toledoblade.com --

FirstEnergy Corp. was caught in a lie.

No matter how much people speculate about what could have happened if the thinned-out layer of steel covering the Davis-Besse nuclear plant had ruptured in 2002, none of that changes the fact that the utility knowingly endangered the safety of northern Ohio residents, according to U.S. Department of Justice officials.

The utility - through its willingness to accept a record $28 million fine - now acknowledges that, as a corporation, it covered up information that should have been presented to the Nuclear Regulatory Commission in the fall of 2001, Justice Department officials said.

Those are not the circumstances around which community projects are normally funded.

Nobody's happy about what FirstEnergy did, but there's at least satisfaction in the federal government's willingness to divert 15 percent of the fine to projects that serve area residents at large.

About $4.3 million of the money is to be spent on community service projects.

The largest recipient will be the Ottawa National Wildlife Refuge, which is to get $1.35 million. The arrangement calls for the money to be passed on to the refuge through a friends group called the Ottawa National Wildlife Refuge Association. The refuge is off State Rt. 2 in Ottawa County, just west of Davis-Besse.

Doug Brewer, refuge manager, said $800,000 is earmarked to help build a wetlands demonstration project that includes educational signs and a boardwalk.

Some of the money for the wildlife refuge will supplement a $1.95 million visitor center that is under construction.
( THE BLADE/ALLAN DETRICH )

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The boardwalk will be connected to the refuge's trail system, he said.

The other $550,000 is supplemental funding for the refuge's new $1.95 million visitor center that is under construction.

The additional money will help the refuge install restrooms separate from the main building, so that facilities can remain open for visitors who stay until the refuge closes at dusk, Mr. Brewer said.

Habitat for Humanity International will get $1 million to help up to 70 northern Ohio affiliates continue building homes that meet the U.S. Environmental Protection Agency's Energy Star requirements for efficiency.

Those improvements cover the basics: Extra caulking, extra insulation, and energy-efficient windows, furnaces, and water heaters, said Chuck Thayer, executive director of the Maumee Valley Habitat for Humanity.

"It will be a real blessing to Habitat affiliates across the northern part of the state," he said.

Another $1 million will go to the Cuyahoga Valley National Park near Cleveland for extending Towpath Trail.

The University of Toledo's College of Engineering will get $500,000 to help advance its research in energy efficiency, including an expanded program at Nitschke Hall.

Nagi Naganathan, the engineering college's dean, said UT has had a strong relationship with FirstEnergy because of training programs and employment offered by the utility.

The engineering school plans to use its money to help support research in alternative fuels such as ethanol, as well as bio-diesel technology, plus research into further development of solar cells and hydrogen fuel cells.

"We are looking for ways of producing hydrogen in an energy-efficient manner," Mr. Naganathan said.

The Ottawa County Emergency Management Agency also will get $500,000 to upgrade its communications system.

David Uhlmann, chief of the Justice Department's environmental crimes section in Washington, said it's important for the public to realize what this $4.3 million is not.

It's not a charitable contribution. It's not a donation that FirstEnergy can write off on its tax returns or prosper from in any way financially.

A deferred agreement, which gives FirstEnergy up to 60 days to come up with the $28 million, explicitly forbids that, he said.

So if FirstEnergy lied to the government as a corporation, did it just agree to write a big check to keep its senior management from being prosecuted?

"Absolutely not," Mr. Uhlmann said. "We never negotiate with corporations concerning the fate of corporate officers or individuals. We did not do so in this case. Our negotiations focused exclusively on corporate liability," he said.

Three individuals have been indicted. They were not senior executives or involved directly in the face-to-face negotiations over Davis-Besse's status in the fall of 2001, when the NRC was considering whether to execute what was the government's first shutdown order of a nuclear plant since 1987.

The order ultimately was set aside, after a compromise was struck that allowed Davis-Besse to continue operating until Feb. 16, 2002, six weeks longer than what had been proposed.

"It's fair to say we didn't believe there was sufficient evidence at higher levels in the company to prove there was criminal intent [by senior management officials] beyond a reasonable doubt," Mr. Uhlmann said, in explaining why the indictments were limited to those three.

U.S. Attorney Greg White of Cleveland made similar remarks, both at a Jan. 20 news conference and in a subsequent interview.

Mr. White told The Blade that proving criminal deception among those higher in the corporation would have required more proof about their "mindset," or intent to mislead.

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

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