ML20070U180
| ML20070U180 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/08/1983 |
| From: | Reynolds N TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20070U182 | List: |
| References | |
| NUDOCS 8302100238 | |
| Download: ML20070U180 (27) | |
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February 8, 1983 00CKETED UNITED STATES OF AMERICA EERC NUCLEAR REGULATORY COMMISSION
'83 FEo -9,rK130 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
TEXAS UTILITIES-GENERATING
)
Docket Nos. 50-445 and COMPANY, et al.'
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50-446
)
(Comanche Peak Steam Electric
)
(Application for Station, Units 1 and 2)
)
Operating Licenses)
APNrICANTS' ANSWER TO CASE MOTION (AND SUPPLEMENT) FOR PROTECTIVE ORDERS I.
Need for Board Guidance and Direction The Board is faced with the situation where intervenor CASE continues indiscriminately to file affidavits with the Board hich raise no new significant and material matters on an issue (QA/QC for construction) that has already been litigated.
CASE obviously intends to attempt to use these affidavits to create turmoil and to reopen the hearing.
CASE has stated that it will attempt to call the affiants to testify as witnesses.
CASE also continues to attempt to try this case in the pressl by presenting these innocuous affidavits in press conferences as a basis for serious charges that construction is deficient and that the NRC'and the Applicants may " cover up" the charges.
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See note 2, infra.
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- In short, CASE has performed so irresponsibly that it is finally time for t's Board to intervene, put an end to the irrational succession of filings by CASE,2 and exert its control over the conduct of the proceedin'g so that a sane
- pleading practice iI restored and so that the case is tried by the Boardiand..not' in 'the press.
Giving CASE the benefit of the doubt, the root of the problem appears to be CASE's total inability to distinguish significant and material new information from insignificant and immaterial information.3 This has led to the recent filing by CASE of affidavits in w?;ich people repeat hehrsay as firet~ hand knowledge, express their concera over the efficiency and cost of construction t
and vont their angar over personnel matters (issues that the Board has consis*.ently and repeatedly ruled are outside the scope of Contention 5 (Tr. 2924, 2984, 3527)), jockey for 2
The Board has admonished CASE in the past for filing its
" blizzard of motions and other papers which we regard as
' excessive and unnecessary filings' which constitute an imposition on the Board."
Board Order, at 1-2 (August 3, i
1981).
CASE has not heeded the admonition, as is evident
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from.its recent pleading practice over the last few months.
,3 It is also entirely possible.that CASE in intentionally presenting information it knows to be immaterial and insignificant (i.e.,
efficiency and cost of construction) simply to churn this proceeding for its own benefit', viz., to grab headlinec and cause problems.
The affidavit of Robert' L.
Messerly was presented by CASE to a press conference on Thursday, February 3, and was the subject of a newspaper article (copy attached) on the morning of Friday, February 4, although it was not even received by the Board until that day (see CASE's Supplement dated February 3, 1982).
Obviously CASE is more interested in holding press conferences and receiving press coverage than it is in conducting an orderly proceeding in which the Board is advised of developments before the media.
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e position.with their employer to prolong-jobs, and raise matters that were either addressed on the record already or are patently insignificant.
Applicants were already put to the task on several occasions during thd hearings of responding on the record, under oath, to. claims made by CASE witnesses that were meritless and often patently insignificant.
Examples that come to mind are the allegations of CASE witness Gates (regarding the inadequacy of the containnent buildings because of " sloppy" concrete form work (CASE Ex. 6bl at 24)),
witness Hamilton (regarding the use of defective paint (CASE E
'Ex. 653 at 21, 29-33)), and witness Stiner (regarding use of plug welds and weave welding (CASE Ex. 666 at 8, 17)).
As the party having the burden of proof, Applicants responded to the best of their ability to each allegation made by CASE witnesses.
j While that phase of the hearings has passed, CASE now apparently seeks further evidentiary hearings on new issues l
not previously considered.
However, as the Appeal Board has I
instructed, hearings sh'ould not be reopened and witnesses allowed to testify unless a new issue "of major significance to plant safety" is raised.
E.g.,
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).
Manifestly, no significant new issue has been raised in the affidavits of Messrs. Combs and Smith that would justify the presentation of further t,estimony.
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- - Upon receipt of the Combs affidavit and the unverified statement attached thereto, Applicants' Supervisor of Quality Assurance Services, Mr. Tony Vega, met with Mr. Combs to discuss his concerns and to identify the' specific nature and location of the aliAged deficiencies.
Mr. Vega's affidavit describing his. activities in th'is regard and the results of his investigation of the concerns raised by Mr. Combs is attached hereto as Attachment A.
It is Mr. Vega's responsibility to investigate allegations of impropriety which might have nuclear safety-related consequences at Comanche Peak (Vega Affidavit A, at 2).
Mr. Combs initially refused to provide specific information on his concerns, even after being reminded that site procedures' require employees to bring concerns regarding possible construction deficiencies to QA/QC or management attention.
Mr. Combs stated that CASE President, Mrs.
Juanita Ellis, and an attorney with the Government Accountability Project had advised him not to identif> the items related to his concerns with Applicants.
Apparently upon reflection, Mr. Combs later directed Applicants and NRC I
personnel to particular locations where he thought questionable matters'were located.
Mr. Vega conducted a thorough investigation of the concerns expressed by Mr. Combs, and the results of the investigation are presented in his affidavit.
His P
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f 8 investigation included reviews of QA records and visual inspections of components in the plant.
He was accompanied on his inspection by an NRC investigator and by Mr. Combs himself.
In smnmary, Mr. Vega found that the matters raised by Mr. Combs were ndt of safety significance.
With regard.to'the' Combs affidavit, it should have been clear to intervenor CASE that some of the matters raised were either unsubstantiated or merely rehashes of matters already addressed in the hearings.
Plug welds and weld rod control were addressed by Applicants during the deptember hearings in rebuttal to the Stiner testimony (App. Ex. 141, at 33-36; Tr.
4628-4629), and CASS is charged with that knowledge.
Further, the ominous statement in the Combs affidavit that he "know[s] of other problems in construction at the plant both in regard to hangers and the piping which could be significant safety factors" (Combs Affidavit, at 4) turned out in fact to be based totally on the testimony of Darlene Stiner (Vega Affidavit A, at 7).*
Mr. Combs possessed no independent or new information on this subject whatsoever, yet CASE drafted and su'bmitted his affidavit as if he did.
i Further, a superficial inquiry by CASE into Mr. Combs' claim of unfair treatment would have shown that no basis existed for the claim (see Vega Affidavit A, at 6-7).
As to these matters, CASE acted irresponsibly in filing the Combs affidavit.
As to the other matters raised in the Combs affidavit (welded tube steel and use of non-Q material), Mr.
f A ~ Vega concluded after his investigation that they were not of safety significance (Vega Affidavit A, at 4-6).
Thus, it is clear that no significant new information has been raised by Mr. Combs which would warrant the presentation of further testimony.
In fact [ Mr. Combs himself told Mr. Vega that he
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was. satisfied.that his concerns had been thoroughly investigated and CASE has acknowledged the same (Vega Affidavit A, at 7; CASE Motion dated January 24, 1983, at 3, n.4).
With regard to the Smith Affidavit, it should have been even more obvious to CASE that it raised'largely irrelevant concerns and opinions.
It addresses his perspectives of efficiency in the workplace, costs of construction, and personnel matters, all matters which the Board has expressly rejected as not litigable under Contention 5.
In short, CASE would not have prepared and submitted the affidavit containing these irrelevant issues if it was truly interested in raising potentially significant new information.
The only i
discussion in the Smith Affidavit that even conceivably raises a potentially new issue involves the adequacy of a weld on the main steam line (Smith Affidavit A, at 4).
As to this matter, Mr. Vega met with Mr. Smith to investigate it.
Mr. Vega's affidavit describing his activities in this regard is attached hereto as Attachment B.
Mr. Vega conducted a thorough investigation of the matter, and found that the weld in question has been accepted by the proper engineering l
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authority as sound and in full compliance with applicable Code requirements.
Mr. Vega concluded on that basis that no further action was necessary (Vega Affidavit B, at 3).
- Thus, there is no significant new information r'aised in the Smith Affidavit that would justify the presentation of testimony.
Applicants rece'ived' yesterday yet another affidavit filed by CASE.
This affidavit (of Mr. Robert L.
Messerly) also contains much that the Board has expressly rejected as not litigable (such as efficiency in the workplace, costs of construction, and personnel matters).
Other matters raised by Mr. Messerly may require further investigation, even though he was interviewed by Mr. Vega last December and at that tLue raised no safety concerns.
Mr. Messerly told Mr.
Vega that he knew of only six holes of which he had personal knowledge that were drilled without proper documentation.
He stated that all six holes were in the Turbine Building and that he knew the six holes had no safety implications because he discussed them with engineering personnel who advised him that these applications were not safety-related.
He further stated that he had no other first-hand knowledge of improper drilling.
Mr. Messerly did not provide any other information of which he had personal knowledge.
Now, however, following his discussions with CASE, Mr. Messerly apparently has
" remembered" some additional concerns.
Applicants' OA Staff will investigate further and provide an affidavit for the record if necessary.
! l Again, with the Messerly Affidavit, CASE has submitted
^
t still more extraneous material to further clutter the record.
1 CASE has failed to fulfill its obligations as a party to screen such irrelevant or hnmaterial information, and in so failing places an undue and unnecessary burden on the Board and the other.partie's.
'The offense is doubly _ reprehensible because CASE is the author or preparer of this affidavit (and i
all of these affidavits), and therefore could screen out this l
objectionable material if it wished.
Surely the Board has no interer.t in continuing to receive these stcries from workers (past and present) about f
construction efficiencies and costs, or replowing of ground l
already covered.
The Board and cther partias were subjected I
j to page after page of this type of us[less testimony during l
1 the hearings, and Applicants submit that it is now time for the-Board to order CASE to cease the practice.
The Board has i
i, been more than indulgent with the unorthodox and, at times,-
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contumacious conduct of the intervenor.
It is, we submiti l
now time for the Board to order that CASE conform to the standards of conduct required of parties to NRC proceedings.
The problem is more than one of a layperson struggling with draftsmanship.
The problem is that CASE intentio'nally seeks, without foundation, either to raise and have relitigated issues covered previously, or to raise and have litigated issues that are insignificant or irrelevant to contention 5.
The Board should order this practice to stop immediately.
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. II.
CASE's Motion For Protective Orders By its present motion, CASE seeks " protective orders" for Messrs. Combs, Smith and Harrell which would provide, inter alia, that they (1) are afforded protected employee status under SectioN 210 of the Energy Reorganization Act. 42 U.S.C.
$ 5351,.and (2) n'ot be required to disclose to the NRC or Applicants their specific concerns, i.e.,
location of alleged non-conforming conditions, or even be interviewed by Applicants or the NRC without the presence of CASE.
CASE l
Motion at 7-8.
Applicants submit that CASE has misinterprated the protection afforded "whistleblowers", and has inappropriately interfered with Applicants' fulfillment of its responsibilities under the Atomic Energy Act and perhaps even encouraged criminal activity by Applicants' employees.
Accordingly, Applicants urge that CASE's motion be denied in its entirety.
A.
Employee Protection Under Section 210 l
of the Energy Reorganization Act l
CASE seeks a ruling by the Board that Messrs. Combs, Smith and Harrell "are covered under the protection for whistleblowers."
CASE Motion at 7.
CASE also seeks a ruling I
that these " potential witnesses" not be required to disclose the specific nature of their concerns to the Applicants or the NRC "until such time as the questions regarding the NRC's i
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ability'and/or desire to adequately investigate allegations by whistleblowers have been answered."
CASE Mot' ion at 7-8.
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.- For the reasons set forth below, Applicants oppose these aspects of CASE's motion and urge that they be denied.
Applicants also urge the Board to direct CASE to cease immediately from directing or encouraging Applicants' employees not to iddntify for Applicants or the NRC possible non-conforming. condition's at Comanche Peak.
1.
NRC Authority Under Section 210.
In establishing a mechanism for addressing employee complaints, Section 210 of the Energy Reorganization Act provides, as follows:
(b)(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within thirty days after such violation occurs, file (or have any i
person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the ' Secretary') alleging such discharge of discrimination.
Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission.
[42 U.S.C.
$ 5851(b)(1) (emphasis added).]-
This provision vests the Department of Labor with exclusive jurisdiction to hear and decide employee complaints l
under Section 210, and to thereby place people in protected l
status under Section 210.
Pursuant to this authority, the Department of Labor has promulgated regulations governing administrative proceedings for the consideration of' complaints of alleged discrimination filed by those l
H employees.
See 29 C.F.R.
Part 24.
The NRC, on the other hand, has promulgated regulations reiterating the l
prohibitions under Section 210 and directing that Commission i
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-o applicants and licensees provide notice to employees of their rights to seek relief with the Department of Labor for alleged violations of those provisions.
See e.g.,
10 C.F.R.
$ 50.7(b), (e) (47 Fed. Reg. 30452, 30456 (July 14, 1982).
In addition, the Co$ mission has noted in a Memorandum of Understanding,betwee'n NR'C and the D9partment of Labor that the Commission is "without direct authority to provide a i
remedy to an employee
.. '[although it may] take appropriate enforcement acticn againut Commission licensees that violate
. the [ Energy] Reorgani=4 tion Act."
47 Fed. Reg. 54585 (December 3, 1982).
Thus, exclusive authority to make determinations regarding employee rights and remedies under Section 210 rests clearly with the Department of Lsbor.
Therefore, CASE's request that this Board make determinations regarding its witnesses' potential protected status under Section 210 is misplaced.
i It is noteworthy that Section 210 does not prevent an employer from discharging or disciplining any amployee l
(including one engaged in protected activity) for legitimate reasons.
The prohibition applies when the adverse action i
j occurs because the employee has engaged in protected activities.
10 C.F.R. { 50.7(d).
It is thus inappropriate for this Board or any other tribunal or federal authority to enjoin an employer from taking personnel action regarding a person engaged in protected activity, for there is no way to know prost.ectively that the action is for other,than w
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. - legitimate reasons.
The Department of Labor is charged by law with jurisdiction and authority to make such determinations retrospectively and on the basis of an evidentiary record.
Of course, the B'oard may not be powerless to take action in an appropriate case, where the facts suggest the need for
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prompt preservation of the status quo.
However, that case is not presented here.
Applicants are mindful of the fact that Section 210 applies to them full force, and there is absolutely nothing in the record to indicate that Applicants will not conduct themselves in a totally responsible manner.
(See Tr. 4113-16.)
Accordingly, the Poard should deny CASE's motion for such a determination.4 2.
Employee Disclosure of Potential Defects CASE also seeks a ruling by this Board that Applicants' employees who may become CASE witnesses not be required to t
disclose to Applicants or the NRC the specific nature of alleged potential defects "until such time as the questions 1
regarding the NRC's ability and/or desire to adequately 7
investigate allegations by whistleblowers have been answered."
l CASE Motion at 7-8.
Incredibly, CASE contends that such 4
Aside from the Board's lack of jurisdiction over this mat-ter, CASE's motion would require ruling prospectively as to the protected status of those employees' under Section 210, since no complaint has been filed by those employees.
Such advisory opinions are not rendered by NRC licensing or appeal boards in the absence of "the most compelling considerations."
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC l
41, 54 (1978).
CASE has made no demonstration of any com-pelling considerations.
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> identification could lead to those employees' concerns being
" covered up" if Applicants or the NRC are given such information.
CASE motion at 4, 8.
CASE does not state the basis for such a patently absurd allegati~on.
Most disturbing, however, is CASE's practice of encouraging the employees of Applicants and.their~ contractors not to disclo'se non-conforming conditions to the NRC or Applicants (see CASE Motion for Documents, January 18, 1983 at 7) and that it sees nothing wrong with such a practice (see CASE Motion at 1-2).
Such irresponsible ecnduct by CASE-flaunts the regulatory scheme established by Congress for the regulation of nuclear I
- power and obstructs the in.plementation by Applicants of programs mandated by the NRC to assure the cafe construction of Comanche Peak.
For these reasons, Applicants oppose this aspect of CASE's motion and urge the Board to direct CASE to cease knmediately from directing, encouraging or advising the concealment of potential deficiencies by employees of Applicants or their contractors.
The NRC is vested with the authority to regulate the possession and use of radioactive materials, including the licensing of nuclear power reactors, and to establish such rules and regulations as may be necessary to carry out the purposes of the Atomic Energy Act.
See 42 U.S.C. {2201.
In the exercise of this authority, the Commission conducts rou'ine inspections (see, e.g.,
10 C.F.R. 50.70) and t
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investigations of, inter alia, allegations concerning l
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, potential construction deficiencies which, if substantiated, could result in the imposition of civil penalties or other enforcement action (see 42 U.S.C. I$2271-83).
By encouraging workers at nuclear construction sites not'to divulge their specific allegation'd to the NRC, CASE is obstructing the performance of..the NRC's' duties under the Atomic Energy Act and flouting the regulatory authority expressly vested in the Commission.
In addition to the potential civil liability of licensees for violations of the Act or the Ccmmission's regulatione, Section 223 of the Atcmic Energy Act pro +idos that any employee of a firm constructing a nuclear power reactor Who knowingly and villfully causes, by act or omissica, a vio-lation of the Act or regulations issued thereunder which if undetected could impair the operation of a significant component of the facility is subject to criminal penalties, viz. a fine or imprisonment.
42 U.S.C. $2273(b).
Applicants are required by NRC Regulation to establish measures to assure that non-conforming conditions "are promptly identified and corrected."
10 C.F.R. Part 50, Appendix B, Criterion XVI.
i Pursuant to this requirement and the other criteria in Appendix B, Applicants have established and implemented a comprehensive Quality Assurance Program which includes the requirement that all site. employees " report items of noncompliance to their supervisor or to the site OA Manager" Vega Affidavit A, at 2; Section 16.2 of Brown & Root QA 4
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'S Manual.
Yet CASE has advised site employees to willfully refuse to report' items of noncompliance in detail.
- Thus, CASE's practice of encouraging Applicants' employees not to disclose known potential non-conforming c'onditions to the NRC could expose those Nmployees to criminal liability.
Such conduct even:could.s'ubject the representative of CASE to criminal sanctions.
42 U.S.C. $ 2273(a).
We find it incredible that CASE would so flagrantly disregard the duties and responsibilities under federal law of those employees for the benefit of its own strange perception of nuclear power regulation.
Applicants do not raise this matter lightly.
CASE's amateurish attempts to embarass the NRC and Applicants could well lead to results that CASE did not foresee.
We believe CASE has steered itself and a few of Applicants' employees on a course of conduct which brings them perilously close, if not within, the scope of 42 U.S.C. $ 2273.
In addition, CASE's practice of advising Applicants' or l
its contractors' employees not to disclose (either to l
Applicants or the NRC) potential non-conforming conditions raises practical obstacles to the orderly and effective implementation of Applicants' programs to assure the adequacy of quality-related construction.
As discussed above, an important element of those programs is the requirement'that each employee advise either their supervisor or QA/QC i
personnel of any potential non-conforming condition of which they are aware.
In fact, this important aspect,of Applicants' I
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.- OA/QC Program was discussed at the hearings.
Tr. 1698-1701, 1720-24.
However, should CASE be permitted to continue its practice of advising employees not to identify such potential non-conforming conditions, Applicants wou'ld be placed in the untenable position Sf relying on employees mentioned by CASE as possible wi.tnesse's to perform safety-related tasks, while knowing those employees may not bring to the attention of appropriate personnel potential non-conforming conditions.
In such circumstance, Applicants could not permit those employees to continue to perform safety-related tasks.
To do otherwise would risk possible violation by Applicants of NRC regulations requiring a CA program that assures prompt identification and correction of non-conforming conditions.
For these reasons we urge the Board to deny this aspect of CASE's motion and to direct CASE to cease immediately'from directing, encouraging or otherwise facilitating the conceal-ment of potential deficiencies by employees of Applicants or their contractors.
B.
Discovery Obligations I
CASE moves that the Board direct Applicants "to cease and desist further interrogation of Mr. Combs except under the i
provisions of discovery," and to " clarify" whether Applicants have taken " illegal discovery against an identified potential CASE witness."
CASE Motion at 7.
CASE apparently construes i
Applicants' discussions with its own employees and its contractors' employees in fulfillment of its responsibilities l
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s as an NRC licensee to identify and correct known construction deficiencies promptly and in accordance with established procedures as " illegal discovery."
As. demonstrated below,
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CASE has improperly applied the Rules of Practice governing discovery to the seharate and distinct area of Applicants' obligations andiresponsibilities as an NRC licensee, and its motion in this regard should be denied.
Discovery under the NRC Rules of Practice is intended to enable parties to determine and refine the issues to be i
pursued and the positions and supporting information to be l
presented by opposing parties in the adjudicatory _ setting.
In i
' contrast, under Applicants' rerponsibilities as an NRC licensee to identify, document and promptly correct known safety defects, all employees are required to notify QA/QC personnel or their supervision of possible non-conforming l
conditions known to them.-
The responsibilities of Applicants and their employees to identify such conditions arise regardless of the pendency of a contested licensing proceeding and'do not, indeed must not, dissolve where an employee also may be a witness in such a proceeding.
To the extent CASE may also seek to litigate issues with employees as witnesses, the nature and scope of each party's position on allegations to be raised at the hearing will be determined through discovery.
Accordingly, we urge the Board to deny those aspects of CASE's mot' ion which seek to prevent, as unauthorized discovery,
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. inquiries by Applicants of their employees, in accordance with established procedures, regarding concerns as to adequacy of any construction, equipment, components or programs.
C.
CASE Participation in Employee Interviews CASE moves tha$ the Board direct that CASE must be present "for:any..fut'ure interrogation or discussion of the concerns of Messrs. Combs, Smith and Harrell with the NRC Staff."
CASE Motion at 4, 7.
CASE does not specify the nature of the " discussions" with which it is concerned nor the precise basis for its concern.
Never theless, Applicants address this aspect of CASE's motion below.
First, as a general matter, Applicants submit that CASE is simply seeking to supplant the NRC Staff in its inspection and investigative roles with respect to allegations of non-conforming conditions.
CASE has made clear its disrespect for the NRC Staff in the performance of its inspection and investigation functions.
See e.g.,
CASE Motion at 4.
CASE also is apparently seeking to supplant the Applicants in the fulfillment of their responsibilities as NRC licensees.
CASE now would hold itself out as the only party capable of properly assessing those allegations and require its presence whenever the NRC Staff discussed such matters.
See'e.g. CASE Motion at 4-5.
Such arrogance, founded on unsubstantiated accusations, has no place in an effective regulatory process.
To constrain the NRC Staff from the fulfillment of its
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responsibilities, except at the convenience of CASE, would stand the nuclear regulatory process on its head.
On this i
basis alone CASE's motion in this regard should be denied.
To the extent CASE may have founded'this aspect of its motion on its misconceptions regarding discovery, we already have addressed-the falla'cy of CASE's position in this regard.
t See discussion supra at 16-18.
CASE may pursue discovery when and on such issues as the Board directs, in accord'nce with a
the NRC Rules of Practice.
However, NRC discovery practice does not include CASE's presence at "ang future interrogation or discussion of the concerns" by Applicants' employees.
See
- CASE Motion at 7 (emphasis added).
Thus no basis exists for J
granting this. aspect of CASE's motion on discovery-related grounds.
To the extent CASE may include within the scope of this aspect of its motion those occasions where Applicants interview an employee pursuant to their responsibilities to identify and correct potential non-conforming conditions l
promptly, Applicants have already demonstrated that these responsibilities are founded on statutory and regulatory grounds and must be performed irrespective of, and independently from, contested adjudicatory proceedings.
Prompt identification and disposition of potential deficiencies is essential to the effective fulfillment of those responsibilities.
Interjecting a requirement that CASE be present at any such contact with employees, i.ncluding
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interviews, would disrupt the conduct thereof and obstru'ct the proper satisfaction of those responsibilities.-
Further, there is no basis for concluding that whatever issuc CASE may seek to raise and litigate will disappear simply'because Applicants investigate allegafions of non-conforming conditions.
- Thus, this aspect of. CASEs mo' tion should also be denied.
Similarly, if CASE is seeking to be present at "any...
discussion" between the NRC Staff and Applicants regarding.
allegations of present and potential CASE witnesses (regardless of whether presently employed at Comanche Peak)
CASE's motion apparently misconstrues the. regulatory process.
While CASE is routinely invited to attend licensing meetings between the Staff and Applicants, neither CASE nor Applicant 3 are permitted to participate in Staff inspections or investigations, other than to provide information at the-Staff's request.
Applicants respond to the NRC Staff's questions and make available any material sought by the NRC in the course of their inspection or investigation.
See 10 i
C.F.R. $ 50.70.
There is absolutely no justification for placing CASE into the midst of this process, for to do so I
would severely obstruct the efficient conduct of such inspections and investigations.
We view this, however, as more a matter to be addressed by the NRC Staff than by Applicants.
In any event, this aspect of CASE's motion is without merit and should be denied.
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. D.
Employee " Intimidation,"
" Coercion" or " Discrimination" CASE moves that " Applicants and [the] NRC Staff" be cautioned "against intimidating, coercing or discriminating" against "whistleblowers/ witnesses."
CASE Motion at 4, 7.
Although CASE has not specified the basis for this charge, apparently it contends that the interviews of Mr. Combs by Applicants and the NRC Staff somehow constituted intiraidation, coercion or discrimination.
CASE's motion in this regard is unfounded and should be denied.
1 In the first instance, CASE is seeking relief which the Board, is without authority to grant.
As already demon-strated, an employee's exclusive remedy for alleged discrimin-i ation is with the Department of Labor.
See discussion supra at 10-12.
In any event, CASE has totally failed to demonstrate any such past action by Applicants or the NRC Staff or that such ection is likely to occur in the future.
CASE mischaracterizes Applicants' interview of Mr. Combs, and l
the subsequent inspection by Applicants, the NRC Staff, and Mr. Combs of the specific equipment and components which are the subject of his concerns.
As we have noted, those activities were conducted pursuant to Applicants' statutorily-mandated responsibilities, and Mr. Combs' obligation pursuant to written procedures to report suspected non-conforming conditions.
Mr. Combs was treated in those interviews and inspections in a courteous and responsible manner, as are any employees with such concerns,'and in fact
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.' was asked by Mr. Vega, Applicants' Quality Assurance Services Supervisor, to notify him if any person harasses, intimidates or otherwise discriminates against Mr. Combs in the performance of his job (Vega Affidavit A, a't 8).
- Finally, CASE does not poinE'to any evidence suggesting that Applicants will in the future treat'Mr. Combs or other employees who may express safety concerns in any intimidating or discriminatory manner.
In addition. CASE implies that Applicants improperly insisted that Mr. Combs identify the specific deficiencies which were of concern to him or risk termination from his job.
CASE Motion at 1.
In this regard, CASE seems to have totally misconstrued a fundamental princip's of employee protection under Section 210.
Specifically, regardless of whether an employee has engaged in protected activity under Section'210, that employee is not relieved of his responsibilities and duties of his position nor is he protected from his employer's exercise of authority over his employment for legitimate business reasons.
It is well-established that such authority may be exercised by the employer for valid reasons where such action would have occurred regardless of an employee's engaging in protected activity.
See e.g.,
Goldberg'v. Bama Mfg. Corp., 302 F.2d 152 (5th Cir. 1962); Marshall v. P&Z Co.,
Inc.
F.
Supp.
6 OSHC 1587 (D.D.C. 1978), aff'd, 600 e
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. F.2d 280, 7 OSHC 1633 (D.C. Cir. 1979).5 Mr. Combs' refusal to comply with a key aspect of his job-related responsi-bilities obviously would constitute a valid basis for his termination.6 Thus, by encouraging Appli' cants' employees to conceal potential n$n-conforming conditions, CASE places those employees in :.the.-pos'ition of violating procedures applicable to all employees.
Such violations are valid grounds for prompt employer action, including dismissal.
Applicants' position is confirmed by the Senate Report accompanying the bill which became Section 210, wherein it is stated:
This provision adds a new section to the Energy Reorganization Act of 1974.
This section offers protection to'employaes sho believe they have been fired or discriminated against.;s a result of the fact that they have testified, given evidence, or brought suit under that act or the Atomic Energy Act.
i The section does not apply to an employee who acts outside the direction of his employer.
[S. Rep. No. 95-848f 95th Cong., 2d Sess. 29 (emphasis added).]
5 Section 210 is substantially similar to and indeed was modelled after Section ll(c) of the occupational Safety and Health Act, 29 U.S.C.
5 660(c), and Section 105(c) of the Mine Safety and Health Act, 30 U.S.C. 5 815(c).
Those sections in turn are modelled upon Section 15(a)(3) of the Fair Labor Standards Act.
29 U.S.C. $ 215(a)(3).
The cited cases were decided under those employee protection st'atutes.
6 Other present employees may come forward as " witnesses" in o.rder to seek job security as construction work at the project nears completion and workers are laid off as part of routine reductions in force.
Routine "RIFs" are a valid exercise of an employer's authority and are not precluded by Section 210, as long as an employee is not singled out for discharge as a result of engaging in protected activity.
e
- Clearly, Section 210 does not afford such absolute protection that an employee may disregard his responsibilities (in this case the identification of known potential non-conforming conditions) and refuse to comply with a direct and legitimate request by its empl'$yer.
CASE sould be well-advised to recognize these fact's in'any future dealings with Applicants' employees.
For these reasons CASE's motion in this regard is unfounded and should be denied.
E.
Schedule For Discovery CASE seeks to impose a schedule for discovery on remaining issues to accommodate CASE's osn view of its obligations in this proceeding.
CASE would have the Board set a schedule for the commencement of discovery after the February 25, 1983 date for filing proposed findings.
Applicants oppose setting such a schedule at this time. -
In the first instance, an intervenor must " structure its participation so that it is meaningful."
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 553 (1978).
An intervenor has an obligation to fulfill its responsibilities as a party regardless of limited resources or the breadth of activities in which that intervenor is involved.
Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 338-40 (1980).
In this instance, CASE will have had over two months since proposed findings were initially scheduled to prepare its submittal.
See Board Order of December 7, 1982.
In addition, the Board 9
has extended the date for filing proposed findings more than three weeks beyond an exf'ension initially sought by CASE.
See CASE's Decemer 14, 1982 Motion for Reconsideration," at 7, and 1
the Board's Reconsideration of December 7, '1982 Order, dated December 21, 1982,'a't 2.
The Board also excluded from the scope of the :f.indings due at that time the Walsh/Doyle allegations.
Id.
Therefore, the Board has already more than accommodated CASE with respect to setting the schedule for proposed findings.
CASE should not be heard now to complain regarding any burden imposed by that schedule.
CASE's complaints regarding its other obligations in this proceeding
- do not present circumstances which warrant scheduling discovery at CASE's convenience.
See Susquehanna, ALAB-613, supra at 338-40.
If CASE could curb its uncontrollable urge to dash off a motion or other pleading whenever the slightest thought crosses its mind, then it would have ample time to focus on the i*.nportant aspects of the case.
Applicants urge the Board to establish a strict schedule
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-for prompt completion of this proceeding upon notification by the NRC Staff that its investigation into the Walsh/Doyle allegations is complete.
This proceeding has been delayed for five months by the need to await that Staff investigation.
l The schedule is now such that licensing action by Applica.1ts' anticipated fuel load date is not assured.
Accordingly, we
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urge the Board to establish a firm schedule for the conclusion of the proceeding at the earliest possible time.,
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. F.
Posting of Form 3 Notices CASE makes numerous allegations regarding the posting at Comanche Peak of "NRC Form 3 Notices," as required by 10 C.F.R.
{ 50.7(e), and requests that the B'ard order the Staff o
to investigate compl'iance with that regulation.
Of course, the NRC Office.of In'spection and Enforcement is empowered to investigate alleged violations of NRC ragulations.
This Board, however, is not vested with such investigatory or sanction authority.
See Metropolitan Edison Co. (Three Mile Island, Unit 1), CLI-82-31, 16 NRC __ (October 14, 1982).
The Board may, of course, notify the appropriate NRC offices of such allegations and recommend an investigation.
Id.
Accordingly, the Board should deny this aspect of CASE's motion.
III.
CONCLUSION For the foregoing reasons, Applicants urge the Board to deny CASE's motion in its entirety.
In so ruling, the Board l
should direct CASE to cease immediately from directing, encouraging or otherwise facilitating the concealment of potential non-conforming conditions by the employees of Applicants and their contractors.
We urge the Board to caution CASE from further engaging in activities that obstruct the efficient fulfillment l
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by Applicants and the NRC Staff of their respective statutory and regulatory responsibilities and which expose ApplicEnts' employees to prompt termination or possible' criminal liability.
Respect ul submitted,
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f d1 Nichola S/IReynolds
- Willian, liorin DEBEVO E & LIBERMAN 1200 17th Street, N.W.
Washington, D.C.
20036 (202) 857-9800 Counsel for Applicants Date:
February 8, 1983 l
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