ML20064G682

Response by Union Elec Co to W Smart'S Opening Brief.Asserts ASLB Properly Declined to Entertain Remedial Issue Raised by Smart Re Nrc'S Auth to Provide Specific Relief to Discharged Worker at Nuc Reactor Site.Cert of Svc Encl

ML20064G682
Person / Time
Site:	Callaway
Issue date:	12/06/1978
From:	Charnoff G, Reynolds W SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
NUDOCS 7812130057
Download: ML20064G682 (18)

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NRC PUBLIC DOCUENT ROOM

' UNITED STATES OF AMERICA '

l NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal 3 card In the Matter of )

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U'IION ELECTRIC COMPANY ) Construction Permits Nos. CPPR-139

(Callaway Plant, ) CPPR-140

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UNION ELECTRIC COMPANY'S RESPONSE TO WILLIAM SMART'S OPENING BRIEF, N n,

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I WM. BRADFORD REYNOLDS 2' _.

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GERALD CHARNOFF

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l SHAW, PITTMAN, POTTS i 1800 M Street, N.W. &TROWBRIDGE,[

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Counsel for Union Electricj Ccmpany a

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, 6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3efore the Atcmic Safety and Licensing Appeal Scard In the Matter of )

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UNION ELECTRIC COMPANY ) Construction Permits Nos. CPPR-139 (Callaway Plant, ) CPPR-140 Units 1 and 2) )

UNION ELECTRIC COMPANY'S RESPONSE TO WILLIAM SMART'S OPENING BRIEF f

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WM. BRADFORD REYNOLDS

(' GERALD CHARNOFF SHAW, PITTMAN, POTTS & TROWBRIDGE 1300 M Street, N.W.

Washington, D. C. 20036 Counsel for Union Electric Company l

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TABLE OF CONTENTS Pace LINTRODUCTION . . . . . . . . . . . . . . . . . . . . . . 1 LEGAL DISCUSSION . . . . . . . . . . . . . . . . . . . . 3 THE QUESTION OF THE AUTHORITY OF THE NRC TO REMEDY A WRONGFUL DISCHARGE OF A NUCLEAR CONSTRUCTION WORKER IS NOT PROPERLY BEFOPS THE COMMISSION IN THIS PROCEEDING . . . . . . . . .. . . . . 3 MR. SMART HAS POINTED TO NEITHER-LAW NOR POLICY SUGGESTING A REASON TO ENTERTAIN THE REMEDIAL ISSUE HE HAS RAISED . . . . . . . . . . . . . . . . 7 DEVELOPMENTS SINCE THE INITInL DECISION ALSO ARGUE FORCEFULLY AGAINST ENTERTAINING MR. SMART'S REMEDIAL ISSUE . . . . . . . . . . . . . .. . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 14 O

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LEGAL CITATIONS Page CASES:

Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALA3-182, 7 A.E.C. 210 (1974). . . . . . . . . . . . . . . . . . . . 4 Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALA3-444, 6 N.R.C.

760 (1977). . . . . . . . . . . . . . . . . . . . 5 Houston Lighting & Power Company (South Texas Pro]ect, Units 1 and 2), ALAB-381, 5 N.R.C.

582 (1977). . . . . . . . . . . . . . . . . . . . 5, 6 Northern Sbitas Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 8 A.E.C. 175 (1975) . . . . . . . . . . . . . . . 6 Toledo Edison Company (Davis-Besse Nuclear Power Station), ALAB-157, 6 A.E.C. 858 (1973) . . . . . 6, 7 Vermont Yankee Nuclear Power Corporation'(Vermont Yankee Nuclear Power Station) , ALAB-179, 7 A.E.C. 159 (1974) . . . . . . . .. . . . . . . . 6, 7 STATUTES:

Energy Reorganization Act of 1974, as amended Section 206, 42 U.S.C. S 5846 (1976). . . . . . . 7, 8, 9 Section 206 (b) , 42 U.S.C. S 5846(b) (1976). . . . 8 Section 210, Pub. L.95-601 (1978) . . . . . . . 12, 13 REGULATIONS:

10 C.F.R. S 2.202 (a) (4) (1978) . . . . . . . . . . . . 4 10 C.F.R. S 2.202(c) (1978). . . . . . . . . . . . . . 4 10 C.F.R. S 2. 714 (a) (2) (1978) . . . . . . . . . . . . 4 i 10 C.F.R. Part 19 (1978) . . . . . . . . . . . . . . . 9, 10 5 19.2

. . . . . . . . . . . . . . . . . . . . . 10 S 19. 3 (d) . . . . . . . . . . . . . . . . . . . . 10 10 C.F.R. Part 21 (1978) . . . . . . . . . . . . . . . 8, 9 5 21.61 .-. . . . . . . . . . . . . . . . . . . . -8 i

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UNITED STATES OF AMERICA NUCLEAR' REGULATORY COMMISSION Before the Atomic Safety and Licensinc Acceal Board In the Matter of )

)

UNION ELECTRIC COMPANY ) Construction Permits Nos. CPPR-139 (Callaway Plant, ) CPPR-140 Units 1 and 2) )

UNION ELECTRIC COMPANY'S RESPONSE TO WILLIAM SMART'S OPENING BRIEF i

INTRODUCTION i

f 4

On November 6, 1978, Union Electric Company was served with the brief of William Smart, intervenor below, e

arguing that the Appeal Board should take the present occasion to construe the authority of the Nuclear Regulatory Commission

. ("NRC") in a manner that would permit the agency in future proceedings to devise individual remedies for employees found to have been wrongfully discharged from employment at a nuclear construction site. The Licensing Boara had declined to consider and decide this question when raised by Mr. Smart in the show cause proceeding below, ruling that it was not yet rice for consideration and failed to come within the scope of the Licensing Scard's review responsibilities as set by the Commission's Order of May 11, 1973 (see I.D. at p. 7).

Subsequent to this decision, William Smar t was awarded reinstatement of his job at the Callaway construction site, with back pay, at the conclusion of a separate union grievance proceedinc that had involved an independent investigation into the causes of his firing. In notifying the Appeal Board of this development on November 17, 1978, counsel for intervenor maintained that this remedial action did not

. moot the pending issue as to the NRC's legal authority to grant similar relief for discharged employees in appropriate circumstances in other cases.1 1

i Union Electric Company agrees with the Licensing Board that the question raised by Mr. Smart is not. reviewable in the instant show cause proceeding. Beyond this , we find it revealing that intervenor's rambling discussion in his brief here fails to point to either law or policy that so much as begins to address the remedial issue he seeks.to have. resolved.

In any event, recent developments which assure Mr. Smart and other construction workers that alleged discriminatory action of whatever sort against employees will be subjected to the closest scrutiny, and, if warranted, will be appropriately redressed, eliminate the need for an advisory ruling at this l time by the Appeal Board on the remedy issue in question.

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l 1 See William Smar t's Notice Of His ?.einstatement, l dated November 17, 1973.

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LEGAL DISCUSSION THE QUESTION OF THE AUTHORITY OF THE NRC TO REMEDY A WRONGFUL DISCHARGE OF A NUCLEAR CONSTRUCTION WORKER IS NOT PROPERLY BEFORE THE

, COMMISSION IN THIS PROCEEDING The present proceeding was initiated by the Director

- of the NRC Office of Inspection and Enforcement upon issuance

! of a Show Cause Order on April 3, 1978. By its terms, the Show Cause Order was limited to a single subj ect matter, i.a., the refusal to allow an investigation by NRC inspectors into the.

causes for firing a construction worker at the Callaway nuclear plant site. The question presented concerned only why Construction Permits Nos. CPPR-139 and CPPR-140 should not be suspended until the Licensee and its contractor allowed such an

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investigation to take place.2 i

In asking for a hearing on the Show Cause Order ,

Union Electric Company maintained that the referenced NRC investigation was unauthorized by statute and ill-advised as a l

matter of sound policy because of a parallel union investigation into the identical firing. The Ccomission assigned the matter to a Licensing Board with i,structions to hear three defined issues: (1) whether the investigation had 2 See Order To Show Cause, at p. 3.

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been refused; (2) whether the Callaway construction permits l

should be suspended until the. investigation is allowed to l

proceed; and (3) whether the NRC should defer initiating its own investigation pending the outcome of the ongoing grievance

' proceeding commenced by Mr. Smart.3 In'the context of an NRC show cause proceeding, these I three questions posed by the Commission define the outer jurisdictional limits of the inquiry to be undertaken. See 10 C.F.R. SS 2.202(a)(4) and 2.202(c) (an order to show cause issued by the Director, Office of Inspection and Enforcement, l' .

i is to specify the issues to be considered in any show cause proceeding). To the extent that Mr. Smart, as an interested party, ' wished to participate in the hearing, he certainly had every right to petition to internene. However, his petition

. 1 had ' to ' meet the NFC's requirements for intervention, including, l {

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inter alia, the directive _that any contention' sought to be raised by the intervenor must be cognizable in the particular proceeding- in which he is seeking to participate. See Alabama Power Comoanv (Joseph M. Parley Nuclear Plant, Units 1 and 2),

ALAB-182, 7 A.E.C. 210, 216 (1974). Cognizability is determined under Section 2.714(a)(2) of the Commission's Rules on the -basis of a meaningful relationship to "the subject matter of the proceeding" as to which intervention is desired.

3 See Commission's Notice Of Hearing, dated May 11, 1973,

.. at - p. 3.

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-5 Cf. Gulf States Utilities Comoany-(River Bend Station,. Units 1 and'2), ALAB-444, 6 M.R.C.~760, 774 (1977).4 In this instance, that " subj ect" matter" is found in the Order to Show Cause; it cannot be expanded by a licensing board. C#. Houston' Lighting & Power Comoany (South Texas Project, Units 1 and 2), ALAB- 381, 5 N.R.C. 582, 592 (1977)

(licensing boards have no independent authority to initiate any_

form of adj udicatory proceeding) . Mr. Smart sought below to go

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beyond the legal issues prescribed in the Order to Show Cause in asking the Licensing Board to consider in addition the separate question of the NRC's remedial authority to grant particularized relief to a discharged employee on the assumption that the discharge was not for good cause. This plainly is not an issue subsumed within the parameters of the several inquiries relating to the investigative authority of I

whe NRC. Indeed, it is a question that addresses a l

.' hypothetical situation which would arise, if at all, only after

" a determination by the Commission that the referenced NRC investigation was authorized, a subsequent determination by NRC

inspectors that the firing of Mr. Smart had not been for good

, 4 The " nexus" principle announced in Gulf States Utilities was in a different context tnan tne one presented here. That proceeding involved the more commonplace situation relating to an application to construct or operate a nuclear power plant. In that context, the " subject matter" of the

proceeding is set by regulation (see 10 C.F.R. SS 2.104(bi-l (d)), and it is from that perspective that the Appeal 3oard

! discussed the nexus requirement to be satisfied by intervenors I seeking.co introduce na9 issues into a proceeding.

cause, and presumably a refusal by the arbitrator in the ongoing grievance proceeding to award 'Mr. Smart any relief for the disciplinary action taken against him. Only then would the question as to whether the NRC should intervene on Mr. Smart's behalf be ripe for review.

Accordingly, the Licensing Board was entirely correct to decline the invitation of Mr. Smart to entertain the hypothetical remedial issue raised in his intervention petition. As a jurisdictional matter, the area of permissible inquiry prescribed by the Commission simply did not embrace this separate question. See Houston Lighting & Power Company, supra. Nor would such overreaching by the Licensing Board have been a judicious exercise of its sound discretion in view of the premature nature of the question presented. There is no legitimate purpose to be served by having the Commission render advisory opinions on matters of a purely hypothetical stature which are not yet ripe for agency consideration. See, e.c.,

Toledo Edison Comcanv (Davis-Besse Nuclear Power Station),

ALAB-157, 6 A.E.C. S58, 859 (1973); Vermont Yankee Nuclear

?ower Corcoration (Vermont Yankee Nuclear Power Station),

A LAB - 17 9 , 7 A.E.C. 159, 154-67 (1974); Northern States Power Com=anv (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALA3-252, 3 A.E.C. 1175, 1177 (1975).5 5 ~4e recch this conclusion in full reccgnition of the fact that the (Continued next page)

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MP. SMART HAS POINTED TO NEITHER LAW NOR POLICY SUGGESTING A REASON TO ENTERTAIN THE REMEDIAL ISSUE HE HAS RAISED The Appeal Soard hardly needs to be . concerned with such a disposition of this matter. In his brief here, Mr.

Smart, as he did below, points to no statutory provision, no Commission regulation, not any sound policy consideration that 9 ,

, realistically portends the sort of relief he would like to

l obtain. In the final analysis, his position rests e

sentially on nothing more than the general assertion that the requested remedial authority to benefit construction workers " flows from

, the NRC's broad statutory authority to assure nuclear safety" (Smart's 3r . at p. 11).

The reasoning advanced in support of this conclusion r is admittedly obscure. Reference is made to Section 206 of the i

Energy Reorganization Act of 1974, 42 U.S.C. S 5846, as somehow

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,. suggesting that the NRC's ability to take remedial action to reinstate discharged employees lurks within the reporting requirements imposed on company officials with respect to certain enumerated safety problems. However, this statutory I

(Continued)

Appeal Ecard's jurisdiction is not limited by the " case or controversy" requirement of Article III of the United States constitution. Nevertheless, as the Appeal Soard has had occasion

! to. note in the past, its work load is certainly large enough without. the additional burden of deciding abstract cases. See, e.c., ALAB-157 at 959; ALAB-25 2 at 1177.

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provision is concerned with providing an ef fective network of. l 1

communication'on aafety matters between the directors'and '

responsible officers of firms participating at all levels of 1

the construction, process, on the one hand, and Commission inspectors and representatives, on the other hand. The mechanism for accomplishing this obj ective is set forth in Part 21 of the Commission's Rules of Practice (10 C.F.R. Part.21).

Both the statute (section 206(b), 42 U.S.C. S 5846(b)) and the regulations (10 C.F.R. S 21.61) impose a civil penalty in terms of a set dollar amount for non-compliance. -

There is no mention in Section 206 or its implementing regulations of possible involvement by the NRC in overseeing employee grievances for the purpose of granting particularized relief to. workers who may have been terminated without good cause. Nor does the legislative history of the j provision contain any indication that Congress contemplated that the section would or should be so construed. It may well l be that the NRC could rely on Section 206 to impose a fine on i

company officials for failing to disclose known defects or i

substantial safety hazards reported to the NRC by an employee who had been wrongfully discharged. Such remedial action to insure compliance with the reporting requirements of the t

j statute does not, however, remotely suggest a delegation of l

l 6 Similarly, we 'would think that such action might be taken by the NRC in_certain circumstances if a; general contractor j posted.at the site entrance a sign such as described by M.r' . .

! Smart's counsel (see Smart 3r., at p. 13). However, if the (Continued next page) l l

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authority to the NRC to reinstate the employee in question.

__Nor is there anything in Part 19 of the Commission's i -

regulations which justifies assigning such authority to the ,

Commission. While counsel for Mr. Smart argues otherwise on the basis of what is admittedly a broader reading of the i

referenced regulations than ever contemplated (see Smart's Br.

at pp. 13-15), his analysis is unacceptable. In substance, it-turns on a suggested reading of the term " licensee" to include

- ,.c holders of construction permits, as well as those who have i

received from the. NRC operating licenses (id at p. 14).

We need not leave to guesswork whether the Commission intended Part 19 to be so read . In very clear terms. the NRC 4

(Continued) purpose of such a sign were to encourage internal' communications-so that frivolous safety concerns could be filtered out by company officials, or minor problems could be corrected without the need to involve NRC inspectors, it is not altogether clear that a fine would be warranted or that the sign should necessarily be removed.

1 7 Certainly, in the absence of a showing of non-compliance with Section 206 or its implementing regulations under Part 21 of the Commission's Rules of Practice -- and no such allegation has been made in the present proceeding -- it would be premature for the Appeal Board to undertake review here of the question whether this provision of the Energy Reorganization Act of 1974 mig ht authorize the NRC to reinstate a construction worker allegedly discharged in retaliation for giving safety information to the agency. Even assuming arcuendo such a retaliatory firing, it is doubtful that the MRC could take specific remedial action in favor of the discharge ' employee under the referenced statutory provision if the designated officials of the employer involved were dutifully and responsibly reporting regularly to the NRC all the information recuired under Section 206 in accordance with the procedures' prescribed in Part 21 of the Commission's Rules of Practice.

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stated both in section 19.2 and in section 19.3(d) that the

" regulations in this part" apply only to holders of specially identified licenses issued by the agency.3 It is undisputed that Union Electric Company does not have one of the enumerated l

licenses and that Daniel Construction Company is not engaged in '

any activity under such a license. Accordingly, Part,19 of the Commission's regulations provides no authority whatsoever for

! the NRC to take remedial action in favor of a construction worker at an authori:cd power plant site who has been i discharged or otherwise disciplined by his employer.9 This is not to suggest that the Appeal Board should at this time rule adversely to Mr. Smart on the merits of his remedial issue. For the reasons set forth earlier (see pp.

3-6, suora), the proper result in the present circumstances is simply to affirm the Licensing Board's refusal to entertain the question raised on intervention as not yet ripe for agency review and furthermore as outside the scope of legitimate inquiry under the Show Cause Order. The shallowness of Mr.

Smart's legal arguments serve only to underscore the soundness l

of the judgment below not to overreach jurisdictional review l

l 8 The two regulations refer only to licenses issued under "the regulations in Parts 30 through 35, 40, or 70 of this chapter, including. licenses to operate a production or utilization facility pur suant to Part 50 of :his chapter."

l See 10 C.F.R. SS 19.2 and 19.3(d).

I i 9 See also Union Electric Ccmpany's 3rief In Support Of Its Exceptions To The Initial Decision, at 99 22-23 n.19.

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bounds on this occasion and undertake to give an advisory opinion prematurely on a hypothetical question.10 DEVELOPMENTS SINCE THE INITIAL DECISION ALSO ARGUE FORCEFULLY AGAINST ENTERTAINING MR. SMART'S REMEDIAL ISSUE 9

There are two recent developments since issuance of

. the Initial Decision that erase entirely whatever sentiment might yet remain to review Mr. Smart's remedial . issue on the merits. First, on November 1, 1978, the arbitrator in the ongoing grievance proceeding awarded intervenor reinstatement of his job with Daniel Construction Company, with back pay.

That is, of course, precisely the relief which Mr. Smart had hoped would eventually be forthccming from the NRC. It is difficult'to perceive any useful purpose to be now served by

pursuing in the abstract the side issue of the NRC's independent authority also to " remedy Mr. Smart's firing" (Smart Br. at p. 17) by ordering his reinstatement with back pay. He has personally already received full redress for the discharge decision he complained of; that alone provides a 10 Insofar as Mr. Smart has also addressed in abbreviated form the possible remedy of suspension or revocation of Union l Electric Company's construction permits (Smart Sr. at

p. 16), we have already discussed that matter in Union Electric Company's Brief In Support Of Its Exceptions To The Initial Decision, at pp. 37-45.

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sufficient basis to leave for another day the remedial issue

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which Mr. Smart improperly sought to introduce into the present show cause proceeding.

The'second recent development points to the same conclusion. On' November 6, 1978, President Carter signed into law the new NRC authorization legislation. See Public Law 95-601. Included therein is an amendment to the Energy Reorganization Act of 1974, added Section 210, which explicitly authorizes the Secretary of Labor, not the NRC, to investigate and hold hearings on employee complaints of discriminatory

' treatment at the hands of Commission licensees (or their contractors or subcontractors).1*1 Thus, to the extent that Mr.

Smart argued below and here that he and other workers needed specific assurances that they would receive protection against possible retaliatory firings in the future,10 ~

that concern has been satisfied by the new legislation. It would make little sense in light of the responsibilities in this area now assigned to the Secretary of Labor , to pursue at this time the question whether the NRC has parallel authority under a broad

- reading of the existing statutes to return a fired construction worker to his job in appropriate circumstances.

11 See Union Electric Company's Brief In Support Of Its Exceptions To The Initial Decision, at 99 16-17 and n.15.

12 See ~4illiam Smart's Notice Of His Reinstatement, at pp. 1-2.

4, .

--p. ,_ ,,- _ .._.

If, as Mr. Smart's counsel seems to suggest,13 the procedures followed by the Secretary of Labor in processing

-employee grievances should prove to be unduly cumbersome,~ time consuming or otherwise ineffective, there may ultimately.be I . reason for the Commission to entertain the question whether the NRC has independent authority to step in and take-remedial 1

action of its own. However, there is presently every reason to believe that the Department of Labor.will deal promptly and l ,

,- effectively with claims made under section 210 of the Energy 1 '

Reorganization Act of 1974, as amended . That is where the expertise on matters of this sort lies. It is also where Congress has elected to place primary, if not exclusive, responsibility. No good reason exists at the present time for 1

this Appeal Board to accept Mr. . Smart's invitation to "secondguess" that legisictive judgment before it has even been

, given an opportunity to be tested.

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CONCLUSION d

t For all of the foregoing reasons, Union Electric Company submits that the Licensing Board below properly ,

declined to entertain the remedial issue raised by William 13 See William Smart's Notice Of His P.einstatement, at

c. 2.

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Smart concerning the NBC's authority to provide specific ' relief in appropriate circumstances to a discharged construction worker at a nuclear reactor site. As to this portion of the Initial Decision On Order To Show Cause-(I.D. at pp. 5-7), the Appeal Board should affirm.

Dated: December 6, 1979.

Respectfully submitted,

( SHAW, PITTMAN, POTTS & TROWBRIDGE i

By: .~l 7dk'..

Wm. Bradford.R%vnolds r

Gerald Charnoff k Counsel for Union Electric Company

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3efore the Atomic Safet'f and Licensing Appeal 3 card In the Matter of )

)

UNION ELECTRIC CCMPANY ) Construction Permits Nos. CPPR-139 (Callaway Plant, ) CPPR-140 Units 1 and 2) )

t CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

--" Union Electric Ccmpany's Response To William Smart's Opening Brief" were served upon each of the following, delivering by

hand to those persons in the Washington, D. C. area, and by first class mail, postage prepaid, to the others, all en this 6th day of December, 1978:

Alan S. Rosenthal, Esquire Docketing and Service Section Chairman, Atomic Safety and Office of the Secretary Licensing Appeal Board U.S. Nuclear Pegulatcry Ccnmissicn U.S. Nuclear Regulatory Camdssicn Washington, D. C. 20555 c#

Washington, D. C. 20555 James P. Murray, Esquire Michael C. Farrar, Esquire James Lieberman, Esquire

, Atomic Safety and Licensing Office of the Executive Iagal Directer Appeal 3 card U.S. Nuclear Eegulatory Carissien U.S. Nuclear Regulatory Ccnmissicn Washington, D. C. 20555

( Washington, D. C. 20555 Michael H. Bancroft, Esquire

• Richard S. Salzman, Esquire Diane B. Cchn, Esquire Atcmic Safety and Licensing Suite 700 Appeal Board 2000 P Street, N.W.

U.S. Nuclear Regulatory Carlssicn Washington, D. C. 20036 Washington, D. C. 20555 Fulten City Library Atcmic Safety and Licensing 709 Market Street Appeal Scard Panel Fulten, Missouri 62251 U.S. Nuclear acgulatory Ccrissicn Washington, D. C. 20555 Olin Library of Washingt:n University Skinker and Lindell Eculevards St. Lcuis, Misscuri 63103 c..,..

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