ML20045B835
| ML20045B835 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/04/1993 |
| From: | Murley T Office of Nuclear Reactor Regulation |
| To: | NATIONAL WHISTLEBLOWER CENTER |
| Shared Package | |
| ML20045B833 | List: |
| References | |
| 2.206, DD-93-12, NUDOCS 9306210150 | |
| Download: ML20045B835 (23) | |
Text
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r DD-93-12 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
0FFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director In the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket Nos. 50-445 COMPANY
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50-446
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(Comanche Peak Steam Electric
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(10 CFR f 2.206)
Station, Units 1 and 2)
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DIRECTOR'S DECISION PURSUANT TO 10 CFR 6 2.206
- 1. INTRODUCTION On June 11, 1992, the National Whistleblower Center and its clients, Messrs. Joseph J. Macktal and S.M. A. Hasan (Petitioners) filed with the Chairman of the U.S. Nuclear Regulatory Commission (NRC or Commission) a letter alleging new evidence of restrictive settlement agreements entered into by the Texas Utilities Electric Company (Licensee or TU Electric) regarding its Comanche Peak Steam Electric Station, Units 1 and 2 (CPSES).
The letter is being considered as a Petition pursuant to 10 CFR S 2.206 and was referred to my office for preparation of a response.
The Petition alleged the discovery of new evidence of a continuing practice by the Licensee to pay " hush money" to keep significant information about CPSES from the Petitioners and the NRC. Specifically, the Petition refers to a January 30, 1990, settlement agreement between the Licensee and the Tex-La Electric Cooperative of Texas, Inc. (Tex-La), one of the three former co-owners of CPSES, that allegedly contains restrictive language in 9306210150 930604 PDR ADDCK 05000445 P
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? violation of 6 210 of the Energy Reorganization Act (42 U.S.C. E 5851(a)) and 10 CFR S 50.7.'
Petitioners further alleged that the three former co-owners of the CPSES conducted extensive and widespread investigations of TV i
Electric's management integrity and competence to operate the plant and that TV Electric attempted, through restrictive provisions in the settlement agreements it entered into with the former co-owners, to keep such information from the Petitioners, other parties to the CPSES licensing proceedings, and the NRC.
On the basis of this information, the Petitioners requested (1) that orders be issued suspending the Licensee's authority to operate CPSES Unit I and to construct Unit 2; and (2) that the expiration date of the construction permit to construct Unit 2 not be extended.
Petitioners also requested that the NRC take immediate actions, specifically that (1) a licensing board be established to allow public scrotiny into the Licensee's alleged practice of paying " hush money"; (2) the NRC notify the Licensee and former co-owners that no settlement agreement can preclude employees, attorneys, agents, con-sultants, or others from providing information to persons who are, or intend to be, involved in proceedings or petitions before the NRC; (3) copies of the Licensee's agreements with former co-owners be made public and provided to Petitioners' counsel; and (4) the NRC notify the counsel for Tex-La that he and others are free to disclose safety-related information about CPSES to anyone who is currently a party to any on-going or future contemplated licensing proceedings related to CPSES.
'Section 210 of the Energy Reorganization Act (ERA) is now ! 211 of the ERA by virtue of revisions in accordance with the Energy Policy Act of 1992.
Pub.
L. No. 486, 106 Stat. 2776, s 2902.
Henceforth in the Decision, this statute will be referred to as s 211 of the ERA.
In a letter of August 26, 1992, I acknowledged receipt of the Petition and declined to take any immediate actions.
I informed the Petitioners that the NRC staff (Staff) had reviewed settlement agreements between the Licensee and Tex-La dated March 23, 1989, and January 30, 1990, and had determined that they did not appear to violate the provisions of 9 211 of the ERA or 10 CFR 5 50.7.
However, I noted that a fuller analysis of the provisions of the settlement agreements to address the points raised in the Petition would be contained in my decision under 10 CFR 5 2.206.
In that letter I also informed Petitioners that the NRC had issued an Order dated July 28, 1992, extending the latest construction completion date for CPSES Unit 2.
The Staff evaluated the Licensee's application of February 3, 1992, for an amendment to the construction permit extending the construction completion date and concluded, in accordance with 10 CFR s 50.55(b), that good cause had been shown for the delay and that the requested extension was for a reasonable period of time.2 As a result of the review conducted by the Staff, certain of the requested actions were granted.
Specifically, the Staff notified TV Electric and the former co-owners that no settlement agreement can preclude individuals and organizations from bringing safety information to the NRC, copies of the settlement agreements have been made public,3 and the counsel of Tex-La has 2The relief sought by Petitioners with regard to the construction permit outstanding for LPSES Unit 2 when the Petition was filed has been rendered moot.
The Commission dismissed the proceeding regarding the CPSES Unit 2 construction permit amendment on March 30, 1993. Sag Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, NRC March 30, 1993).
An operating license was issued by the NRC for CPSES Ynit T(on February 2,1993.
3Copies of the agreements between the Licensee and the three former co-owners are available for inspection at the Commission's Public Document Room, The Gelman Building, 2120 L Street, N.W.,
Washington, D.C.
20555 and at The University of Texas at Arlington Library, Government Publications / Maps, 701 South 3~
(continued...)
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been notified (by Tex-La) that he is free to disclose safety information to the NRC.
The remaining relief requested has been denied. The basis for my decision follows.
II.
BACKGROUND In addition to the issues raised in the Petition, additional submittals were made by both the Petitioners and the Licensee. To support the Staff's review of the Petition, TU Electric and the former co-owners were required to submit documentation.
A summary of this correspondence follows.
In a letter of August 6,1992, TU Electric responded to the Petition.
The Licensee stated that the Petition contained no new information, that the agreement with Tex-La did not violate 10 CFR E 50.7(f) or 6 211 of the ERA, and that the agreement was consistent with the public interest. The Licensee also stated that the agreement explicitly accommodated & 211, and that the-agreement was not subject to 10 CFR s 50.7(f) because it was not an agreement affecting the compensation, terms, conditions, and privileges of employment.
TV Electric claimed that the agreement did not prohibit individuals, on their own behalf, from providing information to the NRC, requesting the NRC to take action, or appearing as a witness in an NRC proceeding. The Licensee also took issue with Petitioners' position that prohibitions against assisting third persons violated regulations.
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Cooper, P.O. Box 19497, Arlington, Texas 76019.
Although Petitioners' counsel requested that he be served with copies of these agreements, placement of these documents in the NRC public document rooms gives the public ready access to them.
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In a letter of October 6, 1992, Petitioners responded to the Licensee's letter of August 6, 1992. This filing is being considered as a supplement to the Petition.
Petitioners took issue with the Licensee's response and reiterated the view that the Tex-La settlement agreement (the only agreement Petitioners had available to them at the time) contained a blanket prohibition precluding Tex-La employees, attorneys, and agents from assisting in any manner whatsoever in activities related to the NRC licensing of CPSES and prohibited any Tex-La employee, attorney, and agent from assisting the current intervenors at CPSES.
In addition, Petitioners stated that the agreements had resulted in the suppression of information associated with the safe operation of CPSES.
Therefore, Petitioners argued, the Tex-La agreement violated 10 CFR S 50.7, the ERA, and other important public policies.
In a letter of October 16, 1992, supplemented by a letter of October 29, 1992, the Licensee responded to Petitioners' letter of October 6, 1992. The Licensee restated its previous position and argued that there was nothing improper about a commercial party, such as Tex-La, promising not to bring an action before the NRC in exchange for settlement of a lawsuit.
The Licensee stated that accepting the Petitioners' argument would essentially prohibit any settlement involving a nuclear plant, and that such an outcome was inconsistent with public policy and the Commission's policy in favor of settlement of NRC proceedings.
On November 19, 1992, Petitioners responded to the TV Electric letter of October 16, 1992.
This response is also considered to be a supplement to the original Petition.
Petitioners took issue with Licensee positions and alleged that the TV Electric letter of October 16, 1992, contained incorrect and 1
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- misleading information, including some statements that Petitioners considered
" misleading to the point of being materially false."
In order to complete its evaluation of the settlement agreements entered into between the Licensee and the former co-owners, the Staff requested in a letter of September 15, 1992, that the Licensee provide the Staff with copies of settlement agreements entered into between the Licensee and the other former co-owners of CPSES.
The Licensee responded on September 21, 1992, and submitted copies of agreements entered into between the Licensee and Brazos Electric Power Cooperative, Inc. (Brazos) on July 5, 1988, and between the Licensee and Texas Municipal Power Agency (TMPA) on February 12, 1988.
As a result of its evaluation of the three settlement agreements, the Staff determined that none of the provisions of these agreements violated s 211 of the ERA or NRC regulations.
However, the Staff did determine that each agreement contained a number of provisions that were restrictive and also contained language that could have a chilling effect.' This position was stated in the Staff's letters of January 12, 1993, to TU Electric, Tex-La, TMPA, and Brazos.
Each company was notified that it should take actions to ensure that all individuals and organizations that could be affected by the restrictive and chilling provisions in the agreements clearly' understand that those provisions, if interpreted to preclude individuals or organizations from providing information to the NRC, are void and unenforceable, and that anyone may, at any time, bring safety information to the NRC or assist third parties
'The provisions are restrictive as to the entities bound by the settlement agreements, i.e., the parties to the agreements and individuals acting on behalf of the parties to the agreements. The agreements are not restrictive regarding individuals who act on their own behalf.
It is in this sense that the term
" restrictive" is used throughout this Decision.
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- . i to do se if the individual or organization so chooses.
Each compae e asked to inform the NRC of the actions taken or to be taken to ensure that individuals and organizations do not believe that they are precluded from coming to the NRC with safety concerns.
TU Electric responded in a letter of February 11, 1993. The Licensee stated that it had advised each of the former co-owners that the subject provisions of the settlement agreements were not intended to prohibit the former co-owners, their employees, or representatives from communicating safety concerns to the NRC, and that it would not attempt to impose or enforce any provision so as to prohibit the communication of safety concerns to the NRC.
The Licensee's letters to the former co-owners stated that TV Electric cc.tinued to believe that the settlement agreements, including the provisions cited by the Staff, are consistent with official Commission policy in that the agreements state that the minority owners (and those acting on their behalf) are free to comply with 9 211 of the ERA.
TU Electric also reminded each former co-owner that it had made affirmative representations and warranties that it did not know of any violation, actual or alleged, of Section 211 that had not been previously disclosed to TU Electric in writing. The Licensee stated that it was thus clearly the intention of TU Electric to insure that all safety concerns had been or would be made known to the NRC.
In its response of February 9, 1993, TMPA represented that it and TV Electric are the only parties bound by the TMPA agreement and that TMPA had obtained the written assurance of TU Electric that TU Electric does not interpret the agreement to prohibit TMPA, its employees, or its repre-sentatives from corrauricating safety concerns to the NRC. TMPA further stated that it does not interpret the agreement to contain any such provision.
I Finally, TMPA represented that it is unaware of any individual or organization connected with it who has interpreted the language of its February 12, 1988, agreement with TU Electric to deprive the NRC of safety information with respect to CPSLS.
In its response of February 10, 1993, Brazos represented that it had never read any of the provisions of its July 5, 1988, agreement with TU Electric as prohibiting the communication of safety informatinn to the NRC and that Brazos had taken no actions to stifle any individuals or organizations in such regard.
With regard to the experts and consultants working for Brazos on the Comanche Peak matter, on July 6, 1988, they were informed that an agreement with TU Electric had been reached, that Brazos would no longer be requiring their professional services, and that they were directed to immediately cease work on any projects undertaken at the direction of attorneys representing Brazos.
In addition, Brazos has given its Comanche Peak litigation attorneys a copy of the NRC letter of January 12, 1993, and a copy of a letter TU Electric sent to Brazos on February 3, 1993, wherein TV Electric advises Brazos that no provisions of the Brazos agreement were intended to prohibit the former co-owners, their employees, or their representatives from communicating safety concerns to the NRC, and that TV Electric would not attempt to impose or enforce any such provision.
In its response of February 10, 1993, Tex-La represented that, by letters of March 28, 1989, an attorney then with the law firm of Heron, Burchette, Ruckert & Rothwell notified the consultants who had assisted Tex-La in the litigation between Tex-La and TV Electric that they were asked not to oppose, or assist any third party in opposing, TU Electric in connection with any matters relating to CPSES. The letters did not, either explicitly or
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implicitly, communicate to the recipients that they were prohibited from taking safety concerns to the NRC.
In letters of February 10, 1993, Tex-La notified the same consultants who received the March 28, 1989, letters, that
+he NRC had taken the position that 6 9.2(d) of the Tex-La agreement was potentially restrictive because it could be interpreted to prohibit individuals from taking safety concerns to the NRC.
Tex-La informed these individuals that the t ttlement agreement was not intended to restrict Tex-La consultants from taking safety concerns to the NRC.
Finally, in a letter of February 10, 1993, Tex-La notified its counsel, William H. Burchette, that the settlement agreement should not be interpreted to restrict the submittal of safety concerns to the NRC.5 Ill. DISCUSSION The Staff has identified five allegations raised by the original Petition and its supplements that require resolution.
The allegations are that (1) the settlement agreements between TU Electric and Tex-La, Brazos and TMPA violate 5 211 of the ERA and 10 CFR S 50.7; (2) the settlement agreements are inconsistent with Commission policy; (3) the settlement agreements resulted in information associated with the safe operation of CPSES being withheld from the NRC; (4) by virtue of the settlement agreements, TU Electric has engaged in a practice of paying " hush money" to keep significant information from the NRC; and (5) TV Electric has submitted inaccurate or 5Petitioners submitted a letter from Mr. Burchette dated May 20, 1992, in support of their Petition.
. 2 material false statements to the NRC in its October 16, 1992, response to this Petition.
These issues are addressed below.
A.
Petitioners' Alleaation That Settlement Aareements Violate Section 211 Of The Eneroy Reoraanization Act And 10 CFR 6 50.7 Petitioners alleged that the settlement agreements between the Licensee and the former co-owners violated 5 211 of the ERA and 10 CFR S 50.7 in that they contained restrictive language.6 The Staff addressed this issue in its January 12, 1993, letters to TU Electric, Tex-La, TMPA, and Brazos. As noted therein, the Staff determined that the subject settlement agreements did not violate either 5 211 or 6 50.7.
The basis for this determination is repeated below.
The settlement agreements are not within the scope of either s 211 of the ERA or 6 50.7 of NRC regulations.
Section 211 of the ERA provides protection for employees who bring information of regulatory concern to the NRC.
Section 50.7 of the NRC regulations prohibits discrimination against employees as a result of bringing safety concerns to the NRC.
The settlement agreements are not within the scope of either of these provisions because these agreements do not preclude employees acting on their own behalf from bringing safety concerns to the NRC.
These agreements only apply to the
' Petitioners argue that i 211 of the ERA statutorily protects Petitioners'
" rights" to unbridled access to witnesses as well as the "right" to gain assistance from employees of the former co-owners to prepare petitions and to initiate proceedings with regard to CPSES under the Atomic Energy Act of 1954, as amended.
Petition, page !.
The NRC does not share this expansive vies of 5 211.
That statute was clearly -limited to providing a personal remedy for whistleblowers.
It create 6 no ancillary " rights" such as those claimed by Petitioners as running to them.
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- corporate entities and not to individual employees acting on their own behalf.
The agreements do not contain provisions that restrict an employee or former employee.
Indeed, the language of the agreements indicates that the agreements are limited to the named parties acting for themselves and on behalf of any person or entity, private or governmental, claiming by, through, or under a named party, including insurers, agents, servants, employees, officers, directors, consultants, attorneys, and representatives.
Such language indicates that the agreements apply to employees who act on behalf of the named parties and not to employees who act on their own behalf.
The agreements are not within the scope of 6 50.7 for another reason.
Specifically, s 50.7(f) states that no agreements affecting the compensation, terms, conditions, and privileges of employment, including an agreement to settle a complaint by an employee with the Department of Labor (DOL) pursuant to the ERA, may cor a n any provision that would prohibit, restrict, or otherwise discourage an employee from participating in a protected activity which includes, but is not limited to, providing information to the NRC on potential violations or on other matters within NRC regulatory responsibilities.
None of the settlement agreements between the Licensee and the three former co-owners is an agreement of the type described by the regulation.
They are, in essence, agreements between corporate entities (to buy and sell portions of ownership of CPSES) and are not agreements affecting the compensation, terms, conditions, and privileges of employment.
Accordingly, Petitioners' claims regarding the violation of Federal statute or Commission regulations are without merit.
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Petitioners' Alleaation That The Settlement Aareements Are Inconsistent With Commission Policy The NRC has expressed a policy that looks unfavorably upon any restrictions on the free flow of information to the NRC. Egg Preserving the Free Flow of Information to the Comission, 55 EgL Res.10397. Although the agreements do not fall within the scope of either 5 211 of the ERA or 9 50.7 of NRC regulations, the NRC has stated that, "no restrictions on bringing information to the Commission should be allowed." Id. at 10402. To the extent that any of the provisions of the settlement agreements would preclude organizations or individuals from bringing information of regulatory concern to the NRC, those provisions would be inconsistent with the above-stated policy and would be without force and effect, at least insofar as they relate to communications with the NRC.
The Staff has completed its review of the settlement agreements and determined that they are restrictive with regard to organizations.7 In addition, although the agreements do not explicitly preclude ino;viduals from bringing information to the NRC, the Staff is concerned that the settlement agreements contain language that could have a " chilling effect," 1.e.,
individuals could interpret the agreements as prohibiting them from bringing, or assisting others in bringing, information to the NRC.
'The provisions are restrictive as to the entities bound by the settlement agreements, i.e., the parties to the agreements and individuals acting on behalf i
of the parties to the agreements. The agreements are not restrictive regarding individuals who act on their own behalf.
It is in this sense that the term
" restrictive" is used throughout this Decision.
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All three agreements contain a similar structure and similar, although not identical, language.
A review of one of the agreements, the Tex-La agreement, reveals the types of provisions they all contain.a-The covenant not to sue on the part of Tex-La, at page 46 of the Tex-La agreement and at page 5 of Exhibit M to the Tex-La agreement, contains language whereby Tex-La is restricted from directly or indirectly opposing, challenging, or contesting any aspect of CPSES including its planning, design, licensing, and construction.
Other restrictive language appears at pages 47 and 48 of the Tex-La agreement and at page 7 of Exhibit M to the Tex-La agreement.
According to those terms, Tex-La shall in no event use any information obtained by it or its attorneys in any manner adverse to the Licensee.
The restrictive nature of this provision is amplified by other terms of the Tex-La agreement which permit Tex-La to respond only to specific discovery requests and permit Tex-La to tell the truth under oath in response to a specific request.
Additional restrictive language appears at page 61 of the Tex-La agreement.
There Tex-La agrees not to oppose, or assist any third party in opposing, a position being advocated by the Licensee.' Such restrictive provisions are inconsistent with Commission policy.
These provisions, however, do not explicitly prohibit individuals, acting on their own behalf, from bringing safety concerns to the NRC.
t 8Three Tex-La agreements exist. The agreement of March 23, 1989 was amended by agreements of December 21, 1989 and January 30, 1990. The three agreements do not differ in any material respect with regard to the issues raised in the Petition. It is the January 30, 1990, agreement that the NRC staff discusses in this Decision.
'Similar, though not identical, language is found in the other two agreements between the Licensee and Brazos and the Licensee and TMPA.
For purposes of this Decision, it is not necessary to summarize these essentially repetitive provisions.
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' The NRC is also concerned that the language of the restrictive provisions could have a potential chilling effect on some individuals.
In addition, language with a potential chilling effect appears on pages 49 and 50 of the Tex-La agreement. Tex-La agrees that it will encourage its attorneys and consultants not to oppose, or assist any third party in opposing, the Licensee in connection with any matters relating to CPSES.'
The Tex-La' agreement, although it does not explicitly restrict the rights of individuals acting on their own behalf, does not make it clear that safety concerns may be brought to the attention cf the NRC without restriction.
Rather, the Tex-La agreement contains broad and sweeping language that could discourage some individuals from bringing safety concerns to the NRC.
The NRC recognizes a need for the settlement of disputes.
See Statement of Policy of Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 456 (1981) and 10 CFR ss 2.203, 2.205 and 2.759. Settlement contemplates the need r
for language in settlement agreements to preclude endless litigation.
However, any provisions in settlement agreements limiting litigation must be carefully written to ensure that a clear avenue remains open for individuals and organizations to bring safety concerns to the NRC, or to assist others in doings so, should they so wish. A balance must be struck in settlement agreements between the need to bring an end to disputes involving the parties and the need to ensure that a clear avenue remains available to bring safety
' Petitioners attached to the Petition a letter of May 20, 1992, to Mr. R. Micky Dow from William H. Burchette Esq. as evidence of the restrictive nature of the Tex-La agreement.
It would appear that Mr. Burchette is referencing the language on page 49 of the Tex-La agreement in his response.
Mr. Burchette concludes that he is precluded from assisting or cooperating in any way with any third party in opposing TV Electric in cormection with the licensing of CPSES.
information to the NRC.
The agreements at issue here do not strike a proper balance between these competing interests. The agreements contain language restricting the former minority co-owners with regard to providing information to the NRC which would be adverse to the Licensee. To this extent, the Petitioners' allegation that the settlement agreements are inconsistent with Commission policy is correct.
In addition, although the agreements do not explicitly restrict individuals acting on their own behalf, the language in the agreements is broad and sweeping in nature and could lead individuals to conclude that they are restricted from providing information to the NRC which would be adverse to the Licensee.
The agreements thus have a potential chilling effect.
Therefore, the Staff took actions to ensure that TV Electric, Brazos, Tex-La, and TMPA did not consider the agreements to restrict the right of organizations and individuals to bring safety concerns to the NRC.
The representations made by TU Electric and the former co-owners in their responses to the January 12, 1993, letters from the Staff provide reasonable assurance that the Licensee and former co-owners did not intend the agreements to prevent safety concerns from being brought to the NRC.
In addition, I am satisfied that all parties to the settlement agreements in question now understand that there must be a clear avenue available for anyone at any time j
to bring safety concerns to the NRC.
In the case of Mr. Burchette, upon whose letter of May 20, 1992, Petitioners in part rely, he too has been informed by Tex-La that he may bring safety concerns to the NRC if he so chooses."
i "While the responses of TV Electric, TMPA, Brazos and Tex-La all make clear that the settlement agreements were never intended to preclude any entity or individual from bringing safety information to the NRC if that entity or (continued...)
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1 consider the responses to my letters of January 12, 1993, to be sufficient to resolve any potential concerns or doubts about the effect of certain language contained in the three settlement agreements at issue.
The Commission itself has reviewed this very issue in its consideration of a motion for a stay of the issuance of the full power license for CPSES Unit 2 and has reached the same conclusion. Egg Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Unit 2), CLI-93-II, _NRC_( April 6, 1993) at 10.
C.
Petitioners' Alleaation That The Settlement Aareements Resulted In Information Associated With The Safe Operation of CPSES Beins Withheld From The NRC Petitioners allege that the settlement agreements have resulted in information associated with the safe operation of CPSES being withheld from the NRC.
With regard to the three former co-owners, the settlement agreements contain language restricting them from providing information to the NRC.
However, I am satisfied from the responses of the three former co-owners that they did not interpret the agreements as preventing them from raising safety i
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"(... continued) individual wished to do so, the responses do not address whether the settlement agreements preclude such entities or individuals from assisting third parties in their bringing of safety information'to the NRC.
The NRC sees no meaningful distinction here. An entity or individual may bring safety concerns directly to the NRC or may assist a third party in doing so.
A clear avenue must be available to bring safety concerns to the NRC whether that avenue is direct or indirect. As I stated in my letters of January 12, 1993, to TV Electric, TMPA, Brazos and Tex-La, anyone may, at any time, bring safety information to the NRC, or assist third parties in bringing such information to the NRC, if the individual or organization so chooses.
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concerns to the NRC and the Licensee has never asserted to the former co-owners that the agreements prevent them from raising safety concerns. The Commission itself has reviewed this very issue in its consideration of a motion for a stay of the issuance of the full power license for CPSES Unit 2 and has reached the same conclusion. Egg Texas Ut/11tfes Electric Co.
(Comanche Peak Steam Electric Station, Unit 2), CLI-93-11, _NRC_ (April 6, 1993) at 10.
Because of the restrictive and potentially chilling nature of these agreements, however, the actions taken by TV Electric and the former co-owners cannot ensure that there are no instances where information associated with the safe operation of CPSES has been withheld from the NRC as a result of
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these agreements.
Even in such a situation, the Staff has determined that in this case a significant threat to the public health and safety does not exist.
The Staff made this determination on the basis of the limited involvement of the former co-owners in the design, construction, maintenance, and operation of CPSES, and the programs that both the Licensee and the NRC have in place to ensure that the plant was designed and constructed safely, and can be maintained and operated safely.
The basis for this determination is given below.
TV Electric has been the entity responsible for the design, construction, maintenance, and operation of CPSES.
Thiswas5rueevenwhen Brazos, TMPA, and Tex-La had an interest in the facility. The safety
.l 12 and Tex-La'3 to the evaluations for the amendments adding Brazos and TMPA construction permits for CPSES noted that TU Electric (formerly TUGCO) retained exclusive responsibility for the design, construction, operation, and maintenance of the plant. Hence, the involvement of the former co-owners was indirect.
Therefore, even if the former co-owners' employees considered the settlement agreements to be restrictive, it is unlikely that a significant number of personnel with direct knowledge of CPSES would have been affected.
The NRC also has an allegation management program to facilitate a review and possible validation of concerns of impropriety or inadequacy associated with NRC-regulated activities identified by a variety of sources. However, because there are no guarantees that allegers will find problems and bring them to the NRC, the NRC has
t designed its program for ensuring adequate protection on an assumption that allegers will reveal safety deficiencies.
Although allegations have led to the early identification of safety-significant deficiencies, the Staff does not include its allegation management program in its bases for ensuring adequate protection of the public health and safety.
Rather, the NRC relies on its inspections of licensee programs, policies, and facilities to ensure such protection exists.
To this end, the Staff has conducted extensive inspections of CPSES to ensure that the facility was constructed safely and can be operated safely.
Since 1973, the NRC has performed more than 150,000 direct inspection hours, 12Brazos and TMPA were added to the construction permits for CPSES Unit 1 (CPPR-126) and Unit 2 (CPPR-127) by Amendment 3-to each permit-le_q NRC letter of December 13, 1979.
'3Tex-La was added to the construction permits for CPSES Unit 1 (CPPR-126) and Unit 2 (CPPR-127) by Amendment 4 to each permit.
See NRC letter of September 30, 1981.
- approximately half of which were completed since inception of the Corrective Action Program (CAP) in early 1987.
The findings of these inspections are documented in more than 500 inspection reports. These inspections offer a reasonable assurance that CPSES was constructed safely and can be operated safely.
In parallel with the NRC's allegation management program, as part of its policies for treating employee concerns, the Licensee has established a mechanism for individJals to bring a broad range of issues to its attention.
This is the TV Electric SAFETEAM Program.
The SAFETEAM Program is not a regulatory requirement.
It does, however, have a nexus to the Licensee's commitment to safety and, therefore, its success is of interest to the NRC.
A recent NRC review of the Licensee's SAFETEAM Program concluded that the program provides an avenue for employees with safety concerns to present these concerns to management and gives plant management a mechanism for the early identification of issues that could affect the safety of the plant.
Finally, TU Electric implemented a far-ranging Corrective Action Program for CPSES.
The CAP is a comprehensive program that validated both the design and hardware at CPSES, including resolution of specific Comanche Peak Response Team (CPRT) and external issues. The design validation portion of the CAP identified the design-related licensing requirements and commitments.
These requirements and commitments formed the bases for the design validation effort and were assembled in design-basis documents. The hardware validation portion of the CAP was implemented by the Post Construction Hardware Validation Program (PCHVP).
The purpose of the PCHVP was to demonstrate that as-built systems, structures, and components were in compliance with the installation specifications (validated design), or to identify modifications that were
- necessary to bring the hardware into compliance with the validated design.
The NRC has regularly reviewed the CAP and has found that the program results in the effective identification and correction of problems at CPSES.
The findings of NRC reviews are documented in over 100 inspection reports and in NUREG-0797, " Safety Evaluation Report Related to the Operation of Comanche Peak Steam Electric Station, Units 1 and 2."
In summary, despite the restrictive provisions regarding parties to the agreements and the potentially chilling nature of the settlement agreements, I
on the basis of TV Electric's and former co-owners' statements that the agreements were not intended or interpreted to restrict information from the NRC, the limited involvement of the former co-owners, the allegation management and inspection programs of the NRC, and the Licensee's SAFETEAM and CAP Programs, the Staff has a reasonable assurance that no significant safety issues have been left unresolved. The Commission reached a similar conclusion with regard to this issue in its Memorandum and Order of April 6, 1993.
Id.
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Petitioners' Alleaation That. By Virtue Of The Settlement Aareements. TV Electric Has Encaaed in a Practice of Pavina " Hush tioney" to Keep Sianificant Information From NRC 1
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l Petitioners alleged that TV Electric has, by virtue of the settlement agreements, engaged in a continuing practice of paying " hush money" to keep I
significant information from the NRC.
Petitioners cite as evidence the TU Electric settlement agreement with Tex-La.
It is clear that the primary purpose of the agreements was to effect the transfer of ownership interests from the former co-owners to TV Electric. Although the Staff found that
portions of the TV Electric-former co-owner settlement agreements are restrictive regarding parties to the agreement and could cause a chilling effect, it does not appear that TV Electric, Brazos, Tex-La, or TMPA intended them to be.
In any event, the agreements do not rise to the level of " hush money."
Petitioners failed to establish that TV Electric has engaged in a
" continuing practice" of paying " hush money" for the purpose of withholding evidence from the NRC.
Therefore, the Staff finds the Petitioners' allegation is without merit.
E.
Petitioners' Alleaation That TV Electric Submitted Inaccurate Or Material False Statements To The NRC In A Response to This Petition Petitioners alleged in their November 19, 1992, supplement to the petition that the TV Electric response of October 16, 1992, contained
" incorrect and misleading information" and a statement " misleading to the point of being materially false." November 19, 1992, Supplement at 1,3.
Although the Staff, as noted above in Section III.8, has diffsred with TV Electric on the interpretation of Commission policy and the nature of portions of the settlement agreements, the Staff does not agree that TU Electric intended to provide misleading or material false information to the NRC in its October 16, 1992, response to the Petition and its supplements. Rather, TV Electric is offering a plausible interpretation of documents that are at best extremely complex, and at worst obfuscatory. Therefore, the Staff finds the Petitioners' allegation is without merit.
l IV. CONCLUSION The institution of proceedings pursuant to 10 CFR f 2.202, as requested by Petitioners, is appropriate only where substantial health and safety issues have been raised. kgg Consolidated Edison Company of New York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2 NRC 173, 175 (1975) and Washington Public Power System (WPPS Nuclear Project No. 2), DD-84-7,-19 NRC 899, 923 (1984).
The facts in this matter do not warrant the institution of proceedings.
A clear avenue must be available at all times to ensure that individuals and organizations may bring safety information to the NRC either directly or through third parties.
This is particularly so when settlement agreements are involved.
The Staff determined that the settlement agreements did not violate 5 211 of the ERA or 10 CFR s 50.7.
The Staff also determined that the settlement agreements were restrictive as to the former co-owners who are parties to the agreements.
In addition, the Staff determined that the co-owner settlement agreements could have a chilling effect.
However, there are other considerations that mitigate the Staff's concerns on this issue. The actions taken by the NRC staff in this matter and the represcntations made in the responses provide the Staff with reasonable assurance that the Licensee and former co-owners did not intend the settlement agreements to restrict organizations and individuals including employees and contractors of the former co-owners from bringing safety concerns to the NRC.
I am also satisfied that the parties to the agreements in question did not interpret the agreements as preventing them from raising safety concerns and now understand that a clear avenue must be available to all to bring safety concerns to the NRC.
Finally, given the indirect involvement of the former co-owners-in the
i
' i I
design, construction, maintenance and operation of CPSES, and the programs that both the NRC and Licensee have in place to identify and correct safety concerns, the Staff has reasonable assurance that no significant safety issues have been left unresolved with regard to CPSES.
Certain relief sought by Petitioners has been granted in this matter.
Petitioners sought that the NRC notify TV Electric and the former co-owners I
that no settlement agreement can preclude individuals and organizations from i
bringing safety information to the NRC. This has been done.
Petitioners also
.i sought that copies of the three settlement agreements be made public. This has been done.
Finally, Petitioners requested that counsel for Tex-La be notified that he is free to disclose safety information to the NRC. The NRC has caused this to happen.
l The other relief sought by Petitioners has been denied.
The facts in this matter do not warrant the institution of proceedings.
Parties are encouraged to settle their disputes.
Public policy only demands that a clear 1
I avenue be available to individuals and entities to bring safety concerns to l
the NRC.
A copy of this Decision will-be filed with the Secretary of the Commission for the Commission's review in accordance with 10 CFR f 2.206(c).
FOR THE NUCLEAR REGULATORY COMMISSION F
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Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland this 4th day of June 1993
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