ML20140D863
| ML20140D863 | |
| Person / Time | |
|---|---|
| Site: | Wolf Creek  |
| Issue date: | 01/27/1986 |
| From: | Koester G KANSAS GAS & ELECTRIC CO. |
| To: | Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| References | |
| EA-84-087, EA-84-87, KMLNRC-86-017, KMLNRC-86-17, NUDOCS 8602030127 | |
| Download: ML20140D863 (13) | |
Text
KANSAS GAS AND ELECTRIC COMPANY THE E LE CT5#C COM6'ANY January 27, 1986 ooa~~t =oase<=
-...o m m...
Mr. James M. Taylor, Director Office of Inspection and Enforcement U.S. Nuclear Regulatory Commission Washington, D.C.
20555 IHURC 86-017 Re:
Docket No. SIN 50-482 Ref:
Istter from J. M. Taylor, IRC to G. L. Koester, E&E, dated 1/6/86 Subj:
Enforcement Action 84-87
Dear Mr. Taylor:
You have requested a response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) dated September 27, 1984. According to a statement in that notice, the IRC will consider extending the response time for good cause shown.
Kansas Gas and Electric's (E&E) position has consistently been that until a final determination by the Courts has been rendered concerning the correctness of the Department of Labor's decision, any requirement of a response in the Enforcement Action is premature and potentially prejudicial to E&E's pursuit of its legal remedies.
We therefore renew our request that the IRC suspend the civil penalty proceedings until completion of all judicial review of this matter.
As your letter of January 6,1986, indicates, E&E requested suspension of the civil penalty proceeding pending completion of judicial review of the Department of Inbor's decision and final order.
You agreed to suspend the proceeding pending resolution of the current appeal.
Neither of these events has yet occurrod.
Enclosed herewith you will firxl a copy of E&E's Motion to Stay Mandate, and the court's order granting the motion.
This motion was filed with the U.S.
Court of Appeals for the loth Circuit on January 13, 1986.
As the motion
- notes, it is the intent of E&E to apply to the Supreme Court of the United States for a writ of certiorari in this matter. Thus, there has not been a completion of judicial review, nor have the Courts finally resolved E&E's appeal in this matter.
E&E understands and acknowledges that the review by the Supreme Court on writ of certiorari is not mandatory.
- Review, in cases such as these is a matter of judicial discretion. However, the review of this case presents 0602030127 060127 M/3Ah F DR ADOCK ObOO 2
201 N Market - WocMa, Kansas - Mail Addreas: PO Bos 208 I #chita. Kansas 67201 - Telephone' Area Code ()16) 2616451
1 I
Mr. James M. Taylor 10ENRC 86-017 Page 2 January 27, 1986 questions which, while not controlling or requiring review, are indicative of the character of reasons described by the Supreme Court in its rules of procedure as inportant for consideration. For example, Rule 17(1)(a) of the United States Supr e e Court Rules indicates that a writ of certiorari will be considered:
(a)When a federal court of appeals has rendered a decision in conflict with the decision of another federal court of appeals in the same matter... "
As you well know, the recent decision by the 10th Circuit in this case is in direct conflict with the decision rendered by the U.S.
Circuit Court of Appeals for the 5th Circuit in Brcwn and Root, Inc. v. Donovan.
Both cases presented the Courts with the same question - whether filing internal quality reports is a protected activity pursuant to 6201 of the Energy Reorganization Act.
S e 5th Circuit held that it is not; the 10th Circuit in its recent decision disagreed and held that it is a protected activitly.
S e damage created by the split in the Circuit Courts is cmpounded when considering that portions of both circuits are contained within Region IV of the NRC.
- Wus, the Department of Labor and the Nuclear Regulatory Caratission are put in the position of enforcing 6201 of the Energy Reorganization Act unequally within the same region.
The fact re ains that an opinion of a circuit Court of Appeals becomes the law of that circuit unless changed by a snhaaquent opinion by the Circuit Court or by an opinion fr a the U. S. Supreme Court. Rus, the application of 6201 of the Energy Reorganization Act by the NRC and the Department of Iabor to the operations at the Comanche Peak Steam Electric Ibwer Station in Glen Rose,
- Texas, must differ from the application of that law to operations of the Wolf Creek Generating Station at Burlington, Fansas, based upon the diffaring Circuit Court interpretations.
Not only must the law be applied differently in the loth and 5th Circuits, but also differently within the same NRC region.
his unequal application of the same law to similarly situated parties will also be an issue presented to the U.S.
Supreme Court in NME's application for writ of certiorari.
As MME has consistently stated, the NRC's reliance upon the Secretary of Iabor's Order prior to ocupletion of all judicial review of that order is premature.
NME should be entitled to pursue the legal remedies available to it, pursuant to the laws of the United States, free fr a the imposition of any penalty or other punishment by the NRC prior to a final determination by the Courts.
Should the Supreme Court accept the case for review and agree with the 5th Circuit's well-reasoned opinion, the reliance by the NRC on the Department of Labor's Order would be improper.
Mr. James L. Taylor IMINRC 86-017 Page 3 January 27, 1986
'Ihe review of the loth circuit opinion must also include a review of the proper effect to be given the Memorandum of Urderstanding between the NRC and the DeparL=uit of Iabor. E&E takes exception to the application of the memorandum made by the Court in this case.
At one point in the decision, the Court inplies that by filing a couplaint with the Department of Iabor pursuant to 6201 of the Energy Reorganization Act, an employee retroactively is entitled to " protected enployee" status for activities which were engaged in prior to the emplaint with the Department of Iabor (see pages 16 through 17 of Opinion).
While filing in the complaint with the DepacL=uit of Iabor protects the employee frm any retaillation taken as result of that emplaint, it does not follow that the worker is autmatically given protected status as defined by the statute.
While other issues will undoubtedly be raised by legal counsel in E&E's application for writ of certiorari, the above arguments highlight the major points of appeal.
Pending the Supreme Court's final disposition of the matter we respectfully request that all pr M ings and Enforcement Action 84-87 by suspended.
Your continued recognition of the highly canplex and important nature of this matter is appreciated.
Very truly yours,
[#
i Glenn L. Kocater GIK:see 1 -Motion To Stay Mandate -Court's Order Granting 'Ihe Motion To Stay Mandate cc: EO'Connor JCumins RDiartin i
i
--m_.,-
m.
r_____._.
,. of KMLNRC 86-017 UNITED STATES COURT OF APPEALS TENTH CIRCUIT KANSAS GAS & ELECTRIC COMPANY,
)
)
Petitioner / Appellant,
)
)
v.
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Nos. 84-2114 &
)
84-2735 WILLIAM E. BROCK, Secretary of
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- Labor,
)
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Respondent / Appellee,
)
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and
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)
JAMES E. WELLS, JR.,
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QWOIJ//
)
h
%'O Intervenor-Respondent,
-y3 l
h sgy$* y JAMES E. WELLS, JR.,
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T,; Y
'Cl gg.g g0'v/
NA
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Plaintiff-Appellee,
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v.
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KANSAS GAS & ELECTRIC COMPAllY and
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its WOLF CREEK GENERATING PLMii',
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Defendants-Appellants.
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MOTION TO STAY MANDATE Pursuant to Federal Rule of Appellate Procedure 41, Kansas Gas and Electric Company moves that the mandate of the Court be stayed for thirty days pending its application to the Supreme Court for a writ of certiorari.
I SUGGESTIONS IN SUPPORT 4
Kansas Gas and Electric Company ("KG&E") is timely filing this motion to stay issuance.of the mandate in the above-captioned cases.
The Court's
- opinion, which enforced the
- ~ - -
r a
Secretary's order in No.
84-2114 and affirmed the District Court's order in No. 84-2735, was filed on December 26, 1985.
Pursuant to Federal Rule of Appellate Procedure 41(a),
the mandate will issue in twenty-one days or on January 16, 1986 unless a stay is granted.
KG&E has filed this motion prior to the issuance of the mandate and with reasonable notice to all parties.
KG&E intends to seek a writ of certiorari from the Supreme Court because the Tenth Circuit's opinion demonstrates a clear split in the circuits.
As recognized by the Tenth Circuit in its opinion at page 17, the Fifth Circuit reached a
different result in Brown and Root
- v. Donovan, 747 F.2d 1029 (5th Cir.
1984).
See also, Mackowiak v.
University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984) and Consolidated _E_d_i_ son Comoanv of New York v.
Donovan, 673 F.2d 61 (2nd Cir. 1982).
These decisions turn on the judicial construction to be given 42 U.S.C.
Section 5851, specifically whether Section 5851 protects the filing of intecnal safety complaints in the usual course of a quality control inspector's duties.
Presently, the law in the Fifth Circuit does not protect the filing of internal complaints while the law in the Tenth, Ninth, and Second Circuits protects such filings.
KG&E believes that the Supreme Court should resolve this conflict among the circuits and will seek a writ of certiorari to give the Court an opportunity to do so.
In light of the split in the circuits, application for a writ of certiorari can not be said to be frivolous or flied merely for delay.
Pending KG&E's application for writ of certiorari, Wells remains protected by the surety bond KG&E has filed with the District Court.
The Tenth Circuit previously ordered a stay on the order of the secretary, as enforced by the District Court, to pay James E.
Wells, Jr. back pay and interest in the amount of Eighty Three Thousand Eight Hundred Ten and 18/100 Dollars ($83,810.18) and attorney's fees in the amount of Twenty Seven Thousand Eight Hundred and 69/100 Dollars (S27,859.69).
See Order of April 4,
1985.
The Court conditioned the stay upon the filing of a surety bond with the Clerk of the United States District Court for the District of Kansas in the principal sum of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00).
KG&E filed such a surety bond on April 12, 1985 (copy attached) and the bond remains in force.
KG&E contends that this surety bond fully protects l
Wells.
For the above
- reasons, KG&E requests that the Court stay the issuance of the mandate pending its application to the United States Supreme Court for writ of certiorari.
Respectfully submitted, M
es i
Ralph B'.
Foster
-g auJ v
=-
Mark A. Vining U
Kansas Gas and Electric Company 120 East First Street Post Office Box 208 Wichita, KS 67201 (316) 261-6611 Stanley E. Craven b.
David L. Wing
()
Spencer, Fane, Britt & Browne 1000 Power & Light Building 106 W.
14th Street Kansas City, MO 64105 (816) 474-8100 Attorneys for Petitioner Kansas Gas and Electric Company CERTIFICATE OF SERVICE I,
the undersigned, hereby certify that on the 10 day of January, 1986, a true and correct copy of KG&E's Motion to Stay Mandate with attachments was mailed, postage prepaid, to:
Dale W. Bell, Esq.
Michael C.
Helbert, Esq.,
Guy, Helbert, Bell & Smith, Chartered, 519 Commercial, Post Office Box 921, Emporia, Kansas 66801, Attorneys for James E. Wells, Jr.,
and Allen H. Feldman, Esq.
Counsel for Appellate Litigation U.S. Department of Labor 200 Constitution Ave., N.W.
Washington, D.C.
- 20210, and Francis X. Lilly, Esq.
Karen I. Ward, Esq.
Edward D.
Sieger, Esq.
Cornellun S. Donaghue, Jr., Esq.
Marianne Dementral Smith, Esq.
U.S. Department of Labor Office of The Solicitor 200 Constitution Ave., N.W.
Washington, D.C.
20210 f
Attorneys for Respondent-Appel19
,)
w L. J, V
s.
(f IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JAMES E. WELLS, JR.,
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Pl.aintiff-Appellee,
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U. S. Court of Appeals vs.
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Tenth Circuit
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No. 84-2735 KANSAS GAS AND ELECTRIC COMPANY
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U. S. District Court and its WOLF CREEK NUCLEAR
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No. 84-2290 GENERATING PLANT,
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FILEC Defendant-Appellant
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APR 121985 KANSAS GAS AND ELECTRIC COMPANY,
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Petitioner,
.J vs.
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TenthCircuit/ppeals U. S. Court of A RAYMOND J. DONOVAN, Secretary
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of Labor,
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No. 84-2114
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Respondent,
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JAMES E. WELLS, JR.
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Intervenor-Respondent, )
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SURETY BOND KNOW ALL MEN BY THESE PRESENTS:
That we, Kansas Gas and Electric Company, a duly authorized and existing corporation by virtue of law, as principal, and United Pacific Insurance Company, a corporation, duly authorized and existing by virtue of law, as surety, are held and firmly bound unto this Court in the sum of One Hundred Fif ty Thousand Dollars (S150,000.00) as assurance of compliance with the 39
0,.
payment of attorney's fees and back pay pursuant to an enforcement order issued by this Court.
To this bond do we bind ourselves, our successors, and assigns jointly and severally by these presents.
The condition of the above obligation is such that it shall remain in force and be payable pursuant to the enforcement order pending appeal unless the order is reversed, vacated, set aside, or remanded in whole or in part by decision of the U. S.
Court of Appeals for the Tenth Circuit; if the judgment is reversed, vacated, set aside, or remanded in whole or in part, the l
Bond shall be null and void.
KANSAS CAS AND ELECTRIC COMPANY, A Corporation I
/
gy Ralph Foster, Vice President
" Principal" UNITED PACIFIC INSURANCE COMPANY
/
Q
~/
/
By (_ -~ A *k 1);. /
<'C h d Evelyn Houchin, Attorney-in-fact "Sutety" M
The above Bond is hereby approved and accepted this day of April,1985.
CLERK OF DISTRICT COURT f
.. N '
)
By.
. p' 2 2
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UNITED PALanC INSURANCE COMPANY HOME OF ACL FEDERAL Way.WASHtNOTON POWER OF ATTORNEY KNOW ALL MEN SY THESE PRESENTS. That the UNITED PACIFIC INSURANCE COMPANY. e corporation dui, organised under the news of the seate of Wahincon. dose hereoy mene. constitute end ppo.at James A. Bevan, Robert C. Brent, Evelyn Houchin, Janes W. Bily and Edvard L. Carlson, individually, of Wichits, Kansas c vue and sowfui attorney n-rect, to mese. esecute, soms end deirrer for and on its behoef. and as its act = 4 dead any and all bonds and undertakings of Suretyship, -
~~
and to t>nd the UNITED PACIFIC INSURANCE COMP ANY thereby se fuity and to the some entent es if such bonds and undertsemgs and other wreemqs obligevery in the nature thereof were egned by en Esecutiw Offecer of the UNITED PACIFfC INSUR ANCE CCMPANY end semied and attested by one other of suca of f care, and hereoy ratifies and confirms ait that its said Attorneytslan Foct may do in pursuonce hereof.
Th.: Power of Attorney is granted under and by authority of Article vil of the 8v Lews of UNITED PACtFIC INSUR ANCE cow' ANY wn cm boceme effecten Septerrewe 7. t 978. which provi ons are now in full force and effect, reading as follows; ARTICLE Vil - EXECUTroN CP BONOS AND UNDEcqTAKINGS
- t. The Board of Directors. the Pree. dent, the Chairrrwn of the Board, any Senior Vles Preedent, any Vice Precedent or Aes stene V.co Pendent or other offecer desegneted by the Goerd of Oiroctor shoes have power and suihority to fel epooint a trorrwys n Feet and to outhorise them to esecute on behelf of the Corneeny. bonds and undertonings, recognisances, contracts of indemnity and other writings oceigotory in the nature thereof. end (bl 13 remove any secn Attorney-en Foct et any tiene end rewone the power and authority given to hem.
- 2. Attorneye.n Feet theil have power end authority, subtect to the terme and limetetsone of the power of ettorney issued to them. to easeute anddeirver on behesf of the Corneeny, bonos end undertonings recoenssences, contracts of mdernasty and other writinge oht.getary in the nosure thereof.
The corporate sent is not necaneery for the vesidity of any bonos and underteamge.recoptisenose,centracts of mdemnity and other writings co6.ptory in the nature thereof.
1 i
- 3. Attorneys 4n Pect s% ell have power and authority to succute effidevitt requared to be attached to bonds, recognitences, contracts of inderP-nity or other conditionee or obiogetory underteeings and they shall esto have power and authority to certify the financ e4 statement of the Company and to copose of the Sy4ews of the Company or any artide or section thereof.
That power of efterney es ligned and seeied by f actimele under end by Guthority of the follow 9ng Resolution annoted by the Board of O rectors of UNnTED PACIPic INSUR ANCE COMPANY et a meeting he'd on the 5th dev of June,1979, et an.cn e guorum oss prenoit, and sees Resoa tion has not u
been emended or regeeies:
" Resolved, that the tipietures of tuch directors and officart and the esef of the Company may be effined to eny sucn power of etterne, or any certshcott reletmg thereto by feceitnele, and any tucft power of ettorney or eertifiete bearing tuWt fecaimile tegnatures or f acternsie seet shall be veled and bending upon the Comoony and any sucn power so eseruved end co'tihed by f4Casmale sognetures end lectamile teel snest be veled end bending upon the Company en the future with roepect to any bond or undertoning to ritiiCh it it etteCried.**
IN W1TNE1$ WHER EOP the UNsTED P ACIPIC IN$UR ANCE COMP ANY hee caused these presents to be s gned its vece Pres. dent, and its corporsie
.ei io en hereto offi..d. imis 21st dev of February
's85 UNITED ACIFIC URANCE C 4NY jd I i sr.A[ [
vil.Pde. dent t,
c}^UNb I'UU8YlV""1" f"
Philadelphia on imie 21st oev af February
. 's 8 5. po'e'a*y eco*er*8 Raymond MacNeil 83 me nnown to be the vicestweeae of the UniTEo P AciFiC iNsuR ANCE COMPANY. end scenowiedged that he e.ecuted and ettetied tiie tore e
eng.nnrument and e fs.ed the.0 of wid co,po,et.on the,eto. end that Art.cie vil sect.on t. 2. and 3 of the Syrews of no Comoenv. and use ce niut.on..t forth therein, e,e n se in f.,n force d,.,
uy Comm.nion E aperes.
May 2h
. is 06 I
j Noter, Pubine in end for state of Pennsylvania D
Radmg et Philadelphia 1
P. D. Crossetta
. As.l tent tecrois,y of the UNf TED PacipiC INsUR ANCE COMP ANY do hereby certify ther me seiove end foregom,is e true end correct copy of a Poner of Attorney esecuted by neid UNITED PACIFIC INSURANCE COMP ANY wn'en 't 8t'88 in 'uis force end eHect.
.,. t th...
C.s.-
IN WITNE13 WHEREOF, f have hereunto we my head ead en 8he seen ce se d Corngen, this 10 th de, of A rd ie o.
es
(*1 SLu. t
, m, o,,6 g,,,
e.....-
A nent secre y 2
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g i,.
Respectfully submitted,
- bsa Stanley B:J Craven i
L.v a David L. Wing U
SPENCER, FANE, BRITT & BROWNE 1000 Power & Light Building 106 West 14th Street Kansas City, Mo 64105 (816) 474-8100 Certificate of Service I hereby certify that a true and final copy of the foregoing was mailed by United States Mail, postage prepaid, this 1/
day of April, 1985, to the following:
Mr. Dale W.
Bell Mr. William H. Briggs, Jr.
Mr. Michael D.
Ifelbert Mr.
E. Leo Slaggie Guy, Helbert, Bell & Smith Mr. Martin G. Malsch 519 Commercial Street Mr. C. Sebastian Alcot P. O. Box 921 Office of the General Counsel Emporia, KS 66801-0921 U.S. Nuclear Regulatory Commission Mr. Cornelius S. Donoghue, Jr.
Washington, D.C.
20555 Ms. Marianne Demetral Smith Ms. Karen Ward Mr. George Shoehet Mr. Edward D. Sieger Mr. Stephen M. Kohn Mr. Allen 11. Fcidman Mr. Thomas Devine Office of the Solicitor Govcrnment Accountability U. S. Department of Labor Project 200 Constitution Ave., N.W.
1555 Connecticut Avenue, N.W.
Washington, D.C.
20210 Suite 202 Washington, D.C.
20036 Mr. Nicholas S. Reynolds Mr. Joseph B. Knotts, Jr.
Mr. Richard K. Walker Mr. David A. Repka Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.
Washington, D.C.
20036 p-b )U L.M Attorney for KG&E g
" of KMLNRC 86-017 e **
r NOVEMBER TERM - January 16, 1986 Bmfore Honorable James E. Barrett and Honorable John P. Moore, Circuit Judges.
KANSAS GAS AND ELECTRIC COMPANY,
)
)
Petitioner,
)
)
No. 84-2114 v.
)
)
WILLIAM E. BROCK, Secretary of Labor, pp g Respondent.
)
hk G
)
h jpn\\gB6
'd, JAMES E. WELLS, JR.,
)
1
)
W N
Intervenor-Respondent.
)
4
/gj / I
\\,
JAMES E. WELLS, JR.,
)
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Plaintiff-Appellant,
.)
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No. 84-2735 v.
)
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KANSAS GAS AND ELECTRIC COMPANY, et al.,
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Defendants-Appellants.
)
)
)
This matter comes on for consideration of the motion of Kensas Gas and Electric Company to stay the mandates, pending certiorari, in the captioned causes.
Upon consideration whereof, it is ordered that the mandates shall be stayed until February 17, 1986, pending certiorari and that if on or before that date there is filed with the Clerk of the Court of Appeals a notice from the Clerk of the Supreme Court of the United States
i prge two Jcnuary 16, 1986 Nos. 84-2114 and 84-2735 that petitioner / appellant has timely filed a petition for writ of certiorari in the Supreme Court, the stay shall continue until final disposition by the Supreme Court.
HOWARD K. PHILLIPS, Clerk By Robert L. Hoecker Chief Deputy Clerk D