View source for B13367, Comment on Proposed Rules 10CFR30,40,50,60,70,72 & 150 Re Preserving Free Flow of Info to Commission.Nrc Made Wise Choice to Not Impose Any Obligation on Private Parties to Include Affirmative Statement in Employment Agreements

{{Adams
| number = ML20247R539
| issue date = 09/20/1989
| title = Comment on Proposed Rules 10CFR30,40,50,60,70,72 & 150 Re Preserving Free Flow of Info to Commission.Nrc Made Wise Choice to Not Impose Any Obligation on Private Parties to Include Affirmative Statement in Employment Agreements
| author name = Mroczka E
| author affiliation = CONNECTICUT YANKEE ATOMIC POWER CO., NORTHEAST NUCLEAR ENERGY CO., NORTHEAST UTILITIES
| addressee name = Chilk S
| addressee affiliation = NRC OFFICE OF THE SECRETARY (SECY)
| docket = 05000000, 05000213, 05000245, 05000336, 05000423
| license number = 
| contact person = 
| case reference number = FRN-54FR30049, RULE-PR-150, RULE-PR-30, RULE-PR-40, RULE-PR-50, RULE-PR-60, RULE-PR-70, RULE-PR-72
| document report number = 54FR30049-00037, 54FR30049-37, AD21-2-42, B13367, NUDOCS 8909290278
| document type = LEGAL TRANSCRIPTS &amp; ORDERS &amp; PLEADINGS, PUBLIC COMMENTS ON PROPOSED RULES &amp; PETITIONS FOR
| page count = 5
}}

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HARTFORD, CONNECTICUT 06141-0270 (203) 665-5000
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50-245 50-336 50-423 B13367 Re: 54FR30049 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch Haddam Neck Plant Millstone Nuclear Power Station, Unit Nos.1, 2, and 3 Comments on Proposed Rulemaking--Preserving the Free Flow of Information to the Commission

==Dear Mr. Chilk:==

In accordance with the Commission's request for comments in the above-captioned notice, Northeast Utilities (NU) on behalf of the Haddam Neck Plant and Millstone Nuclear Power Station, Unit Nos.1, 2, and 3 hereby submits the following comments on the proposed regulation. We would like to say at the outset, that we, like NUMARC, support the concept of full and timely dis-closure to the Commission of safety concerns. And, we fully agree that the Commission must zealously guard against impediments to the " full and candid disclosure to the Nuclear Regulatory Commission about nuclear safety matters."
We understand the Commission's specific concern that contracts not impede the free flow of information to the Commission. We suggest that any rule directed to the issues now confronting the Commission take into account certain compet-ing concerns g additional objectives, and to that end we provide the follow-ing comments.
1 (1) NUMARC has advanced reasons as to why the proposed rule is not necessary, in addition to suggesting ways in which a rule on this subject could be                                                                                                              -
crafted to address its concerns. We offer these comments in the event a rule is promulgated.
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U.S. Nuclear Regulatory Comission B13367/Page 2 September 20, 1989 I. Ensuring Free and Open Access to the Commission While Ensurina Finality to Settlement Aareements The goal of the proposed rule is to ensure the. free flow to the Commission of information regarding matters of nuclear safety. This goal does not necessar-       ,
11y conflict with the . objectives of employment agreements generally, and Section 210 settlement agreements specifically. Most employment agreements (e.g., contracts of hire, collective bargaining agreements) historically have not incorporated, and have no reason to incorporate, any provision regarding either party's ability to raise nuclear safety concerns with any person or entity. Employers entering Section 210 settlement agreements, on the other hand, have a legitimate interest in ensuring that the case they are settling is indeed over. Employers have a valid interest in obtaining some guarantee that an employee, having once reported nuclear safety concerns to the Commis-sion and having based a Section 210 action before the Department of Labor on that activity, does not attempt to employ those concerns to obtain some sort of " leverage" over the employer. But we have no objection to a complainant, having once settled a Section 210 action, bringing additional safety concerns to the Commission's attention. Once a matter is reported, however, then settlement agreements should be able to limit further treatment of the issue in prescribed circumstances.
Any   rule should also make clear that a settlement agreement may limit agues of communication to forums other than the Commission, such as the media Thus, in answer to the Commission's question as to whether a rule should prohinit all restrictions on providing information to the Commission, or whether some restrictions might be appropriate, we believe that a rule should allow the limited restrictions discussed above.
II. Need for An Affirmative Statement in Employment Aareements The Commission also poses the question whether the proposed rule should
        " impose an additional requirement that licensees and license applicants must ensure that all agreements affecting employment, including those of their contractors or subcontractors, contain a provision stating that the agreement       ]
in no way restricts the employee from providing safety information to the Commission." We note that the Commission itself has deemed that such a                i provision is unnecessary to achieve the objectives of the rule, and we agree with that assessment. However, while this may not necessarily be an appro-priate part of a rule, individual utilities may, of course, choose to put such affirmative statements into settlement agreements.
(2) We recognize that nonnuclear safety concerns can arise, and we in no way imply that a settlement agreement may limit an employee's ability to raise such concerns to the appropriate governmental agency (ga OSHA).
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U.S. Nuclear Regulatory Commission B13367/Page 3 September 20, 1989 The proposed affirmative statement is unnecessary for the following reasons.
First, employees already are fully notified of their right to bring safety concerns to the attention of the Commission (e.g., Form NRC-3).
Second, the suggested affirmative statement would apply to "all agreements affecting employment." Presumably, this provision would apply only to written contracts, not oral agreements regarding wages, hours, or other terms and conditions of employment. Nevertheless, we agree with NUMARC that the sug-gested statement is too broad, as it would literally encompass agreements (such as collective bargaining agreements, bids by contractors and subcon-tractors, and pension plans) in which neither party would, in the usual course of events, have any reason to include such a statement, or to think applicable to the raising of safety concerns.
In summary, we believe the Commission has made the wiser choice to not impose any obligation on private parties. to include an affirmative statement in employment agreements.
III. Detailed Analysis of the Proposed Rule's Provisions The proposed rule would add language to 10 CFR Sections 30.7, 40.7, 50.7, 60.9, 70.7, and 72.10 providing:
Each licensee and applicant for a Commission license shall assure                                                                                                       1 that neither they nor their contractors or subcontractors impose, as a condition of Lny aareement affectina the compensation, terms.
conditions. and orivileaes of employment, including an agreement to settle a complaint filed by an employee pursuant to Section 210
            ...any orovision that would prohibit. restrict. or otherwise dis-couraoe. an emnloyee from voluntarily Drovidina to any person within the Commission information about possible violations of requirements imposed under the Atomic Energy Act or the Energy Reorganization Act, and NRC regulations, orders, and licenses.
A.    "Any agreement affecting the terms, conditions, and privileges of employ-ment."
We agree with NUMARC that the proposed rule's application to all agreements "affecting the terms, conditions, and privileges of employment" is too broad.
There is little reason why the rule should not be limited to agreement:;
between employer and employee resulting from a dispute that in some way directly concerns nuclear safety matters. Section 210 settlement agreements, the type of contract that is the impetus for the proposed rule, fall within this category.                                                                                                                                                              .
B.    "Any provision which would prohibit, restrict, or otherwise discourage, l           an employee    from voluntarily providing to any person within the Commission information about possible violations..."
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U.S. Nuclear Regulatory Commission B13367/Page 4                -
September 20, 1989 I
We believe that the language quoted should be revised for consistency with the    .
suggestions outlined in Section I of our comments.                                l I
C. Application to Contractors and Subcontractors
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We support the concept that licensees need to be informed of Section 210 complaints filed against contractors or subcontractors [and indeed have taken steps to bring this matter to their attention). However, we agree with NUMARC that this is too onerous an obligation to place on licensees via rulemaking. Regarding the obligation of licensees to ensure that its contrac-tors or subcontractors are informed of the rule's requirements, ue share NUMARC's concern that compliance with this requirement, and the other require-ments suggested by subsection (2) of the proposed rule, is unduly burdensome by virtue of the fact that licensees may engage thousands of contractors and subcontractors.
Similarly, with respect to imposing an obligation on licensees to perform prior review of settlement agreements proposed by contractors or subcontrec-tors, we agree with NUMARC that this provision goes too far. The obligation would be overly burdensome in the case of licensees that employ large numbers of contractors and subcontractors. In addition, contractors and subcontrac-tors have a legitimate interest in maintaining the confidentiality of all employment agreements, particularly settlement agreements.
IV. Conclusion In conclusion, NU believes that, if a rule is promulgated, it can be crafted to support the Commission's goal of full and open access, without undermining the appropriateness of settlement agreements. As the Commission notes, public policy favors such agreements, since they " provide remedies to employees without the need for litigation." As a practical matter, however, settlement agreements are not attractive if, beyond the public policy goals of regulatory pursuit of safety, they cannot preserve a company's right to take reasonable measures toward protecting itself from repetitive             legal actions and unwarranted denigration of the company and its employees in the public media.
We trust that the Staff finds these comments combined with those of NUMARC are useful in the finalization of the proposed rule.
Very truly yours, CONNECTICUT YANKEE ATOMIC POWER COMPANY NORTHEAST NUCLEAR ENERGY COMPANY E.J.Mpffczka~    //
                                                                     ~/
Senior Vice Presidlnt

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l         U.S. Nuclear Regulatory Comission B13367/Page 5-t!        September 20, 1989 cc: Document Control Desk W. T. Russell, Region I Administrator M. L. Boyle, NRC Project Manager, Millstone Unit No.1 G. S.-Vissing, NRC Project Manager, Millstone Unit No. 2 D. H. Jaffe, NRC Project Maneger, Millstone Unit No. 3 A. B.' Wang, NRC Project Manager, Haddam Neck Plant W. J. Raymond, Senior Resident Inspector, Millstone Unit Nos. 1, 2, and 3 J. T. Shedlosky, Senior Resident Inspector, Haddam Neck Plant                                                                                                                         1
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