March 8, 2004

Gregory A. White, U.S. Attorney
Northern District of Ohio
801 West Superior Avenue, Suite 400
Cleveland 44113-1852

Dear Mr. White:

Last September, the U.S. Nuclear Regulatory Commission Office of Investigation referred to the U.S. Department of Justice 'substantiated' criminal violations at the Davis-Besse nuclear power plant. As a consequence, you convened a federal grand jury in Cleveland, which has yet to decide on issuing indictments.

Meanwhile, the U.S. Nuclear Regulatory Commission is considering a Davis-Besse restart request from FirstEnergy, and -- all other things being equal -- a decision could come any day.

Clearly, however, all other things are not equal: No nuclear plant has ever been given permission to restart while a grand jury investigation related to findings of possible criminal actions at that plant is still going on.

This is an occasion for you to send an 'urgent report' to Attorney General John Ashcroft, apprising him of the circumstances and recommending that he -- or if necessary, President George W. Bush, acting on Mr. Ashcroft's recommendation -- ask the U.S. Nuclear Regulatory Commission to postpone its Davis-Besse restart decision until the grand jury has decided whether to issue indictments.

Such a report is required by the United States Attorneys' Manual, section 3-18.230, 'Urgent Reports on Other Matters,' which reads, in part --

Information falling within the criteria set forth below should be sent by EMAIL/FAX (utilizing a secured machine when appropriate), followed by a written memorandum, for further distribution to the Attorney General, Deputy Attorney General, Associate Attorney General and the appropriate Assistant Attorney General. United States Attorneys' offices will communicate directly to the Executive Office for United States Attorneys. Litigating division staff attorneys will communicate directly to the appropriate supervisor at the Department of Justice. Access to Urgent Reports is strictly controlled and limited to those officials having a need to know.
  1. Emergencies -- e.g., riots, taking of hostages, hijacking, kidnapping, prison escapes with attendant violence, serious bodily injury to or caused by Department personnel;
  2. Allegations of improper conduct by the Department or specific Department employee, a public official, or a public figure; including criticism by a member of Congress, a court, or other senior government officials of the Department's handling of a particular matter;
  3. Serious conflicts with other government agencies or departments;
  4. Issues or events that may be of major interest to the press, Congress or the President; and
  5. Other information so important as to warrant the personal attention of the Attorney General within 24 hours.
Several of the above criteria are met, especially the first. The word 'emergency' means nothing if it does not apply to a situation where FirstEnergy managers who may be indicted for safety violations are allowed to operate a nuclear reactor on the shores of the largest freshwater system in the world.

In this regard, I hope you will examine my February 25, 2004 letter to U.S. NRC Regional Administrator James Caldwell, identifying nine managers who were involved in key decisions at Davis-Besse in the 1990s and who still appear to be employed in top management at FirstEnergy, FirstEnergy Nuclear Operating Company, or its nuclear plants. In addition, of course, FirstEnergy's top executives remain, except for Peter Burg, who died in January.

I am aware that the U.S. NRC has assigned an employee to be a liaison with the grand jury. This is hardly an adequate safeguard. It is not sufficient that the liaison learn who may be about to be indicted, and whether they are currently employed at Davis-Besse. FirstEnergy has enough subsidiaries and divisions, and two other nuclear plants, such that a round of musical chairs can make these managers gone-but-not-gone.

Further, the grand jury is considering only indictable criminal acts, not reactor safety. If the jury finds, for example, insufficient evidence to indict a top manager remaining at FirstEnergy, but the executive was clearly negligent, that information may not make it to, or through, the appointed liaison.

I understand that you did not create this situation of a simultaneous restart decision and grand jury proceeding. Since it endangers public safety, however, you have the responsibility to do something about it. The grand jury process cannot be rushed, so the recommendation to Attorney General Ashcroft described above is your best option.

I look forward to your reply.

Sincerely,

Sandy Buchanan, Executive Director
Ohio Citizen Action