Case against Davis-Besse engineer now up to jury

8/22/2008

Jury deliberations began at noon in the criminal trial of former FirstEnergy Corp. engineer Andrew Siemaszko, who is charged with five counts of lying or withholding information from the Nuclear Regulatory Commission about Davis-Besse s operating status in the fall of 2001.

Attorneys spent more than three hours delivering closing arguments.

Billie Pirner Garde, recognized by a prosecution witness and others as an attorney with a national reputation for defending nuclear whistleblowers, broke down in tears as she maintained her client s innocence.

She said Mr. Siemaszko, a native of Poland, "came to this country as a dream from a Communist country in 1978, where the government doesn t have the burden of proving guilt beyond a reasonable doubt."

Thomas Ballantine, an assistant U.S. attorney in the U.S. Department of Justice s environmental crimes section, told the jury Mr. Siemaszko is guilty of concealing information vital to northern Ohio s safety.

"Andrew Siemaszko is not a whistleblower," Mr. Ballantine said. "This case should not be construed as a whistleblower case. This case is about a person who told the NRC a lie, who covered up information."

The defense team has claimed throughout the trial that Mr. Siemaszko has been set up by the NRC, the Department of Justice, and the utility as a scapegoat for the Ottawa County plant s near-catastrophe.

Mr. Siemaszko s lawyers maintain he was trying to get the plant s old reactor head fixed in 2000.

Upon inspection in early April of 2002, the head was found in a near-ruptured state the worst ever for an in-service U.S. nuclear reactor. Its dangerous condition was blamed on years of neglect and a massive cover-up.

Subsequent laboratory tests showed it was a statistical fluke the reactor head held together until the plant s Feb. 16, 2002 shutdown. If it hadn t, deadly radioactive steam would have formed in containment for the first time since the half-core meltdown of Pennsylvania s Three Mile Island Unit 2 nuclear plant in 1979.

FirstEnergy has paid a record $33.5 million for its corporate role in the cover-up. Two alleged co-conspirators were tried last year. One was fined $7,500 after being convicted on three of five counts; the other was acquitted of all four charges against him.

The case is one of the most intensely investigated in nuclear history.

Closing arguments begin this morning in the criminal trial of former FirstEnergy Corp. engineer Andrew Siemaszko, a federal case being heard in Toledo with potential ramifications for nuclear whistleblowers nationwide.

Jury deliberations are expected to start about noon.

Mr. Siemaszko is charged with five counts of lying or withholding information from the Nuclear Regulatory Commission about the operating status of the Davis-Besse nuclear plant in the fall of 2001, weeks before its historic shutdown on Feb. 16, 2002.

Three weeks after the plant was shut down, NRC officials learned the plant's reactor head had started to buckle and crack. If the lid had burst, radioactive steam would have formed in containment of a U.S. nuclear vessel for the first time since the half-core meltdown of Three Mile Island Unit 2 in Pennsylvania 1979.

The U.S. District Court jury has a veritable mountain of evidence to sift through.

The Cleveland grand jury that handed up indictments against Mr. Siemaszko and his alleged co-conspirators - David Geisen of DePere, Wis., and Rodney N. Cook of Millington, Tenn. - listened to government agents and prosecutors behind closed doors for two years.

But it all comes down to whether Mr. Siemaszko is a scapegoat or the key link to a cover-up that endangered northern Ohio.

Geisen, one of Mr. Siemaszko's former supervisors, was fined $7,500 after being convicted in a separate trial last fall on three of five deception charges.

At that same trial, Mr. Cook, a contractor brought in to write key reports submitted to the NRC that fall, was acquitted of all four charges against him.

Mr. Siemaszko, a native of Poland, was put in charge of Davis-Besse's old reactor head shortly after beginning work at the Ottawa County complex in 1999. He was recruited by FirstEnergy, according to testimony.

The biggest task he encountered was ordering fixes and repairs to the reactor head for the plant's 2000 outage, the last time the head was removed from the reactor before the near-rupture was diagnosed.

In today's closing arguments, the two U.S. Department of Justice attorneys trying the case are expected to draw emphasis to the testimony of an investigator, Eric Calhoun.

Mr. Siemaszko's four-member defense team is expected to discredit him.

Mr. Calhoun is an investigator for the U.S. Office of Special Counsel, an independent government agency that investigates whistleblower complaints. He was a U.S. Department of Labor investigator when he interviewed Mr. Siemaszko on April 30, 2003.

According to testimony Mr. Calhoun gave the jury last Friday and this past Monday, Mr. Siemaszko claimed to have become a "hero" in FirstEnergy's eyes and the recipient of a $1,000 bonus for deceiving the NRC.

Mr. Siemaszko allegedly told the investigator, in the presence of his attorney, Billie Pirner Garde, that he thought FirstEnergy wanted him to lie because "management with him and others wanted to get this issue past the NRC."

FirstEnergy, which has paid a record $33.5 million for its corporate role in the cover-up, fired Mr. Siemaszko on Sept. 18, 2002. He was fired, according to Mr. Calhoun's testimony, because of his failure to clean the reactor head and his "false and misleading information" to the NRC.

There was no signed confession. And no recording of the interview. According to Mr. Calhoun, recorded interviews were "specifically prohibited" by his Labor Department supervisor.

A report that Mr. Calhoun produced from that interview, informing Mr. Siemaszko that his request for federal whistleblower protection was being denied, made no mention of Mr. Siemaszko possibly having committed a criminal act.

Mr. Calhoun also said he never looked up the names of several co-workers that Mr. Siemaszko had turned over to him. Mr. Siemaszko had hoped they would corroborate his story.

The defense claims Mr. Siemaszko, who has a strong accent, has problems with the language barrier. It says he was maligned by FirstEnergy and the government for trying to do the right thing - halt the 2000 restart for the reactor head's first complete inspection and cleaning in years, a job that would have likely taken weeks and cost the utility several million dollars.

Nuclear plants generate more than $1 million worth of electricity a day, according to Mr. Calhoun's testimony.

Mr. Siemaszko began cleaning the reactor head. But scaffolding was removed within 24 hours without his consent, according to his attorneys.

Mr. Calhoun testified that FirstEnergy told him Mr. Siemaszko ordered that the scaffolding be removed. The utility contended its former engineer falsely claimed the job was complete.

The investigator was asked what evidence FirstEnergy produced to make such claims.

His response? Pizza.

He said FirstEnergy learned Mr. Siemaszko had bought a pizza for some of his co-workers that night.

He said the utility took that as a sign that Mr. Siemaszko's team was celebrating the end of the reactor-head job.

The defense claims it was a pizza to recognize that they were off to a good start.

Contact Tom Henry at:

thenry@theblade.com

or 419-724-6079.