Besse trio unlikely to be tried this year

7/17/2006

A former Davis-Besse trio being prosecuted for endangering public safety likely won't have their cases heard in U.S. District Court in Toledo this fall, as federal prosecutors had predicted when the indictments were issued in late January.

Andrew Siemaszko, 51, of Spring, Texas; David Geisen, 45, of DePere, Wis., and Rodney N. Cook, 55, of Millington, Tenn., maintain their innocence on charges of making false statements to a federal agency.

They are accused of withholding vital information about the plant's operating status during the fall of 2001, when the Nuclear Regulatory Commission was contemplating what would have been the government's first emergency shutdown of a nuclear plant since 1987.

The government agency admittedly was embarrassed and angered by what was found after it relented. It unknowingly let the plant limp along in an extremely dangerous condition until Feb. 16, 2002.

Mr. Siemaszko and Mr. Geisen, both former FirstEnergy Corp. employees, are being prosecuted on five counts, while Mr. Cook, an outside contractor-consultant who had worked at Davis-Besse for many years, is being prosecuted on four. Each face up to five years in prison and $250,000 in fines if convicted.

On July 7, Magistrate Vernelis Armstrong granted the U.S. Department of Justice's request to waive the speedy trial rule. The government had asked for more time, citing the complexity of the case and its 20,000-plus documents.

During a conference call four days later, the magistrate postponed the deadline for pretrial motions for a second time. The new deadline is Oct. 10.

She also gave FirstEnergy's nuclear subsidiary, FirstEnergy Nuclear Operation Co., or FENOC, two weeks to work out its dispute with Mr. Siemaszko's defense team over 146 documents.

They were presented to the grand jury that reviewed evidence in Cleveland for two years, but FENOC lawyers claim they should be placed under a protective order and kept out of the public proceedings because of the company's proprietary issues or trade secrets.

Mr. Siemaszko's attorneys object, claiming they are entitled to the same information the grand jury received.

"We dispute their claim, since most of the documents are already in the public domain," said Chuck Boss of Maumee, part of Mr. Siemaszko's defense.

The dispute, if resolved in two weeks, will be subject to a ruling after more briefs are filed, he said.

John Conroy, a Washington attorney representing Mr. Cook, said attorneys themselves have not yet sorted out whether the cases will be tried as one or tried separately. Motions could be forthcoming on that issue, he said.

Asked when the case or cases would be heard, Mr. Conroy responded: "Probably not this year."

Mr. Boss said the Siemaszko defense team is fighting FirstEnergy's attempt to shield the documents under a protective order because defense lawyers want to receive technical assistance with the documents from the Union of Concerned Scientists, of Cambridge, Mass.

FirstEnergy said part of its motivation for keeping the records secret is to keep them away from that national activist group, formed years ago to oppose nuclear power expansion.

David Lochbaum, the group's nuclear safety engineer, said he believes the concern about the documents in question is "broader than what we might do with them."

He said he believes those documents will reveal the government - and FirstEnergy - doesn't have a case against Mr. Siemaszko.

His group and others, including Ohio Citizen Action, maintain that Mr. Siemaszko is a nuclear whistle-blower who has been maligned for trying to shed light on Davis-Besse's problems. Mr. Siemaszko told The Blade in a previous interview he felt he was fired for trying to get FirstEnergy to make necessary improvements at the plant. The company denies that.

"I think it would be easier to find weapons of mass destruction in Iraq than it would be to make a case against Andrew," Mr. Lochbaum said.

The Union of Concerned Scientists and Ohio Citizen Action have been granted intervener status in Mr. Siemaszko's appeal of civil penalties, including the NRC's ban on his continued employment in the nuclear industry.

The NRC recently filed an appeal of a panel's decision to grant intervener status to those two groups, in effect trying to quash their involvement.

The case also has the potential of becoming further complicated by FirstEnergy's revelation on Friday that it stumbled upon 70-some documents at Davis-Besse a few weeks ago, while moving around materials in an office at the nuclear plant.

Todd Schneider, utility spokesman, said five boxes of documents that belonged to a former contractor were discovered. He declined to say whether they belonged to Mr. Cook, the only former contractor who has been indicted.

The boxes contained some duplicates of previously submitted documents, and an undisclosed amount of new material. The Nuclear Regulatory Commission and the Justice Department will likely spend weeks reviewing the new material.

Contact Tom Henry at: thenry@theblade.com or 419-724-6079.