced NRC Inspection Report 50-335/93-17 as
addressing this issue.
---------------------------------------------------------------------------
During an inspection conducted February-March 1996 at the St. Lucie
Plant (Inspection Report 50-335/96-04; 389/96-04, dated April 29,
1996), NRC inspectors noticed that the east pond was posted with signs
displaying a radiation symbol and the words ``Restricted Area Keep
Out,'' and ``Radioactive Materials Area.'' The inspector determined
that the posting was due to the east pond having received some
contaminated water from the 1977 spill. The inspector learned that the
licensee had sampled and evaluated the soil from the pond berm and
bottom in 1992 and observed detectable radioactive contamination at
various depths of one to six feet, with the activity decreasing with
depth. The most significant level of contamination detected was in the
first three feet of sediment below the pond. In addition, the
inspection determined that the water was free of measurable
contamination. No violations or deviations from NRC requirements were
identified in connection with this matter. The presence of residual
contamination in the sediment of the pond poses no public health or
safety hazard because the pond is on the licensee's controlled property
and not accessible to the public and because the area is posted.
Furthermore, the Petitioners have failed to provide any evidence that
personnel were ``warned'' or ``directed'' only to survey or sample the
water. Finally, given the age of this issue, the fact that there is no
danger to public health and safety, and the fact that the NRC is aware
of, and has evaluated, the circumstances of this event, this issue does
not provide a basis for the actions requested by the Petitioners.
With regard to the Petitioners' concern that certain employees are
not allowed to speak to INPO evaluators, the NRC has found no evidence
that the licensee is preventing employees from speaking to INPO
evaluators in order to prevent them from raising nuclear safety
concerns or for any other purpose such as would violate the
Commission's Employee Protection regulations. FPL has stated in its
July 1998 response to the Petition that, although FPL selects certain
employees to speak with INPO evaluators on certain technical issues,
those selections are based on the employee having knowledge of the
issue under review by INPO. Moreover, INPO evaluators are free to speak
with any FPL employee or contractor at any time and INPO evaluators who
visit nuclear plant sites are generally badged for unescorted access,
which allows them to conduct their evaluations and interviews with
employees without first consulting licensee management. The Petitioners
have not provided any information that would support their assertion,
or contradict these statements by the licensee, and, therefore, the
Petitioners' request is denied.
With regard to the Petitioners' assertion that the licensee's WIN
team is improperly grouping plant work orders to artificially reduce
the number of outstanding requests, the licensee's WIN process was
intended as an expedited process to resolve minor maintenance and
toolpouch maintenance tasks that are considered within the ``skill of
the craft.'' These tasks include replacing light bulbs, painting, and
replacing piping insulation. This process and procedures for expediting
minor maintenance tasks does not violate any NRC requirements, nor does
it artificially reduce the number of outstanding requests. The
Petitioners' concern regarding the grouping of plant work orders was
also reviewed during an inspection conducted between February 15 and
March 28, 1998. The results of that inspection are documented in NRC
Inspection Report 50-335/98-03, 50-389/98-03 dated April 27, 1998. As
described in the Inspection Report, the inspectors observed portions of
maintenance associated with 15 work orders, most notably the
replacement of a reactor coolant pump seal cartridge. The inspectors
concluded that the work was adequately performed and procedures were
being appropriately used by qualified personnel. After reviewing the
plant work order and maintenance programs, the inspectors concluded
that the licensee was aggressive in reducing the maintenance backlog
and the backlog was being well controlled.
Regarding the Petitioners' concern about the licensee's staffing
levels and the use of outside contract labor, NRC requirements on
staffing are included in the licensee's technical specification
administrative requirements. The technical specifications contain no
requirements as to the minimum number of maintenance workers or
regarding the use of outside contractors. However, the NRC is
continuing to monitor the quality and timeliness of
[[Page 57331]]
maintenance work at the licensee's facilities on equipment important to
safety.
Finally, there is no merit to the Petitioners' assertions that RIs
are only assigned to the day shift and that the three inspectors on
site are insufficient. The Commission's policy (as established in
Inspection Manual Chapter 2515) provides that RIs should spend 10
percent of their total time on site during other than normal working
hours. The adequacy of onsite coverage is reviewed on an ongoing basis
by Regional management. The number of RIs and the percentage of time
spent by RIs during normal working hours at the St. Lucie plant is
consistent with Commission policy and that at other U.S. nuclear power
plants. The Petitioners have not provided sufficient information to
support their assertion that licensee employees do not have reasonable
access to the NRC RIs or that there are too few RIs on site to monitor
safety-related work.
For all of these reasons, the Petitioners have not set forth a
sufficient basis that would warrant the NRC to take any of the actions
that they have requested. Therefore, these requests by the Petitioners
are denied.
III. Conclusion
The NRC has carefully evaluated each of the many issues raised by
the Petitioners. As described above, the NRC has undertaken certain of
the actions that the Petitioners have requested. Specifically, the NRC
has conducted numerous inspections evaluating the circumstances of many
of the issues that the Petitioners have raised, and has reviewed the
settlement agreement referred to by the Petitioners in order to
determine whether it contains any restrictive provisions that may
``chill'' the workforce. Thus, to the extent that Petitioners have
requested that the NRC investigate these issues and review the
settlement agreement, the Petition is granted. However, for the reasons
discussed previously, no basis exists for taking the additional actions
requested in the Petition. Therefore, in all other respects, the
Petition is 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 21st day of October 1998.
For the Nuclear Regulatory Commission.
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation.
[FR Doc. 98-28745 Filed 10-26-98; 8:45 am]
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