[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Notices]
[Pages 30925-30926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15400]



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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-528, 50-529, 50-530]


Arizona Public Service Company (Palo Verde Nuclear Generating 
Station) (License Nos. NPF-41, NPF-51, NPF-74); Issuance of Director's 
Decision Under 10 CFR 2.206

    A Petition was filed by Thomas J. Saporito, Jr. (Petitioner), in 
accordance with 10 CFR 2.206 on May 12, 1993. The Petition requested 
that the NRC: (1) Institute a show cause proceeding pursuant to 10 CFR 
2.202 to modify, suspend, or revoke Arizona Public Service (APS) 
Company's operating licenses for Palo Verde Nuclear Generating Station 
(Palo Verde); (2) initiate actions to shut down Palo Verde; (3) take 
escalated enforcement action against APS, including the issuance of 
civil penalties against APS and/or licensee management personnel at 
Palo Verde; and (4) survey Palo Verde employees to gauge the chilling 
effect that may exist and whether the licensee's actions were effective 
in limiting the chilling effect. On May 28, 1993, Petitioner forwarded 
a New Times article to the NRC as a supplement to this petition. On 
October 26, 1993, Petitioner supplemented the May 12, 1993 Petition to 
include a copy of an October 23, 1993 discrimination complaint filed by 
the Petitioner with the Department of Labor against APS and The 
Atlantic Group (TAG). In the October 26, 1993 supplement, Petitioner 
reiterated his earlier request for action and additionally requested 
escalated enforcement action against TAG and against any of its 
employees who are found to have engaged in wrongdoing.
    Another Petition was filed by Petitioner on January 15, 1994. This 
Petition, which has been treated as a supplement to the May 12, 1993 
Petition: (1) Reiterated the requests for escalated enforcement action 
against APS that were made in the May 12, 1993 Petition; (2) requested 
that APS be required to provide a make-whole remedy for Petitioner for 
terminating Petitioner and failing to rehire him as a result of 
Petitioner's engaging in protected activities; and (3) requested that 
APS be required to abate and obviate the chilling effect at APS arising 
from the failure to provide the Petitioner with employee protections 
afforded under 10 CFR 50.7.
    As the bases for the May 12, 1993 request, Petitioner asserted 
that: (1) A Department of Labor (DOL) Administrative Law Judge (ALJ) 
ruled that APS discriminated against Petitioner; (2) the DOL case is 
evidence that ``the licensee appears to have violated numerous NRC 
requirements regarding operation of the Palo Verde nuclear station; and 
(3) licensee managers have made questionable if not false statements to 
the NRC regarding the emergency lighting at Palo Verde. Petitioner's 
October 26, 1993 supplement to the original Petition bases the request 
for action on Petitioner's October 23, 1993 complaint filed with DOL 
and the ruling in favor of Ms. Sarah C. Thomas against APS. 
Petitioner's January 15, 1994 supplement to the original Petition bases 
the request for action on the admission by one of the witnesses at the 
Petitioner's DOL hearing that the witness lied under oath, as evidence 
of APS' intent to discriminate against Petitioner and that the 
discriminatory treatment of Petitioner has caused a chilling effect on 
other employees at Palo Verde.
    Another Petition was filed by Petitioner and Florida Energy 
Consultants (Petitioners) on May 27, 1994. This Petition: (1) 
Reiterated the request for a show cause proceeding, and further 
requested that the NRC: (2) issue a notice of violation against the 
Licensee for continuing to employ TAG as a labor contractor at Palo 
Verde; (3) investigate alleged material false statements made by 
William F. Conway, Executive Vice President at Palo Verde,

[[Page 30926]]

during his testimony at a DOL hearing (ERA Case No. 92-ERA-030) and 
that, in the interim, the NRC require that Mr. Conway be relieved of 
any authority over operations at Palo Verde; (4) investigate the 
Licensee's statements regarding Petitioner Saporito in an August 10, 
1993 letter from Mr. Conway to NRC Administrator, Mr. Bobby H. 
Faulkenberry, in which the Licensee said that Mr. Saporito gave 
materially false, inaccurate, and incomplete information on his 
application for unescorted access to Palo Verde so that, as a result of 
that event, Petitioner Saporito lacks trustworthiness and reliability 
for access to Palo Verde; (5) investigate the circumstances surrounding 
the February 1994 termination of Licensee employee Joseph Straub, a 
former radiation protection technician at Palo Verde, to determine if 
his employment was illegally terminated by the Licensee for having 
engaged in ``protected activity'' during the course of his employment; 
(6) require that the Licensee respond to a ``chilling effect'' letter 
regarding the circumstances surrounding Mr. Straub's termination from 
Palo Verde and whether any measures were taken to ensure that his 
termination did not cause a chilling effect at Palo Verde; (7) initiate 
appropriate actions to require the Licensee to immediately conduct eddy 
current testing on all steam generators at Palo Verde, because the 
steam generator tubes were recently subjected to cracking.
    As the bases for these requests, Petitioners asserted that: (1) A 
show cause proceeding is necessary because the public health and safety 
concerns alleged are significant and to permit public participation to 
provide NRC with new and relevant information; (2) past practices of 
TAG demonstrate that employees of TAG were retaliated against for 
having raised safety concerns while employed at Palo Verde; (3) 
citations to testimony from transcripts and numerous newspaper articles 
(appended as exhibits to the Petition), demonstrate that Mr. Conway's 
testimony is not credible; (4) statements in the August 10, 1993 letter 
are inaccurate and materially false and characterize Mr. Saporito as an 
individual lacking trustworthiness and reliability for access to Palo 
Verde, so that such negative characterizations have blacklisted him 
from continued employment in the nuclear industry, which is all in 
retaliation for him raising safety concerns about operations at Palo 
Verde; thus, Petitioners ask that these statements be rescinded; (5) an 
investigation into the termination of Mr. Straub is warranted in view 
of the fact that the Licensee has engaged in similar illegal conduct in 
the past where the NRC has required the Licensee to pay fines; (6) Mr. 
Straub is entitled to reinstatement with pay and benefits pending the 
NRC's investigation into his termination to offset any chilling effect 
his termination had on the Palo Verde workforce; and (7) the stress 
corrosion and cracking in the steam generators is a recurring problem 
of which the Licensee is aware and which the Licensee has failed to 
properly correct, in addition to cooling tower problems, so that the 
NRC should be concerned about proper maintenance of safety systems and 
equipment there.
    Immediate action with respect to item 7 of the May 27, 1994 
Petition, regarding eddy current testing of the steam generators, was 
denied by William T. Russell, Director, Office of Nuclear Reactor 
Regulation in a letter to the Petitioners dated July 26, 1994. The non-
immediate portion of the request is being addressed in a separate 
Director's Decision by Mr. Russell and the issue will not be discussed 
further here.
    On July 8, 1994, Petitioners filed a supplement to the May 27, 1994 
Petition raising additional issues concerning technical matters 
unrelated to the issues addressed in this Decision. The requests filed 
in this July 8, 1994 supplement will be addressed in the above-noted 
Director's Decision by Mr. Russell and will not be addressed here.
    Another Petition was filed by Thomas J. Saporito, Jr., Florida 
Energy Consultants, and Linda Mitchell (Petitioners) on November 14, 
1994. The Petition requested that NRC: (1) Issue a confirmatory order 
requiring APS to reduce power at all Palo Verde units to 0% until APS 
can demonstrate corrective actions for the hostile work environment at 
Palo Verde; (2) issue a demand for information to APS asking (a) why 
NRC should have confidence that APS can operate Palo Verde without a 
hostile work environment; (b) about the current duties and 
responsibilities of certain listed employees, including whether any of 
those employees is currently involved in NRC-licensed activities; (c) 
why the Commission should have confidence that these employees will 
comply with NRC requirements; and (d) why the NRC should not take 
action to prohibit the involvement of these employees in NRC licensed 
activities.
    As the bases for these requests, Petitioners assert that: (1) DOL 
found that Sarah Thomas was discriminated against by APS; (2) DOL found 
that Linda Mitchell was discriminated against by APS; (3) DOL found 
that Thomas J. Saporito, Jr., was discriminated against by APS; (4) 
these matters could have been settled before adjudication by DOL; (5) 
recent other DOL complaints by Straub and Irick are indicators that 
discrimination is the normal course of business at Palo Verde; (6) 
Petitioner Linda Mitchell lives within 2 air miles of Palo Verde and, 
therefore, has standing to intervene in a hearing before the NRC Atomic 
Safety and Licensing Board (Board); (7) Petitioners Saporito and 
Florida Energy Consultants have requisite standing to intervene in a 
hearing before a Licensing Board through Ms. Mitchell; Petitioner 
Saporito has requisite standing to intervene in a hearing before the 
Board through Ms. Mitchell; (8) Petitioners are subject to physical 
harm and loss of personal property in the event of a nuclear accident 
at Palo Verde as a direct or indirect result of the hostile work 
environment fostered at Palo Verde; and (9) a hostile work environment 
exists and is pervasive at Palo Verde and is condoned and fostered by 
licensee management.
    The request for enforcement action against APS has been granted. 
For the reasons discussed in the Director's Decision, the remaining 
requests, other than those being addressed by Mr. Russell in his 
separate Director's Decision, have been denied.
    A copy of this Decision will be filed with the Secretary for the 
Commission's review in accordance with 10 CFR 2.206. As provided by 
this regulation, the Decision will constitute the final action of the 
Commission on the issues discussed herein 25 days after the date of 
issuance of the Decision unless the Commission on its own motion 
institutes a review of the Decision within that time.

    Dated: at Rockville, Maryland, this 3rd day of June 1996.

    For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 96-15400 Filed 6-17-96; 8:45 am]
BILLING CODE 7590-01-P