ML20127E266
| ML20127E266 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 01/12/1993 |
| From: | Murley T Office of Nuclear Reactor Regulation |
| To: | Butts J, William Cahill, Mccaskill R, Wagoner E BRAZOS ELECTRIC POWER COOPERATIVE, INC., TEX-LA ELECTRIC COOPERATIVE OF TEXAS, INC. (FORMERLY, TEXAS MUNICIPAL POWER AGENCY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| References | |
| 2.206, NUDOCS 9301190230 | |
| Download: ML20127E266 (4) | |
Text
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January 12, 1993 Docket Nos. 50-445 and 50-446 (10 CFR i 2.206)
Mr. Richard E. McCaskill Executive Vice President and General Manager Brazos Electric Power Cooperative, Inc.
2404 LaSalle Avenue Waco, Texas 76702-2585
Dear Mr. McCaskill:
On June 11, 1992, the National Whistleblower Center and its clients, Messrs. Joseph J. Macktal and S.M.A. Hasan, filed with the Chairman of the U.S. Nuclear Regulatory Commission (NRC), a letter alleging that Texas Utilities Electric Company (TVEC or Licensee) and certain former minority owners of the Comanche Peak Steam Electric Station (CPSES), Units 1 and 2, had entered into settlement agreements that contained language that could restrict the free flow of safety information regarding CPSES to the NRC.
The letter is being considered as a Petition pursuant to Section 10 of the U.S. Cod.Lqi federal Reaulations (10 CFR 6 2.206).
Specifically, the Petition refers to a January 30, 1990, settlement agreement between TUEC and Tex-La Electric Cooperative of Texas, Inc. (Tex-La), a former co-owner of CPSES, that allegedly contains restrictive language.
In response to the Petition, the NRC staff evaluated the settlement agreements entered into between TUEC and Tex-La; between TUEC and Brazos Electric Power Cooperative, Inc. (Brazos) on July 5,1988; and between TUEC and Texas Municipal Power Agency (TMPA) on february 12, 1988.
A review of these three settlement agreements by the NRC staff indicates that the agreements do not violate the provisions of 10 CFR S 50.7; specifically 6 50.7(f), which states that no agreements affecting the compensation, terms, conditions and privileges of employment, including an agreement to settle a complaint by an employee filed with the Department of Labor pursuant to Section 210 (now Section 211) of the Energy Reorganization Act of 1974, may contain any provision which 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 cn potential violations or other matters within the NRC's regulato,ry responsibilities.
None of the agreements between the Licensee and the three former co-owners is an agreement of the type described by the regulation.
The agreements are basically purchase and sale agreements and not agreements affecting the compensation, terms, conditions, and privileges of employment.
Also, the agreements do not contain provisions that restrict an employee or former employce.
The agreements are between the Licensee and the three former
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Mr. Richard E. McCaskill January 12, 1993 co-owners and cannot bind any employees or former employees who are not parties to the agreements.
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 behalf.pf the named parties and not to employees who act on their own The three agreements in question, however, including the agreement between Brazos and TUEC (hereinafter the Brazos agreement), contain several provisions that are potentially restrictive.
The covenant not to sue on the part of Brazos, at pages 37 and 38 of the Brazos agreement and at page 5 of Exhibit K to the Brazos agreement, contains language whereby Brazos is restricted from directly or indirectly opposing, challenging, or contesting any aspect of CPSES, including its planning, design, licensing, and construction.
On page 39 of the Brazos agreement, Brazos covenants and agrees that it will encourage and solicit its attorneys and consultants not to oppose, or assist any third party in opposing, the Licensee in connection with any matters relating to CPSES.
Finally, at pages 47 and 48 of the Brazos agreement, Brazos agrees and covenants that it shall not prosecute, directly or indirectly, any subject claims (as defined in the Brazos agreement), objections, motions, or other actions adverse to the Licensee in connection with applications for granting the requisite licenses and approvals for CPSES pending before the NRC and its Atomic Safety and Licensing Boards and Atomic Safety and Licensing Appeal Boards.
Brazos further agrees and covenants not to oppose, or assist any third party in opposing, a position being advocated by the Licensee.
The Brazos agreement contains broad and sweeping language that not only restricts Brazos and anyone speaking on behalf of Brazos from bringing safety information to the NRC, but also could lead one to conclude that it prohibits theNRC.plsfrombringing,orassistingothersinbringing,safetyconcernsto individu Such restrictive provisions are unacceptable to the NRC.
Such
'The scope of s 50.7(f) was discussed in the Supplementary Information issued with the final rule.
le.e 55 Fed. Reg.10397 gi Len (March 21, 1990).
There the NRC made clear that the rule extended only to employment agreements involving employees or former employees.
'In fact, the Tex-La agreement has been interpreted by Mr. William Burchette, an attorney representing Tex-la, as prohibiting him from assisting or cooperating with anyone in opposing TUEC in connection with the licensing of CPSES.
See letter from Mr. Burchette to Mr. R. Mickey Dow dated May 20, 1992, copy attached.
Mr. Richard E. McCaskill January 12, 1993 provisions could have caused a chilling effect in the past, and may cause such a chilling effect in the future, with the result that the NRC has been, or may be, deprived of safety information.
Accordingly, Brazos should take actions to ensure that all individuals and organizations that could be affected by the >otentially restrictive provisions in the Brazos agreement clearly understand t1at those provisions, if inter-preted 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 to do so, if the individual or organization so chooses.
Pursuant to Sections 161c and 161o of the Atomic Energy Act of 1954, as i.monded, and the Commission's regulations in 10 CFR S 2.204, in order for the Commission to determine whether further action is needed, you are required to inform me in writing and under oath or affirmation, within 30 days of the date of this letter, of what actions you have taken or are taking in order to ensure that individuals and organizations do not believe that they are precluded from coming to the NRC with safety concerns.
For your information, enclosed are copies of letters similar to this one which the NRC has sent to TUEC, TMPA, and Tex-La regarding this matter.
Sincerely, Original Signed by Thomas E. Murley, Dire [f6pk J. Miraglia for Office of Nuclear Reactor Regulation
Enclosures:
1.
Burchette Letter dtd. 5/20/92 DISTRIBUTLQU 2.
Letters Docket file JPartlow NRC PDR JRoe cc w/o enclosures:
Local PDR MVirgilio Michael D. Kohn, Esq.
PDIV-2 R/F OGC Kohn, Kohn and Colapinto, P.C.
PDIV-2 P/F TBergman 517 Florida Avenue, N.W.
TMurley EPeyton Washington, D.C.
20001 FMiraglia William A. Burchette, Esq.
Counsel for Tex-La Electric Cooperative of Texas Jorden, Schulte, & Burchette 1025 Thomas Jefferson Street, N.W.
Washington, D.C.
20007
- See previous concurrence OFFICE PDIV-2/LA PDIV-2/PM PDIV-2/0:
TECH EDITOR
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May 20, 1992 VIA TELECOPY AND MAIL Mr. R. Micky Dow, Director Public Relations, D.W.C.P.S.E.S.
322 Mall Elvd.- #147 Monroeville, PA 15146 1
Dear Mr. Dow:
Recently you sent me a copy of your May 16, 1992 letter to the Complaints Division of the Securities & Exchange Commission
. )
'i regarding the Comanche Peak Steam Electric Station.
In addition, yesterday, as wall as last week, you tried unsuccessfully to.
reach me by telephone.
On behalf of my client Tex-La Electric Cooperative of.. Texas, Inc. ( " Tex-La " ), I wish to advise you that, under Article IX of Tex-La's January 30, 1990 sett.lement agreement with Texas Utilities Electric Company (TU Electric"), Tex-La, as well as its employees, attorneys and other consultants, are precluded-from assisting or cooperating in-any.way with your. organization,-
or with any other third party, in opposing TU Electric in connection with the licensing of-Comanche. Peak,-including _the related antitrust issues addressed in your May 16 letter.
3 Therefore, neither I nor any of my colleagues at this firm can be of any help to you in this-matter and I would very much appreciate it if you would refrain from further attempting to-contact any of us.
Thank you for_ your. cooperation.and understanding.
Sincerely,
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January 12, 1993 Docket Nos. 50-445 and 50-446 (10 CFR $ 2.206)
Mr. William J. Cahill, Jr.
Group Vice President, Nuclear Texas Utilities Electric Company 400 North Olive Street, L.B. 81 Dallas, Texas 75201
Dear Mr. Cahill:
On June 11, 1992, the National Whistleblower Center and its clients, Messrs. Joseph J. Macktal and S.M.A. Hasan, filed with the Chairman of the U.S. Nuclear Regulatory Commission (NRC), a letter alleging that Texas Utilities Electric Company (TVEC or Licensee) and certain former minority owners of the Comanche Peak Steam Electric Station (CPSES), Units 1 and 2, had entered into settlement agreements that contained language that could restrict the free flow of safety information regarding CPSES to the NRC.
The letter is being considered as a Petition pursuant to fection 10 of the U.S. Code of federal Reoulations (10 CFR 6 2.206).
Specifically, the Petition refers to a January 30, 1990, settlement agreement between TUEC and Tex-La Electric Cooperative of Texas, Inc. (Tex-La), a former co-owner of CPSES, that allegedly contains restrictivo language.
in response to the Petition, the NRC staff evaluated the settlement agreements entered into between TUEC and Tex-La; between TUEC and Brazos Electric Power Cooperative, Inc. (Brazos) on July 5,1988; and between TUEC and Texas Municipal Power Agency (TMPA) on February 12, 1988.
A review of these three settlement agreements by the NRC staff indicates that the agreements do not violate the provisions of 10 CFR $ 50.7; specifically
$ 50.7(f), which states that no agreements affecting the compensation, terms, conditions and privlieges of employment, including an agreement to settle a complaint by an employee filed with the Department of Labor pursuant to Section 210 (now Section 211) of the Energy Reorganization Act of 1974, may contain any provision which 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 other matters within the NRC's regulatory responsibilities.
None of the agreements between the Licensee and the thr:3 former co-owners is an agreement of the type described by the regulation.
The agreements are basically purchase and sale agreements and not agreements affecting the
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Mr. William J. Cahill, Jr.
-2 January 12, 1993 compensation, terms, conditions, and privileges of employment. Also, the agreements do not contain provisions that restrict an employee or former employee.
The agreements are between the Licensee and the three former co-owners and cannot bind any employees or former employees who are not parties to the agreements.
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 op behalf of the named parties and not to employees who act on their own behalf The three agreements in question, however, the agreement between Tex-La and 10EC, the agreement between Brazos and TUEC, and the agreement between TMPA and TUEC (hereinafter the Agreements) each contain a number of provisions which are potentially restrictive.
The provisions are described in separate letters issued by the flRC to each of the three former minority co-owners.
Copies of these letters are enclosed.
The agreements contain broad and sweeping language that not only restricts the former minority co-owners and anyone speaking on behalf of them from bringing safety information to the f4RC, but also could lead one to conclude that they prohibit individuals from bringing, or assisting others in bringing, safety concerns to the NRC.2 Such restrictive provisions are unacceptable to the f4RC.
Such provisions could have caused a chilling effect in the past, and may cause such a chilling effect in the future, with the result that the flRC has been, or may be, deprived of safety information.
Accordingly, TUEC should take actions to ensure that all individuals and organizations that could be affected by the potentially restrictive provisions in the agreements clearly understand that those provisions, if interpreted to preclude individuals or organizations from providing information to the fiRC, are void and unenforceable, that TUEC will not seek to enforce any such provisions and that anyone may, at any time, bring safety information to the f4RC, or assist third parties to do so, if the individual or organization so i
chooses.
'The scope of 6 50.7(f) was discussed in the Supplementary Information issued with the final rule.
Eer 55 Fed. Reg. 10397 c1 Aggi (March 21, 1990).
l There the fiRC made clear that the rule extended only to employment agreements l
involving employees or former employees.
2 !n fact, the Tex-La agreement has been interpreted by Mr. William Burchette, an attorney representing Tex-la, as prohibiting him from assisting or cooperating with anyone in opposing TUEC in connection with the licensing of CPSES. leg letter from Mr. Burchette to Mr. R. Mickey Dow dated May 20, 1991, copy attached.
Mr. William J. Cahill, Jr. January 12, 1993 Pursuant to Sections 161c, 1610, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR $ 2.204, in order for the Commission to determine whether your license should be modified, suspended or revoked, you are required to inform me in writing and under oath or affirmation, within 30 days of the date of this letter, of what actions you have taken or are taking in order to ensure that individuals and organizations do not believe that they are precluded from coming to the NRC with safety concerns.
Enclosed for your information are copies of letters similar to this one which the NRC has sent to Tex-La, TMPA and Braros regarding this matter.
Sincerely, Original Signed by Frank J. Miraglia for Thomas E. Murley, Director Office of Nuclear Reactor Regulation Enclosuros:
1.
Burchette Letter dtd. 5/20/92 EISTRIBUTION 2.
Letters Docket File JPartlow NRC PDR JRoe cc w/o enclosures:
Local PDR MVirgilio Michael D. Kohn, Esq.
PDIV-2 R/F OGC Kohn, Kohn and Colapinto, P.C.
PDIV-2 P/F TBergman 517 Florida Avenue, N.W.
TMurley EPeyton Washington, D.C.
20001 FMiraglia William A. Burchette, Esq.
Counsel for Tex-La Electric Cooperative of Texas Jorden, Schulte, & Burchette 1025 Thomas Jefferson Street, N.W.
Washington, D.C.
20007
- See previous concurrence office PDIV-2/LA PDIV-2/PM PDIV_2/#
TECH EDITOR
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May 20, 1992 VIA TELECOPY AND MAIL Mr. R. Micky Dow, Director Public Relations, t.W.C.P.S.E.S.
322 Mall Elvd. #147 Monroeville, PA 15146 Dear Mr. Dow Recently you sent me a copy of your May 16, 1992 letter to the Complaints-Division of the Securities & Exchange Commission regarding the Comanche Peak Steam Electric Station.
In addition, yecterday, as well as last week, you tried unsuccessfully to reach me by telephone.
On behalf of my client Tex La Electric Cooperative of Texas, Inc. (" Tex-La"), I wish to advise you that, under Article IX of Tex-La's January 30, 1990 settlement agreement with Texas Utilities Electric Company ("TU Electric"), Tex-La, as well as its employees, attorneys and other consultants, are precluded from assisting or cooperating in any way with your organization, or with any other third party, in opposing TU Electric in connection with the licensing of Comanche Peak, including _the related antitrust issues addressed in your May 16 letter.
Therefore, neither I nor any of my colleagues at this firm can be of any help to you in this matter and I would very much appreciate it if you would refrain from further attempting to-contact any of us.
Thank you for your cooperation and understanding.
Sincerely,
./
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k William H. Burchette WHB/dms cc:
Robert Wooldridge John Butts Suttt a080 70a sa6Ca t LL avg Nyt t005 ComGat $& AVCNVE
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January 12, 1993 Docket Nos.50-44S and 50 '46 (10 CFR S 2.206; Mr. Ed Wagoner, General Manager Texas Municipal Power Agency P. O. Box 7000 Bryan, Texas 77805
Dear Mr. Wagoner:
On June 11, 1992, the National Whistleblower Center and its clients, Messrs Joseph J. Macktal and S.H.A. Ibsan, filed with the Chairman of the U.S. Nuclear Regulatory Commission (NRC), a letter alleging that Texas Utilities Electric Company (TVEC or Licensee) and certain former minority owners of the Comanche Peak Steam Electric Station (CPSES), Units 1 and 2 had entered into settlement agreements that contained language that could restrict the free flow of safety information regarding CPSES to the NRC.
The letter is being considered as a Petition pursuant to Section 10 of the U.S. Code of faderal Reaulations (10 CfR i 2.206).
Specifically, the Petition refers to a January 30, 1990, settlement agreement between TUEC and Tex-La Electric Cooperative of Texas, Inc. (Tex-La), a former co-owner of CPSES, that allegedly contains restrictive language, in response to the Petition, the NRC staff evaluated the settlement agreements entered into between TUEC and Tex-La; between TUEC and Brazos Electric Power Cooperative, Inc. (Brazos) on July 5, 1988; and between TUEC and Texas Municipal Power Agency (TMPA) on february 12, 1938.
A review of these three settlement agreements by the NRC staff indicates that the agreements do not violate the provisions of 10 CFR S 50.7; specifically i 50.7(f), which states that no agreements affecting the compensation, terms, conditions and privileges of employment, including an agreement to settle a complaint by an employee filed with the Department of Labor pursuant to Section 210 (now Section 211) of the Energy Reorganization Act of 1974, may contain any provision which 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 other matters within the NRC's regulatory responsibilities.
None of the agreements between the Licensee and the three former co-owners is an agreement of the type described by the regulation. The agreements are basically purchase and sale agreements and not agreements affecting the compensation, terms, conditions, and privileges of employment. Also, the
-agreements do not contain provisions that restrict an employee or former f)
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employee.
The agreements are between the Licensee and the three former co-owners and cannot bind any emaloyees or former employees who are not parties to the agreements, indeed, tie 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 a) ply to employees who act op behalf of the named parties and not to employees wio act on their own behalf The three agreements in question, however, including the agreement between TMPA and TUEC (hereinafter the TMPA agreement), contain several provisions that are potentially restrictive. The covenant not to sue on the part of TMPA, at page 38 of the TMPA agreement and at page 6 of Exhibit J to the TMPA agreement, contains language whereby TMPA is restricted from directly or 1
indirectly opposing, challenging, or contesting any aspect of CPSES, inclucing its planning, design, licensing, and construction.
On page 39 of the TMPA agreement, TMPA covenants and agrees that it will encourage and solicit its attorneys and consultants not to oppose, or assist any third party in oppusing, the Licensee in connection with any matters relating to CPSES.
On page 43 of the TMPA agreement, TMPA agrees and covenants that it shall not prosecute, directly or indirectly, any subject claims (as defined in the TMPA agreement), objections, motions, or other actions adverse to the Licensee in connection with ap)11 cations for granting the requisite licenses and approvals for CPSES pending sefore the NRC and its Atomic Safety and Licensing Boards and Atomic Safety and Licensing Appeal Boards.
The TMPA agreement contains broad and sweeping language that not only restrict TMPA and anyone speaking on behalf of TMPA from bringing safety information to the NRC, but also could lead one to conclude that it prohibits individuals #
from bringing, or assisting others in bringing, safety concerns to the NRC.
Such restrictive provisions are unacceptable to the NRC Such provisions could have caused a chilling effect in the past, and may cause such a chilling effect in the future, with the result that the NRC has been, or may be, deprived of safety information.
'The scope of 6 50.7(f) was discussed in the Supplementary Information-issued with the final rule.
M 55 Fed. Reg.10397 g1 ien (March 21, 1990).
There the NRC made clear that the rule extended only to employment agreements involving employees or former employees, aln fact, the Tex-La agreement has been interpreted by Mr. William-Burchette, an attorney representing Tex-La, as prohibiting him from assisting or cooperating with anyone in opposing TVEC in connection,vith the licensing of CPSES. M letter from Mr. Burchette to Mr. R. Mickey Dow dated May 20, 1992, copy attached.
Mr. Ed Wagoner January 12, 1993 Accordingly, TMPA should take actions to ensure that all individuals and organizations that could be affected by the potentially restrictive provisions in the TMPA agreement clearly understand that those provisions, if interareted to preclude individuals or organizations from providing information to tie NRC, are void and unenforceable and that anyone may, at any time, bring safety information to the NRC, or assist third parties to do so, if the individual or organization so chooses.
Pursuant to Sections 161c and 161o of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR $ 2.204, in order for the Commission to determine wh?ther further action is needed, you are required to inform me in writing and under oath or affirmation, within 30 days of the dete of this letter, of what actions you hue taken or are taking in order to ensure that individuals and organizations do not believe that they are precluded from coming to the NRC with safety concerns.
For your information, enclosed are copies of letters similar to this one which the NRC has sont to TUEC, Brazos, and Tex-Lc regarding this same matter.
Sincerely, Original Signed by Frank J. Miraglia for Thomas E. Murley, Director Office of Nuclear Reactor Regulation
Enclosures:
1.
Burchette Letter dtd. 5/20/92 DISTRIBUTION 2.
Letters Docket file JPartlow NRC PDR JRoe cc w/o enclosures:
Local PDR MVirgilio Michael 0. Kohn, Esq.
PDIV-2 R/F OGC Kohn, Kohn and Colapinto, P.C.
PDIV-2 P/F TBergman 517 Florida Avenue, N.W.
TMurley EPeyton Washington, D.C.
20001 FMiraglia William A. Burchette, Esq.
Counsel for Tex-La Electric Cooperative of Texas Jorden, Schulte, & Burchette 1025 Thomas Jefferson Street, N.W.
Washington, D.C.
20007
- See previous concurrence orrict PDIV-2/LA PDIV-2/PM PDIV-2/D TECH EDITOR
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May 20, 1992 VIA TELECOPY AND MAIL Hr. R. Micky Dow, Director Public Relations,
D.W. C. P.S. E. S.
322 Mall tivd. #147 Monroeville, PA 15146 Dear Mr. Dows Recently you sent me a copy of your May 16, 1992 letter to the Complaints Division of the Securities & Exchange commission regarding the Comanche Peak Steam Electric Station.
In addition, yesterday, as well as last week, you tried unsuccessfully to reach me by telephone.
On behalf of my client Tex-Le Electric Cooperative of Texas, Inc.
(" Tex-La"), I wish to advise you that, under Article IX of Tex-La's January 30, 1990 settlement agreement with Texas Utilities Electric company ("TU Electric"), Tex-La, as well as its employees, attorneys and other consultants, are precluded from assisting or cooperating in any way with your orgtnization, or with any other third party, in opposing TU Electric in connection with the licensing of Comanche Peak, _ including the related antitrust issues addressed in your May 16 letter.
Therefore, neither I nor any of my colleagues at this firm can be of any help to you in this matter and I would very much appreciate it if you would refrain from further attempting to contact any of us.
Thank you for your cooperation and understanding.
Sincerely,
/r
.' /
William H. Burchette WHB/dms cc Robert Wooldridge John Butts toi spica t 46 avt hwt-svett solo alame; F60Rica 33138 4 604 1005 CONG at tl AvChut (3 C 6) M e* # 6 00 AuttsN.ttAAS TS?Os 6552) e?t aeOSI
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January 12, 1993 t, e s.e Cocket Nos. 50-445 and 50-446 (10 CFR S 2.206) o r!r. John H. Butts, Manmr in Aa Electric Cooperative of Texas, Inc.
P. O. Box 1623 Nacogdoch a Texas 7590-1623
Dear Mr. But d :
On June 11, 1992, the Natior.cl Whistleblower Center and its clients, Messrs. Joseph J. Macktal and S.M.A. Hasan, filed with the Chairman of the U.S. fiuclear Regulatory Commission (NRC), a letter alleging that Texas Utilities Electric Company (TVEC or Licensee) and certain former minority owners of the Comanche Peak Steam Electric Station (CPSES), Units 1 and 2, had ordered into settlement agreements that contained language that could restrict the free flow of safety information regarding CPSES to the NRC.
The letter is being considered as e Petition pursuant to Section 10 of the U.S. Code of federal Reaulations (10 CFR 5 2.206).
Specifically, the Petition refers to a January 30, 1990 settlement agreement between TUEC and lex-La Electric Cooperative of Texas, Inc.
co-owner of CPSES, that allegedly contains restrictive langua(ge, Tex-La), a former in response to the Petition, the NRC staff evaluated the settlement agreements entered into between 10EC and Tex-La; between TVEC and Brazos Electric Power Cooperative, Inc. (Brazos) on July 5,1988; and between TVEC and Texas Municipal Power Agtacy (TMPA) on February 12, 1988.
A review of these three settlement agreements by the NRC staff indicates that the agreements do not violate the provisions of 10 CFR 5 50.7; specifically i 50.7(f), which states that no agreements affecting the compensation, terms, conditions and privileges of employment, ir.cluding an agreement to settle a complaint by an employee filed with the Department of Labor pursuant to Section 210 (now Section 211) of the Energy Reorganization Act of 1974, may contain any provision which 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 other matters within the NRC's regulatory responsibilities.
None of the agreements between the Licensee and the three former co-owners is an agreement of the type described by the regulation.
The agreements are basically purchase and sale agreements and not agreements affecting the compensation, terms, conditions, and privileges of employment. Also, the agreements do not contain provisions that restrict an employee or former employee.
The agreements are between the Licensee and the three former co-owners and cannot bind any employees or former employees who are not parties gg.m q gnpm og; 140081
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i Mr. John H. Butts January 12, 1993 to the agreements.
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, ard representatives.
Such language indicates that the agreements apply to employees who act op behalf of the named parties and not to employees w1o act on their own behalf The three agreements in question, however, including the agreement between Tex-LaandTVEC(hereinafterthejex-Laagreement),containseveralprovisions that are potentially restrictive.
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 H 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.
According to the language apaearing at pages 47 and 48 of the Tex-La agreement and page 7 of Exhibit H to tie Tex-La agreement, Tex-La shall in no event use any information obtained by it or its attorneys in any manner adverse to the Licensee.
The potentially restrictive nature of this provision is amplified by further terms of the Tex-La agreement which sermits Tex-La to respond only to specific discovery requests and permits Tex.a to tell the truth under oath in response to a specific request.
On pages 49 and 50 of the Tex-La agreement, Tex-La covenants and agrees that it will encourage and solicit its attorneys and consultants not to oppose, or assist any third party in opposing, the Licensee in connection with any matters relating to CPSES.
Finally, at pages 60 and 61 of the Tex-La agreement, Tex-La agrees and covenants that it shall not prosecute, directly or indirectly, any subject-claims (as defined in the Tex-La agreement), objections, motions, or other actions adverse to the Licensee in connection with applications for granting the requisite licenses and approvals for CPSES pending before the NRC and its Atomic Safety and Licensing Boards and Atomic Safety and Licensing Appeal Boards. Tex-La further agrees and covenants not to oppose, or assist any third party in opposing, a position being advocated by the Licensee.
'The scope of 5 50.7(f) was discussed in the Supplementary Information 1: sued with the final rule.
En 55 Fed. Reg. 10397 at g m (March 21, 1990).
There the NRC made clear that the rule extended only to employment agreements involving employees or former employees.
'Three Tex-La agreements exist.
The agreement dated March 23, 1989 was amended by agreements dated December 21, 1989 and January 30, 1990. The three agreements do not dif fer in any material respect with regard to the issues raised in the Petition.
It is the January 30, 1990 agreement which the NRC staff discusses in this letter.
i Mr. John H. Butts January 12, 1993 The Tex-La agreement contains broad and sweeping language that not only restricts Tex-La and anyor.e speaking on behalf of Tex-La from bringing safety information to the NRC, but also could lead one to conclude that it prohibits theNRC.plsfrombringing,orassistingothersinbringing,safetyconcernsto individu Such restrictive provisions are unacceptable to the NRC.
Such provisions could have caused a chilling effect in the past, and mav cause such achillingeffectinthefuture,withtheresultthattheNRChasbeen,ormay be, deprived of safety information.
Accordingly. Tex-La should take actions to ensure that all individuals and organizations that could be affected by the potentially restrictive provisions in the Tex-La egreements clearly understand that those provisions, if interpreted to preclude individuals or organizations from providing infor-mation to the NRC, are void and unenforceable and that anyone may, at any time, bring safety information to the NRC, or assist third parties to do so, if the individual or organization so chooses.
Pursuant to Sections 161c and 1610 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 6 2.204, in order for the Commission to determine whether further action is needed, you are required to inform me in writing and under oath or affirmation, within 30 days of the date of this letter, of what actions you have taken or are taking in order to ensure that individuals and organizations do not believe that they are precluded from coming to the NRC with safety concerns.
31n fact, the Tex-La agreement has been interpreted by Mr. William Burchette, an attorney representing Tex-La, as prohibiting him from assisting or cooperating with anyone in opposing TVEC in connection with the licensing of CPSES. le.e letter from Mr. Burchette to Mr. R. Mickey Dow dated May 20, 1992, copy attached.
Mr. John H. Butts January 12, 1993 Enclosed for your information are copies of letters similar to this one which the NRC has sent to TVEC, TMPA, and Brazns regarding this matter.
Sincerely.
Original Signed by F unk J. Miraglis for Thomas E. Murley, Director Office of Nuclear Reactor Regulation
Enclosures:
1.
Durchette letter did. 5/20/92 DISTRIBVJi@
2.
Letters Docket file NRC PDR cc w/o enclosures:
Local POR Michael D. Kohn, Esq.
PDIV-2 R/F Kohn, Kohn and Colapinto, P.C.
PDIV-2 P/f 517 Florida Avenue, N.W.
1Murley Wasnington, D.C.
20001 FMiraglia JPartlow William A. Burchette. Esq.
MVirgilio Counsel for Tex-La Electric OGC Cooperative of Texas TBergman Jorden, Schulte, & Burchette EPeyton 1025 Thomas Jefferson Street, N.W.
JRoe Washington, D.C.
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May 20, 1992 VIA TELECOPY AND MAIL 1
Mr. R. Micky Dow, Director Public Relations, D.W.C. P.S.E.S.
322 Mall Divd. #147 Monroeville, PA 15146
Dear Mr. Dow:
Recently you sent me a copy of your May 16, 1992 letter to the Complaints Division of the Securities & Exchar.go Commission regarding the Comanche Peak Steam Electric Station.
In addition, yesterday, as well as last week, you tried unsuccessfully to reach me by telephone, on behalf of my client Tex-La Electric Cooperative of Texas, Inc.
(" Tex-La"), I wish to advise you that, under Article IX of Tex-La's January 30, 1990 settlement agreement with Texas Utilities rioctric company ("TU Electric"), Tex-La, as well as its employees, attorneys and other consultants, are precluded from assisting or cooperating in any way with your organization, or with any other third party, in opposing TU Electric in connection with the licensing of Comanche Peak,,includi_ng,the related antitrust issues addressed in your May 16 letter.
Therefore, neither I nor any of my colleagues at this firm can be of any help to you in this matter and I would very much appreciate it if you would refrain from further attempting to contact any of us.
Thank you for your cooperation and understandine.
Sincerely, k J/$ l William H. Burchette WHB/dms cc:
Robert Wooldridge John Butts 30.Saic.tu *vt vt Svitt4050
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