ML20128D339

Emergency Motion to Stay Issuance of low-power Ol.* Petitioners Specific Requests Listed.W/Certificate of Svc

ML20128D339
Person / Time
Site:	Comanche Peak
Issue date:	02/02/1993
From:	Kohn M Citizens Association for Sound Energy, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	NRC COMMISSION (OCM)
References
CON-#193-13595 2.206, OL, NUDOCS 9302100115
Download: ML20128D339 (8)

Text

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f? II D - 2-95 W EI D 14357 . P.O2

! .. DOCKET NUMBER - - .

'/ k PROD. & UTIL FAO, .8 W6

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I!0CMi[0 USNac i UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION '93 pg _7 ,

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In the Matter of )

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i TEXAS UTILITIES ELECTRIC Co., ) Docket No. 50-446-bPA-

[ c.t; A L ,,, ) (Construction Permit Amendment)'

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l (Comancho Peak Steam Electric _ ) Docket No. 50-446 %

Station, Unit 2)_ ) (Issuance of Low Power Licence) i _

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j EMERGENCX MOTION TO STAY ISSUANCE OF LOW-POWER OPERATING LICENSE l BACKGROUND

! Presently pending on appeal before the U.S. Nuclear ,

l l Regulatory Commission ("NRC") is the question of=whether the licensoo, Texas Utilities Electric-Company ("TUEC") can establish f good cause for a delay in the construction of Unit-2 of the.

! Comanche Peak Steam Electric Station ("CPSES"). One of the grounds Petitioners have sought to deny the-licensee the_right-to L continuo constructing Unit 2 was its intentional secreting of

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L safety information from the.NRC. On January 12,-1993, the __

Director of tho.NRC Office of Nuclear Reactor Regulation ("HRR")

iccued a letter to William J. Cahill, Jr.,-Group Vice President of TUEC, advising that information presented to NRC Staff by way. -

i of s 5 2.206 petition concerning the issue of restrictive settlement agreements between the license and its former i minority co-owners which " prohibit individuals from bringing,.or L assisting others in bringing, safety concerns to the NRC,"

demonstrated that "the NRC has been, or may be, deprived of L

safety information.". gig,, Attachment 1, NRR letter of January I

9302100115 930202 PDR ADOCK 05000446- $

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FED- 2-93 WED 14 858 . P e3 12, 1993, at p. 2 (emphasis added). Moreover, the Director'of NRR further states in his January 12, 1993 lettor that additional information is needed "in order for the Commission to determine whether (TUEC's) licence be modified, suspended cnr revoked,88 14.,

at p. 3, because of the " chilling effect" such restrictive agreements have on the free flow of information from individuals to the NRC. Id., at p. 2.

The Commission must stay issuance of a low power license for Unit 2 because NRC proceedings are presently ongoing concerning whether the licensco has acted to suppress safety information from the NRC. These actions by the licensee are not icolated instances, but rather are widespread practices which relate to the licensco'c character and competence to safely construct and operate CPSES.

ARGUMENT TUEC has established a pattern and practice of secreting safety information from the Commission.1 This illegal conduct has resulted in substantial delay in the construction of CPSES Unit 2. But, more importantly, it has resulted in the cecreting of safety information from the Commission which potentially poses a throat to the health and safety of the public.

1 Petitioners rely on the record Petitioners' have created before the Commission in the above-captioned matter as a y factual and legal basis for this motion, and respectfully request i that the Commission consider the entire record before ruling on the instant motion.

2

FED- 2-93 64 E D 14 850 . P.04 The issues presented as a result of the secreting of safety information are two foldt First, whether the Commissien can issue a low power licenso where there is no assurance that the information withheld by TUEC is not of such safety significance as to jeopardize the public's health and safety. Second, whether it is proper to issue a low power license unt'.1 such time as the Commission rules upon Petitioners' request to deny TUEC's construction permit is exhausted.2 In sum, until the documentation secreted by TUEC is made available for public inspection, the Cemmission,11RC Staff, Petitioners, and the general public have no basis to be reasonably assured that the plant is safe or that the licensee can reasonably assuro that it has the character and cor.petence to operate the plant safely.

The Commission must, therefore, stay the issuance of any further licenses to TUEC until such time as it can be reasonably assure that TUEC has not secreted documentation from the NRC which calls itito question whether the plant can be operated safely and whether TUEC has the character and competence to do So.

2 Indeed, if the withheld information is of such safety significanca to deny the licensee the right to obtain either a construction permit or a low power license, then it stands to reason that TUEC has not repudiated its past improper construction practices and can not establish good cause for the issuance of the low power license.

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FED- 2-93 WED 14 359 . P.05 RELIEF REOUESTED WHEREFORE, Petitioners request that the Commission:

1) issue an order staying the issuance of a low power licenco until cuch time as the safety significance of the withhcid information can be determined; and

2) grant Petitioners-a reasonable time to review the withhold documentation turned over by the former minority owners of the CPSES to TUEC, and issue an order requiring TUEC to serve upon below-signed counsel all documentation it its possession that was turned over to it by the former minority owners of the CPSES, together with a sworn affidavit of William Cahill attesting to the fact that all such documentation has been trancmitted to Petitioners; and

3) stay the issuance of a low power license until such time ao a final determination on Petitioners' pending intervention into the construction permit amendment proceedings is concluded and all allowable judicial _ review is exhausted; and

4) Petitioners be granted oral argument on their motion.

Respectfully submitted, Y ^

Michael D. Kohn Stephen-M. Kohn David K. Colapinto-Kohn, Kohn and Colapinto, P.C.

517 Florida Avenue, N.W.

Washington, D.C. 20001 (202) 234-4663 Attorneys for Petitioners Dated: February 2, 1993 4

FED- 2-93 WED 15900 . P.06 gXHTIFICATE OF SERVICE iNifg[

I HEREBY CERTIFY that a copy of: PETITIONERS' EMERGENCY MOTION

'93 FEB -2 P3 :12 TO HALT ISSUANCE OF LOW-POWER OPERATING LICENSE was served Via FACSIMILE on Fchruary 2, 1993 at or-a'cout 3:00 p.m,gand{pl,nced intheU.S. Mail,postagepre-paidthisday,onthehol'1owing:

Hon. Ivan Sclin, Chairman Hon. Kenneth c. Rogers Hon. James R. Curtiss Hon. Forrest J. Remick Hon. E. Gail De Planque U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (original and two copies)

George Edgar, Esq.

Newman & Holtzinger, P.C.

1615 L Street, N.W.,

Suite 1000 Wachington, D.C. 20036 Marian L. Zobler, Esq.

Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Ns' By:

Michael D. Kohn 053\CPSES.0L s

FED- 2-93 NED 15: 00 . P. O *r

"'* UNITED STATcs s *' NUCLEAR REGULATORY COMMISSION j WASHINGTON. o, C,20$55 January 12. 1993 k . e. *

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Docket Hos.50-44S and 50-446 (10 CFR i 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 M . Cahill:

On June 11, 1992, the National Whistleblower Center and its clients, Hessrs. Joseph J. Hacktal and S.H.A. Hasan, filed with the Chairman of the U.S. Nuclear Regulatrey Commission (NRC), a letter alleging that Texas Utilities Electric Company (TUEC or Licensee) and certain former minority owners of the CoMnche Peak Steam Electric Station (CFSES), 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. N letter is being considered as a petition pursuant to Section 10 of the U.S. t. ode of Federal Regul_ations_ (10 CFR 5 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 aliegedly 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 5 50.7; specifically 5 50.7(f), which states that no agreements affecting the componsation, 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 NO (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 otherlimited to,ithin matters w the NRC's regulatory responsibilities.providing information to the NRC on po

. 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 M ac.k^oJT t r (

Utn its t o I .

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ev e n - 2 - e :s r. . o e l- ,

Jamary 12,19M Mr. William J. Cahill, Jr.

compensation, terms, conditions, and privileges of employment. Also, the agreements do not contain provisions that restrict an em)1oyee or former employee. The agreements are between the Licensee and tie three former co-owners and cannot bind any em>1cyees or former employees who are not parties =

to the agreements. Indeed, t1e 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, directors, consultants, attorneys, and representatives. Such officers, language indicates that the agreements aoply 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, the agreement between Tex-La and TUEC, 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 NRC 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 D[ i safety information to the NRC, but also could lead one to conclude that they prohibit 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 tha result that the NRC his. ~

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 NRC, are vold and unenforceable, that TUEC will not seek to enforce any :uch provisions and that anyone may, at any time, bring shfety information to the NRC, or assist third parties to do so, if the individual or organization so chooses.

'The sccpe of 6 50.7(f) was discussed in the Supplementary Information issued with the final rule. In 55 Fed. Reg.10397 at seat (March 21,1990).

There the NRC made clear that the rule extended only to employment agreements involving employees or former employees.

.rIn fac, 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 CFSES. See_ letter from Mr. Burchette to Mr. R. Mickey Dow dated May 20, 1991, copy attached.

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January 12,1993 Hr. William J. Cahill, Jr.

Pursuant to Sections 161c,1610,182 and 106 of the Atomic Energy Act of 1954, and the Comission's regulations in 10 CFR i 2.204, in order for

' as the an: C.omia1 ended,1sttLdetermine whether your license s shouLd be modiflod, suspended

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or aTrlT5sTNon,you revoked within 30 days are required of the dateto of Friform this letterse in writing of what actionsand you un cr oa have taken or are taking in order to ensure that individuals and organizations do not belicyc that they are precluded from coming to the HRC with safety concerns.

Enclo:;ed fcr your information are copies of letters similar to this one which the NRC has sent to Tex-La, TMPA and Brazos rogarding this matter.

I sincerely,

& v '&

Thomask.Mvfey, Director Office of Nuclear Reactor Regulation

Enclosures:

1. Durchette letter dtd. 5/20/92

2. Letters cc w/o enclosures:

Michael D. Kohn, Esq.

Kohn, Kohn and Colapinto. P.C.

517 Florida Avenue, N.W.

Washington, D.C. 20001 William A. Burchetto, Esq.

Counsel fcr Tex-La Electric Cooperative of Texas Jorden. Schulte, & Burchette 1025 Thomas Jefferson Street, N.W.

Washington, D.C. 20007

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