Order Prohibiting Involvement in NRC-Licensed Activities, 49120-49123 [2019-20168]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Notices]
[Pages 49120-49123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20168]


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NUCLEAR REGULATORY COMMISSION

[Docket No. IA-18-040; NRC-2019-0172]


Order Prohibiting Involvement in NRC-Licensed Activities

AGENCY: Nuclear Regulatory Commission.

ACTION: Order; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an 
Order prohibiting involvement in NRC-licensed activities to Mr. Thomas 
Summers. The NRC determined that Mr. Thomas Summers engaged in 
deliberate misconduct that caused Florida Power & Light to be in 
violation of 10 CFR 50.7, ``Employee protection,'' and 10 CFR 50.9, 
``Completeness and accuracy of information.''

DATES: The Order prohibiting involvement in NRC-licensed activities was 
issued on September 12, 2019.

ADDRESSES: Please refer to Docket ID NRC-2019-0172 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov/ and search for Docket ID NRC-2019-0172. Address 
questions about NRC docket IDs in Regulations.gov to Jennifer Borges; 
telephone: 301-287-9127; email: [email protected]. For technical 
questions, contact the individual listed in the FOR FURTHER INFORMATION 
CONTACT section of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to [email protected]. The Order is available in ADAMS under 
Accession No. ML19234A336.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: David Jones, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; 
telephone: 301-287-9525, email: [email protected].

SUPPLEMENTARY INFORMATION: The text of the Order is attached.

    Dated at Rockville, Maryland, this 13th day of September 2019.

    For the Nuclear Regulatory Commission.
George A. Wilson,
Director, Office of Enforcement.

Attachment--Order Prohibiting Involvement in NRC-Licensed Activities

United States of America Nuclear Regulatory Commission

    In the Matter of Thomas Summers
IA-18-040

Order Prohibiting Involvement in NRC-Licensed Activities

I.

    Thomas Summers was employed as Regional Vice President--Operations 
and then as Corporate Support Vice President at NextEra Energy's 
Florida Power & Light (FPL). NextEra/FPL holds St. Lucie Unit 1 and 2 
License Nos. DPR-67 and NPF-16 issued by the Nuclear Regulatory 
Commission (NRC or Commission) pursuant to Part 50 of Title 10 of the 
Code of Federal Regulations (10 CFR), on March 1, 1976 and April 6, 
1983. The license authorizes the operation of St. Lucie Nuclear Plant 
(facility) in accordance with the conditions specified therein. The 
facility is located on the Licensee's site in Jensen Beach, Florida.

II.

    Two investigations were conducted by the U.S. Nuclear Regulatory 
Commission (NRC) Office of Investigations (OI) related to FPL's St. 
Lucie Nuclear Plant. The purposes of the investigations were to 
determine whether a contract employee at St. Lucie Nuclear Plant was 
the subject of employment discrimination in violation of Title 10 of 
the Code of Federal Regulations (10 CFR) 50.7, ``Employee protection'' 
(OI Report No. 2-2017-024); and to determine whether a FPL senior 
licensee executive, or potentially others, deliberately provided the 
NRC with incomplete and inaccurate information in violation of 10 CFR 
50.9, ``Completeness and accuracy of information'' (OI Report No. 2-
2019-009).On August 24, 2015,
    For OI Report No. 2-2017-024, NRC determined that Mr. Thomas 
Summers, as the former FPL Regional Vice President (VP)--Operations, 
deliberately cancelled a contract employee's assignment during the week 
of March 13, 2017. The cancellation occurred, in part, because the 
contract employee entered a concern into St. Lucie's corrective action 
program on March 13, 2017.
    In a letter dated October 19, 2018, Agencywide Documents Access and 
Management System (ADAMS) Accession No. ML18283B007, the NRC notified 
Mr. Thomas Summers of an apparent violation of 10 CFR 50.5, 
``Deliberate misconduct'', which the NRC was considering for escalated 
enforcement action in accordance with the NRC Enforcement Policy. This 
rule prohibits an employee or contractor of an NRC licensee (FPL) from 
engaging in deliberate misconduct that causes an NRC licensee to be in 
violation of any rule, regulation, or order; or any term, condition, or 
limitation of a license issued by the Commission. In the letter, the 
NRC requested your participation in a predecisional enforcement 
conference (PEC) to address the apparent violation. On February 6, 
2019, the NRC held a PEC at the NRC Headquarters office in Rockville, 
Maryland, with Mr. Thomas Summers and his attorney to discuss the 
apparent violation.
    OI's investigation documented that Mr. Thomas Summers, as the 
former FPL Regional VP--Operations sent an email to the Framatome VP of 
Outage Services on March 14, 2017. The body of your email included the 
text of the condition report that was submitted by the contract 
employee on March 13, 2017, and a related question regarding the 
condition report. The evidence documented that Mr. Thomas Summers and 
the Framatome VP acknowledged the sending, and the receipt, of the 
March 14th email. Additionally, the evidence indicated that you 
initiated a subsequent phone discussion on March 14th with the 
Framatome VP of Outage Services which included discussing the contract 
employee's reassignment to Turkey Point Nuclear Plant. The temporal 
proximity of the individual's submission of the condition report and 
the initiation of the adverse action by Mr. Summers, an FPL executive 
was deemed a discriminatory act.
    During the PEC Mr. Thomas Summers denied violating 10 CFR 50.5, 
``Deliberate misconduct'', and denied that FPL violated 10 CFR 50.7, 
``Employee protection.'' Generally, Mr. Thomas Summers asserted that 
the protected activity was not a contributing factor to any adverse 
personnel action

[[Page 49121]]

and that the NRC's only basis was ``temporal proximity'', and that the 
removal of the individual from the Turkey Point Nuclear Plant 
assignment was justified by legitimate safety (business) reasons. The 
NRC's determination that a violation occurred was based on factors such 
as: The individual's subordinates, coworkers, and superiors, both at 
Framatome and FPL, almost universally spoke very highly of him; neither 
you, FPL, or Framatome produced sufficient evidence to indicate that 
his performance, or the performance of his reactor services team, was a 
significant concern during the refueling outage; and, the staff noted 
that your testimony differed significantly from the testimony of other 
witnesses, including inconsistencies that undercut your credibility and 
specifically discredited your assertions that the individual's removal 
from the Turkey Point refueling outage was unrelated to his protected 
activities. The NRC determined that the assertion that the contractor's 
reassignment was justified by legitimate safety (business) reasons was 
not reasonable because of evidence which indicated that the 2017 spring 
refueling outage was the shortest outage for St. Lucie in many years 
and that the reactor services portion of the outage, managed by the 
contract employee, incurred only minimal scheduling delays. Lastly, the 
NRC determined that the contractor did suffer an adverse action when he 
was removed from the Turkey Point outage. When the contractor was 
directed not to go to Turkey Point, it was not clear if Framatome would 
provide an alternative work assignment or if such an alternative would 
provide comparable income. The individual is a part-time Framatome 
employee and is only paid when he works. A reasonable person would view 
the cancellation of the workers pre-scheduled transfer as an adverse 
action and one that could potentially chill others who raise nuclear 
safety concerns.
    Accordingly, the NRC determined that Mr. Thomas Summers actions 
were deliberate and a violation of 10 CFR 50.5, ``Deliberate 
misconduct''. The NRC considers deliberate violations of 10 CFR 50.7, 
``Employee protection'', significant because of the potential that 
individuals might not raise safety issues for fear of retaliation.
    For OI Report No. 2-2019-009, NRC determined that Mr. Thomas 
Summers, as the former FPL Corporate Support VP, engaged in deliberate 
misconduct that caused FPL to be in violation of 10 CFR 50.9, 
``Completeness and accuracy of information''. On October 19, 2018 (see 
ADAMS Accession No. ML18346A182), the NRC informed Mr. Thomas Summers 
of its enforcement deliberations for OI Report No. 2-2017-024. Within a 
week of this date, Mr. Thomas Summers presented to FPL an outage 
journal that contained information regarding the discrimination 
concern. This journal had not been presented during FPL's employee 
concerns program investigation (Spring of 2017) or during Mr. Summers 
OI interview in February 2018 (OI Report No. 2-2017-024). In a letter 
dated December 10, 2018, (ADAMS Accession No. ML18346A182) FPL 
submitted the photocopied journal to the NRC. FPL's letter stated that 
the journal contained material that was highly relevant to the facts in 
OI Report No. 2-2017-024. Subsequently, in a letter dated January 17, 
2019, ADAMS Accession No. ML19024A085, FPL stated that they had 
developed cause to question the authenticity of the outage journal 
provided by Mr. Thomas Summers.
    In a letter dated July 1, 2019, ADAMS Accession No. ML19172A284, 
the NRC notified Mr. Thomas Summers of an apparent violation of 10 CFR 
50.5, ``Deliberate Misconduct,'' which the NRC considered for escalated 
enforcement action in accordance with the NRC Enforcement Policy. In 
the letter, the NRC offered Mr. Thomas Summers the opportunity to 
participate in a PEC to address the apparent violation. On July 29, 
2019, the NRC held a PEC at the NRC Headquarters office in Rockville, 
Maryland, with Mr. Thomas Summers and his attorney to discuss the 
apparent violation.
    OI's investigation determined that Mr. Thomas Summers deliberately 
submitted a journal to FPL which contained incomplete and inaccurate 
information. Had the inaccurate information not been detected it would 
have adversely impacted NRC's enforcement deliberations for the St. 
Lucie discrimination case (OI Report No. 2-2017-024). OI's 
investigation documented that previously, Mr. Thomas Summers claimed to 
have located the journal at St. Lucie Nuclear Plant shortly after 
receipt of the apparent violation for the discrimination concern on 
October 19, 2018. A review of access authorization badge activity at 
St. Lucie Nuclear Plant indicated that Mr. Thomas Summers had not 
entered the plant. When confronted, Mr. Thomas Summers admitted to 
providing a false narrative about the discovery of the journal at St. 
Lucie Nuclear Plant. The results of a forensics analysis, procured by 
FPL, contradicted Mr. Thomas Summers claim that pertinent journal 
entries for the discrimination case were made in February and March of 
2017. The forensics analysis, conducted in January 2019, indicated that 
the journal entries were less than a year old (i.e., as compared to the 
expected two years). The analysis included testing of pages that 
contained information pertinent to the discrimination case. Despite Mr. 
Thomas Summers testimony that the journal is an accurate record of 
events; the documentary and testimonial evidence obtained by OI during 
the investigation demonstrated that you deliberately provided 
incomplete and inaccurate information to FPL to influence an NRC 
proceeding, namely the upcoming St. Lucie discrimination case PECs to 
avoid potential NRC enforcement actions.
    During the PEC Mr. Thomas Summers denied violating 10 CFR 50.5, 
``Deliberate misconduct'' and 10 CFR 50.9, ``Completeness and accuracy 
of information''. Generally, Mr. Summers asserted that the journal was 
an accurate reflection of activities during the St. Lucie Nuclear Plant 
refueling outage. Additionally, Mr. Summers asserted that the journal 
contained personal notes and that it was not an official company 
document. The NRC determined that Mr. Summers PEC presentation did not 
supplant the investigative evidence developed by the NRC. The NRC 
determined that the journal was material because it was provided to FPL 
in response to you receiving an apparent violation, and contained 
personnel performance information for a contractor of an NRC licensee 
(FPL) directly relevant to that apparent violation.
    Accordingly, the NRC determined that Mr. Summers actions were 
deliberate and that 10 CFR 50.5, ``Deliberate misconduct'' was 
violated. The NRC considers the deliberate violation of 10 CFR 50.9, 
``Completeness and accuracy of information'', significant because of 
Mr. Thomas Summers attempt to unduly influence the NRC's deliberations 
for the discrimination case discussed above.

III.

    Based on the above, the NRC determined that Mr. Thomas Summers, as 
Regional Vice President--Operations, and as Corporate Support Vice 
President, engaged in deliberate misconduct that caused the Licensee to 
be in violation of 10 CFR 50.7, ``Employee Protection'', and 10 CFR 
50.9, ``Completeness and accuracy of information''.
    Consequently, given the significance of the underlying issues, Mr. 
Summers position within the FPL organization

[[Page 49122]]

that had a very broad sphere of influence, and the deliberate nature of 
the actions; the NRC lacks the requisite reasonable assurance that 
licensed activities can be conducted in compliance with the 
Commission's requirements and that the health and safety of the public 
will be protected if Thomas Summers were permitted at this time to be 
involved in NRC-licensed activities. Therefore, Thomas Summers is 
prohibited from any involvement in NRC-licensed activities for a period 
of five years from the effective date of this Order. Additionally, 
Thomas Summers is required to notify the NRC of his first employment in 
NRC-licensed activities following the prohibition period. Furthermore, 
I find that the significance of Mr. Thomas Summers conduct described 
above is such that the public health, safety and interest require that 
this Order be immediately effective.

IV.

    Accordingly, pursuant to sections 103, 161b, 161i, 182 and 186 of 
the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202, and 10 CFR 50.5. IT IS HEREBY ORDERED, 
EFFECTIVE UPON THE DATE OF ISSUANCE, THAT:
    1. Mr. Thomas Summers is prohibited for five years, from the 
effective date of this Order, from engaging in NRC-licensed activities. 
NRC-licensed activities are those activities that are conducted 
pursuant to a specific or general license issued by the NRC, including, 
but not limited to, those activities of Agreement State licensees 
conducted pursuant to the authority granted by 10 CFR 150.20.
    2. If Mr. Thomas Summers is currently involved with an NRC licensee 
engaged in any other NRC-licensed activities, he must immediately cease 
those activities, and inform the NRC of the name, address, and 
telephone number of the employer, and provide a copy of this order to 
the employer.
    3. Mr. Thomas Summers shall, within 20 days of acceptance of his 
first employment offer involving NRC-licensed activities, as defined in 
paragraph IV.1 above, provide notice to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, of the name, address, and telephone number of the employer or the 
entity where he is, or will be, involved in the NRC-licensed 
activities. In the notification, Mr. Thomas Summers shall include a 
statement of his commitment to compliance with regulatory requirements 
and the basis why the Commission should have confidence that he will 
now comply with applicable NRC requirements.
    The Director, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by Mr. Thomas 
Summers of good cause.

V.

    In accordance with 10 CFR 2.202, Mr. Thomas Summers must submit a 
written answer to this Order under oath or affirmation within 20 days 
of its publication in the Federal Register. Mr. Thomas Summers failure 
to respond to this Order could result in additional enforcement action 
in accordance with the Commission's Enforcement Policy. In addition, 
Mr. Thomas Summers and any other person adversely affected by this 
Order may request a hearing on this Order within 20 days of its 
publication in the Federal Register. Where good cause is shown, 
consideration will be given to extending the time to answer or request 
a hearing. A request for extension of time must be directed to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-001, and include a statement of good cause for the 
extension.

VI.

    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007, as amended by 77 FR 46562, August 3, 2012), codified 
in pertinent part at 10 CFR part 2, subpart C. The E-Filing process 
requires participants to submit and serve all adjudicatory documents 
over the internet, or in some cases to mail copies on electronic 
storage media. Participants may not submit paper copies of their 
filings unless they seek an exemption in accordance with the procedures 
described below.
    To comply with the procedural requirements of E-Filing, at least 10 
days prior to the filing deadline, the participant should contact the 
Office of the Secretary by email at [email protected], or by 
telephone at (301) 415-1677, to request (1) a digital ID certificate, 
which allows the participant (or its counsel or representative) to 
digitally sign documents and access the E-Submittal server for any 
proceeding in which it is participating; and (2) advise the Secretary 
that the participant will be submitting a request or petition for 
hearing (even in instances in which the participant, or its counsel or 
representative, already holds an NRC-issued digital ID certificate). 
Based upon this information, the Secretary will establish an electronic 
docket for the hearing in this proceeding if the Secretary has not 
already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on NRC's public website at https://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public website at 
https://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the website, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E Filing rule, the participant must file the 
document using the NRC's online, web-based submission form. In order to 
serve documents through the Electronic Information Exchange (EIE), 
users will be required to install a web browser plug-in from the NRC 
website. Further information on the web-based submission form, 
including the installation of the Web browser plug-in, is available on 
the NRC's public website at https://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene through the EIE. Submissions 
should be in Portable Document Format (PDF) in accordance with NRC 
guidance available on the NRC public website at https://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the 
time the documents are submitted through the NRC's E-Filing system. To 
be timely, an electronic filing must be submitted to the E-Filing 
system no later than 11:59 p.m. Eastern Time (ET) on the due date. Upon 
receipt of a transmission, the E-Filing system time-stamps the document 
and sends the submitter an email notice confirming receipt of the 
document. The E-Filing system also distributes an email notice that 
provides access to the

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document to the NRC Office of the General Counsel and any others who 
have advised the Office of the Secretary that they wish to participate 
in the proceeding, so that the filer need not serve the documents on 
those participants separately. Therefore, any others who wish to 
participate in the proceeding (or their counsel or representative) must 
apply for and receive a digital ID certificate before a hearing 
request/petition to intervene is filed so that they can obtain access 
to the document via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC website at 
https://www.nrc.gov/site-help/e-submittals.html, by email at 
[email protected], or by a toll-free call at (866) 672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., ET, 
Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
stating why there is good cause for not filing electronically and 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, 11555 
Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and 
Adjudications Staff. Participants filing adjudicatory documents in this 
manner are responsible for serving the document on all other 
participants. Filing is considered complete by first-class mail as of 
the time of deposit in the mail, or by courier, express mail, or 
expedited delivery service upon depositing the document with the 
provider of the service. A presiding officer, having granted an 
exemption request from using E-Filing, may require a participant or 
party to use E-Filing if the presiding officer subsequently determines 
that the reason for granting the exemption from use of E-Filing no 
longer exists.
    Documents submitted in adjudicatory proceedings will appear in the 
NRC's electronic hearing docket which is available to the public at 
https://adams.nrc.gov/ehd, unless excluded pursuant to an order of the 
Commission or the presiding officer. If you do not have an NRC-issued 
digital ID certificate as described above, click cancel when the link 
requests certificates and you will be automatically directed to the 
NRC's electronic hearing dockets where you will be able to access any 
publicly available documents in a particular hearing docket. 
Participants are requested not to include personal privacy information, 
such as social security numbers, home addresses, or personal phone 
numbers in their filings, unless an NRC regulation or other law 
requires submission of such information. For example, in some 
instances, individuals provide home addresses in order to demonstrate 
proximity to a facility or site. With respect to copyrighted works, 
except for limited excerpts that serve the purpose of the adjudicatory 
filings and would constitute a Fair Use application, participants are 
requested not to include copyrighted materials in their submission.
    If a person other than Mr. Thomas Summers requests a hearing, that 
person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d) and (f).
    If a hearing is requested by Mr. Thomas Summers or a person whose 
interest is adversely affected, the Commission will issue an Order 
designating the time and place of any hearings. If a hearing is held, 
the issue to be considered at such hearing shall be whether this Order 
should be sustained. In the absence of any request for hearing, or 
written approval of an extension of time in which to request a hearing, 
the provisions specified in Section IV above shall be final 30 days 
from the date this Order is published in the Federal Register without 
further order or proceedings. If an extension of time for requesting a 
hearing has been approved, the provisions specified in Section IV shall 
be final when the extension expires if a hearing request has not been 
received.

    Dated at Rockville, Maryland, this 12th day of September 2019.

For the Nuclear Regulatory Commission.

George A. Wilson,

Director Office of Enforcement.

[FR Doc. 2019-20168 Filed 9-17-19; 8:45 am]
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