ML20028E890

Motion to Confirm That R Combs,L Smith & Fr Harrell Are Covered Under Law Protecting Whistleblowers.Interrogation or Discussion of Individual Concerns Should Be Done Through Discovery.Certificate of Svc Encl.Related Correspondence

ML20028E890
Person / Time
Site:	Comanche Peak
Issue date:	01/24/1983
From:	Ellis J Citizens Association for Sound Energy
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20028E876	List: ML20028E874 ML20028E878 ML20028E886 ML20028E890
References
NUDOCS 8301280262
Download: ML20028E890 (9)

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1/24/83 DNITED STATES OF AMERICA cg"E4E0 NUCLEAR REGULATORY COMMISSION "

BEFORE THE ATOMIC SAFETY AtlD_ LICENSING BOARD __

.g yg 27 P1 M2 in the Matter of

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APPLICATION OF TEXAS UTILITIES Docket Nos. 50-445 GEllERATING COMPAtlY, ET AL.'r'R I I

and 50-446 All OPERATING LICENSE FOR COMANCHE PEAK STEAM ELECTRIC I' STATION UtlITS #1 AND #Z (CPSES) -

g CASE'S MOTION FOR, PRO ~ECTIVE ORDERS FOR ROY COMBS, LESTE3 SMITH, AND FRE0DY RAY HARRELL Pursuant to 2.740(c) CASE (cf.tizens Associatior.. for Sound Energy), Intervenor herein, files this, its Motion for Protective Orders for Roy Combs, Lester Smith, and Freddy Ray Harrell. -

BACKGROUND On 1/11/83, CASE filed its ' Motion for Leave to File Response and its Written Argument on Issues before the Appeal Board in these proceedings. Attached to ou.' Written Argument on Issues were Affidavits by Roy Keith Combs which included some specific concerns which he had regarding construction at Comanche Peak.I On 1/19/83, Roy Combs was called idto the office of Applicants' Antonio Vega, who went over Mr. Cembs' affidavit with nim. This was continued on 1/20/83 and Mr. Combs was asked by Mr. Vega to identify the specific items of.-concern (hangers and piping). Mr. Combs was told that he woyld hither identify the sp,ecific items Friday morning,1/21/83, or he would be fired. 0.1 the advice of his attorney in order to protect his job, Mr. Combs did reveal the locations of the items in question and took Applicants' representative., to the items in question (those I

See CASE Attachments 5 and 6 to CASE's 1/11/83 Written Argument on Issues.

8301280262 830124 PDR ADOCK 05000 0

which were still there). They were accompanied by a representative from the

'egion 'IV tlRC office. Since CASE is not represented by an attorney in these proceedings, we put Mr. Combs in touch with a Washington-based private organiza-tion, the Government Accountability Project, or GAP as it's known. This organiza-tion has been active in assisting whistleblowers and agreed to assist in this particular instance on an emergency basis. It should be noted that tne NRC representative accompanied Mr. Combs and Applicants' representatives following:

a telephone call by GAP to NRC Region IV representatives on 1/20/83 urging that the NRC be present (the Region IV representative indicated that they would be glad to talk to Mr. Combs if'he would come in to see them); a telephone call 1/21/83 from GAP to the office of Roger Fortuna (whose title, we believe, is Acting Deputy Director, NRC Office of Investigation, in Washington, D.C.); a telephone call to GAP from Region IV's Donald Driskill stating that following GAP's call i

to Washington the Region IV office had an emergency meeting and decided that since there was so much going on at Comanche Peak, they should get someone right down there. Brooks Griffin, a new Region IV investigator, accompanied Mr. Combs and Applicants' several representatives.

It should also be noted that Mr. Vega refused Mr. Combs' request to have CASE's representative accompany him. He was therefore without either legal representation or representation oy CASE while he was being interrogated and tape-recorded by Mr. Vega, as well as during the plant tour where he pointed out the problem areas with which he was concerned. Since Mr. Combs is a potential 2

CASE witness and a whistleblower, CASE is very concerned about preserving both his job and his rights, and we believe that the actions of both Applicants and 2 See CASE Attachment 6 to CASE's 1/11/83 Written Argument on Issues.

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...c_ _ _ __ _ - _ __ . . _ . _ . _ _. . . _ _ _ _ _ _ . _ - __. -

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! NRC Staff were questionable at best in this instance. (It should also be

] noted that the NRC's Mr. Griffin told Mr. Combs that he wasn't sure that Mr.

! Combs was covered under the protection for whistleblowers3 .) We would appreciate clarification from the Board regarding whether or not Applicants' actions con-j stituted illegal discovery since Mr. Combs will probably be a CASE witness in i

these proceedings and notification of that fact was included in the affidavit by Mr. Combs about which Applicants were interrogating Mr. Combs. We would

also appreciate clarification for Mr. Combs' peace of mind regarding whether or not he is covered under the protection for whistleblowers (see footnote 3)

by reason of the fact that he presented his concerns through CASE to the Atomic l Safety and Licensing Board (with copies to the NRC Staff and the Region IV NRC Administrator).4 On 1/23/83, CASE prepared under the direction' of Lester Smith the attached Affidavit indicating Mr. Smith's concerns regarding construction at Comanche Peak and stating that he will testify if he is allowed to in the operating-license proceedings for Comanche Peak. Mr. Smith also indicates in his Affi-davit that his son-in-law, Freddy Ray Harrell, can confirm some of the things j Mr. Smith has stated and that Mr. Harrell will also testify in the hearings if he is allowed to do so. CASE has spoken by pnone with Mr. Harrell and he has confinned Mr. Smith's statements as made in his Affidavit, and we will l

be preparing and forwarding to the Board in the near future an Affidavit by Mr. Harrell. ,

CASE is very much concerned that the same thing which happened to Mr. .

4 3

, See NRC Fonn 3 (6-82) and FEDERAL REGISTER, Vol. 47, No. '135, July 14,1982, Final Rule on Protection of Employe,es Who Provide Information, FR pages 30453-30459.

4 It appears that the concerns of Mr. Combs have been addressed now to h'is satis- +

faction, although CASE has not had a chance to talk at length with him in this

! regard. His testimony is expected to deal primarily with the NRC's handling of -

, allegations, regarding which the Board has indicated in its 1/4/83 Memorandum j and Order that furthnr ovidenco will ba requirnd.

e Combs may also happen to Messrs. Smith and Harrell and other future whistle-blower /wi tnesses. We therefore request that the Board imediately confirm that Messrs. Combs, Smith, and Harrell are covered under the protection for whistleblowers (see Footnote 3).

We further request that any future interrogation or discussion of these individuals' concerns with Applicants be done only under the provisions' of discovery as set forth by the Board in these proceedings, and that any future interrogation or discussion of these individuals' concerns with the NRC Staff be done only with CASE present. We further request that both Applicants and NRC Staff be cautioned against intimidating, coercing, or discriminating against these individuals and any future whistleblower/ witnesses who come forward.

In addition, we request that the Board rule that whistleblowers/ witnesses not be required to provide Applicants or the Region IV NRC personnel with the numbers of pipe supports, hangers, etc. (such as those of concern to Mr. Combs),

until such time as the questions regarding the NRC's ability and/or desire to adequately investigate allegations by whistleblowers have been answered5 ,

CASE believes this is necessary to be certain that allegations are investigated fully and proper corrective and enforcement action is taken if required, in view of the evidence already in the record in these proceedings which indicates that the possibility exists for these concerns to be covered up if Applicants and/or NRC investigators are given the specific numbers of hangert, etc.

And finally, we request that the Board rule that no discovery be had by any party until at least after the filing of the preliminary Findings of Fact which are to be in th'e hands of the Board by February 25. CASE is trying very ,

5 The Board has indicated in its 1/4/83 Memorandum and Order that further evidence will be required in.this regard. ,

y out its responsibilities as an Intervenor and comply with the Os tle- fline in this regard. However, as we have previously indicated6 ,

71rm ring under the additional burden of having to deal with whistleblowers 0 for al witnesses who are coming to CASE rather than the NRC direct be-l

.no longer have any confidence in the NRC's ability and/or willingness these ily inve::tigate allegations and to protect whistleblowers and potential i

4 of We are working diligently, juggling these two important responsi-

' future best we can with the limited resources we have available.7 g, gjjj Staff complete the preliminary Findings of Fact as ordered by the Board i

e and $line set forth (hopefully without finding it necessary to request l '

0 against jtime to complete them). However, were we to be faced with the addi-7d. den at this time of having to deal with discovery matters (either by 1

2nesses d to CASE or our witnesses), we would simply be unable to successfully I ~

th the 11 the undertakings in the same time span. (This is especially true Combs), ave recently had to spend a lot of time on pleadings regarding the i

re to ow Cause Order against the NRC Staff and the Staff's Appeal of that And we also believe that we will have even more whistleblower/

itigated

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come fonvard in the imediate future. We will need time to meet i

in ascertain what their concerns are which are pertinent to these

!dicates js, decide whether or not we will request that ti,ey be allowed to cants t tc .

cially page 4 of CASE's 1/11/83 Written Argument on Issues before b'al Board in these proceedings.

rd may have already noted the fact that the Affidavits of both Mr.

Fact nd Mr. Smith were dated on Sundays.

E's 12/21/82 Brief in Opposition to the NRC Staff's Exceptions to the 0 very Safety and Licensing Board's Order Denying Reconsideration of September 2; CASE's 1/11/83 Motion for Leave to File Response; CASE's 1/11/83 P evidence Argument on Issues; and CASE's pleading which is to be filed with the Board on 1/26/83.

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It should be noted that both Mr. Corrbs and Mr. Smith stated in their affidavits that they had just become aware that there was any protection avail-able for whistleblowers to prevent th.eir being fired or at least that there was redress available through the Department of Labor if they were fired for engaging in a protected activity. They both further stated that NRC Form 3 (see Footnote 3) was not posted at Comanche Peak as reqaired by NRC regulations as far as they knew. Nr. Combs has now confirmed this verbally to CASE, and stated that when ne asked NRC investigator Brooks Griffin if Mr. Gr{ "lin saw the NRC Form 3 notice posted at Comanche Peak, Mr. Griffin replied that helhad not except in the office. This is clearly not in compliance with what is stated very plainly on the form:

" POSTING REQUIREMENTS Copies of this notice must be posted in a sufficient number of places in every establishment where activities licensed by the NRC are conducted, to permit employees to observe a copy on the way to or from their place of employment." (Emphases added.)

Although, under the present circumstances, CASE .is concerned about the fact that the NRC Fonn 3 notice indicates that the Region IV NRC office should be contacted by employees "who wish to register complaints or concerns about radio-logical working conditions or other matters regarding compliance with Commission rules and regulations," we are nonetheless convinced that the notices must be posted inmediately so that future whistleblowers/ witnesses will at least know what their rights are and that they have redress available through the Department of Labo_r_. We are not certain of the Licensing Board's authority in this matter,

, but would appreciate anything the Board can do to expedite the posting of' these notices as required by NRC regulations, such as ordering that the NRC Staff see to it that the notices are posted immediately and kept posted by Applicants.

All of the matters we have discussed here are very important and deserve adequate attention, including adequate time for this Intervenor to accomplish O

o the tasks at hand. This is necessary to assure that a fair d.ecision, based on a sound and complete evidentiary record, can be made in these proceedings.

Further, the requests we are making are all within the power of the presiding officer (it appears to CASE) under 2.740(c) and 2.718.

MOTIO!1S For the reasons stated herein, CASE hereby moves that the Licensing Board:

1. Confinn that whistleblowers/ witnesses who report their concerns to the Atomic Safety and Licensing Board and other NRC personnel through CASE (as Messrs. Combs and Smith have done) are covered undc.r the protection for whistleblowers (see Footnote 3);

2. Order Applicants to cease and desist further interrogation of Mr.

Combs except under the provisions of discovery as set forth by the Board in these proceedings;

3. Order that any future interrogation or discussion of the concerns of Messrs. Combs, Smith, and Harrell with the NRC Staff be done only with CASE present;

4. Caution both Applicants and flRC Staff against intimidating, coercing, or discriminating against Messrs. Combs, Smith, and Harrell and any future whistleblowers/ witnesses who come forward;

5. Clarify whether or not Applicants' actions in interrogating and tape-recording Mr. Combs constituted illegal discovery against an identified potential CASE witness; and take whatever action may be appropriate;

6. Rule that whistleblowers/ witnesses not be required to provide Applicants or Region IV NRC personnel with the numbers of pipe supports, hangers, etc. (such as those of concern to Mr. Combs).until such time as the questions regarding the NRC's ability and/or desire to adequately

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investigate allegations by whistleblowers have been answered and there is assurance that no possibility exists for conc ~ erns which are raised to be covered up;

7. Rule that no discovery be had by any party until at least after the filing of the preliminary Findings of Fact which must be in the hands of the Board by February 25, and until such time as the Board shall set forth; and

8. Order that the tiRC Staff see to it that copies of NRC Form 3 notices are posted in a sufficient number of places at Comanche Peak to pemit employees to observe a copy on the way to or from their place of employment, as required by NRC regulations but not enforced by the NRC in regard to Comanche Peak. We further request that the Board order this to be done imediately, by a date certain, under penalty of sanctions if necessary, and that the NRC see to it that the notices are kept posted on a continuous basis.

Respectfully submitted, d ND Bfirs.) Juanita Ellis, President CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446

.o N . . . -

1. f;f LINITFD STATES OF AMERICA NUCLEAR REGULA10RY COMMISS10N , g 2-l P1N BEFORE THE ATOMIC SAFETY AND 11 CENSING _ BOARD .

In the Matter of I p,u p%Mct cg APPLICATION OF TEXAS UTILITIES i Docket Nos. 50-445 GENERATING COMPANY, ET AL, FOR I and 50-446 AN OPERATING LICENSE FOR l COMANCHE PEAK STEAM ELECTRIC (

STATION UNITS #1 AND'#2 (CPSES) l CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE's Motion for Protective Orders for Roy Combs, Lester Smith, and Freddy ~ _

May llarrell have been sent to the names listed below this 24th day of January , 198_3__

by: Express Mail where indicated by

• and First Cla,ss Mail elsewhere.

• Administrative Judge Marshall E. Miller

• Alan S. Rosenthal, Esq., Chairman U. S. Nuclear Regulatory Comission Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U. S. Nuclear Regulatory Comission Washington, D. C. 20555 Washington, D. C. 20555

• Dr. Kenneth A. McCollom, Dean *De. W. Reed Johnson, Member Division of Engineering, Architecture. Atomic Safety and Licensing Appeal Board and Technology U. S. Nuclear Regulatory Commission Oklahoma State University Washington, D. C. 20555 Stillwater, Oklahoma 74074

• Thomas S. Moore, Esq., Member

• Dr. Richard Cole, Member Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Comission Washington, D. C. 20555 Washington, D. C. 20555 Atomic Safety and Licensing Appeal Panel Nicholas S. Reynolds, Esq. U. S. Nuclear Regulatory Comission Debevoise & Liberman Washington, D. C. 20555 1200 - 17th St., N. W. -

Washington, D. C. 20036 Dccketing and Service Section- l Office of the Secretary Marjorie Ulman Rothschild, Esq. U. S. Nuclear Regulatory Comission Office of Executive Legal Director Washington, D. C. 20555 U. S. Nuclear Regulatory Comission Washington, D. C. 20555 *Ms. Lucinda Minton, Law Clerk Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U. S. Nuclear Regulatory Comiss' ion Panel Washington, D. C. 20555 U. S. Nuclear Regulatory Comission Washington, D. C. 20555 David J. Preister, Esq. .

Assistant Attorney General O

\/m A hA ' ,

Environmental Protection Division P. O. Box 12548, Capitol Statidn -

p)rs) Juanita EFlis, President Austin, Texas 78711 '

RASE (Cit gsso tion for John Collins, Regional Administratdr, Region IV, US NRC, Arlington, TT 76011

.