Davis-Besse 'deception' trial to begin

8/8/2008

Just who is Andrew Siemaszko?

A U.S. District Court jury in Toledo will effectively start pondering that question today.

The jury will hear opening statements in the second of two criminal cases federal prosecutors have filed as a result of the near-catastrophic rupture of Davis-Besse's reactor head in the spring of 2002. Mr. Siemaszko is charged with five counts of lying to the government.

The trial, as well as the one involving co-defendants David Geisen and Rodney N. Cook last fall, centers around who had knowledge of the danger inside the nuclear plant near Oak Harbor in the fall of 2001.

Months later, the nuclear power generating plant 30 miles east of Toledo began a two-year shutdown that cost FirstEnergy Corp. more than $600 million.

To FirstEnergy, the Nuclear Regulatory Commission, and the U.S. Department of Justice, Mr. Siemaszko is the final piece of a criminal puzzle.

To activists, industry observers and rank-and-file workers, though, Mr. Siemaszko is a nuclear whistleblower being set up as a scapegoat.

He is being represented by four lawyers, including Billie Pirner Garde, a high-profile whistleblower attorney from Washington.

Prosecutors have said Mr. Siemaszko was involved in a massive cover-up that jeopardized northern Ohio.

The indictment handed up by a Cleveland grand jury against him and two co-defendants on Jan. 19, 2006, accused the trio of "tricks, schemes, or devices" to deliberately mislead the NRC.

The three faced five years in prison and $250,000 fines if convicted.

Geisen of DePere,Wis., was sentenced May 1 by Judge David Katz of U.S. District Court in Toledo to a $7,500 fine, three years' probation, four months of house arrest, and 200 hours of community service after a jury found him guilty of three of five deception charges in October.

Mr. Cook of Millington, Tenn., was acquitted on all four counts.

FirstEnergy has paid $33.5 million for its role in the cover-up.

David Uhlmann, while chief of the Justice Department's environmental crimes section, said the utility showed "brazen arrogance" and "breached the public trust" by withholding information. Mr. Uhlmann now teaches law at the University of Michigan.

Justice Department spokesman Andrew Ames declined to comment on the five charges against Mr. Siemaszko, citing agency policy about pending litigation.

Prosecutors did not return messages.

Online court records show the defense team has subpoenaed retired NRC Deputy Inspector General George Mulley as a witness.

Mr. Mulley was the lead author of a controversial Office of Inspector General report in 2003, in which federal auditors claimed the NRC was duped by FirstEnergy lobbyists into letting Davis-Besse continue operating in the fall of 2001.

The agency had prepared the government's first emergency-shutdown order for a nuclear plant since 1987, but never executed it.

The report that Mr. Mulley co-authored said the NRC had become a complacent regulator. It accused the agency of becoming sympathetic to a profit-over-safety mentality that FirstEnergy later acknowledged existed within the utility.

Then-NRC Chairman Richard Meserve responded sharply to the accusations, saying his agency had done its best to protect northern Ohio.

Mr. Mulley was one of the first employees of the NRC's Office of Inspector General after it was created by Congress in 1987.

Former U.S. Sen. John Glenn (D., Ohio) introduced the Senate bill after telling colleagues the NRC had become too cozy with the industry it oversaw.

The agency "is supposed to be a watchdog, not a lapdog," Mr. Glenn said at the time.

David Lochbaum spent 17 years in the nuclear industry before joining the Union of Concerned Scientists of Cambridge, Mass., as a nuclear-safety engineer.

A consultant for the defense team, he is among those who believes Mr. Siemaszko is a scapegoat.

In May, he sent a $75 check to Geisen's attorneys to cover 1 percent of his fine, attacking the indictments as a miscarriage of justice in which the wrong people have been blamed.

In an interview Wednesday, Mr. Lochbaum related what he would have done in Mr. Siemaszko's shoes.

He said that as a new employee in 2000, Mr. Siemaszko had the guts to go over several supervisors' heads to demand costly repairs on Davis-Besse's reactor head.

"Andrew was trying to do the right thing," Mr. Lochbaum said. "I can't honestly say I would have done anything differently."

Paul Blanch was a nuclear whistleblower at the Millstone nuclear complex in southeast Connecticut, the basis of a 1996 Time magazine cover story that led to national reform.

"The only thing I can say with any certainty is that the NRC's actions continue to send a clear message to all nuclear employees to never challenge any management decisions," Mr. Blanch said.

"Had I known what I know now, I never would have raised the concerns. I was lucky in that the media and Senator [Joe] Lieberman were totally on my side," he said, referring to the Connecticut independent.

The NRC has said it wants to hear from frontline workers.

Before allowing Davis-Besse to resume operation in 2004, the agency required FirstEnergy to demonstrate that a workplace culture supportive of workers' safety concerns had been established at the plant.

Records show Mr. Siemaszko tried to get Davis-Besse's restart in 2000 put off long enough to give the plant's reactor head its first complete cleaning in years.

But scaffolding was removed. The job was cut short.

During the next outage two years later, a perilously thin, football-shaped cavity was found in the massive steel lid.

Laboratory tests showed the deformity had started to bulge and crack - and that the reactor head was likely within weeks of bursting and allowing radioactive steam to form.

On March 11, 2004, Harold Denton told 1,300 people from 21 countries that the Davis-Besse saga was the nuclear industry's lowest point since the 1979 half-core meltdown of the Three Mile Island Unit 2 nuclear plant in Pennsylvania.

Mr. Denton was the NRC official that President Jimmy Carter put in charge of restoring order at Three Mile Island.

According to online records, presiding Judge David Katz has told attorneys arguing the Siemaszko case he will not allow the jury to hear detailed comparisons to Three Mile Island.

Contact Tom Henry at:

thenry@theblade.com

or 419-724-6079.