ML20035D406
| ML20035D406 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/06/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | AFFILIATION NOT ASSIGNED, CAROLINA POWER & LIGHT CO. |
| References | |
| CON-#293-13849 CLI-93-11, CPA, NUDOCS 9304130178 | |
| Download: ML20035D406 (23) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
'93 TD -6 ' 2 :L5 Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque
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In the Matter of:
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TEXAS UTILITIES ELECTRIC
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COMPANY, et al.
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Docket No. 50-446 G p;,w M M - 3 Eo
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(Comanche Peak Steam Electric
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Station, Unit 2)
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MEMORANDUM AND ORDER CLI-93-y I. Introduction.
This matter is before the Commission on a motion by B. Irene Orr and D.I. Orr (" petitioners") for a stay of the issuance of the full power license for Comanche Peak Unit 2.
In addition, R. Micky Dow and Sandra Long Dow representing the Disposable Workers of the Comanche Peak Steam Electric Station ("the Dows") have filed a petition to intervene on behalf of themselves and two other individuals.
For the reasons stated below, we deny both the petitioners' stay motion and the Dows' petition to intervene.
We also deny a Motion for Stay Pending Appeal by the petitioners.
II.
Backaround.
Both petitioners and the Dows seek a stay of the full power license pending, inter alia, our resolution of their separate appeals from a decision of the Atomic Safety and Licensing Board (" Licensing Board") denying their petitions to intervene in the Unit 2 construction permit amendment ("CPA")
proceedina.
See Texas Utilities Electric Co. (Comanche Peak Steam Electric 9304130178 930406 ADOCK 0500 6
gf gDR
o t
Station, Unit 2), LBP-92-37, 36 NRC
-(December 15, 1992) ("LBP-92-37"). We-recently issued an order dismissing both appeals as moot and further finding i
that the Dows had failea to perfect their appeal. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC (March 30, 1993) ("CLI-93-10").
i This filing is petitioners' second attempt to block issuance of a Unit 2-related license.
Earlier, petitioners requested a stay of the low power license pending resolution of their appeal.
See Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Unit 2), CLI-93-02, 37 NRC (February 3, 1993) ("CLI-93-02").
We denied that request for two reasons.
First, we noted that petitioners could not seek action in the operating license ("0L") proceeding because they were not parties to that proceeding and I
had not sought late intervention in that proceeding. CLI-93-02, slip op. at 3.
Second, we found that 10 C.F.R. s2.788 upon which petitioners had based their stay request " provide [d] only for stays of decisions or actions in the i
proceeding under review -- in this case, the CPA proceeding [,]" and that i
petitioners had not related their request to the CPA proceeding.
CLI-93-02, slip op. at 3.
In the instant motion, petitioners again have not sought late intervention in the Unit 2 OL proceeding.
Instead, petitioners ask only for i
"a stay in further construction, testing and the issuance of a full power j
license for [ Comanche Peak) Unit 2...." Stay Motion at 1.
Petitioners argue that issuance of the full power license (1) will, in effect, moot their appeal of LBP-92-37, Stay Motion at 2, and (2) may result in the licensing of an unsafe plant.
Stay Motion at 3-8.
Briefly, petitioners argue that TU Electric does not have the " character and competence" to operate the plant, 2
e a
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because it has " secreted" safety-related information from the NRC through the t
i practice of forcing other organizations or entities to agree to " restrictive" settlement agreements and that this " secreting" of information may have led to-the construction of an unsafe plant.
f The Staff and TU Electric have both filed timely responses to petitioners' stay motion.
In addition, the Citizens Association for Sound i
Energy (" CASE"), which was a party to the original OL and CPA proceedings which were settled in 1988, has filed a motion for leave to file a response with a responsive pleading attached.
Finally, the Dows have filed a " Petition for Leave to Intervene" to which TV Electric and the Staff have filed responses.
The Dows have also filed a motion for leave to file an untimely response to the CASE pleading and supporting the petitioners' stay motion.
i We have granted both the CASE motion and the motion by the Dows for leave to I
file their respective pleadings.' We have also granted requests by the Staff and TV Electric to relax the 10 page limit for responses to stay motions i
established in 10 C.F.R. 52.788.
Finally, we have also accepted pleadings by the Staff and TV Electric and an untimely filing by the Dows in response to our Order of March 26, 1993, which requested responses regarding the minority co-owners' settlement agreements.
i I
'The Dows' independent Petition for Leave to Intervene requires no motion for leave to file.
However, the Dows' pleading in support of petitioners's stay motion and in response to the CASE pleading was untimely and a motion for leave was required.
We have accepted all the submitted pleadings.
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P i
Ill. Analysis.
A.
Petitioners' Stav Motion.
First, any request to " stay" construction of Comanche Peak Unit 2 is l
moot because construction has already been "substantially completed." As we noted in CLI-93-10, TV Electric lawfully completed construction at Unit 2' T
pursuant to 10 C.F.R. f 2.109(a) and 5 U.S.C. 5558 while the appeals were r
pending.
See CL1-93-10, slip op. at 12-16. Thus, because construction is already complete, there is no ongoing construction to " stay."
Second, to the extent that petitioners seek "to stay... testing and the issuance of a full power license" for Comanche Peak, they are not parties to
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the OL proceeding which determines whether the OL should be issued.
Furthermore, they have not sought late intervention under 10 C.F.R.
e 52.714(a)(1)(i)-(v) and the reopening of the record -- closed since 1988 --
f t
under 10 C.F.R. 92.734.
Moreover, as we pointed out above, petitioners' appeal in the CPA proceeding has been mooted by the lawful completion of
't construction at Unit 2, not by the issuance of low power license on February 2,1993, or by the proposed issuance of the full power license in the near future. CLI-93-10, slip op, at 12-18.
Clearly, issuance of the full power license will have no impact on an appeal that is already moot.
B.
The Dows' Petition to Intervene.
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The Dow's Petition to Intervene is also clearly deficient.
Initially, the Petition to Intervene does not specify whether the Dows seek to intervene in the Unit 2 CPA proceeding or the Unit 2 OL proceeding -- or both.
Moreover, the petition fails to address either the five factors for a late-filed petition, see 10 C.F.R. 52.714(a)(1)(i)-(v), or the standing recuirements, see 10 C.F.R. s2.714(d)(1); thus, it can be summarily rejected 4
5 as a Petition to Intervene in either proceeding.
Furthermore, the Dows have
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not provided any factual support for the contentions they advance.
S_eg 10 C.F.R. 92.714(b)(2)(i)-(iii).
- Finally, as we pointed out above, there is no CPA proceeding in which to seek intervention because the CPA proceeding was terminated when construction was completed.
CLI-93-10, slip op. at 12-18.2 i
Thus, the Dows' Petition to Intervene is denied.
3 i
i i
IV. Allecations Reaardino Comanche Peak Unit 2.
i Both the Orrs and the Dows raise allegations regarding the " character and competence" of TV Electric to operate Comanche Peak and the safety of the plant.
Because we have found that there is no longer a CPA proceeding in l
which either the Orrs or the Dows may participate and that neither the Orrs nor the Dows are parties to the OL proceeding, the pleadings before us do not I
establish the rights of either the Dows or the Orrs to seek a stay of the I
issuance of the full power license nor do they meet our standards for a stay
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under 10 C.F.R. 52.788.
However, we believe that these allegations should be j
addressed to remove any possible cloud on the full power license prior to issuance. The Commission itself may delay or deny the issuance of a license because of relevant safety problems -- even if no formal proceedings under i
section 189 of the Atomic Energy Act, 42 U.S.C. 2239, are pending.
A.
Petitioners' A11eaations.
i zin addition, we note that the Dows' appeal of the Licensing Board's j
decision denying their intervention petition in the Unit 2 CPA proceeding was also dismissed for their failure to perfect their appeal by filing a brief.
CLI-93-10., slip op. at 7-8.
The Commission granted the Dows one extension of time in which to file their brief; however, the Dows did not request an additional extension of time.
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Petitioners allege that "new factual evidence demonstrates that TUEC's i
past cover-up of safety related information imperils the health and safety of 5
the public." Stay Motion at 3.
These allegations fall into two general I
classes: (1) allegations regarding the effect of agreements imposed by TU Electric during its purchase of the ownership interests in Comanche Peak owned i
by three, small independent utilities, and (2) allegations submitted by i
Mr. Ron Jones, a former worker at Comanche Peak, and loosely associated with j
the 1988 settlement agreement which resolved the Unit 1 CPA proceeding and the j
OL proceedings for both Unit I and Unit 2.
As we show below, we find nothing in these allegations that would justify a stay of the issuance of the full power license.
l 1.
The Minority Co-Owners' Aareements.
In 1988 and 1989, TU Electric purchased three relatively small ownership i
interests in Comanche Peak held by three independent utilities ("the minority co-owners").
Petitioners now allege that TV Electric entered into restrictive i
i agreements with these minority co-owners in the process of buying out their j
interests.
Stay Motion at 3-4.
Specifically, petitioners allege that specific clauses in these agreements have prevented the former co-owners from l
reporting safety concerns to the NRC and that the NRC Staff has failed "to require [TU Electric] to release this information." JJ. at 4.
On February 12, 1988, TV Electric purchased 6.2% of the ownership _
interest in Comanche Peak from the Texas Municipal Power Agency ("TMPA")
On l
i July 5,1988 TU Electric purchased 3.8% of the ownership interest of Comanche.
4 Peak from the Brazos Electric Power Cooperative ("Brazos").
Finally, on j
March 23, 1989, TU Electric purchased the remaining 2-1/6% of Comanche Peak 5
from the Tex-La Electric Cooperative (" Tex-La").
The Tex-La agreement was j
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further amended on December 21, 1989 and on January 30, 1990. These agreements were promptly filed with the NRC when TU Electric applied for amendments to both the Unit I and Unit 2 construction permits to reflect those changes and placed in the NRC's Public Document Room.
These amendment requests were unopposed and were granted by the NRC Staff.
On June 11, 1992, the National Whistleblower Center (represented Dj petitioners' counsel) filed a petition under 10 C.F.R. s2.206 alleging, inter alia, that clauses in these three agreements prevented the former co-owners, their employees, or their contractors from providing safety information to the f4RC.3 The petitioners subsequently raised similar allegations before the Licensing Board in the recently dismissed Unit 2 CPA proceeding.
See Supplement to Petition to Intervene (Oct. 5,1992) at 5-8.
In response to the section 2.206 petition and the petitioners' allegations, the NRC Staff began another review of all three transfer agreements.
On January 12, 1993, the Staff advised TV Electric that while it concluded that the agreements did not violate 10 C.F.R. 950.7(f), the agreements did contain provisions that were "potentially restrictive." Letter from Thomas E. Murley, NRC, to William J. Cahill, Jr., TV Electric (January 12,1993) ("Murley Letter") at 2.
Specifically, the NRC Staff found that
[t]he agreements contain broad and sweeping language that not only restricts the former minority co-owners and anyone speaking on behalf of them from bringing 3The clauses in question provided, inter alia, that the co-owner would
" encourage and solicit its attorneys
.. not to oppose, or assist any third party in opposing," TU Electric's attempts to license Comanche Peak.
Moreover, the agreement provided that the co-owner would "take all such action as may be necessary or appropriate in order to prevent the consultants and attorneys
. from participating or assisting in any manner adverse to [the co-owner's] duty of cooperation."
- See, e.a., Tex-La Agreement at 99.2(d).
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i safety information to the NRC, but also could lead one to conclude that they prohibit individuals from l
bringing safety information to the NRC.
Such.
restrictive provisions are unacceptable to the NRC.
i Such provisions could have caused a chilling effect in the past, and may cause such a chilling effect in the j
future, with the result that the NRC has been, or may be, deprived of safety information.
Murley Letter at 2 (footnote omitted).
Accordingly, the NRC Staff directed TV i
Electric to respond to the Murley Letter within 30 days describing the i
" actions you have taken or are taking to ensure that individuals and organizations do not believe that they are precluded from coming to the NRC with safety information." Murley Letter at 3.
In response, TU Electric submitted identical letters that it sent to all i
three former co-owners, advising them that the provisions of the agreements r
"were not intended to prohibit the minority owners, their employees, or j
J representatives from communicating safety concerns to the NRC...."
[1gt, t
Letter from Wes Taylor, TU Electric to Richard E. McCaskill, Brazos Electric Power Co. (February 3,1993).
Moreover, all three former co-owners have responded directly to the l
Murley Letter.
For example, Brazos has stated that it "has never read any of the provisions of its July 5,1988 agreement... as prohibiting the communication of safety information to the NRC...."
Letter from Richard E.
t McCaskill, Brazos Electric power Co., to Thomas E. Murley (Feb. 10, 1993).
l Likewise, TMPA stated that it "does not now take, nor has it ever taken the l
position that the [ ownership transferl agreement... prohibits either TMPA, someone speaking on behalf of TMPA, or individuals from bringing or assisting others from bringing safety concerns to the NRC.... "
Letter from Ed. L.
Wagoner, TMPA, to Thomas E. Murley, NRC (Feb. 9,1993).
Finally, Tex-La has informed the NRC Staff that it has notified its former consultants that "the 8
l l
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settlement agreement was not intended to restrict [them] from taking safety concerns to the NRC."
Declaration of John M. Butts, attached to Letter from John M. Butts (Tex-la) to Thomas E. Murley, NRC (Feb. 10,1993). Mr. Butts also submitted a sample of the letter transmitted to all Tex-La consultants.
On March 26, 1993, we issued an Order asking the Staff to advise us if f
the responses to the Murley Letter " provide reasonable assurance that the employees and contractors of the former co-owners have been aware that they may bring safety information to the NRC."
Order of March 26, 1993 at 1.
In i
response, the Staff has advised the Commission that the responses " provide reasonable assurance that [TU Electric] and the former minority co-owners did j
not intend the settlement agreements to restrict employees and contractors l
from bringing safety concerns to the NRC."
NRC Staff Response (March 30, 4
1993) at 2.
See generally Affidavit of James G. Partlow (attached to Staff i
Response) at T4.
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Furthermore, while the Staff concedes that "[t]he responses do not l
affirmatively state that all employees and contractors [of the minority co-owners] have been aware that the agreements did not restrict them from l
bringing safety concerns to the NRC[,]" jA., the Staff notes that there is "no information... that any specific safety concerns have been withheld from the l
NRC as a result of these settlement agreements." Jd.
In addition, the Staff l
correctly points out that assuming arouendo that employees or contractors of f
the former co-owners did consider the agreements to restrict access to the i
NRC.
it is unlikely that a significant number of personnel with direct knowledge of the site would have been i
impacted inasmuch as the minority owners were not directly involved in the management and construction i
of the project.
l l
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NRC Staff Response at 2.
See also Partlow Affidavit at $$ 5-6. Moreover, the
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Staff points out that there are and have been ongoing programs during this time to ensure that employees have an easy avenue to bring safety concerns to both the NRC (the NRC allegation management program) and/or to the licensee (the SAFETEAM program). NRC Staff Response at 3; Partlow Affidavit at $$ 7, 9.
Finally, the Staff notes that it does not rely on these programs to ensure adequate protection of public health and safety because there is no guarantee that allegers will find problems and bring them to the NRC.
Staff Response at 3; Partlow Affidavit at $7.
Instead, the Staff " relies on inspections of the Licensee's programs, policies, and facilities to ensure 4
that adequate pr
,ction of public health and safety exists." Staff Response at 3; Partlow Affidavit at $$ 7, 9.
The Staff then notes the extensive inspection program that has been undertaken at Comanche Peak.
Staff Response at 3; Partlow Affidavit at T8.
We have reviewed the material submitted in response to the Murley Letter and the Staff's response to our March 26 Order. Based upon the responses of the former minority co-owners and the Staff, we are satisfied that the steps taken by TV Electric to ensure that the former co-owners and their employees and contractors are aware that they can bring safety concerns to the NRC are j
I sufficient for us to reject this allegation.
Quite simply, it is clear that the former co-owners themselves have never interpreted these agreements as preventing them from raising safety concerns to the NRC and that TV Electric has never asserted to the former co-owners that the agreement prevents them from raising safety concerns.
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To the extent that any individual employee or contractor of a former co-3 owner may have interpreted these clauses as preventing them from raising
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safety concerns, our concerns are alleviated by several factors. First, we agree that these employees were much less likely to have been involved in the actual construction activities at the site and thus less likely to actually have concerns.
Second, we agree that the Staff's inspection program, supported by its Allegation Management Program and TV Electric's SAFETEAM program, provide sufficient assurance that outstanding safety concerns will be discovered and resolved. Accordingly we find that a stay of the full power license based upon this allegation is unnecessary.'
l 2.
The Jones Alleaations.
l Petitioners also allege that there are unreported deficiencies at Comanche Peak Unit 2 that have remained hidden because of " hush money" agreements between TU Electric or its contractors and former Comanche Peak workers who had filed employment discrimination or "whistleblower" claims with j
the U.S. Department of Labor ("D0L").
Stay Motion at 5-8.
This allegation is l
t based upon the supporting affidavit of Mr. Ron Jones, a former QA inspector employed at Comanche Peak Unit 1 during the years 1983-84.
However, this i
j allegation is deficient upon its face.
First, petitioners credibly cannot claim that Mr. Jones' allegations could not have been previously presented to the NRC, Stay Motion at 8, because q
Mr. Jones is no stranger to NRC proceedings. He has presented allegations to both the Commission and the NRC Staff in coordination with previous filings by the Dows.
See Petition for Leave to Intervene (Feb. 20, 1992); Motion to l
'We expressly commend the actions of Tex-La in acting affirmatively to notify its former contractors that they were not restricted from bringing i
safety concerns to the NRC.
See Butts Declaration, supra.
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Reopen the Record (Feb. 21, 1992). The NRC Staff has reviewed these allegations when Mr. Jones would provide specific information regarding them.
Sgg, e.a., Letter from Russell Wise (NRC Region IV) to R. Micky Dow (September 10, 1992), Exhibit 1 to NRC Staff Response, Mar.22, 1993; Letter from Russell Wise to R. Micky Dow (Undated, Exhibit 2 to NRC Staff Response, Mar. 22, 1993). Thus, not only has Mr. Jones had an adequate opportunity to present allegations to the NRC, but those allegations have been a matter of public f
1 record for some time.
See, e.a., Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 NRC 62, 70-71 (1992).
Second, Mr. Jones -- by his own admission -- was employed only at Comanche Peak Unit 1.
His affidavit makes absolutely no allegations regarding construction activities at Comanche Peak Unit 2 -- the license that is at issue.5 And, in fact, the stay motion itself contains no allegations of any 4
deficiencies at Unit 2.
Third, Mr. Jones has not worked at the Comanche Peak l
SIn fact, petitioners appear to have either misunderstood or.
misrepresented Mr. Jones' affidavit in their stay motion.
For example, i
petitioners allege that l
Mr Jones identified over 300 non-conforming conditions, id., at 2, that were never corrected by
[TU Electric] and, to this day,' present a significant risk to the public's health and safety."
i j
Stay Motion at 6.
On its face, this statement leads a reader to believe that i
i Mr. Jones has stated that he reported 300 non-conformances, none of which were i
corrected.
A close reading of Mr. Jones' affidavit discloses that he said no such thing.
Mr. Jones does allege that he reported "over 300 non-conforming l
conditions in Unit 1."
Affidavit at $2.
However, he makes no assertion l
J regarding how many of those non-conformances remain uncorrected. His only allegation regarding any particular non-conformance remaining uncorrected is 4
in $3 where he discusses a non-conformance " addressing faulty wiring to water coolant valve that controls the amount of water let into reactor to control nuclear heating rods.
I believe that this was never corrected Jones i
Affidavit at $3 (emphasis added).
Mr. Jones then discusses his celief that this condition led to a 1992 incident at Comanche Peak Unit 1.
Nowhere does Mr. Jones say that he believes that TU Electric failed to resolve his other non-conformances or that they have any relationship to Unit 2.
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i construction site since 1984 -- over 8 full years ago.
Since that time, TU j
Electric undertook several massive corrective action programs to eliminate l
deficiencies existing at that time. We have previously noted that persons
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raising allegations or attempting to intervene based upon information obtained during that period must address how their information has been affected by the completion of those programs.
Texas Utilities Electric Co. (Comanche Peak f
Steam Electric Station, Units 1 and 2), CL1-88-12, 28 NRC 605, 611 (1988).
i Petitioners have made absolutely no attempt to address the question of how the subsequent corrective action programs would have impacted these alleged
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i deficiencies.
l Turning to petitioners' specific technical allegations, they imply that i
I an incident that occurred at Comanche Peak in May of 1992 was a direct result l
of the failure to correct a non-conforming condition Mr. Jones had discovered.
l 4
Stay Motion at 6-7.
Specifically, petitioners allege that Mr. Jones had
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identified an electrical wiring defect associated with the coolant control valve to Unit 1, and that as a result of this defect, the valve would not control the l
cooling of the reactor rods.
Stay Motion at 6.
Petitioners then allege that this defect "was never 4
corrected [.,]" id, and "gave rise to conditions which could have resulted in a devastating accident at [ Comanche Peak)..." because Unit I would have experienced a significant accident due to the failure of the coolant control valve to operate and that [TU Electric] was only able to avoid 4
a catastrophe by pumping water from a source within i
CPSES Unit 2 (at the time an unlicensed and uninspected facility).
4 Stay Motion at 7.
13 n.
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Petitioners apparently refer to an incident at Comanche Peak Unit 1 in t'
May of 1992. However, petitioners have not described the incident correctly.
In that incident, which, contrary to petitioners' allegation, involved the spcnt fuel pool instead of the reactor, the f4RC determined that the Comanche Peak spent fuel pool went without cooling fo" approximately 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> due to a I
component cooling water system misalignment, not due to a problem caused by a wiring deficiency.
The spent fuel pool was never in danger of overheating and there was no risk to public health and safety.
See Inspection Report 50-j 445/92-20; 50-446/92-20 (June 9, 1992) (" Inspection Report 92-20").
The Unit 1 operators corrected the problem by aligning the Unit 2 cooling water to the spent fuel pool.
The use of the Unit 2 cooling water was in violation of the Unit I license.
Therefore, the f4RC issued a civil penalty of $125,000 to TV Electric because the Unit 1 managers did not exercise proper control of licensed activities.
See Enforcement Action 92-107 (July 23, 1992)
("EA-92-107") (attached as Exhibit 3 to the Staff's Response of March 22, 1993).
The fiRC Staff has also issued a Director's Decision that addresses this incident in response to a petition under 10 C.F.R. 92.206 filed by the Dows.
See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units I
1 and 2), DD-92-06, 36 f1RC 325 (1992) ("DD-92-06").
The Staff did not identify any failures of mechanical or electrical equipment.
EA-92-107, suora, slip op. at 2; DD-92-06, 36 f4RC at 333-35.
Thus, we find no connection i
between Mr. Jones' allegation of defective wiring in 1983-84 and the incident on May 22, 1992.
Petitioners next allege that Mr. Jones provided information regarding the non-conformance reports he prepared to his former attorney (apparently 14 1
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I before the 1988 settlement agreement) and they further allege that his t
f attorney failed to provide that information to the NRC because of a i
restriction in the 1988 settlement agreement.
Stay Motion at 7-8.6
- However,
[
t the 1988 Settlement Agreement did not prevent Mr. Jones' attorney from presenting that information to the NRC.
See aenerally Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP 18B, 28 NRC 103 (1988). Moreover, we are not aware of anything which prevented Mr. Jones from retrieving his information (regarding Unit 1, we note again) from his attorney and providing that information to the NRC himself.
For example, as we noted above, Mr. Jones has presented numerous allegations directly to the NRC.
Assuming arquendo he has not raised the particular allegations before, he has certainly not been prevented from raising them by l
the 1988 agreement.
Furthermore, petitioners have not addressed actions taken by the NRC in response to similar allegations after the 1988 Comanche Peak agreement.
For example, the NRC issued a generic letter to all licensees, applicants, and their principal contractors on April 27, 1989, directing them to identify any settlement agreements that contained restrictive agreements.
TV Electric did j
not identify any agreements that were executed at the time of the 1988 Comanche Peak agreement.
See Letter from James E. Lyons, NRC, to Betty Brink, f
)
l Citizens for Fair Utility Regulation (January 30, 1990), attachment at 11.
Moreover, the NRC Staff reviewed the two groups of agreements signed at the time of the 1988 settlement and found that the releases in the one group did not contain restrictive agreements and that the releases in the other group i
6We do not find any allegation in petitioners' stay motion that TU Electric entered into a restrictive agreement with Mr. Jones himself.
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" contained ex91icit language which informed the former employee that he/she was free to thke any safety concerns to the NRC."
Id. at 12.
Furthermore, the Secretary of Labor has voided the restrictive clauses in several agreements with former employees that were signed before the 1988 Comanche Peak agreement as being against public policy.
See, e.a., Macktal v.
Brown & Root, Docket No. 86-2332 (Nov. 14, 1989).
Finally, the NRC has issued t
a regulation that prohibits such agreements.
See 10 C.F.R. 950.7(f);
55 Fed Reg. 10404 (Mar. 21, 1990).
In summary, given this background, we cannot find any basis for staying the issuance of the full power license based upon these allegations regarding TU Electric's " character and competence."
B.
The Dows' Alleaations.
J The Dows raise two generalized allegations that we believe need to be addressed.7 First, they too allege that Mr. Jones' allegations "were never I
placed on the record before the [ Licensing Board]... have never been addressed, investigated, and most important of all, corrected." Dow Response at 4 However, as we noted above, Mr. Jones has been in frequent contact with the NRC Staff and he has raised several allegations which the NRC Staff has reviewed and resolved.
Second, the Dows allege that they are in possession of the "Atchison 3
papers" which the Dows allege contain "over 1,000 violation reports... none 7The Dows raise several other allegations not discussed in detail here.
However, we have reviewed them and reject them as a basis for staying issuance of the full power license, in no small part because they are unsupported.
i These allegations include TV Electric's alleged (1) lack of security for Comanche Peak, (2) harassment of whistleblowers, and (3) improper labeling of pressure valves and limit switches.
The Dows also allege that TV Electric
" conspired" with local law enforcement authorities to have Mr. Dow arrested.
However, we find no evidence of any illegal activity by TV Electric.
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of which has ever been introduced into the record, investigated or corrected Dow Response at 4.
However, Mr. Atchison was a witness before the I
Licensing Board during the 1983 period. At that time, the Licensing Board extensively reviewed many allegations raised by Mr. Atchison.
_S_eg, e. a.,
e Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 i
and 2), LBP-83-43, 18 NRC 122, 145-148 (1983); Texas Utilities Electric Co.
i (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-60,18 NRC 672, 693-94 (1983).
The Dows have failed to demonstrate that the allegations they would present are different from those raised in 1983 and resolved since that time. Moreover, the Dows do not make any concrete or specific allegations about any particular defect at Comanche Peak recorded in the "Atchison papers" or by the nameless "other seven whistleblowers." Dow Response at 4 Given the vagueness of the Dows' allegations and the thoroughness with which the Licensing Board reviewed Mr. Atchison's allegations in 1983, we find nothing l
in this allegation to warrant a stay of the full power license.8 i
V.
Petitioners' Motion for Stav A Pendina Judicial Review.
On April 1, 1993, petitioners filed another pleading asking again for a stay of issuance of the full power license and, in addition, for a stay of the effectiveness of CLI-93-10 pending judicial review.
TU Electric has responded l
in opposition; the NRC Staff has informed us that it will not file a response.
8We note that Mr. Atchison left Comanche Peak before 1983.
Se.g Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),
Thus, any allegations based upon his employment there must overcome the same hurdles that we have noted face Mr. Jones' allegations, for example, the Dows have not addressed how Mr. Atchison's allegations would have been impacted by the extensive corrective action programs instituted by TV Electric -- based in no small part on issues raised by Mr. Atchison himself.
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l Initially, petitioners' request is.not properly a " stay motion" under 9
our regulations.
The provisions of 10 C.F.R. s2.788 apply only to requests i
for stays of decisions of the Licensing Board, not decisions of the Commission f
i tsel f.
Instead, as we have noted before, a pleading like the one before us i
here is correctly styled a Motion for Reconsideration of our previous decision i
and/or a Motion to Hold in Abeyance the issuance of the disputed license l
pending appeal.
Lona Island Liahtina Co. (Shoreham Nuclear Power Plant, f
Unit 1), CLI-91-08, 33 NRC 461, 468 (1991).
j Petitioners' preliminary argument is that TV Electric improperly
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continued construction activities at Comanche Peak Unit 2 after August 1, a
1992.
However, petitioners have never attempted to explain why the automatic i
extension provisions of 10 C.F.R. 92.109 and 5 U.S.C. s558 should not apply to this case. Moreover, petitioners fail to explain why they never sought a stay
{
of these actions when they sought intervention in the CPA proceeding last f
i year.
Seg, e.a.,
CL1-93-10, slip op. at 14, n.37.
Petitioners' main argument is that NRC cannot declare the CPA proceeding moot or issue the l
t Unit 2 operating license in the face of their allegation that TU Electric has constructed Unit 2 "in violation of NRC requirements [,]" because, they assert, the NRC cannot find that construction has been properly completed until that
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allegation is resolved.
Stay Motion (April 1, 1993) at 3, n.1.
However, a review of their pleadings indicates that petitioners have not in fact alleged that construction deficiencies actually exist at Unit 2.
See, e a.,
r Petitioners' Response to the Commission's Order of March 5,1993 (March 12, 1993); Petitioners' Stay Motion (March 15, 1993); Petitioners' Stay Motion l
i (April 1, 1993).
Instead, as we have noted earlier, their allegations fall l
i into two general categories that do n_ot involve construction at Unit 2.
I i
18 i
i i
b First, petitioners allege that TV Electric imposed restrictive settlement agreements on the former minority co-owners during the 1988 and 1989 buy-outs.
However, this allegation, even if true, is several steps i'
removed from alleging that construction deficiencies actually exist at Unit 2.
[
t r
Petitioners have presented no evidence that any person was actually dissuaded l
t i
from bringing safety concerns not previously identified and considered to the NRC because of these co-owner agreements. Moreover, as we have noted above, 2
not only have the former co-owners stated that they do not now interpret --
2 l
nor have they ever in the past interpreted -- the agreements as being l
l restrictive, but also they have stated that TU Electric has never attempted to force them not to report matters to the NRC. Quite simply, this allegation 3
does not address any alleged construction deficiencies at Comanche Peak i
Unit 2.
)
Second, petitioners allege that there were construction deficiencies in Comanche Peak Unit I during the 1982-83 time frame. However, as we have noted i
above, there is no reason to infer from these earlier alleged' deficiencies at.
f Unit I that similar deficiencies exist now at Unit 2.
As we have noted on several occasions, TV Electric engaged in a massive re-inspection and corrective action program during the 1984-1988 period.
Petitioners have never presented any allegations regarding improper construction at either Unit 1 or Unit 2 that post-date this period.
Thus, we find no reason to accept
.)
petitioners' implied charge that Unit 2 is improperly constructed based upon 10-year-old allegations regarding Unit 1.
As we noted in CLI-93-10, the proper method of raising a challenge to the issuance of the operating license is by a petition for intervention in the OL proceeding See CLI-93-10, slip op. at 19-20.
As we stated there, f
19
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petitioners "cannot transform their challenge to the [CPA]... into an attack on the legitimacy of issuing an operating license." Id. at 20.
Because none of the petitioners' filings state any substantive claims that call into question the finding that construction' of Unit 2 has been completed in accordance with the terms of the construction permit, we reaffirm our previous determination that the CPA proceeding is moot.
Therefore, we deny
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petitioners' Motion for Reconsideration.
As for petitioners' Motion to Hold In Abeyance the full power license i
pending their attempt to seek judicial review, we note once again that they l
attempt to raise in the forum of a CPA proceeding issues that are properly raised in an OL proceeding. - Moreover, for the reasons stated elsewhere in j
this Order, petitioners have not raised any substantial issue that would warrant withholding a full power license.
Therefore, we also deny petitioners' Motion to Hold in Abeyance.
VI. Conclusion.
In sum, the CPA proceeding has been terminated and petitioners' request for a stay insofar as it relates to the CPA proceeding is moot.
In addition, petitioners are not parties to -- and have not sought intervention in -- the Unit 2 OL proceeding.
Therefore, the petitioners' stay motion is denied.
Furthermore, the Dows' motion to intervene is denied for failure to address, inter alia, the five factors in 10 C.F.R. 92.714(a)(1)(i)-(v).
Finally, we have denied petitioners' Motion for Reconsideration of CLI-93-10 and their Motion to Hold in Abeyance the full power license pending their appeal of CLI-93-10 and this decision.
In sum, we have concluded that neither the petitioners nor the Dows have demonstrated that TU Electric lacks the l
l 20 j
l
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character and competence" necessary to operate Comanche Peak Unit 2 or that any safety problems exist that would prevent safe operation of the plant, j
lt is so ORDERED.
For the Commission,'
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Samuel J.
N S.f.;:. n '. i *,7
- 4 g Secretary of the;Chilk Commission
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i Dated at Rockville, Maryland This b day of April,1993.
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' Commissioner de Planque v.s not present for the affirmation of this Order; if she had been present. she would have approved it.
21 4
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of TEXAS UTILITIES ELECTRIC COMPANY Docket No.(s) 50-446-CPA (Comanche Peak Steam Electric Station, Unit No. 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMM M&O (CLI-93-ll) DTD 4/6 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Commission Appellate Administrative Judge Adjudication Morton B. Margulies, Chairman U.S. Nuclear Re. 'latory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge James H. Carpenter Peter S. Lam Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Marian L. Zobler, Esq.
George L. Edgar, Esq.
Michael H. Finkelstein, Esq.
Counsel for T U Electric i
Office of the General Counsel Mc.wman & Holtzinger, P.C.
U.S. Nuclear Regulatory Commission 1615 L Street, N.W., Suite 1000 Washington, DC 20555 Washington, DC 20036 R. Micky Dow Michael D. Kohn, Esq.
Sandra Long Dow Counsel for Petitioners Disposable Workers of Comanche Peak Kohn, Kohn & Colapinto, P. C.
Steam Electric Station 517 Florida Avenue, N.W.
506 Mountain View Estates Washington, DC 20001 Granbury, TX 76048
i 1
Docket No.(s)50-446-CPA COMM M&O (CLI-93-11) DTD 4/6 f
Juanita Ellis, President Citizens Association for Sound Energy 1426 S. Polk Dallas, TX 75224 l
Dated at Rockville, Md. this 6 day of April 1993
. 44' 6ffice of the Secretary of the Comission h
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