License Nos. DPR-31 and DPR-41; Florida Power & Light Company; Notice of Issuance of Director's Decision Under 10 CFR 2.206, 41902-41907 [2010-17509]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 137 (Monday, July 19, 2010)]
[Notices]
[Pages 41902-41907]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17509]


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NUCLEAR REGULATORY COMMISSION

[Docket Nos. 50-250 and 50-251; NRC-2009-0517]


License Nos. DPR-31 and DPR-41; Florida Power & Light Company; 
Notice of Issuance of Director's Decision Under 10 CFR 2.206

    Notice is hereby given that the Director, Office of Nuclear Reactor 
Regulation, has issued a Director's Decision with regard to a petition 
dated January 11, 2009, as amended on July 10, 2009, and a petition 
dated January 5, 2010, filed by Mr. Thomas Saporito, hereinafter 
referred to as the ``Petitioner.'' The petition was supplemented on 
March 19, May 7, and July 10, 2009. The petition concerns the operation 
of the Turkey Point Nuclear Generating Station, Units 3 and 4 and St. 
Lucie Nuclear Power Plant, Units 1 and 2.
    In the January 11, 2009, petition, the Petitioner requested that 
the U.S. Nuclear Regulatory Commission (NRC) issue a ``Notice of 
Violation and Imposition of Civil Penalty'' in the amount of $1,000,000 
and a confirmatory order modifying Florida Power & Light Company (FPL) 
License Nos. DPR-31 and DPR-41. The Petitioner amended the January 11, 
2009, petition during a teleconference on July 10, 2009, to request 
that the NRC require FPL to create a monetary fund rather than issuing 
a civil penalty to FPL. By letter dated January 5, 2010, the Petitioner 
filed a separate petition requesting that the NRC issue a confirmatory 
order requiring FPL to immediately place the Turkey Point and St. Lucie 
facilities in cold shutdown until such time as the NRC can make a full 
assessment of the work environments at those facilities and credibly 
determine whether employees at those facilities are free, and feel 
free, to raise nuclear safety concerns to FPL management or directly to 
the NRC without fear of retaliation. The NRC consolidated the two 
petitions on the basis that the issues are similar and Mr. Saporito was 
the principal external stakeholder for both petitions.
    As the basis for the January 11, 2009, as amended on July 10, 2009, 
request, the Petitioner believes that there are weaknesses in the 
employee concerns program at Turkey Point due to fear of retaliation 
when a safety issue is raised to FPL management. Also, the Petitioner 
believes that an employee retention bonus agreement used by FPL 
contains language that violates Title 10 of the Code of Federal 
Regulations (10 CFR), Section 50.7(f). As the basis for the January 5, 
2010, request, the Petitioner stated that he has complained to the NRC 
for the better part of 20 years about the chilled environment, which 
discourages employees from voicing safety concerns, that currently 
exists at Turkey Point and has spread to St. Lucie over the years. Mr. 
Saporito considers such operation to be potentially unsafe and to be in 
violation of Federal regulations.
    On March 19, May 7, and July 10, 2009, the NRC Office of Nuclear 
Reactor Regulation's Petition Review Board and the Petitioner held 
conference calls to clarify the basis for the petition.
    The NRC sent a copy of the Proposed Director's Decision to the 
petitioner and to the licensee for comment on April 28, 2010. The 
petitioner responded with comments on May 28, 2010. FPL did not provide 
any comments. A summary of the comments and the NRC staff's response to 
them are included in the Director's Decision.
    The Director of the Office of Nuclear Reactor Regulation has 
determined that the NRC should deny the requests, to issue a ``Notice 
of Violation and Imposition of Civil Penalty'' in the amount of 
$1,000,000 or establishment of a monetary fund, a confirmatory order 
modifying FPL License Nos. DPR-

[[Page 41903]]

31 and DPR-41, and a confirmatory order requiring FPL to immediately 
place the Turkey Point and St. Lucie facilities in cold shutdown. The 
reasons for this decision are explained in the Director's Decision 
pursuant to Title 10 of Code of Federal Regulations (10 CFR) Section 
2.206 (DD-10-01), the complete text of which is available in the 
Agencywide Documents Access and Management System (ADAMS) for 
inspection at the Commission's Public Document Room, located at One 
White Flint North, Room O1 F21, 11555 Rockville Pike (first floor), 
Rockville, Maryland, and from the ADAMS Public Library component on the 
NRC's Web site, https://www.nrc.gov/reading-rm.html.
    In summary, the NRC has performed Problem Identification and 
Resolution inspections at Turkey Point and St. Lucie nuclear power 
plants. The inspections concluded that the corrective action program 
(CAP) processes and procedures were effective; thresholds for 
identifying issues were appropriately low; and problems were properly 
evaluated and corrected within the CAP. Therefore, the NRC concludes 
that public health and safety have not been affected by licensee-
identified weaknesses in the employees concern program. The NRC has 
also reviewed FPL's retention bonus agreement and has concluded that it 
does not violate 10 CFR 50.7(f).
    A copy of the Director's Decision will be filed with the Secretary 
of the Commission for the Commission's review in accordance with 10 CFR 
2.206 of the Commission's regulations. As provided for by this 
regulation, the Director's Decision will constitute the final action of 
the Commission 25 days after the date of the decision, unless the 
Commission, on its own motion, institutes a review of the Director's 
Decision in that time.

    Dated at Rockville, Maryland, this 9th day of July 2010.

    For the Nuclear Regulatory Commission.
Eric J. Leeds,
Director, Office of Nuclear Reactor Regulation.

Nuclear Regulatory Commission Office of Nuclear Reactor Regulation

In the Matter of: Florida Power & Light Company. Docket Nos. 50-250 and 
50-251, License Nos. DPR-31 and DPR-41 Turkey Point Plant, Units 3 and 
4.
Director's Decision Under 10 CFR 2.206 (DD-10-01)

I. Introduction

    By letter dated January 11, 2009, and amended on July 10, 2009, Mr. 
Thomas Saporito (``Petitioner'') filed a petition pursuant to Section 
2.206 of Title 10 of the Code of Federal Regulations (10 CFR 2.206), to 
the Executive Director for Operations of the U.S. Nuclear Regulatory 
Commission (NRC) concerning Turkey Point Nuclear Generating Station, 
Units 3 and 4. The Petitioner also filed a separate petition pursuant 
to 10 CFR 2.206 addressed to NRC Chairman Gregory B. Jaczko on January 
5, 2010. This petition concerned Turkey Point and St. Lucie. The NRC 
has combined this second petition with the original petition and 
amendment.
    Management Directive 8.11, ``Review Process for 10 CFR 2.206 
Petitions,'' issued October 2000 (Agencywide Documents Access and 
Management System (ADAMS) Accession No. ML041770328), outlines the 
procedure used by the NRC to process petitions filed under 10 CFR 
2.206. This procedure aims to provide appropriate participation by 
petitioners in, and opportunities for the public to observe, the NRC's 
decision making activities related to a 10 CFR 2.206 petition.

Action Requested

    In the January 11, 2009, petition, the Petitioner requested that 
the NRC take the following actions against FPL, the licensed operator 
for the Turkey Point facilities:
    (1) Issue a ``Notice of Violation and Imposition of Civil Penalty'' 
in the amount of $1,000,000.
    (2) Issue a confirmatory order modifying FPL License Nos. DPR-31 
and DPR-41 as follows:
    (a) Effective February 1, 2009, FPL will integrate into its overall 
program for enhancing the work environment and safety culture at Turkey 
Point a ``Cultural Assessment'' conducted by an independent contractor. 
The Cultural Assessment shall include both a written survey of 
employees, including supervision and management, and baseline 
contractors, and confidential interviews of selected individuals. The 
first assessment shall be completed no later than the second quarter of 
2009 and will be performed at least three more times at intervals of 18 
to 24 months. In addition, annual surveys will be conducted and shall 
include, but not be limited to, annual surveys through at least the 
year 2020. Prior to conducting each annual survey, the licensee shall 
identify to the NRC Regional Administrator the departments and 
divisions to be surveyed. The licensee shall submit to the NRC for 
review all Cultural Assessment results, including all intermediate 
annual surveys. In addition, within 60 days of receipt of any survey 
results, the licensee shall provide to the NRC Regional Administrator 
any plans to address issues raised by the survey results.
    (b) FPL shall conduct annual ratings of supervisors and managers by 
employees through a written assessment tool and provide the same to the 
NRC through the year 2020.
    (c) FPL shall conduct a mandatory continuing training program for 
all supervisors and managers which shall include:
    1. Scheduled training on building positive relationships. The 
training program shall incorporate the objective of reinforcing the 
importance of maintaining a safety conscious work environment and 
assisting managers and supervisors in dealing with conflicts in the 
work place in the context of safely conscious work environment. The 
training program shall also include a course entitled ``Safely Talking 
to Each Other'' which shall explain how to properly deal with safety 
concerns raised at Turkey Point.
    2. Annual training on the requirements of 10 CFR 50.7 and Title 42 
of the United States Code Annotated, Section 5851 (42 USCA 5851), 
through the year 2020, including, but not limited to, what constitutes 
``protected activity'' and what constitutes ``discrimination'' within 
the meaning of 10 CFR 50.7 and 42 USCA 5851, and appropriate responses 
to the raising of safety concerns by employees. Moreover, the training 
shall stress the freedom of employees in the nuclear industry to raise 
safety concerns without fear of retaliation by their supervisors or 
managers.
    (d) The licensee shall issue a site-wide publication informing all 
employees and contractor employees of this Confirmatory Order as well 
as their rights to raise safety concerns to the NRC and to their 
management without fear of retaliation.
    During a teleconference on July 10, 2009, the Petitioner amended 
the original petition to request that the NRC require FPL to create a 
monetary fund rather than issuing a civil penalty to FPL. This fund 
would be used to enhance FPL's employee concerns program (ECP) by 
generating cash awards to employees who raise safety concerns; 
providing wages and benefits to workers who have made retaliation 
complaints until their complaints have been reviewed; providing 
training to

[[Page 41904]]

plant workers on the ECP and discrimination review process; and 
upgrading the ECP office facilities.
    By letter to Chairman Gregory B. Jaczko dated January 5, 2010, the 
Petitioner filed a separate petition referencing a January 4, 2010, 
Florida Public Service Commission document. This document alleges 
wrongdoing by executive management at the very highest levels of FPL 
over the protests of several employees. The Petitioner stated that the 
chilled environment, which discourages employees from voicing safety 
concerns, that currently exists at Turkey Point has spread to St. Lucie 
over the years. The Petitioner requested that the NRC issue a 
confirmatory order requiring FPL to immediately place the Turkey Point 
and St. Lucie facilities in cold shutdown until such time as the NRC 
can make a full assessment of the work environments at those facilities 
and credibly determine whether employees at those facilities are free, 
and feel free, to raise nuclear safety concerns to FPL management or 
directly to the NRC without fear of retaliation for so doing. The NRC 
did not take immediate action based on the staff's determination that 
there was no immediate threat to public health or safety.
    The NRC's acknowledgement letter to the Petitioner, dated November 
19, 2009 (ADAMS Accession Number ML091880900), addressed the original 
petition dated January 11, 2009, and its amendment dated July 10, 2009. 
In this letter, the NRC accepted for review pursuant to 10 CFR 2.206, 
concerns regarding the following nine issues raised by the Petitioner:
    (1) Management attention to the ECP does not meet expectations; 
management's awareness of the ECP is superficial, and management has 
not emphasized the program values to employees.
    (2) The ECP is of low quality and does not give the impression that 
it is important to management.
    (3) There is a perception problem with the ECP in the areas of 
confidentiality and potential retribution. The perception remains as 
evidenced by surveys, interviews, and the high percentage of anonymous 
concerns. Previous surveys and assessments identified this perception, 
but little or no progress has been made in reversing this perception.
    (4) The ECP was most frequently thought to be a mechanism to use in 
addition to discussing concerns with the NRC and not as the first 
alternative to the Correction Action Program (CAP).
    (5) While meeting most of the program requirements and having a 
technically qualified individual in the ECP coordinator position, the 
overall effectiveness of the program is marginal.
    (6) The ECP representative has very low visibility or recognition 
in the plant and has not been integrated into the management team or 
plant activities.
    (7) The large percentage of concerns submitted anonymously hampers 
feedback to concerned individuals. The written feedback process to 
identified individuals is impersonal and lacks feedback mechanisms for 
the ECP coordinator to judge the program's effectiveness.
    (8) The ECP process also does not provide assurance that conditions 
adverse to quality identified in the ECP review process would get 
entered into the CAP, creating potential to miss correction and 
trending opportunities.
    (9) An employee retention bonus agreement used by FPL contains 
language that violates 10 CFR 50.7(f).
    Furthermore, the NRC also consolidated with the January 11, 2009, 
petition the Petitioner's concern raised in a separate petition dated 
January 5, 2010, that the chilled environment, which discourages 
employees from voicing safety concerns, that currently exists at Turkey 
Point has spread to St. Lucie. The agency took this step for the 
following two reasons:
    (1) The issues are similar.
    (2) Mr. Saporito was the principal external stakeholder for both 
petitions.

Petitioner's Basis for the Requested Actions

    The Petitioner explained that the licensee completed a self-
assessment of the Turkey Point facility and also performed an 
assessment of the ECP at Turkey Point. The purpose of the assessment 
was for the licensee to understand and address weaknesses in the ECP. 
The assessment identified eight weaknesses. The Petitioner believes 
that there are weaknesses in the ECP due to fear of retaliation when a 
safety issue is raised to FPL management. The Petitioner concluded that 
at least three FPL employees allege that they have been retaliated 
against for having raised safety concerns at one or more of FPL's 
nuclear power plants in the last 12-month period. The Petitioner noted 
the following chronology of events:
    (1) On July 16, 1996, the NRC issued a Notice of Violation and 
Proposed Imposition of Civil Penalty for $100,000 to FPL for 
retaliating against one of its employees for raising safety concerns at 
Turkey Point.
    (2) On June 5, 2003, the NRC issued a Notice of Violation to FPL 
for retaliating against one of its employees for raising safety 
concerns at Turkey Point.
    (3) On July 6, 2007, the NRC issued the NRC Problem Identification 
and Resolution inspection report that stated that inspectors noted 
reluctance by several departments to utilize the ECP because licensee 
employees felt that the program only represented management's interest.
    (4) On January 7, 2009, the Florida Public Service Commission 
issued Order No. PSC-09-0024-FOF-EI which concluded that at least one 
other FPL contractor employee was aware of the ``hole drilling'' 
incident at Turkey Point but failed to report the incident in a timely 
manner. The Petitioner noted that this issue was not reported by the 
employee due to fear of retaliation from FPL management.
    (5) On January 4, 2010, three concerned employees of NextEra Energy 
Resources wrote a letter to the Florida Public Service Commission 
stating that ``the culture of cover up and intimidating employees into 
being quiet still persists here at the FPL Group of companies and 
retaliation is a real fear.''

NRC Petition Review Board's Meeting With the Petitioner

    On March 19 (ADAMS Accession No. ML090840318), May 7 (ADAMS 
Accession No. ML092860275), and July 10, 2009 (ADAMS Accession No. 
ML092860099), the NRC Office of Nuclear Reactor Regulation's Petition 
Review Board and the Petitioner held conference calls to clarify the 
basis for the petition. The NRC staff considers transcripts of these 
meetings to be supplements to the petition. These transcripts are also 
available for inspection at the Commission's Public Document Room 
(PDR), located at One White Flint North, Public File Area O1 F21, 11555 
Rockville Pike (first floor), Rockville, Maryland. Publicly available 
records are also accessible from ADAMS in the Public Electronic Reading 
Room on the NRC Web site at https://www.nrc.gov/reading-rm/adams.html. 
Persons who do not have access to ADAMS or who encounter problems in 
accessing the documents located in ADAMS should contact the NRC PDR 
Reference staff by telephone at 1-800-397-4209, or 301-415-4737, or by 
e-mail to PDR.resource@nrc.gov.
    By letter dated April 22, 2009 (ADAMS Accession No. ML091100274), 
the NRC staff requested that FPL provide information related to the 
petition, more specifically, a copy of a blank retention bonus 
agreement referenced by Mr. Saporito. This information was needed for 
the NRC staff to complete its review of item nine,

[[Page 41905]]

as stated in the November 19, 2009, acknowledgement letter. FPL 
responded on April 28, 2009 (ADAMS Accession No. ML100640252), and the 
information provided was considered by the staff in its evaluation of 
the petition.
    The NRC sent a copy of the proposed Director's Decision to the 
Petitioner and to Florida Power & Light Company (FPL, the licensee) for 
comment by letters dated April 28, 2010. The NRC staff received 
comments on May 28, 2010, from the Petitioner. No comments were 
provided to the NRC staff from FPL. The comments and the NRC staff's 
response to them are included in the director's decision.

II. Discussion

    Issues 1-8 concern the effectiveness of the Turkey Point ECP and 
the licensee's response to issues identified through the ECP and CAP. 
Operating reactor licensees are not required to implement an ECP, but 
are required by 10 CFR Part 50, Appendix B, Criterion XVI to establish 
and implement an effective CAP. The NRC performs Problem Identification 
and Resolution biennial team inspections with annual follow-up of 
selected issues at licensed facilities. The goal of these inspections 
is to establish confidence that the licensee is effectively detecting, 
correcting, and preventing problems that could impact public health and 
safety. During the Problem Identification and Resolution inspections, 
the NRC reviews a sample of employee concerns that were raised through 
the CAP and ECP as part of its assessment of the licensee's compliance 
with NRC regulations, regardless of which program the employee uses.
    In the latter half of 2008, the licensee conducted a 20 to 30 
question survey of the safety conscious work environment (SCWE), fleet-
wide. More than 400 employees responded at each site. Through these 
surveys, FPL identified weaknesses in its program for identifying and 
correcting issues raised by employees, which included dissatisfaction 
with the three primary avenues for raising concerns internally 
(management, CAP, and ECP). With regard to the ECP, the results showed 
nuclear plant employees are familiar with the ECP, however 
approximately 20-25 percent of the survey respondents indicated that 
they lack confidence that the ECP will address their concerns or 
maintain their confidentiality. A similar percentage of employees also 
believe that management does not support the ECP.
    Based on public conversations between the NRC's Region II office 
and the licensee, FPL has taken a number of appropriate actions to 
address these ECP issues at both Turkey Point and St. Lucie, including 
appointment of a new FPL corporate Nuclear Safety Culture Project Lead, 
relocation of the offices to address accessibility concerns, 
implementation of monthly meetings with the new Chief Nuclear Officer, 
and revision of the program procedures to ensure concerns are addressed 
appropriately and feedback is obtained from stakeholders. Notably, the 
process was revised to perform three-month follow-up reviews of 
corrective actions for nuclear safety concerns brought to the ECP to 
assess the effectiveness.
    The NRC held a public meeting on October 20, 2009 (ADAMS Accession 
No. ML093090274), at the Region II Office in Atlanta, GA to discuss 
FPL's processes for addressing employee concerns and planned, fleet-
wide corrective actions for addressing FPL-identified weaknesses. The 
licensee indicated that it planned to implement 86 corrective actions 
to address the weaknesses.
    As stated in Problem Identification and Resolution inspection 
reports 05000335/2010006 and 05000389/2010006 for St. Lucie dated April 
19, 2010, the NRC concluded that based on discussions and interviews 
with plant employees from various departments, individuals remained 
aware of the processes for raising concerns, were not reluctant to 
raise safety concerns to management or the NRC, had initiated CAP 
items, and participated in the safety culture surveys. These interviews 
also revealed that plant workers were knowledgeable of the various 
available methods for raising nuclear safety concerns. Furthermore, the 
workers communicated recent improvements in station supervision's 
support of the workers raising issues. None of the workers indicated 
that they were aware of any examples of being retaliated against for 
raising safety concerns.
    The Problem Identification and Resolution inspection reports also 
summarized the corrective actions presented to the NRC on October 20, 
2009, and the results of those corrective actions. The NRC concluded 
that FPL initiated a comprehensive plan to improve its safety culture, 
starting with a root cause evaluation of safety culture issues 
identified in corporate surveys. From this evaluation, FPL took a 
number of actions to improve corporate culture, including formalizing 
the management of employee concerns, taking actions to focus more 
attention on industrial safety work orders, and improving management 
oversight of station backlogs and preventive maintenance change 
requests. At a higher level, FPL is initiating a review of nuclear 
safety culture issues by the corporate nuclear review board, 
benchmarking SCWE at other facilities, and planning for effectiveness 
reviews. The inspections confirmed that FPL scheduled actions had been 
completed, including the training of senior managers on SCWE and the 
initiation of routine management reviews on safety culture issues.
    The inspectors also met with the newly-appointed station ECP 
coordinator and the ECP manager. The ECP coordinator described 
activities that would facilitate more awareness and understanding of 
the ECP including introducing the program with on-site staff and 
contractor groups at departmental meetings. Furthermore, FPL has 
recently relocated the ECP office within the plant protected area and 
procedures had been developed for uptake of concerns and management of 
concern resolution. The new process requires close-out of the concern 
with the concerned individual, typically in a face-to-face meeting.
    On April 20, 2010, a public meeting was conducted at the Region II 
Office in Atlanta, GA to discuss FPL's progress. As of that date, the 
licensee indicated that it had implemented 71 of the 86 corrective 
actions and is completing all actions on schedule. The NRC provided a 
summary of this public meeting, which is publicly available in ADAMS 
(ADAMS Accession No. ML101110727).
    Although the licensee has identified weaknesses in the ECP at 
Turkey Point and St. Lucie, the NRC has not identified any current 
substantive issue relating to SCWE or the CAP. Therefore, the NRC does 
not believe Mr. Saporito's proposed enforcement action is appropriate 
at this time. The licensee is taking action to improve the 
effectiveness of the ECP. The NRC's Region II office is scheduled to 
complete its next Problem Identification and Resolution inspection at 
Turkey Point in May 2010. The NRC's Region II office will continue to 
monitor the Turkey Point and St. Lucie CAPs, including the eight items 
identified by the Petitioner and the actions the licensee is taking to 
address the FPL-identified weaknesses in the ECP. The NRC's conclusions 
will be recorded in the next Problem Identification and Resolution 
inspection reports, which will be made available on the NRC Web site 
https://www.nrc.gov/reactors/operating/oversight.html.
    Regarding item 9, Mr. Saporito raised concerns about an FPL 
employee retention bonus agreement that contains a clause that states: 
``The Employee shall not, at any time in the future and in any way, 
disparage the Company * * * or

[[Page 41906]]

make any statements that may be derogatory or detrimental to the 
Company's good name or business reputation * * *'' Mr. Saporito asserts 
that this clause violates 10 CFR 50.7(f).
    The purpose of 10 CFR 50.7(f) is to ensure that licensees do not 
enter into employment agreements that would prohibit, restrict, or 
otherwise discourage an employee or former employee from providing the 
NRC with information of regulatory significance. ``Nondisparagement'' 
clauses similar to the one in FPL's retention bonus agreement are 
common in employment agreements. As a general matter, employers and 
their employees are free to formulate agreements in the context of 
their employment relationship and within the parameters of the lawful 
right of parties to contract with each other. For this reason, the NRC 
should not interfere with these agreements unless it finds such a 
clause violates 10 CFR 50.7(f), or a clause that does not violate 10 
CFR 50.7(f) on its face is applied in a fashion that prevents or 
retaliates against an employee for engaging in protected activities 
such as communicating with the NRC.
    The NRC has reviewed the FPL employee retention bonus agreement 
referenced by Mr. Saporito. The language of the agreement makes no 
mention of providing information to, or cooperating with, NRC or any 
other governmental agency. Similarly, it makes no reference to engaging 
in activity that is protected by NRC enabling statutes. For these 
reasons, the NRC has determined that the agreement does not violate 10 
CFR 50.7(f). However, the agreement strays from the guidance the NRC 
has provided licensees for drafting employment and settlement 
agreements, available on the NRC Office of Enforcement Web site at 
https://www.nrc.gov/about-nrc/regulatory/enforcement/examples-of-restrictive-terms.pdf, because it does not include specific language 
making clear that employees can freely engage in protected activities. 
While not required by 10 CFR 50.7(f), settlement agreements that 
contain language reinforcing employees' rights to raise safety concerns 
and communicate with the NRC avoid the possibility of being construed 
in a way that could violate 10 CFR 50.7(f). The NRC has learned that 
FPL has discontinued use of the bonus agreement referenced by Mr. 
Saporito, and that future FPL employment agreements will contain 
language specifically addressing employees' rights under 10 CFR 50.7, 
``Employee Protection,'' in order to avoid any perception that 
employees are prohibited, restricted, or discouraged from raising 
safety concerns.

NRC Response to Comments on the Proposed Director's Decision

    This section documents the NRC staff's response to Mr. Saporito's 
comments on the proposed Director's Decision. The NRC issued the 
proposed Director's Decision on April 28, 2010 (ADAMS Accession No. 
ML100630413). The NRC received comments from the Petitioner on May 28, 
2010 (ADAMS Accession No. ML101760181). The licensee did not provide 
any comments to the NRC on the proposed Director's Decision. The NRC 
staff has amended the proposed Director's Decision to acknowledge the 
Petitioner's comments; however, the NRC staff determined that the 
comments provided by Mr. Saporito did not provide any relevant 
additional information and support for the petition that had not 
already been considered. Thus, the comments did not change the 
conclusion of the proposed Director's Decision and the final Director's 
Decision denies the Petitioners' request for enforcement action. The 
comments and NRC staff's response to them are discussed below:

Summary of Comments

    Mr. Saporito states, ``notably, NRC determines the quality of a 
licensee's SCWE by the effectiveness of the licensee's CAP. Therefore, 
where a licensee fails to properly maintain an effective CAP, there 
cannot be a satisfactory SCWE at its nuclear facility. Moreover, where 
a licensee is found by NRC to have discriminated against its employees 
for raising nuclear safety concerns, the licensee cannot demonstrate 
the existence of a satisfactory SCWE at its nuclear facility. Finally, 
where NRC fails to take adequate enforcement action against its 
licensee for failing to maintain an SCWE at its nuclear facilities, a 
chilling effect results and places public health and safety in 
jeopardy.'' Mr. Saporito supports his conclusion by referencing 
violations and enforcement action taken by the NRC against Turkey Point 
and St. Lucie dating from 1996, and by referencing the FPL drop-in 
meetings on October 20, 2009, and April 20, 2010, to discuss concerns 
about FPL Nuclear Safety Culture and the ECP at Turkey Point and St. 
Lucie.
    The Petitioner also noted that in a February 2008 inspection 
report, the NRC noticed an increasing trend in the cross-cutting theme 
of appropriate and timely corrective action indicating that the 
underlying weaknesses within the Problem Identification and Resolution 
cross-cutting area may not yet have been addressed or fully understood 
to ensure consistent and sustainable future performance. The NRC 
requested that FPL conduct an independent assessment of the 
effectiveness of the licensee's corrective action program. Mr. Saporito 
continues by stating, ``As of June 2008, NRC completed its inspections 
to evaluate the effectiveness of FPL's corrective action program 
improvement initiatives which the agency had found to be deficient only 
(three months prior) and for the better part of the previous four 
assessment periods for the Turkey Point Nuclear Plant. Nonetheless, NRC 
advised FPL that overall corrective actions developed and implemented 
for issues were effective in correcting the problems and that employees 
felt free to raise concerns without fear of retaliation. The NRC 
considered this longstanding cross-cutting theme closed.''

NRC Response to Comments

    As stated earlier in this Director's Decision, operating reactor 
licensees are not required to implement an ECP, but are required by 10 
CFR Part 50, Appendix B, Criterion XVI to establish and implement an 
effective CAP. The NRC performs Problem Identification and Resolution 
biennial team inspections with annual followup of selected issues at 
licensed facilities. The goal of these inspections is to establish 
confidence that each licensee is effectively detecting, correcting, and 
preventing problems that could impact public health and safety. Based 
on the results of these inspections the NRC takes any appropriate 
enforcement action to ensure compliance with 10 CFR Part 50, Appendix 
B, Criterion XVI.
    In the Turkey Point mid-cycle calendar year 2006 assessment letter 
dated August 31, 2006 (ADAMS Accession No. ML062430288), the NRC 
identified a substantive cross-cutting issue in problem identification 
and resolution based on numerous examples of inadequate corrective 
action related to long-standing plant equipment deficiencies. However, 
the individual findings involved issues of very low safety 
significance. In response, FPL developed plans to improve the 
effectiveness of the CAP. Also, the NRC requested that FPL conduct an 
independent assessment of the effectiveness of the CAP. Normally, the 
NRC would have requested FPL to conduct a safety culture assessment 
since the same substantive cross-cutting issue was identified in four 
consecutive assessment letters. However, due to FPL already completing 
an assessment during the inspection period from January to December 
2007, the NRC

[[Page 41907]]

requested a more targeted independent assessment be completed. The 
purpose of the independent assessment was to help the licensee identify 
issues with the CAP and improve the effectiveness of the CAP.
    During the next eight calendar quarters, onsite and region-based 
NRC inspectors monitored plant activities to improve the CAP, and 
completed in-depth inspections and assessment activities in spring 2007 
and summer 2008 to evaluate the effectiveness of FPL's efforts. These 
inspections included evaluations of the safety conscious work 
environment. The inspection results were documented in Inspection 
Reports 05000250/2007008 and 05000251/2007008, 05000250/2008007 and 
05000251/2008007, and 05000250/2008008 and 05000251/2008008, available 
on the NRC public web site. The NRC also held public meetings with FPL 
in Atlanta, GA to discuss the effectiveness of the actions to improve 
the CAP.
    Based on these inspections and the extensive review of FPL's 
activities focused on improving the CAP that stretched over a 2-year 
period (June 2006 to June 2008), the NRC determined that FPL had made 
progress in improving all areas addressed by the improvement plan. The 
NRC also determined that employees felt free to raise concerns without 
fear of retaliation. At that point the NRC staff considered the 
substantive cross-cutting issue closed.
    Recently, the NRC issued two Notice of Violations to Turkey Point 
and St. Lucie, each of which cited, in part, FPL's failure to implement 
corrective actions per 10 CFR 50, Appendix B, Criterion XVI. The 
violation issued to Turkey Point does not reopen the substantive cross-
cutting issue that was closed in 2008, but the NRC assessed the finding 
to determine if a cross-cutting aspect of Problem Identification and 
Resolution was applicable. As stated in the Turkey Point Final 
Significance Determination letter dated June 21, 2010 (ADAMS Accession 
No. ML101730313), the NRC determined that the licensee properly 
identified the boraflex degradation issue and thoroughly evaluated the 
problems. Therefore, per Inspection Manual Chapter (IMC) 0310, 
``Components Within the Cross-Cutting Areas,'' Problem Identification 
and Resolution cross-cutting aspect P.1(c) is no longer applicable or 
valid. However, the NRC determined that the finding had a cross-cutting 
aspect per IMC 0310, Problem Identification and Resolution, P.1(d) 
since the licensee did not take appropriate corrective actions to 
address safety issues and adverse trends in a timely manner, 
commensurate with their safety significance and complexity.
    The NRC considers a cross-cutting aspect for all findings 
identified at a facility and when the NRC identifies four findings with 
the same cross-cutting aspect then it becomes a substantive cross-
cutting issue. Currently, there are not four findings with the same 
cross-cutting aspect of Problem Identification and Resolution at Turkey 
Point or St. Lucie. These two violations identified at Turkey Point and 
St. Lucie will be tracked by NRC inspectors and evaluated during the 
next Problem Identification and Resolution inspection.

III. Conclusion

    The Petitioner raised issues related to weaknesses in the ECP as a 
means of getting issues entered into the CAP and ``chilling effects'' 
that exist at Turkey Point and are spreading to St. Lucie where 
employees are dissuaded from freely raising nuclear safety concerns to 
the NRC or within FPL for fear of retaliation by FPL management.
    The NRC has performed Problem Identification and Resolution 
inspections at Turkey Point and St. Lucie that cover the timeframes 
indicated by the Petitioner. The inspections concluded that the CAP 
processes and procedures were effective and thresholds for identifying 
issues were appropriately low. Furthermore, the NRC is aware of the 
actions that the licensee is taking to address the FPL identified 
weaknesses, and the NRC will continue to assess the effectiveness of 
these actions during the next Problem Identification and Resolution 
inspection. The NRC determined that FPL had made progress in improving 
all areas addressed by the improvement plan. The NRC also determined 
that employees felt free to raise concerns without fear of retaliation. 
Therefore, the NRC concludes that public health and safety have not 
been affected by licensee-identified weaknesses in the ECP. The NRC has 
also reviewed FPL's retention bonus agreement and has concluded that it 
does not violate 10 CFR 50.7(f).
    Based on the above discussion, the Director of the Office of 
Nuclear Reactor Regulation has decided to deny the Petitioner's request 
to issue a Notice of Violation and Imposition of Civil Penalty or 
establishment of a monetary fund and a confirmatory order modifying FPL 
License Nos. DPR-31 and DPR-41. The actions the licensee is taking make 
enforcement action unnecessary.
    In addition, the NRC is denying the Petitioner's request to place 
the Turkey Point and the St. Lucie facilities in cold shutdown until 
such time as the NRC can make a full assessment of the work 
environments at those facilities and determine whether employees at 
those facilities are free, and feel free, to raise nuclear safety 
concerns to FPL management or directly to the NRC without fear of 
retaliation. As explained above, the NRC has assessed the work 
environment at these facilities and determined that there are no 
findings of significance and no threat to public health and safety 
associated with the identified weaknesses of the ECP at Turkey Point or 
St. Lucie.
    As provided in 10 CFR 2.206(c), a copy of this Director's Decision 
will be filed with the Secretary of the Commission for the Commission 
to review. As provided for by this regulation, the decision will 
constitute the final action of the Commission 25 days after the date of 
the decision unless the Commission, on its own motion, institutes a 
review of the decision within that time.

    Dated at Rockville, Maryland, this 9th day of July 2010.

    For the Nuclear Regulatory Commission.
Eric J. Leeds,
Director, Office of Nuclear Reactor Regulation.
[FR Doc. 2010-17509 Filed 7-16-10; 8:45 am]
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