ML20154G759

Citizen for Fair Util Regulation (Cfur) First Suppl to 880811 Request for Hearing & Petition for Leave to Intervene.* Cfur 880811 Request for Hearing & Petition for Leave to Intervene Should Be Granted.W/Certificate of Svc

ML20154G759
Person / Time
Site:	Comanche Peak
Issue date:	09/12/1988
From:	Griffin R CITIZENS FOR FAIR UTILITY REGULATION, GRIFFIN, R.L.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20154G733	List: ML20154G729 ML20154G759 ML20154G784
References
CPA, OL, NUDOCS 8809210062
Download: ML20154G759 (10)

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Ul:ITED STATES OF AMERICA if$f-?

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 16 SEP 19 P3:02 g  :

In the Matter of 5 Docket Nos. 50-445-9k,p .,r ,.

5 50-446-WCElam6 i r.' d TEXAS UTIT4ITIES ELECTRIC 5 (Application for an RaK4 COMPANY, et. al. .

5 Operating License) 5 (Comanche Peak hteam Electric $ Docket No. 50-445-CPA Station, Units 1 and 2) $ (Construction Permit 5 Amendment)

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CFUR's FIRST SUPPLEMENT TO ITS AUGUST 11, 1988 REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE i On * :; tember 10,

. 198C Citizens for Fair Utility Regulation (CFUR) was able to obtain and examino pleadings filed before the United States Department of Labor on behalf of Joseph J. Macktal, a former electrical foreman employed at the Comanche Peak Nuclear i Construction site. On the basis of these pleadings CFUR files this supplement to its August 11, 1988 Request for Hearing and l Petition for Leave to Intervene. ,

FACTS .

f CFUR hereby incorporates the entire contents of the August i I

4 j 31, 1988 Affidavit of Joseph J. Macktal, Jr. (See, Attachment). l This affidavit raises extremely significant unresolved safety i

issues.

Mr. Macktal's allegations can be divided into three areas.

The first area concerns the safety issues that Mr. Macktal l

. t directly raised with the NRC staff, but which Mr. Macktal  :

i believes were inadequately addressed by the staff; they includes I

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a) contamination of stainless steel conduit; b) falsification of training sheets and travelers; c) improper accounting of and materials d) improper design, manufacture, and documents installation of electrical conduits, and safety related circuits; and e) improper site modification of vendor supplied equipment.

Affidavit, paragraphs 3-4.

The second area consists of safety iasues Mr. Macktal was unable to raise to the NRC due to a restrictive settlement agreement imposed on behalf of the Utility. These unreported safety issues includes a) the use of Kapton wiring and the ultra-vulnerability of key safety termination kits; b) systems; c) design problems related to back-up safety systems; d) improper attempts to silence witnesses and supress information before the NRC; and e) SAFETEAM's participation in and cover-up of safety concerns. Affidavit, paragraph 5.

The third area concerns the issues Mr. Macktal raises with the U.S. Department of Labor. See, Request to the Secretary of Approve the Settlement and for Remand, filed Labor Not to September 9, 1988, attached.

The most startling revelation found in the attached is the fact that Mr. Macktal was prohibited from affidavit bring ing safety allegations before the ASLB by a secret settlement agreement entered into between Brown & Root, Inc. and attorneys for CASE (Ms. B.1111e Garde and Mr. Tony Roisman), who at the time were representing Mr. Macktal. Specifically, Mr.

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Macktal alleges that many of his "concerns were not raised with the NRC staff or Licensing Board due to the restrictive terms of a secret settlement agreement entered into between Texas Utilities and my attorneys Billie Garde and Tony Roisman."

Affidavit, paragraphs 5 and 26.

This allegation is verifiable on the face of the actual "Settlement ,

Agreement" (attached hereto as exhibit 2 of the affidavit) signed by representatives of Brown & Root and by Mr.

Roisman and Ms. Garde. The Settlement Agreement explicitly prohibits Mr. Macktal from voluntarily contacting the NRC or the with unresolved safety allegations. Paragraph 3 of the ASLB Settlement Agreement states th;L Mr. Macktal "will not l

voluntarily appear as a witness or a party in any such l

proceeding..." including "any administrative or judicial proceeding in which either Mr. Roisman, Ms. Garde, Trial Lawyers Public Justice (TLPJ) or the Government Accountability for Project (GAP), or any combination of them are now, or in the future may be, counsel or parties opposing any of the Comanche Peak companies, organization, programs or individuals...." The Settlement Agreement defines "Comanche Peak Companies" to include all companier, employees or attorne'ys that are in any way involved with the construction of the Comanche Feak facility.

(see, Third "whereas" in the Settlement Agreement). Because Ms.

Garde, Mr. Roisman, TLPJ and GhP represented the intervenor Citizens Association for Sound Energy (CASE) and most, if not 3

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all, Comanche Peak whistleblowers before the Atomic Safety and Licensing Board (ASLB), NRC staff and 2.206 proceedings, the scope of the gag order is all-encompassing.

Not only was Mr. Macktal prohibited from voluntarily  ;

i appearing as a witness before. on-going NRC licensing hearings and  !

l on-going NRC staff investigations into Comanche Peak. If i subpoenaed to testify, Mr. Macktal would be obligated to work  ;

with Brown & Root's attorneys to "resist" compulsory process. i Likewise, Mr. Roicman, Ms. Garde, GAP and TLPJ were prohibited from ever "inducing" or "suggesting" to the NRC, ASLB or other parties that Mr. Macktal be called as a witness. As such, paragraph 3 of the settlement created actual and potential conflicts of interests between Ms. Garde, Mr. Roisman, and their clients, including CASE and other individual Section 210 complainants.

In short, the settlement Agreement was designed to guarantee that Mr. Macktal would never testify before the NRC about problems he observed at Comanche Peak, including numerous unresolved safety concerns he had not yet had an opportunity to raise with the NRC staff or the ASLB. See, Affidavit, paragraphs 3-5. It also prohibited Ms. Garde and'Mr. Roissan from advising CASE, which they also represented, of Mr. Macktal's testimony, and prohibited their advising CASE to produce him before the ASLB, even if it were in CASE's interest to do so.

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s The settlement agreement threatened the safety of the facility by covering up Mr. Macktal's safety allegations, as well as covering up the arrangement to pay Mr. Macktal money in exchange for silence. This raises serious questions about the character of Texas Utilities and its contractors.

ARGUMENT I. The Macktal Af fidavit Significantly Strengthens CFUR's August 11, 1988 Request In or about early July, 1988 the ASLB learned that the Utility was about to pay $10 million to former opponents of Comanche Peak in eFChange for the dissolution of the ASLB.

Immediately following the announcement of the settlement, allegations of "payoffs" and "hush money" were publicly aired.

The Macktal Affidavit is the first sworn testimony that a whistleblower witness was paid money to keep unresolved safety concerns from the NRC. The Macktal allegatione not only implicate Texas Utilities and Brown & Root, but also implicate the conduct of the attorneys who represent CASE. Specifically, Mr. Macktal alleges that he was pressured into settling his case against his will.

CFUR had no knowledge of the facts herein alleged until September 10, 1988, when they received and reviewed a copy of the September 9, 1988 Macktal affidavit. Because CFUR just learned of the Macktal allegations, CFUR has good cause for late filing.

10 C.F.R. 2.714(a)(1)(i). Additionally, it is the intentional conduct of Texas Utilities, Brown & Root, and attorneys 5

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s representing CASE who overtly kept Mr. Macktal's allegations from the ASLB. (Note: Mr. Roisman and Ms. Garde represented both Mr.

'Macktal and CASE. There is no evidence presently on the record to indicate that CASE knew of or participated in the "settlement" I of Mr. Macktal'3 claims.)

Furthermore, good cause pursuant to 10 C.F.R. 2.712(a)(1)(i) exists for CFUR to be joined as a party to raise the Macktal allegations because all of the existing parties (CASE, the Utility and NRC staff) are incapable of representing Mr. Macktal this matter. In this regard both the Utility and attorneys in i

who represent CASE are implicated in the Macktal allegations, and the NRC staff is alleged to have failed in ito investigation of the allegations Mr. Macktal brought to the staff's attention in 1

1986. See, Affidavit, paragraph 4.

Mr. Macktal's allegations will not "broaden the issues" or "delay" the licensing hearings. 10 C.F.R. 2.714(et(1)(v). All of Mr. Macktal's allegations are covered under the former CASE contentions, which prior to July 13, 1988 would have beers fully l adjudicated by the ASLB.

! Essentially, CFUR and its representatives are taking over the role formerly occupied by CASE 'and its representatives.

CFUR is able to work constructively with new whistleblowers at Comanche Peak and as such CFUR's role in the ASLB proceeding is C,F.R.

essential for the creation of a "sound record." 10 2.714(a)(1)(i). Many whistleblowers still exist and are still l

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. o coming forward with serious unresolved safety allegations. All of these whistleblowers are potential ASLB witnesses and some, like Mr. Macktal, will voluntarily come before the ASLB despite agreements" which prohibit such conduct. Some, of "settlement course, will not be so courageous in risking civil liability by calling attention to such illegal restrictions and will ref use to .

testify about unresolved safety problems at Comanche Peak.

l II. The Public Interest Requtres Public Hearings on the Macktal Allegations over the Comanche Pc k power plant. The A cloud hang s method and manner used by Texas Utilities employees to "settle" the licensing hear ing s resulted in an erosion of public confidence about the safety of Comanche Peak and the regulatory The Macktal allegations heighten this ability of the N RC .

atmosphere of mistrust. Mr. Macktal exposed what the critics of l exchanged for the CASE settlement feared--that money has been reactivization of licensing hearings will silence. Only the l alleviate this cloud.

Additionally, the public health and safety cannot be assured so long as outstanding safety issues remain unaddressed. 2ne ASLB is the only forum where citizens c,an, through the adversary process, hold the management of Comanche Peak accountable fo. the being raised by serious safety allegations which are still whistleblowers. It would i be irresponsible to deny citizens their only opportunity to present evidence regarding plant safety in 7

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light of the serious allegations which have been raised since the dissuiv. tion of the Board.

III. The Reactivization of Licensing Hearings Will Not Disrupt the CASE-Texas Utilities Settlement For whatever reasons, CASE decided to accept a large unprecedented monetary sum for withdrawing its participation in the licensing hearings. CASE's withdrawal, however, did not in fact resolve the contested issues which remained to be adjudicated.

If new hearings are ordered the CASE-Texas Utilities settlement will still be effective. Whatever public benefit may have been achieved by this deal' will still be realized l regardless of whether CFUR's request for intervention is now granted. Under the terms of the ASLB settlement, CASE has essentially become part of Texas Utilities' management team.

j This did not resolve any of the contested safety issues and it i

l certainly did not touch or concern the new allegations raised by 1

i Mr. Macktal (and the other whistleblower allegations that CFUR is i

currently preparing for submission).

The Macktal affidavit highlights the obvious fact that there exist serious unresolved safety issu,es at Comanche Peak. It a

j also highlights the inherent problems which arise when money is offered in exchange for a promise not to participate volunterily before an NRC licensing proceeding.

t IV. Hearings Before an ALSB Must Inquire Into Other Whistleblower Settlements that The Macktal settlement raises a reasonable inference 8

8 other potential CASE witnesses or whistleblowers with unresolved safety concerns may have signed similar agreements. Even if such agreements were not actually signed, these employees may have been led to believe, through direct or indirect means, that they could be sued or otherwise held liable if they contacted the NRC or the ASLB with safety concerns. An ALSB is needed to inquire into the terms of all such settlements and to ascertain the harm such settlements have inflicted on the integrity of the fact-finding process. An ALSB should also consider the possible effects of such agreements in hindering the resolution of safety matters that arise in the future.

Such contracts, settlements, or other understandings violate public policy and NRC regulations. For example, the NRC rule regarding "Protection of Employees Who Provide Information" stated that the "Commission will not permit any interference with communication between the Commission tepresentative and employees...." Vol. 47 Federal Register No. 135 at page 30453

(.7uly 14, 1982) (emphasis added).

Unquestionably, paying an employee money in exchange for not information to the NRC violates this rule.

providing of the problems caused by such a r range ments Rectification requires an ASLB. All whistleblowers or other witnesses known to CASE. or the Utility should be questioned, under oath, before the to determine whether, they have unresolved safety concerns ASLB and, if so, exactly what the unresolved safety concerns are.

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