ML20027A183

Util Motion for Stay of Suspension of Order Pending Aslab Review of CPPR-139 & CPPR-140

ML20027A183
Person / Time
Site:	Callaway
Issue date:	10/06/1978
From:	Reynolds W SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
Shared Package
ML20027A182	List: ML20027A181 ML20027A183
References
NUDOCS 7810200182
Download: ML20027A183 (12)

Text

. Octob;r 6, 1978 UNITED STATES OF AMERICA NCCLEAR REGULATORY CCMMISSION 3efore the Atomic Safety and Licensing Appeal Scard

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In the Matter of )

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UNION ELECTRIC COMPANY ) Construction Permits Ncs. CPPR-139 (Callaway Plan , Units 1 and 2) ) CPPR-140 MOTION OF UNION ELECTRIC CCMPAN'I FOR A STAY OF SUSPENSION ORDER PENDING APPEAL BOARD REVIEW Pursuant to Section 2.788 (f) of the Commission's Rules of Practice, 10 C.F.R. 5 2.788 (f) , the Union Electric Company hereby moves the Appeal Scard to stay the effectiveness cf the Licensing 3 card's Initial Decision On Order To Show Cause which issued in the captioned proceeding en September 28, 1978, pending consideration and decision by this Appeal Scard of Union Electric Ccmpany's exceptiens there:c (which exceptions are being filed herewith).

In support of said stay motion, Union Electric Ccmpany states the folicwing:

1. The Initial Decision authcrimes the Director, Office of Inspection and Enforcement, Nuclear Regula:Ory Cem-mission ("NRC"), "to suspend Construction Permits Nos. CPPR-133 and CPPR-140 until such time as the Licensee, including its em-playees, agents and ccn=rac:crs engaged in ac ivities under -he license, submi:s : such investigaticns as the Cc=missien deems 7 P t o 2 4 m e 2. &

necessary and as authorized by the Atomic Energy Act of 1954, t

• a as amended, [and] the ccmmission's regulations" ( .D. at

p. 22).

2. This authority to suspend is, by explicit order of the Licensing Board below, to become effective as final Commission action "within thirty (30) days after the date of

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issuance" of the Initial Decision (I.D. at p. 22). The pre- ~ ~ ~ ~

scribed timetable plainly does not provide the parties in dis-agreement with the rulings of the Licensing Board in the show cause preceeding to pursue fully here their filed exceptions to the Initial Decision, and obtain an Appeal Board decision thereon, before the suspension order takes effect.-1/

3. Without issuance of the requested stay, Union Flectric Ccmpany will effectively be deprived of a meaningful opportunity to centest the Initial Decision on appeal. As indi-cated in the Affidavit cf John K. Bryan, Vice President-Nuclear of Union Electric Ccmpany (a ccpy of which is attached hereto the prospect of suspension of the Callaway as Exhibit "A"),

construction permits thirty (30) days hence carries with it dire consequences in terms of substantial manpcwer layoffs, econcmic icsses and plant schedule slippages. Obvicusly, Union Electric 1/ The Licensing Scard included in its Order a briefing schedule for exceptions filed with the Appeal Ecard that tracks the prescribed schedule set foruh in Section 2.752 of the Com-mission's Rules of Practice, 10 C.F.R. S 2.~62. pursuant theretc (I.D. at pp. 22-23), a total of 70 days after the filing -

of exceptions will elapse before the appeal briefs cf all parties will be submitted. Additional time will then be required fcr the Appeal Scard := censider the briefs, hear cral argumen: from the parties and render its decision.

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Company can ill afford to allow the cresent . controversv. over t

the NRC's investigation into the firing of a single worker to result in issuance of a suspension order which will, over time, effectively terminate virtually all of the current work force at the construction site.

4. This means, of course, that, unless the requested stay issues, the Ccmpany is placed in the untenable position by the Licensing Scard's suspension order of having to forego pursuing its appeal rights with respect to the rulings below on significant legal issues which are admittedly a matter of "first impression" before this agency (I.D. at p. 13).

5. Whether NRC inspectors have authority under the Atcmic Energy Act of 1954, as amended, to investigate the causes for firing a worker employed at a nuclear pcwer plan: construction site raises serious legal and policy questions nowhere addressed

by the Licensing Scard belcw. Notwithstanding the cavalier treatment of this issue in the Initial Decision by nothing scre than a casual reference to Sections 161(c) and 161(c) of the Act (I.D. at pp. 12-13, 16, 20), the fact remains that the question of authority presented in this shew cause preceeding has pro-

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veked sericus debate within the Ccmmissien itself,- and, jus t

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The differing views on the authority of the Cecmission ::

take action in this area, both frem a legal perspective and as a _ _ .

matter of sound pclicy, are set forth in scme detail in Reper:

Secy-73-30S := the NRC, dated June 9, 1973, frca Rcher: 3. Minegue.

The Licensing 3 card's refusal to accept this Report in 0 the record

( was, we submit, clear errer. In any event, the Reper: is certainly a document cf which this Appeal Scard can prcperly take official i

notice for purposes of the present appeal.

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-4 recently, pronpred the United States Senate to pass additional

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legislation directly en point.

6. Contrary to the Licensing Board's unreasoned per-ception of the matter, it is far from clear that the statutory provisions relied upon below were intended to embrace NRC in-vestigations into disciplinary actions by management against employees '$orking a[ an authoriced construction site. Indeed, the plain language of Sections 161(c) and 161(o) , when care-fully read, provides no support for such a conclusion. Nor are there any gced policy reasons arguing in favor of the NRC sud-denly beccming entangled in labor-relations matters which require a special knowledge and expertise that the ccmmission under-standably lacks.

7. It is, moreover, readily apparent that the sort of investigation under scrutiny in this proceeding is not covered by any existing Ccemission regulation. The Licensing 3 card's passing reference to Rule 50.70 of the Cem=ission's Rules of Practice is nothing more than " question begging". That Rule 3/ Senate Bill S.2584, which was passed en September 13, 1978, prc71 des in Section 210 for prctection of empicyees of an applicant or holder of an NRC license or pers',t (or said employer's con-tracters and subcentractors) agains discriminaccry action in re-taliation for amployee participation or centempla:ed invcivement in the NRC licensing precess. Where claims of empicyer discrimi-nation are made, the Senate 3111 provides that the investiga: cry responsibility regarding such matters rests with the Secretarv - --

cf Labor, not with NRC inspectors. The Licensing 3 card's refusal to take ccgnizance of this new legisla icn was errer. Certainly, Senate Sill S.2584 is seme:hing that this Appeal 3 card can take efficial notice of for purpcses of the present appeal.

speaks in terms of "inspecticns * *

• nec9ssary to effectuate I the curtoses of the' ace" (10 C.F.R. S 50.70; emphasis added).

The very issue before the Licensing Scard -- and one which still awaits resolution on the basis of a learned analysis of the law -- is whether an inspection of disciplinary action taken against a worker employed at a nuclear reactor construc-tion site is indeed "necessary" to acccmplish the statutory purposes. We continue to think not.

8. Nor do we find any legal basis ' for escaping the warrant requirement announced by the United States Supreme court in Marshall v Saglow's, Inc., U.S. , 56 L. Ed. 2d 305, 46 USLW 4483 (May 23, 1978), in, view of the absence of regulatory directives in this area. Before one can invcke the warrantless search exception discussed in Earlow's, Inc., it must be dem-enstrated that the questioned agency action is within prescribed regulatory guidelines. Such is not the case here.

9. For these reasons, among others noted in our 4/

filed exceptions,- Union Electric Company believes that careful consideration by this Appeal Scard of the "first imprecsien" legal issues raised in the present preceeding is imperative.

4/ One excep: ens of Union Electric Ccmpany also take issue with the Licensing 3 card's refusal to appreciate the scundness of deferring any action that might be taken by the NRC in this area until the conclusier of the engoing Unicn grievance pro- ~~

ceeding, which is also investigating the causes of Mr. Smart's firing. Also challenged in the Ccmpany's exceptions is the sus-

pensien order itself, which departs frem pric

Cc= mission prec-i edents in other shew cause proceedings, all of which signalled a centrary result in circumstances such as are involved here.

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It is. decidedly in the interest of the Cc= mission, as well as -

in the interest of the public at large, to have this ma ter reviewed and decided on appaal with full attention to the dif-ficult legal and policy arguments that were inexplicably ignored in the Initial Decision.

10. Unless the present stay =ction is granted, Con-struction Permits Nos. CPPR-139 and CPPR-140 will be subject to suspension thirty 430) days hence if Union Electric Ccmpany does not ccmpel its contractor to submit to the contested NRC investigation which the Company strongly believes to be un-authorized by statute or Commission regulations. Fundamental considerations of due precess argue forcefully against placing any appellant in such a position without first allcwing him the opportunity :c exhaust his appeal rights. Indeed, the Ccmmis-sion's cwn Rules of Practice are generally designed sc as to permit a full airing before this Appeal Scard of exceptions to an Initial Cecision prior to the date when that decision be-comes effective (see 10 C.F.R. 5 2.760) -- except where the i==ediate effectiveness rule in 10 C.F.R. 5 2.764 applies (which is not the case here) .

11. Ce the extent that the Licensing 3 card's suspension 4 crder departs frcm this accepted precedure, it is, we submit, unduly harsh and analytically unscund. There exists no threat

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c public heal:h and safety by allcwing ccnstructicn werk te

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continue at the Callaway site pending Appeal 3 card review and i *

- decision. By stipulation of the parties, it is settled that a thorough inspection by NRC personnel of the various allegations by Mr. Smart regarding possible safety problems at the site "did not disclose any circumstances warranting suspension of the construction permits" (S tipulation, 1 4, quoted at I.D., .

n. 2) . Moreover, it is uncontested that Union Electric Ccmpany and Daniel Construction Ccmpany are placing no impediment what- p soever in the way of continued on-site inspections of construction work by NRC inspectors -- whether in respense to specific alle-

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4 gations by workers on location or otherwise -- to insure that- -

all safety requirements are being satisfied. Nor has the NRC been discouraged in any respect f cm undertaking an independent, investigation to determine whether the firing of Mr. Smart has ,

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" chilled" cther workers at the Callaway site frem alerting the . .

I NRC :o possible new safety cencerns they perceive to exi'st.

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12. In these circumstances, the pequested stay is , ,

fullv . justified. It will permit the Cc= mission's ac..ceal =. recess ,' ,

to run its nornal course with respecu to the legal issues of "first impression" which have been brought to the Appeal Board, and yet will not, in the interim, pese any threat to the public health 2..- safety due to continued censtruction activity s

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the Callaway site.

i h' HIRE 7CR2, the Unicn Ziectric Cc=pany Se' ques':s tha ~~

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the present motion be granted, and that this Appeal Board

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a' issue a stay of the effectiveness of the Initial Decision pending its full consideration of, and final decisien on, the exceptions filed by Union Electric Company.

Dated: Cetober 6, 1978.

Respectfully submitted,

- SEAW, PITTMAN, POTTS & TROWBRIDGE Sy: ,I __ ok__ h \ _ _ -o GeraldCharnafgfnolds \

Wm. Bradford R Counsel for Union Electric Company r

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AFFIDAVIT OF 7010T K. BRYAN STATE OF MISSOURI )

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= CITY OF ST. LOUIS -)

John K. Bryan, having first been duly sworn, deposes and states under cath the following:

_. 1. That he is Vice President-Nuclear of Union Electric Company, the holder of Construction Permit Nos. CPPR-139 and CPPR-140, and in such capacity has complete responsibility for the construction activities taking place at Callaway Plant, a nuclear electric cenerating plant presently under construction in Callaway County, Missouri. As the responsible officer of Union Electric Company he is duly authorized te make this affidavit on behalf of said corporation, and the-statements contained herein are true and accurate to the best of his knowledge, information and belief; I'~ 2. That an indefinite suspension of the Callaway construction o

permits, as ordered by the Atomic Safety and Licensing 11 Scard in its " Initial Decision on Order cc Shcw Cause",

dated September 23, 1978, would necessarily result in an i= mediate reduction in the work force at the Callaway con-

,,' struction site of abcut 15 .' ' a'gipyees with a resultan:

3 payrcll less of apprcxins +' 330.000 for every week of suspensicn. Employee laycffs and acccmpanying payrcil lesses wculd increase progressively if the suspension were te las: ..

longer than 1 month;

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3. That a shutdown of any duration would cause a schedule icss,

. in addition to the period of suspension, of approximately 3 months due to the need to recebill:e the work force in an orderly manner;

4. .That in order to properly secure and maintain the project, the overhead staff and a certain number of craft personnel and rental equipment would have to be retained en the project and payments would have to be made to subcontractors to keep them in a state of readiness for when the suspension is lifted;

5. That a suspension of 1 week would cost approximately S6.5 mil.*. ion; a suspension of 30 days would cost approximately

$8 million; if the suspension were to last 90 days, costs would rapidly escalate to S30-$40 million as penalties-could be expected frcm 12 major contractors who are engaged in, or about to embark on, major f acets of construction;

6. That a suspension of the permits would necessitate a post-ponement of the fuel loading and commercial operating dates for Callaway Unit 1, and each month of deferral of the fuel leading and cc=mercial operating dates would add to the present cost about 51 3 million for escalation and S3.5 to 59 million fcr additional interes: ccats;

7. That a deferral of the in-service date of Callaway Jnit I

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wculd require the generaticn Of energy demands frc= cifer

- .m, and less economic plants at an estimated replacement pcwer cost in late 1952 and early 1933 of abou $250,000 a day.

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f John K. Bryan '

Subscribed and sworn to before me this 4th day of October, 1978, by John K. Bryan who personally appeared before me and is known to me to be the person described in and who executed the foregoing instrument in my presence and acknowledged he executed the same as his free act. and deed on behalf of said corporation.

In Witness Whereof, I have hereunto set my hand and affixed my official seal at my office in St. Louis, Missouri, this 4th day of October, 1978.

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M a's a -s _

Notary Public PATR! CIA ANN CCRRIS NOTARY PUSUC. STATE OF MISSCUR:

MY CCMM:SSiCN 3- 2'RES 1;Sl!S2 ST Cuss CCt.nri I

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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION 3efere the Atomic Safety and Licensing Appeal Board

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. In the Matter of )

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UNION ELECTRIC COMPANY ) Construction Permits Ncs. CPPR-139 (Callaway Plant, Units 1 and 2) ) CE R-140 CERTIFICATE OF SERVICE a.

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I hereby certify that copies of the foregoing " Motion Of Union Electric Company For A Stay Of Suspension Order Pending Appeal Board Review" were served upon each of the following, delivering by hand to those in the Washington, D. C. area, and by mailing copies, postage prepaid, to all others, all on this 6th day of October, 1978:

Atemic Safety and Licensing Michael H. Bancroft, Esquire Appeal Board Panel Diane 3. Cohn, Esquire U.S. Nuclear Regulatory Ccmmission Suite 700 Washington, D. C. 20555 2000 P Street, N.W.

Washington, D. C. 20036 John F. Wolf, Esquire Chairman, Atcmic Safety and Fulton City Library Licensing Scard 709 Market Street

U.S. Nuclear Regulatory Ccmmission Fulton, Missouri 622S1 Washington, D. C. 20555 Olin f"mr/ cf Washingten University Hugh K. Clark, Esquire Skinker and Lindell Sculevards Atomic Safety and Licensing Scard St. Louis, Missouri 63103 U.S. Nuclear Regulatcry Ccmmission Washing cn, D. C. 20535 Cccketing and Service Section Office of the Secretary Joseph F. Tubridy, Esquire U.S. Nuclear Pegulaterf Cmrissicn A

cmic Safety and Licensing Scard Washington, D. C. 20555 C.S. Nuclear Regula:Ory Ccemission Nashington, 3. C. 20555 James ?. Murray, Isquire James Lieberman, Esquire Office Of che Executive "4 Direc:cr --

U.S. Nuclear Regulatcry Cc= mission SEAW, ?!TTMAN, POTTS & TECNER 2GE Washingten, O. C. 20555 Sy: k) .Wm.

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Sracic d Reync ds

\S Counsel for Union Electri Ccmpany